THE UTAH DIFFICULTY
MEMORIAL AND PETITION.
To His Excellency, ALFRED CUMMING, Governor of the Terri-tory of Utah.
SIR: Your memorialists, citizens of Utah Territory, respectfully represent that the Hon. John Cradle-baugh, Associate justice of the Supreme Court of the Territory of Utah, and ex officio Judge of the Second Judicial District, commenced holding a term of Court in Provo, Utah County, U. T., on the 8th day of March, A. D. 1859, by what law, as to time and place, the United States or of this Territory, is unknown to your memorialists, for in the statutes at large, chap-ter CXXIV., section 5, of “An Act to amend the acts “regulating the fees, costs, and other judicial expenses “of the Government in the States, Territories and "District of Columbia, and for other purposes," ap-proved Aug. 16, 1856, we find that Congress enacted "That the Judges of the Supreme Court in each of the “Territories, or a majority of them, shall, when as-“sembled at their respective seats of Government, " fix and appoint the several times and places of hold-"ing the several Courts in their respective districts, “and limit the duration of the terms thereof;" which is all the law upon that point that we have been made cognizant of; and, from page 119 of No. 27, vol. VIII. of The Deseret News, we learn that Chief Justice D. B, Eckels and Associate Justice C. E. Sinclair, in ac-cordance with said law, did, in August last, meet in Fillmore City, then ruled by them to be the seat of government for this Territory, and "fix and appoint "the several times and places of holding the several “Courts "in the three Judicial Districts of this Terri-tory, fixing and appointing the time and place for the Judicial District in which Judge Cradlebaugh is now holding Court, as follows:
"Second District Court will be holden at Fillmore City on the first Monday in November, by Mr. Justice Cradlebaugh," and it is obvious that the 8th of March is not the "first Monday in November," neither is Provo on the site of Fillmore City. Judges Eckels and Sinclair also limited that "each term of Dis-trict Court will be for thirty, days if business require it." Congress Statutes at Large, chap. CLXVI, ap-proved June 14, 1858, enacted "That the Judges of "the Supreme Court of each Territory of the United “States are hereby authorized to hold Court within "their respective districts, in the counties wherein, by "the laws of said Territories, Courts have been or "may be established, for the purpose of hearing and “determining all matters and causes, except those in "which the United States is a party, provided that “the expenses thereof shall be paid by the Terri-“tory, or by the counties in which said Courts may be "held, and the United States shall in no case be “chargeable therewith;" and Judge Cradlebaugh can-not be holding Court under this law, for he is examin-ing "matters and causes" "in which the United States is a party." And in sec. 2, chap. XLIII, Statutes at Large, approved July 4, 1840, we find: “That the pre-“siding Judge of any Circuit Court may, at his dis-“cietion, appoint special sessions thereof, to be held " at the places where the stated sessions are holden; "but at such special sessions prohibited “from try-"ing any cause by a jury." Now, were such discre-tion allowed a Judge of any District Court, which we have not found, it would still preclude the Court in question, since it has both grand and petit juries in its employ.
Having thus briefly and plainly cited all the law within our knowledge, pertinent to the subject, we submit the question of the legality of the court now being held in Provo by Judge Cradlebaugh, to your Excellency, and further respectfully represent that, upon acquisition by Judge Cradlebaugh, a detach-ment of United States troops was marched from Camp Floyd, and halted at the building provided for the ac-commodation of the court, and in which said Judge was at the time delivering his charge to the Grand Jury, and subsequently and still, so far as we know, encamped adjacent to, and the officers quartered in said building, a proceeding altogether contrary to the spirit and letter of President Buchanan's late message to Congress, wherein he states, "I am happy to in-"form you that the Governor and other civil officers “of Utah are now performing their appropriate func-“tions without molestation. The authority of "the Constitution and laws has been fully "restored, and peace prevails throughout the “Territory," directly contrary to an express un-derstanding with the Peace Commissioners, as made public in Provo by Gov. Powell, June 16, 1858, when he stated to some tour thousand citizens then and there assembled, that “while he (President Buchanan) “claims and will exercise the right to send the army “wherever he may please, his object is not to make an “encampment in any of your cities. Gen. Johnston "told me that he did not wish his army to be stationed “near a city," and contrary to any just, legal, or even necessary requirement, for, notwithstanding Judge Cradlebaugh, in his reply of March 12, 1859, to the petition of the Mayor and City Council of Provo for the removal of said troops, stated that they were there “to secure and support prisoners," the Territorial and County Officers attending Court, and holding commis-sions from your Excellency, promptly informed the Judge that they were ready and amply able and re-sponsible for the arrest, security, care, and forthcom-ing of all persons ordered to be arrested.
Troops were ordered to accompany your Excellency and other civil officers to Utah, as a posse comitatus, under the influence of statements that the Territorial library and court records had been burned, a District Judge intimidated upon the bench, and Government officers driven from this Territory, the facts concerning which statements your own personal observation fully enabled you to make known to our nation at an early day after your arrival, thereby officially precluding, particularly since the date of the Peace Conference in June last, any requirements upon the army in Utah, save to protect the citizens, the mails and the emi-grants from molestation by the Indians within our bor-ders, at least until resistance should have been offered to the execution of any law or the order of any court or civil officer, which, we are gratified in being able to state, has not been done.
Gov. Powell, at the time and place aforenamed, said, “The Federal Government demands nothing of you, “fellow-citizens, which it does not require of the in-“habitants of every State and Territory in the Union, "that you shall be obedient to the laws of yourc oun-“try, that you will respect the civil authority, and “that its officers shall be received by you and enter "on the discharge of their duties unmolested." Wherein have we failed in complying with those re-quirements to the very letter ? Not in one tittle, but have gone beyond them and unresistingly borne the quartering of troops in and around a court transacting territorial business in a peaceful city amply supplied with-civil officers for the fulfillment of every legal re-quirement. And President Buchanan, in his Message before quoted from, states that “These gentlemen “(Messrs. Powell and McCulloch, the Peace Commis-“sioners) conducted themselves to my entire satisfac-“tion, and rendered useful services in executing the “humane intentions of the Government. It also af-"fords me great satisfaction to state that Governor "Cumming has performed his duty in an able and con-“ciliatory manner, and with the happiest effect."
And now, notwithstanding the humane efforts and labors of Col. Thomas L. Kane and your Excellency, so highly and justly commended by the Chief Execu-tive of our Nation, notwithstanding the President's proclamation of April 6, 1858, and the consequent re-sults of the Peace Conference in G. S. L. City in June last, so satisfactory to both parties, and the agree-ments of which have been so scrupulously observed by Utah, could it have been presumed that a District Judge would go back of all these facts, so widely known and so highly appreciated by every patriotic lover of his country and humanity, and take advan-tage of instructions to Brevet Brigadier-General W. S. Harney, bearing the ancient date “New-York, June 29, 1857," and call upon the military to surround his Court and Jury-rooms with bayonets ? Yet such is the fact, when in those same instructions, and follow-ing the authority above alluded to, and which, per-haps, has been neglected to be rescinded, we read, “while you (Gen. Harney) are not to be and cannot be “subjected to the orders, strictly speaking, of the “Governor, you will be responsible for a jealous, har-“monious and thorough cooperation with him, or to “frequent and full consultation, and will couform your “action to his requests and views in. ill cases where “your military judgment and prudence do not forbid, "nor compel you to modify, in execution, the move-“ments he may suggest."
It thus appears by those very instructions, under which a district judge, if they are not already rescind-ed, claims authority for making a requisition upon Gen. Johnston for troops, that your Excellency, as was very properly considered, has the superior au-thority in counseling their movements in the capacity of a posse comitatus. But, notwithstanding all these facts, and contrary to those principles of equity and justice that should characterize a Court, it has pleased Judge Cradlebaugh to set aside in several instances, the civil authorities, and, without the least valid reason known to us, to employ federal troops to execute the orders of his Court, thereby clearly indicating on his part, so far as we can discern, an utter disregard of the latest expressed views and policy of the Adminis-tration concerning Utah, and the views and policy of your Excellency and all good citizens, and a settled purpose, for some cause, to force an angry collision between the citizens and troops, which is well known is not so difficult to accomplish in the best, ordered town or city in the Union, especially when one class is caused to illegally supplant, taunt, and oppress the other.
That the peaceful policy of the Administration and of your Excellency tie not subverted by the vile schemes of such sutlers, speculators, camp-followers and gamblers as plot evil and bloodshed for gain; that citizens be not imposed upon in any of their rights, nor when subpoenaed as witnesses treacherously arrested hy bench warrants, and, unfed and without bedding, guarded by troops, nor jurors to attend to their duties under the bristling of bayonets; that the laws be respected and magnified; that the citizens be not goaded until they cannot sustain their anger, and thus forego for a time the happy results of the labors and toils of so many patriots and philanthropists, and cause the riotous to exult with joy; and that your Execellency “take care that the laws be faithfully executed"—we, your memorialists, citizens of the United States in the Territory of Utah, respectfully petition your Excellency to use all the influence and authority of your official position as Governor of this Territory to remove all Government, troops from in and around the Court now in session in the City of Provo, and from in and around said city, and to prevent any troops being located in or infringingly near any of our thickly-settled villages, towns or cities, and to fairly and fully, at your earliest convenience, report to the proper Department in Wash-ington City the official proceedings of Judge John Cradlebaugh in the Second Judicial District of this Territory; and for such wise, loyal and just action by your Excellency, your memorialists and petitioners will ever pray.
Utah Territory, March 22, 1859.
PROTEST OF THE GRAND JURY.
The following is the Grand Jury's Protest against the untimely and dishonorable discharge by Judge Cradlebaugh:
We, the undersigned, having been lawfully sum-moned as the Grand Jurors for the Second Judicial District of the Territory of Utah; and having been summarily and insultingly discharged by the Hon. John Cradlebaugh, United States Associate Justice for said Territory, while in the faithful and diligent per-formance of our duties as a sworn inquest, do hereby enter our solemn protest against the language and con-duct of the aforesaid Judge Cradlebaugh, addressed and used toward us at the time of our discharge.
We were surrounded in our deliberations in our jury room by a detachment of the army and army officers quartered within hearing of the evidence of witnesses while being examined by us. We presented indictments for offenses against the laws of the United States. Our indictments were treated with contempt, and the prisoners indicted have been liberated without trial. Witnesses subpened to to be examined by us have been treacherously arrested, and thus have we been deprived of their evidence.
Notwithstanding being thus trammeled by the Court, we have honored our oath and were endeavoring to faithfully discharge our duties when we were dismissed by his honor, with a slanderous and insulting harangue.
Provo City, Utah County, Territory of Utah, March 22, 1859.
JOHN IUGGS, Foreman.
In behalf of the Grand Jury.
To the Hon. JOHN CRADLEBAUGH, Associate Justice of the Su-preme Court and ex-cfficio Judge of the 2d Judicial District for the Territory of Utah:
Your letter of the 12th inst. is now before us, in re-ply to the request of the Mayor and City Council of this city, in regard to the removal of the detachment of the united States troops, that at your request are now quartered in this city, and are occupying a part of the building used for a court-house.
You observe that the matter of the troops being brought to this city was duly considered before it was determined upon, and that it was a matter of necessity to have them in attendance for the purpose of secu-ring prisoners; that necessity, we understand, con-sisted in guarding five prisoners, two of whom, we learn, have been discharged. Either the Sheriff and municipal authorities were and are prepared to secure and safely protect any number of prisoners that there was any probability of being held in custody by your Court. You speak of our not having any place of confine-ment. This, we assure you, is a mistake; we have a place prepared for that purpose. And should the county or Territorial officers-arrest prisoners, the offi-cers of the city or county will abundantly provide for their security, wants and necessities. There is, there-fore, no necessity of the United States troops being stationed in and around the Court-House.
Had your Honor conferred for one moment with the authorities of the county or city, in regard to the care of prisoners, you would not have asked the com-manding General for a detachment of troops for that purpose.
Whatever may have been the object of clothing the Court with a military escort, it has the most dangerous tendency ; it usurps the functions of civil officers, per-forms the duties the law never designed for the army, and renders null and void the civil offices that have been appointed by law; it presents the Judiciary to the people in the light of a military inquisition. The lives and liberties of all persons accused are jeopardized by the examination of witnesses and action of jurors under the influence of a military inquisition. It is causing the city unnecessary expense. We have been under the necessity of doubling the police force and exerting ourselves to prevent indignant citizens from doing vio-lence to the soldiers; and this has cost us three times as much as it would to have guarded all the prisoners, aside from the unavoidable injury of detaining agricul-turists from their pursuits at a season when prepara-tions for seeding are of the utmost importance. But these are minor considerations, compared with the estab-lishment of a military judicial administration, hitherto unknown in the annals of Freedom, Should such an order of things continue, we have reason to fear that the time is not far distant when witnesses will be sworn at the point of the bayonet, and the law executed by the sword.
Perhaps your Honor is not aware that those quiet orderly soldiers, of whom you speak, have been troublesome to the citizens of this city, and that sev-eral unpleasant circumstances have already occurred between the citizens and soldiers.
Is your Honor aware that several soldiers have been arrested drunk in the streets, and the police not wish-ing to bring a stain upon your honor's escort by putting them in jail, have quietly taken them to their quar-ters, and delivered them to their officers ? We would also call your Honor's attention to a circumstance that took place on the evening of the 11th inst., when, had it not been for the interposition of the City Marshal, in all probability, several persons would have been hurt, if not killed.
Is your Honor aware that one of those orderly per-sons, of whom you speak, caught the Marshal's horse by the bridle and endeavored to prevent him from quelling a row ? Some of the soldiers have been caught by the city officers in the act of attempting to break into houses in the night. These are well known facts, that can be proven by many witnesses.
However, much we admire the talent, experience, skill and military attainments of the officers and the bravery and discipline of the men, it must be regarded as a very degrading appreciation of their gallantry, and the high position which their military career has given them, to use them as a county jail—a walking calaboose, And we believe that all experience has proven that the introduction of soldiers into cities or villages has had a uniform tendency to produce hostile feelings.
Your Honor says that “good American citizens have no cause to fear American troops;" the gallantry of our officers, the discipline and bravery of our soldiers have rendered our armies a terror to the enemies of liberty throughout the world; but when through preju-judice, political intrigue, speculative selfishness, or other causes, those gallant arms are placed in a posi-tion to intimidate American citizens, why should they not fear ?
Honored Sir, when our gallant army, or any portion thereof, is degraded, by any cause whatever, from that high position which the Constitution and laws have given it, as the arm of national defense, to the low station of supplanting the civil power, it must, most certainly be feared by every American citizen, not blind to the perpetuity of our national institutions. As a beginning, a single corps, highly honored for its discipline, the superior skill and scientific attainments of its officers, is placed out of its constitutional sphere to perform the duties of sheriff, marshal or jailor, the military power then supersedes the civil, in a limited degree to be sure, but military power seldom retro-grades and jurors are controlled by them; the Court follows in the wake—that bulwark of human liberty—an independent, high-minded judiciary, sustained by the people, is thus annihilated—the legislative and ex-ecutive departments are soon overcome, and the sword of a Julius Caesar puts an end to the whole fabric of liberty.
We ask, your Honor, why should not all good Ameri-can citizens be afraid ?
For these and many other reasons we beg leave re-spectfully to renew our request.
With high consideration and esteem, we respectfully subscribe ourselves, your most obedient servants,
B. K. BULLOCK, Mayor,
In behalf of the City Council.
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