THE UTAH TROUBLES.
Important Official Instructions.
General Johnston Censured—Governor Cum-ming Sustained.
We publish below a highly-important and in-teresting letter from the Attorney-General of the Uni-ted States (under the instruction of the President) to the Judges of Utah, which will command universal attention. It is written with the ability which always characterizes the productions of Judge BLACK, and leaves no room for doubt touching the views of the Administration in reference to affairs in Utah:
ATTORNEY-GENERAL'S OFFICE, MAY 17, 1859.
GENTLEMEN : The President has received your joint letter on the subject of the military force with which the Court for the Second District of Utah was attended during the term recently held at Provo City. He has carefully considered it, as well as all other advices relating to the same affair, and he has directed me to give you his answer.
The condition of thinks in Utah made it extremely desirable that the Judges appointed for that Territory should confine themselves strictly within their own official sphere. The Government had a District-At-torney who was charged with the duties of a public accuser, and a Marshal who was responsible for the arrest and safe-keeping of criminals. For the Judges there was nothing left except to hear patiently the causes brought before them, and to determine them impartially according to the evidence adduced on both sides. It did not seem either right or necessary to instruct you that these were to be the limits of your interference with the public affairs of the Terri-tory, for the Executive never dictates to the judicial department. The President is responsible only for the appointment of proper men. You were selected from a very large number of other persons who were willing to be employed on the same service, and the choice was grounded solely on your high character for learning, sound judgment and integrity. It was natural, therefore, that the President should look upon the proceedings at Provo with a desire to find you in all things blameless.
It seems that on the 6th of March last Judge CRADLE-BAUGH announced to the commanding officer of the military forces that on the 8th day of the same month he would begin a term of the District Court at Provo, and required a military guard for certain prisoners, to the number of six or eight, who were then in cus-tody, and would be triable at Provo. The requisition mentions it as a probable fact that "a large band of organized thieves" would be arrested, but the troops were asked for without reference to them. Promptly responding to this call, the commanding general sent up a company of infantry, who encamped at the court-house, and soon afterwards ten more compan-ies made their appearance in sight, and remained there during the whole term of the Court. In the mean time, the Governor of the Territary, hearing of this military demonstration upon a town previously supposed to be altogether peaceful, appeared on the ground, made inquiries, and seeing no necessity for the troops, but believing, on the contrary, that their presence was calculated to do harm, he requested them to be removed. The request was wholly dis-regarded.
The governor is the supreme executive of the Territory. He is responsible for the public peace. From the general law of the land, the nature of his office, and the instructions he received through the State Department, it ought to have been understood that he alone had power to issue a requisition for the movement of troops from one part of the Territory to another ; that he alone could put the military forces of the Union and the people of the Territory into re-lations of general hostility with one another. The instructions given to the commanding general by the War Department are to the same effect. In that pa-per a “requisition" is not spoken of as a thing which anybody except the Governor can make. It is true that in one clause the general is told that if the gov-ernor the judges, or the marshal shall find it necessary to summon directly a part of the troops to aid either in the performance of his duty, he (the general) is to see the summons promptly obeyed. This was manifestly intended to furnish the means of repeling an opposition which might be too strong for the civil posse, and too sudden to admit of a formal requisition by the governor upon the military com-mander. An officer finds himself resisted in the dis-charge of his duty, and he calls to his aid first the cit-izens, and, if they are not sufficient, the soldiers. This would be directly summoning a part of the troops. A direct summons and a requisition are not convertible terms. The former signifies a mere ver-bal call upon either civilians or military men for force enough to put down a present opposition to a certain officer in the performance of a particular duty ; and the call is to be always made by the officer who is himself opposed upon those persons who are with their own hands to furnish the aid. A requisition, on the other hand, is a solemn demand in writing made by the supreme civil magistrates upon the com-mander in chief of the military forces for the whole or a part of the army to be used in a specified ser-vice. In a Territory like Utah, the person who exercises this last mentioned power can make war and peace when he pleases, and holds in his hand the issues of life and death for thousands. Surely it was not intended to clothe each one of the Judges, as well as the Marshal and all his deputies, with this tremendous authority. Especially does this construction teem erroneous when we reflect that these different officers might make requisitions con-flicting with one another, and all of them crossing the path of the Governor.
Besides, the matter upon which Judge CRADLE-BAUGH'S requisition bases itself was one with which the Judge had no sort of official connection. It was the duty of the Marshal to see that the prisoners were safely kept and forthcoming at the proper time. For ought that appears, the Marshal wanted no troops to aid him, and had no desire to see himself and his civil posse displaced by a regiment of soldiers. He made no complaint of weakness, and uttered no call for assistance. Under such circumstances, it was a mistake of the Judge to interfere with the business at all.
But, assuming the legal right of the Judge to put the Marshal's business into the hands of the army without the Marshal's concurrence; and granting, also, that this might be done by means of a requisi-tion, was there in this case any occasion for the exer-cise of such power? When we consider how essen-tially peaceable is the whole spirit of our Judicial system, and how exclusively it aims to operate by moral force, or at most by the arm of civil power, it can hardly be denied that the employment of military troops about the courts should be avoided as long as possible. Inter arma silent leges, says the maxim; and the converse of it ought to be equally true, that inter leges silent arma. The President has not found, either on the face of the requisition or in any other paper received by him, a statement of specific facts strong enough to make the presence of the troops seem necessary. Such necessity ought to have been perfectly plain before the measure was resorted to.
It is very probable that, the Mormon Inhabitants of Utah have been guilty of crimes for which they de-serve the severest punishment. It is not intended by the Government to let any one escape against whom the proper proofs can be produced. With that view, the District-Attorney has been instructed to use all possible diligence in bringing criminals of every class and of all degrees to justice. We have the fullest confidence in the vigilance, fidelity, and ability of that officer. If you shall be of opinion that his duty is not performed with sufficient energy, your state-ment to that effect will receive the prompt attention of the President.
It is very likely that public opinion in the Territory is frequently opposed to the conviction of parties who deserve punishment. It may be that extensive con-spiracies are formed there to defeat justice. These are subjects upon which we, at this distance, can af-firm or deny nothing. But, supposing your opinion upon them to be correct, every inhabitant of Utah must still be proceeded against in the regular, legal and constitutional way. At all events, the usual and established modes of dealing with public offenders must be exhausted before we adopt any others.
On the whole, the President is very decidedly of opinion :
1. That the Governor of the Territory alone has power to issue a requisition upon the commanding General for the whole or part of the army.
2. That there was no apparent occasion for the presence of the troops at Provo. 3. That if a rescue of the prisoners in custody had been attempted, it was the duty of the Marshal, and not of the Judge, to summon the force which might be necessary to prevent it.
4. That the troops ought not to have been sent to Provo without the concurrence of the Governor, nor kept there against his remonstrance.
5. That the disregard of these principles and rules of action has been in many ways extremely unfortunate. I am very respectfully, yours, &c.,
Hon. J. CRADLEBAUGH, J. S. BLACK,
Hon. C. E. SINCLAIR,
Associate Justices, Supreme Court, Utah.
19th Century Mormon Article Newspaper Index
