[Letter of Judge Black to Judges Sinclair and Cradlebaugh, Alta California, July 1, 1859]

 

The Letter of Judge Black to U. S. Judges Sinclair and Cradlebaugh.

            We publish below, in full, the letter of the Attorney General to the Utah Judges, a synopsis of which appeared in our columns some days ago:

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 things 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 Attorney 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 aides. 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 Territory, 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 sincere desire to find you in all things blameless.

            It seems that on the 6th of March last, Judge Cradlebaugh 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 custody, and would be triable at Provo. The requisition mentioned it as a probable fact that "a large band of organised 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 companies made their appearance in sight, and remained there during the whole term of the Court. In the meantime, the Governor of the Territory, hearing of the military demonstrations 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 disregarded.

            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 relations of general hostility with one another. The instructions given to the commanding General by the War Department are to the same effect. In that paper 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 Governor, 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 meant of repelling 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 commander. An officer finds himself resisted in the discharge of his duty, and he calls to his aid first the citizens, 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 verbal 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 magistrate upon the commander-in-chief of the military forces for the whole or a part of the army to be used in specified service. 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 constitution seem erroneous when we reflect that these different officers might make requisitions conflicting with one another, and all of them crossing the path of the Governor.

            Besides, the matter upon which Judge Cradlebaugh'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 aught 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.

            It is very probable that the Mormon inhabitants of Utah have been guilty of crimes for which they deserve the severest punishment. It is not intended by the Government to let any one escape against whom the proper proof 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 degree 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 statement in that effect will receive the prompt attention of the President.

            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 requisition, was there in this case any occasion for the exercise of such power? When we consider how essentially 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 likely that public opinion in the Territory is frequently opposed to the conviction of parties who deserve punishment. It may be that extensive conspiracies are formed to defeat justice. These are subjects which we, at this distance, can affirm 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 the opinion —

            1. That the Governor of the Territory alone has power to issue a requisition upon the commanding General for the whole or a 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 forces 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, etc.,

J. S. BLACK.

            Hon. J. CRADLEBAUGH,

            Hon. C. E. SINCLAIR,

                        Associate Justices, Supreme Court, Utah.