One of my family’s favorite family history personalities is Byron W. Brown. He spent his early childhood in Kirtland, OH, then emigrated to Utah, then helped shepherd subsequent wagon trains. There are wild stories of his buffalo wrangling adventures and suspense-filled stories of his participation in Utah’s Black Hawk War. One reason we have such copious information about him, compared to others in our family of that time, is that he had ample free time to write while he served out a federal sentence for perjury.
During the late 1880s, when the federal government was very active in prosecuting polygamists, Brown attempted to get himself seated on a federal grand jury. Brown was never himself a polygamist, but as a devoted member of the church he could try to ensure a sympathetic voice was present on the grand jury. As part of jury selection, he was asked if he believed in polygamy, and he said that he did not. This resulted in him being tried for perjury, where in his defense he said that he had a knowledge, not mere belief, that polygamy was a true principle. He was convicted and sentenced to three years in prison and a $1000 fine. After serving 16 months, a new US President took office and pardoned him. His own account of the events is as follows:
About this time it was thought best to select some good reliable men and try and get them on the grand jury, so that our bretherin would not be indited on more than one charge at a time. So I was asked if I would go and try and get on a grand jury.
So I finally agreed that I would go, altho I did not like to go because I knew I should have to say I did not believe in poligamy. But I maintained that believeing and knowing was too different things and I knew that it was a correct principle and I did not believe it. So I went and when the attorney asked me if I believed in poligamy I said no, but the judge, jury and all was against the saints, and they wer deturmined to convict all those that belonged to the Mormon Church. So I was chalenged of and did not set as a juror.
When I came home, some of the people thought it was awful for me to say that I did not believe in poligamy. And one evening while I was visiting around as a teacher, Joseph Emfy said how could you say that you did not believe in poligamy, and I said knowing and believing was two different things. So he, Emfy, went and told some apostates what I had said. So David Evans, a son of Bishop David Evans, went to work and had me indited for purgery and had me arested and tride and as the judge and jury was all against the Saints, of course I was convicted and sentenced to serve three years in the penitentiary and pay one thousand dollars fine. This took place in the fall of 1888.
We appealed the case and took it to the Supream Court of the Territory (it had not become a state at that time) and the judges wer all appointed by the President of the United States, and Grover Cleveland was a rank democrat and all the judges and U.S. marshalls wer doing all they could to hurt the Mormons. So the Supream court affirmed the decision of the lower court. So on the 26 of March 1889, I went to the penitentary and comenced to serve out my sentence of 3 years.
I, however, served 16 months and 6 days. At the expiration of that time President Cleveland’s term of office had expired and a Republican president had been elected in his sted. And so soon as my case could be got before him, he telegraphed me out and I came out on the first day of August. It was my birthday also. … My brother O.C. Brown came up to the peniteintary with his buggy and took me to S.L. City, and at his house, my wife was in waiting for me. I tell you we wer a happy couple.
This is the story as my family has known it for years. It has amused me when Bloggernacle debates of using “I know” vs “I believe” in Testimony Meeting flare up, because I want to say, “Don’t you know that the federal courts have ruled that there is no difference!”
However, I have recently found that Utah Territory Supreme Court Justice Judd saw the case slightly differently. Mormon History buff Ardis Parshall of Keepapitchinin turned up source documents about this story that my family had not seen before. In particular, the Utah Digital Newspapers archives contain several stories about Brown’s trial that were carried in the Deseret News, Provo Daily Enquirer, Ogden Standard and Utah Journal. Justice Judd, as recorded in the Provo Daily Enquirer (22 February, 1889; emphasis added):
…when he [Brown] was approached reprovingly by members of his church for giving the testimony he did, he asserted a belief contrary to his testimony, and undertook to explain that it was past belief and was actual knowledge. It is unnecessary for us to consider this claim, for he testified that “he believed it was wrong,” and the jury was justified in finding that he had made the claim in bad faith.
So, alas, it appears I can no longer claim that the know/believe distinction has been litigated in federal courts. But I am finding it very interesting how closely these events coincide with concepts being discussed in the first two posts of Brad and Daymon’s series on Correlation. In particular, the notions of court intrusion into the mind, questions of what constitutes religiosity–belief in the mind or bodily practice, the degree to which deception can be morally acceptable, an environment where statements to friends can make their way to spies and lead to criminal prosecution, and back-and-forth about standards of evidence are all in play in this story. In making these connections, I found especially fascinating a contemporary editorial from the Ogden [Semi-Weekly] Standard (27 February 1889). The editorial strongly objects to Brown’s conviction and mounts a defense of the mind as a space untouchable, even unreachable, by courts of law:
Now the condition of a man’s mind is incontestably his own property and can only be reached outwardly by means of some solemn conjuration by means of which his conscience is appealed to; when no such conjuration is placed upon him he does not perjure himself when he speaks falsely, he merely lies, and this per se the law does not punish. The great question then is, considered legally, was every presumption in favor of the defendant employed in the case? If he had sworn to both statements, it would be perjury; but does not swearing to one and not to the other leave the matter in a doubtful situation? Can a jury properly say, when the law is fairly given to them, that the facts which Brown testified to under oath were not true, when not opposed with anything more than mere statements? How could they tell on which occasion he lied?
This vigorous defense of Brown’s lying stands in contrast to the fact that Brown “was approached reprovingly by members of his church for giving the testimony he did” (or as his account says, “some of the people thought it was awful for me to say that I did not believe in poligamy”). This provides some nuance to the generality that all good church members of the time were fluent in, and approving of, an intricate system of linguistic deception. Of course, however pervasive the system and culture, there would be those not comfortable with some or all manifestations of it. (Or perhaps these were not very “good” church members, after all they did divulge Brown’s statements to apostates, who turned him in to the authorities.)
The only thing that doesn’t particularly resonate with my reading of Brown’s journals is the notion of a stifling atmosphere of paranoia and fear. Perhaps because these events were recorded later (a more stable time?), or perhaps just because of the kind of man Byron was, the overwhelming emotion one gets from his writing is one of exuberance and joie de vivre. I sometimes have a twinge of envy of just how perfect a match his personality was to the times and circumstances he lived in. Frankly, I can’t picture him living in today’s American society. He was born to love wrangling buffalo and the law, and he was fortunate enough to get to do it. (May we all be so lucky.)
* The post title, “A Peculiar Case,” is taken from the headline of the Ogden Standard article of 27 February 1889.