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History Matters
The Salt Lake Tribune Arch
Many Utahns Can Boast of 'Convict' Kin
Will Bagley
Published: 08/26/2001 Edition: Final Section: Utah Page: B1

Along with Australia, Utah is one of the few places where having convict ancestors is a badge of honor.Modern-day polygamist Tom Green was sentenced Friday to prison for up to five years. It is interesting to compare the sentences our polygamist progenitors received. Although polygamy had been against the law in Utah since the United States acquired it in 1848 (first due to Mexican law and after 1862 based on the Morrill Act), Utah Territory's first polygamy trial didn't take place until 1871.

Ironically, Federal Judge James B. McKean's court convicted Thomas Hawkins not of polygamy but of violating an 1851 territorial statute outlawing adultery. Hawkins was sentenced to three years at hard labor. This involved making big rocks into little ones at the territorial penitentiary. Frontier prison conditions were such that by comparison Green's five years in Utah's Iron Bar Motel will be a vacation.

McKean next indicted the LDS Church's First Presidency Brigham Young, Daniel Wells and George Q. Cannon. McKean said that although the case was called The People vs. Brigham Young, "its other and real title is Federal Authority versus Polygamic Theocracy." As McKean's statement reveals, the issue wasn't morality but politics. 'Twas ever thus, and it still may be. Of these three leaders, only Deseret News editor Cannon ever went to prison, where he posed in prison pajamas with hundreds of his fellow much-married colleagues, creating a gallery of images that are now treasured in the homes of thousands of Utah's families.

It turned out that proving polygamous marriage back then was almost impossible. Rather than enforce the Morrill Act, which made bigamy punishable by a $500 fine and up to five years in prison, federal prosecutors used a Utah law banning "lewd and lascivious cohabitation." This statute carried a sentence of six months and was the punishment handed out to most pioneer polygamists. Of course, some Utahns, like George Brown Bailey, proved to be cohabitation addicts and served multiple sentences. Bailey made three separate extended visits to the penitentiary at what is now Sugar House Park. He would have served another term had not Judge Charles Zane thrown him out of his court on Bailey's fourth appearance before the bench.

Prominent Latter-day Saints who challenged anti-polygamy laws in test cases tended to lose and lose big. George Reynolds, whose case became the foundation of much American law when the Supreme Court ruled that the Constitution protected religious beliefs but not practices, received two years' hard labor. Apostle Lorenzo Snow served eleven months. Rudger Clawson, later an apostle, was sentenced to four years for multiple offenses.

Utah history indicates that prosecuting people for their religious practices, however strange, doesn't stop the practices and provides such believers with martyrs and an aggrieved sense of persecution. Prosecuting criminals for statutory rape and defrauding the government, as what is happening today, is a better alternative, since it is hard to make a hero out of a child molester or a welfare cheat. "I suppose the ultimate irony is that a man who descends from polygamy would be the prosecutor in this case," said Juab County Attorney David Leavitt. "My genealogy isn't at issue."

But the Leavitt family has some interesting genealogy. Leavitt plans to try Green for child rape, which also involves some irony. In 1860, a 14-year-old Utah native named Janet Smith moved into the home of patriarch Dudley Leavitt, great-grandfather to David Leavitt and his brother, Governor Mike Leavitt. Their first child was born the following spring.

Historian Will Bagley is a descendant of convicts George Brown Bailey and John Walton Price.

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