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In Another Time
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Crime And Punishment
Settlers Relied On Ostracism, Whipping To Curb Lawlessness
Hal Schindler
Published: 05/28/1995 Category: Features Page: J1

In the earliest days of frontier settlement--before proper courts could be established--maintaining law and order was a mite touchy. Border towns and railheads of the 1860s and '70s answered with town-tamers and lynch laws, but for Mormons of Great Salt Lake City in the late 1840s, options were pretty much limited to public whipping and ostracism from the church community--or both.

After the initial explosion of immigrants in Great Salt Lake Valley in 1847, Brigham Young returned to Winter Quarters in Nebraska for the thousands of church members preparing to trek to their new mountain home. While he was gone, a High Council was named to govern in his absence. Its members: Henry Sherwood; Thomas Groves; Levi Jackman; John Murdock; Daniel Spencer; Lewis Abbott; Ira Eldredge; Edson Whipple; Shadrach Roundy; John Vance; Willard Snow; A.O. Smoot, all under the leadership of John Smith, uncle of the martyred Mormon prophet Joseph Smith. C.C. Rich and John Young, Brigham's eldest brother, were counselors to Smith. The council did what it could to hold things together.

Because all but a very few of the settlers were Mormons, minor violations of common law were punished by disfellowshipment from the church, a sentence tantamount to ostracism in the pioneer society. Being cut from the church community was a serious matter since survival during those early times depended on harmony and mutual cooperation.

Five so-called Bishop's Courts handled most disputes, since they were primarily courts of arbitration, designed to settle differences without complicated recourse to civil courts that would organize later. The High Council also took responsibility for regulation of trade with Indians, location of a city cemetery, granting of the first divorce and authorizing the purchase of mountaineer Miles Goodyear's trading post on the Ogden River.

Among the first cases to confront the High Council was that of five young Mormon Battalion men who were charged with "unbecoming and demoralizing conduct." John D. Lee noted "four of the soldier boys cut a Spanish Rusty" at a party in Cottonwood Canyon--riding there and back each with a young lady sitting in the saddle in front, and the rider with his arms around the woman. (Shockingly outrageous behavior in those times.) The fifth man was riding along "sawing on a violin." They stayed all night and came home the same way, according to Lee.

The council fined each of the four $25. The incident was the subject of sermons in church the following Sunday by Amasa Lyman and Erastus Snow, who decried such carryings-on and the unwanted introduction by battalion veterans of other "savage Spanish customs." The miscreants were disfellowshiped by unanimous vote of the congregation. After a suitable period (and payment of the fines), the contrite hellions usually were reinstated.

However, as Great Salt Lake City burgeoned and lawbreaking increased, it became obvious that stricter measures were needed. Though the settlement was a church community for at least a decade after its founding, it was not entirely free of rascality and legal clashes. Hosea Stout, for instance, who became a prominent lawyer in Utah Territory, had more than enough work, if his journal is any indication.

Still, before the town had a jail and before the State of Deseret, as the pioneers called their new home, had time to seat judges, the occasional malefactor still had to be dealt with. As in the matter of an unidentified offender who was found guilty of stealing another man's lariat. None of the diarists mention his name, but it was the judgment of the High Council (Brigham Young was still at Winter Quarters) that he pay a fine of $10 or suffer ten lashes.

Yes, the council had authorized use of public whipping in the hope of dissuading lawbreakers. The possibility of being flogged in public had been sufficient until then to persuade offenders to pay fines. Not this time. The punishment was to be administered at the city's bell post, used to summon townspeople for announcements or emergencies.

John Nebeker, recently named public complainer (a sort of early city prosecutor), was responsible for carrying out the sentence, and he was decidedly uncomfortable in his job. It was not in his nature to whip folks. The defendant's refusal to part with the fine brought no end of consternation to Nebeker, whose heart just wasn't into being official whipper. He offered to help the man with the fine. "No!" He pleaded with him to accept a loan. "No!" once again.

"I proceeded to tie him to the bell post, but he refused that as well," Nebeker wrote in his journal. "He said it was not part of the council's decision." C.C. Rich, a council member who had been instructed to see the sentence was carried out, was consulted by an agitated Nebeker. It was Rich's opinion that if the defendant did not want to be tied it was his right to choose for himself, "inasmuch as he said he would stand while being whipped." That settled, the defendant then was told to strip to the waist.

"No!" Not part of the decision, the man insisted. This time Rich overruled; the man's shirt was removed and--an unenthusiastic public complainer laid on ten lashes. The records are silent on the result, but the whipping post did not last as a punishment.

Then, of course, there was the matter of Ira E. West, who was fined $100 and disfellowshiped for "lying, stealing and swindling." Whatever West's precise crime seems not to have been made public or even discussed in private journals. But it was foul enough to have raised the question of a death sentence. In a meeting of church authorities in March 1849, at which Brigham Young was present, John D. Lee reported, "Some were of the opinion that to execute [West] publickly--would not be safe. But to dispose of him privately would be the most practicable and would result in the greatest good."

After much debate, it was decided to put West in chains and on March 12, the day of an election of officers for the Mormon State of Deseret, he would be offered for sale to the highest bidder, handed over to anyone who would pay his fine and take him until he had worked off the debt. Hosea Stout commented in his journal for that day, "No one took him and for awhile the prospect was fair for him to lose his head." At what seemed the last moment, West's brother came to his rescue and posted the fine. Ira West is not mentioned again in the chronicles; it would seem that he took the experience to heart.

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