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Show UNITED STATES va.TERRITO-KIAL va.TERRITO-KIAL OFFICIALS. ;ji'rc .V-.-.jciato J Us Lice Ha.vloy yeaterday moriiiu, in 1 1 j-0 uflicc ot .McCurdy A: Morgan, an examination waj had tiito llio chared prewired by V. H. MaraUl l'atrick aairt Wardon Kockwuod and City Mar-lial McAllister, McAl-lister, of ro-ii-iin tlu iurtuor in the uxfieution ot'lii. duty, by rclVio.'- to k'ivis t!i convict Kilil'yl- under ,ri(it:iico of imprisonment for life and now in clian.'6 of Warden Kuckwood. "Why tlie examination should liave been 'held in .-o biiiull a place with f-o many anximn to hear tho proceeding, the A.-.-oeiaifi .Justiee and tho counsel -lurliapH cm tell. It wx stated thai the pbt-e used in District Court Home . wat occupied l.y th i-'irt Oistrici Court, and ottiid no Other place hiv boon obtjiimrd, the heaving ol' this cast iuic;ht have ltfn postponed a day oi two lunr. Hut the Coumy Conn 1 l..n... ui4 .,.iirf.'nii-K- ofi".-red bl Selectman Miller, and a.4 Ji.M'Ouneous-ly Ji.M'Ouneous-ly ruiu.-ed by K. X. Jia .Lin, who Maid tho lust time ho Lnd been to tho Court Hou-do the do-TH Iiad been shut in their i'aeti. Mr. reium k( d that lie supposed thft i(ofendant4 were on trial lor that ns well iu all otluT offences, liiskin did not b--itatii to express himself against re-'ort beini; had to L'.nil proceeding iii the ca.-rC at all, intimating imnt (jraciointy that bullets and bayonets nhould have been callod into requisition by tho U. S. Marshal. However, an thi. very polite and mild-mannered mild-mannered specimen of tho law is well enough known in tho coinuiuiiiiy, we may bo allowed to pass him. But as there appeared a dosiro to keep the proceedings from bcinK too public, and in tlmy arc of more than usual inter-edt, inter-edt, tho IIhhald propose to supply tho public with a report that will enable ena-ble them to form their own conclnViong rolativo to the matter. Considerable time was .-.pent in "stripping for tlio fray," and trying to establish tlio points Ui.U Patrick was and m tho United States Marshal, and that Uockwood has charge of the eonviet Killbylc; which wore conceded by counsel for tho defence. Marshal Patrick's instructions from tho Attorney At-torney General of tho United States, to take possession of tho peuitentiary and to communieato with the proper Territorial authorities relative to keeping keep-ing in it the Territorial convicts, and tho agrecmout mado between him aud Governor Woods for keepiug such convicts, con-victs, were . put in as evidence by oounaol for tho plaintiff; and the commission com-mission of Warden Koekwooil, bearing bear-ing date February, 1570, was put in as ovidenco by counsel tor delcndauts. Those preliminaries occupied tho court nearly till noon, when an adjournment was taken till 2 p.m. The authorities relied upon lor a conviction con-viction wore stated by Judge Morgan to be, the act of Congress of January 10th, 1S71; act of Congress, April 30th, 1700, section 112; act of Congress, March '2nd, is:il, chap. -., paction vol. 4, U. 8. Statutes'at Jjarge, page bS; act of Congress, May ;!, 1S70, section II, pae 142, Laws of -nd Session; Ses-sion; and motion 9?, pago Lavs of Utah. At two o'clock court was again in session, when the argument in the ease was openod bill bi-ll idoe MonoAX 1 will say, by wav ol' preliminary, that as an attorney I have been caliod on in this case to sco ' that tho laws are vindicated, a duty devolving upon me as an ofticer of court; and not only to see that the laws are vindicated but that the individuals) in the case havo a just and proper trial, j Theso are tho duties of an attorney; whenever called upon to act in a eaao ; as I am iu this one. Now, 1 call the attention of tho court not only to tho laws of tho United States but aio to the law of tho Territory; Ter-ritory; and whenever a law is violated by an officer, by any one holding a position po-sition of authority in which he should be au example before tho people, it is vrorao than if ho had been u move humble individual. In this ease, if thoro has been any violauonot' the law, and tho testimony shows that these parties charged havo been guilty of this violatiou, then it becomes tho duty of the eouvt to administer the law, however unpleasant it may bo and no matter who aro the parties coming before be-fore your honor. Hero is a law which I will read in the statutes of this Territory, Ter-ritory, and it' it is tbund that these men havo violated that law they arc ameudab'.e to it as if they had violated any other law or any law of the United Uni-ted States. (Counsel read section 93, pago j, Laws of Utah '. Gentlemen, no doubt, will take tho position that this o nicer resisted hero is a United States ufiicer in the execution of his duties as a United States officer, and that they are not amenable; but ho is au officer of Court, a Territorial as well as a United States officer; and if any persou shall resist him as an officer of court, in the execution of any duty imposed upon him, tiien they are amenable to tho law. (Counsel read from the law of April CO, 170, with regard to resisting officers.) Gentlemen Gentle-men may complain because we refer to several statutes, and do not couline ourselves particularly to any ouo of them. I will say to the gentlemen that a party may be guilty ot' offences again.-t the laws of a State and against the laws of the United States. As tor instance: A man may be guilty of robbing the mail, when his offence is not only one arratn?t the law-; of the United State, but agaiust the Suie law, for larceny in taking money that may be iu the mail. Or in the ease of a municipal corporation, a person may be amenable both to a Siate and a municipality mu-nicipality under the license law, and be guiity of two e::cuees in ibe same act. ckh:r of whieh may be charged aruinst him and lie be punched for cither or both. (Alter read in r the law agiiin, coun-.d said, i It will be contended probably that we have not shown suiieieut authority ki this per-ou per-ou the puiutiii' to entitle him to what the law would e:;ecui a piutec-tiou; piutec-tiou; in oiIkv words, to make those i Mr ties amenable to lLj law ibr oh-t oh-t suiting him. Il is, admitted by the counsel for tL: dti'endants that lie is the .MarshJ for tUU Terrs '.ory. We n'ud here was a Warden appointed under ad ly virtue of the !a.v of this Territory, Terri-tory, oy the act o'' tl.- l.skk'.ure in i.'ree; ef ho Urgaij Awt milieu at Jtdi-a li.-. L-i oiiirs w' thu: ;";adc ire, Ly ad 't.I: iLc zni o:' J.Uuiurc lj l-pceiaL.i iry the Governor tuid tortt-MVii :Lcir com-mUsiea. com-mUsiea. lUxc a l.lihture hs taken 1 tiie power into i own hand and aid we will ii'tn'io .in of ll. - an l,.j,ay ot .the' Unitol iu;e-. ai.d i-ireie thii powr within oursidvcs. T!uy r-d'n-e tu . rc'ne the Ic-u'iv i.r at 1-1 t hi-nou-iiiaiing pv.v -r. nr.-i tln-y pi-ui,----d '" rion.inat' - ns m in v.uiion of tiie l )ry.ii;-: A '. tl;r -non -, i- ih-.t lii'in, tmd'.T Hny ciri-p.m:ar.c"f an ffii'.-r to have ron:rl of pri.:on? Supn-'c-e a m. in appointed by ihi'liov-- ihi'liov-- ni'ir -lioiild dfiiiicd po.c.-'-ieni of i lie : jti -.jii . aiihoui;h nyt continued by ithr liniHe or by tho Council, who wisi'd hiv the li-.;al riht to take pos--r.-,; hi "f t!-it properi;.? Could Mie l'.'i -lutuie mkc it away from the Kx-1 Kx-1 L-etiLive-, orwnuld the Kiccuiivc power ! c paiamoun! If the Executive power , ! ih re:ir.:iL in lh:- Territory, he JiM-itc.' ji oiii'-'T "f tho ovevnruent uf tiiC i'nili d SfaU'd , aiid Imv- uw uuliin himself tlio power to iidmini-ter and to -ee that tlie laws of thu Territory are admini-tered, would r!n'jL the pfjiVi-r exerei-'.-d by him be pjiaiilulltil-' I eoiitcnd that it would; -1 and t bat I lief the lei-lativo control 1 1 c-ase.-; ai.d if the Lei-lature uml'-r-. j take to violate or t-'Q aairit the Or-' Or-' , .'anii- Act, they undertako to over-ride 'jtl.w (ioveriiint-nt ( tbc United States :'to th.it exiLjic. Iu o bor words, they ; 1 ,ei. a-irb- tlie powi-r of the Government ;jof tlie United Slates in a Tenitory, J where we are only iu ft condition oi ' jnitehtne. I know ibat my friend ' i SuoW elaitnH a Hoverointy Ibr the peo-('ijle peo-('ijle el' ilii- Tenitory; but I dida?rec 1 with him in tbat partieular; and i 1 miiiiit::in lb. vi a Territory holds the1 I in me relation lo the 1 niied States; (joveriini'jfit. i!vn a munieiiial corpora-! J tioji lioid- tu (i ;.-i;:to "nveruuient. 1 Sii :l p.w.-r.- ih m:ty Ijo c .tt-Tid upon I a municipal government they may eserei.-e, uial ue'y uro .'i'teeted l-y the1 State t heroin. ' Now in-ri m' ccrt::iu powers cull-1 (erred upon ilio people oi' lIim Torri- j tory, xi.-i (he Initcd States Govern-1 mcnt s.i,- tiuy I'f. excrci-.cd; but in! nothing in eonlJit with the laws oil the United Stolen, or tho Organic Act which confers tbe-e powers upon the) people. Now, if thoro be a reserved) power iu that Organic Act, then the: people of this Territory cannot exercise exer-cise that power. Such, I believe, the Court holds, and uch I believe to be the proper euiitruetiou to be given to the law, and to tlio extent of the! ! power und auihoriiy aoiuiied under: I the general yovcrnment. This bein ' the case, the Legislature of this Tor-! ritory haa atlcuipted to exeivbie an aulhoiity that is not conlerred upon it; i it w without law and without justittca-tion. justittca-tion. Another point : Hunposo that this; officer (die Temioriul Warden) had' been regularly nominated, and had, entered upon lite duties of his oQice; that he had proceeded in conformity to the law, mid liad complied with every requi.-U'ion of tlio law, and that the power to appoint him was actually possessed by the Legislature, and in the exorciso of that power they had put him in this position, then what? lie would continue to exercise that power up to the time when tho United States should interpose an authority greater? (Counsel read from tho reconstruction i act of January 10th, 1871.) Now we will bc.'iu with the conflict of riht. The Warden of the prison, wo will suppose, Is properly und lawfully law-fully there; nnd that tho United States enact a law that tho prison shall pass i into the bauds and into the keeping of the United States Marshal of the Territory in conformity to tho instructions, instruc-tions, rules and regulations of the Attorney At-torney General of tho United States; and here I will refer the court to the fact' that the Marshal bad instructions tu take possession of this prison as the properly of tho United States; nnd. according to the evidence, that he had possesion of it some time in August. He is further instructed to make arrangements, ar-rangements, if any are neccr-sary, with I the Governor, or the proper authorities 1 of the Territory, to rake and keep tho i prisoners belonging to the Territory in that prison, under an agreement en-1 tercel into between the government, or( United States authorities, the Attorney Attor-ney General acting in this oapaoity as tho rightful agent of the government. An agreement is made between theso two parties and that agreement is ratified rati-fied on tho part of. tho government. Now tho question is, where is thi3 authority lodged ibr giving over to the Marshal of tho United States for thi Territory tho custody of these prison era? There is nothing in the statute that delines where it is lodged. The statute simply gives to theWardcn the control of tho prisoners and provides what his duties shall be. Nothing is said in the laws with reference, to this change. Nothing of tho kind was anticipated by the legislature. Hut there is a change, created by tho supe-t supe-t rior power of tho United States Government, And it will not bo contended, con-tended, I apprehend, that the inferior power can control tho superior; but whenever a law is passed by Congress conflicting with the law of a Tenitory, the law of the Territory at once gives 1 way and the law of Congress is imrae-idiately imrae-idiately in force. So. theu, Ibis law I being iu force, the Governor, who is j the executive officer oi' the Territory, : whoso business it is to .-ee that the j Maws are properly administered, has; j the right, to deal with the government 1 jot' tho United States iu the absence ol j any cypress law. Tho Warden could j not have the power, lor his duties arc I strictly deuued Ly law; and among hi-' hi-' powers arc none such as the one we ! have referred to. Certainly it cannot ibe the directors of the prison who j have tho power to doit. Where i-this i-this power lodged if not in the Govcr-luor'.'' Govcr-luor'.'' lie is the only person that can i contract with the government of the i United States, and it is hie duty tp do it. We lind the Marshal in possesion I of the prison by direction of the ! United States government; and he contracts wuh the Govcrnor to keep 'Territorial convicU there, in what manner they arc to Ui kept, aud :at what expense to the Territory; 'and we lind that the Governor i is the only officer who h:is the power ; to make this cotitract and enforce the i law. What shall the Marshal do? He has authority to act, not coming from t the inferior but directly term ihe superior supe-rior power. There is a law here, your ! honor, that I will read, showing that if he did not do ceruL!; things what 'the penalty would be. ;Coiu:sjI read 'from Act of Cjygres June -, ISt'A ivoh, pace O'J.j That is ibr an of-: of-: feuco oi'omis'iouas wei! commission. It wiil be said he hid no ti;-Lt in his no.-iiion to act as he did. Let us sec. .When an odie: is lcvpiiicd to do a ccriaiu thing, and au order of court , has onee ;.'odc out which has Uin de-ilivcied de-ilivcied tu h::o or to his produces-; or. liUitCi'- !iut whether tli.it order be lost or :ii the hands ol' any third person, it Lut be. ixecuied. ibf its vitality and power ' coutinue. I Lolicv the gentlomeu will n.'t at i"o vat that puMtie:. Now here is a Marshal iu the pu:iuii ot' a prison; h-;ve has boon a warrant ol , commitment which is o.fore your honor; iuai vviirant of commitment was in the haudj of j paiiy who per-; lap-: wjj pr-cily thtiv, any rate he r' .ixi ji'.in o.;r. iic'v if ibe law on aiiJ'thr mu ihe pu..i; v.'iih which! lie ro; clothed, tht man mt perform il.j -A'A'.L'i of rLe offiee thui cooierred' u: on him lie k clothed i:u tue pM-.i"Lriiid autiicvity oi' the other ici ( o:'. V.'e 'icd this man,' Mr, lw;.k-i wood, claiming to have been the War-. d-1!) of the prison, and env to a point where there is acontlict between !ihe powers a the Territorial othe.--rs and ill.-" p.jW.-r- "f the Gv.-rmn.-Ni if;.'.'! '1 lie I'.hiih r tbui by virui" i In power-, i-.m- i i.-t:, , hy , lL'i-bim.- I hat t t.i-y . ar- pr-'j crly m im-e--i"!i ut t lie priun and tite pri-oneis. If they JuUap-; JuUap-; (jrr'her.d the law, and orb.-nd against i the la"w, it is no oxeUsO. The law pre- iilh's that every man shall undent aud iit; an 1 if they lake a position in coo-I coo-I diet with the lnw and violate it, what-; what-; ever their itiu nttuii may be it if none 1 tin1 b -; a ct inv'-, and all people should I undiTiiaitd that whenever ihi-re is a ! criminal htaiutii, ignorance of that istiitiiie is tio deft'H.v. Novertlieloss, 1 there can be no qu-".lion as to tho in-; in-; tent in the ca-e. There is no excuse i t i up on the part of defendants' eoun-', eoun-', hoi that they have acted inomnlly or unintentionally; but they have acted with a lull uud'T-taudins that if they are wrong the ure amendable to tho j luw, and with the positive belief that i they are right. This bein-j the c;ise j they have certainly, by the ovtdence, i put themselves in direct violation to I the laws ol the United States as well ' as to the laws of the Territory. And I call your attcntiou onee more to this liict, that the process of law under consideration con-sideration is actually in the hands of j the Marshal, he being the pro-1 pro-1 per person to have the custody ! of all such papers as well as the 'custody of prisoners, and when they rel use to deliver them u pi hey put themselves them-selves outside and beyond the law, and hence are amenable to it. 'J'lie testimony testi-mony hero how-, to my mind, that the Mar.-hal was the proper person not only to hae the keeping nf the prison as the pioperty of the United Staleo, but al-o the proper person lo have- the custody cf the prisoner?-; and when lie went to Mi, ft.vkwooj and demanded them, it was I hi: tin' y of l he dt'-iciulam-i to deliver iltst prion-r to tho Marshal; and when they refused they must have known tha they were either jualitiablc by or amenable to the law. It ia for your honor to determine from the evidence whether they were justifiable or not; whether tha warrant of commitment in the hands ot the Warden was nufiieient Ibr him lo do-tain do-tain that prisoner against the demand of the Marshal. They do not deny that they resisted; on the contrary they not only resisted and prevented, according to the language of the law, but ailed and abetted those who did, and refused to deliver up the prisoner to Llio Marshal of the United States; having done this they, as a matter of courso, mako themselves amenable to tho law; and ia addition to that, if it shall be the judgment of the Court , tliat these men havo violated the law, land (he Croirt is oi' the opinion that thoy ehoulcf be bound over to ansjvor : beforo another tribunal for this violation, viola-tion, tin-re ia still another thing that wo -shirii ask oi' tho Court, and that is an order that this prisoner shall bo do-livcred do-livcred up. With these remarks I leave my associate to close tho ease. Ho Thomas Fitcii followed ibr the defence: If your honor please, wheu the im-1 im-1 portauco of the rpuestions that will be j presented to you in this caso are considered, con-sidered, it is matter of regret to the counsel that oircumstanccs have not permitted more time ibr preparation and the examination of authorities, I was called into this case yesterday, and upon such brief examination as I havo been able to give I have found many authorities bearing upon the propositions proposi-tions involved here, and I. think if more time had been allowed I could have found authorities more directly in point. It seoms to me that if it had been honestly desired by the prosecution prosecu-tion to test tho right of tho United Uni-ted States Marshal under tho act of Congress nnd tho instructions of the Attorney General of the United States, to obtain cud hold possession of the convict ICilfoyle, such test could havo been mado bettor by proceeding on the writ of habeas corpus, alleging that tha Warden of tho penitentiary held him illegally: and your honor could have examined tho same questions ques-tions involved now, and given your decision de-cision without this unnecessary criminal crim-inal prosecution of the Warden of. tho penitentiary. The prosecution tell us they proceed under several laws. It has been usual in most criminal cases that I have attended at-tended for tho prosecution to select some one statute upon which it would claim a conviction lor some particular offence. I havo nover hoard of an indictmant being found charging murder, robbery and larceny in ouo count. It is perhaps assumed by the prosecution that all the statutes cited tend to one end and refer to ono ofl'ence. The first congressional statute stat-ute relied upon is the act oi' 1790. I propose to call your Honor's particular particu-lar attention to the language of ibis act: "If any person or persons ic, 1 tlinU iib-truut c, any United States officer iu serving Sc., any process or warrant, or any rulo or order of any ol the Courts of the United States or any other legal or judicial writ or process pro-cess whatsoever he shall bo guilty of resisting an officer." The act of 1 S3 1 , next cited by counsel has no nppliea-i nppliea-i tion to the ease at bar, because it is a law providing for the punishment ol contempts ol court and for corruptly resisting the ofticcrs of the Court in the )nivin-r of the Court, (counsel read the extract.) The act of TOG, the one first cited by counsel on the other fid, really llio one upon which I piv.iumc they rely, and is the one ugiiuft which this paiiy has offended, if he had o,1) ended at all. The act of ",(), cited by the oiher side, .section II, is part of the civil rights bill; aud that says that any person per-son who shall knowingly obstruct tie., aud the language following is a copy oi the act of 179o in so far as jt requires the United States officer to be armed with some writ or procer-s Ac, e:c. I neglected, by the by, to reler to the law of Utah, which is also relied upon. U reads: '";' ?ny person shall, kuow-ingly kuow-ingly or wilfully vc.-Ut Luy pfficer oi this Tenitory.'' The Marshal is uot au officer of this Territory. Your honor will notice that in all the acts cited, with the exception of that of wlreh merely refers to contempt, the olrcncc prescribed has been renting any writ, process cr order of Court. Now what does the evidence show in this case? Why, simply that the United States Marshal, without seek-! seek-! ini' to obtain any order of court, de-; de-; manded of the Territorial Marshal aud of the Warden of the Penitentiars, the (custody of the eoiiviii Kelfoyle; and, , as tho United States Marshal himself ic,-iihCs, without exhibiting any writ, order or process of' court or claiming to 1 have any such vai, girder or process. How can the prosecution logically claim that these defendants should be hc!I to aiwvr ibr redialing and ob-sirueiicg ob-sirueiicg a United States officer iu the OiccUliuU Oi' pi'OvOat, vllCD thcTC was uo proe'CiV:1 when the officer him-eif him-eif dccLirea that he hid uo process and attempted to procure no process ? Under i he common law. in order to cvuvici :i person charged with the ciLus oi ";c,iiiug au officer." it ia net.--ji-y tu p.i.;j ;L.it -.he ofiicer re-.-j;Ud v.-io uru-d v,ith'li.-ui proems. Iu aupi'LU't ol this positive 1 refer yojr honor u L'hitiy' Criminal Law,1 volume 1, page lio, (counsel here read the autliOwiy'i aud iu apeakiug oi' tha s-::;a or the lie: cf !7Cj, under v-LiJ: il:.- proe'-idon ii UjiiJur., j Juiiiee Cuni;, of the -U. S. Circuit; Court, says r 'To ewiitiuik 25 offfncf! nndtr thii! law, therefore, the obstruction musi leivf b.vn of leeal ppvess: aud what-' i vi-r may have bt-en tin- liir u nr pur ! nh- i.f tli procc--', it is nut icl'uI 1 prt'ivs-, within ilm moaniti uf I bi act. tinics.-i it t-maual'.'d t'l-m, und wa i-s-.ii.ii i- , -ome tribimil, juiIlc or mugi-trate, anthoriwd by the law.-, of the United Statc-t to i--ue such process." pro-cess." -l Curlia, C. C. Kop., pagoi i:i i Now, if uur honor please, ii items to me that this last authority disposes of this case so far as the jruiltofthc Warden is concerned, and without con-: sidcring those other and perhaps more i important questions which are involved : , herein. Tho Act of Couftro.-s whidi I we are charged with violating u. con- struod by J udge Curtis in ihn decision I which 1 have just cited says that in order to constitute au offence under ! this aut there must have been reaist-j anee to some order or process, aud an order or process it only Mich legally when it emanates from sumu court of competent jurisdiction. The Coi'kt Mr. h'iieh, t-upposc that Mr. Book wood was Warden, aud the Territorial legislature or whatever i legal appointing power there might bo, , should elect John T. IK Me All ister Warden, und he bhuuld come in as Warden, aud here is a warranto!' com I aiitmeiiL to the penitentiary ibr & crime, does uot tho warrant follow the : office instead of the law tho officer, and is not that ihe warrant in the hands ol iMcAlnsler.' M. l-iiutt.-Ve. Sir, if McAllister McAllis-ter iu appointed by JJoekwood iii his place. Thk'Colut.-.u, if Mr. " MeAllis-icr MeAllis-icr is appointed by the Torritniy to succeed a torim-r Warden Mil. Kitcii. If there is a chuugo in , ihe office, of course, the process or order of the court jjoes with the office i and does not remain Uh ihe rearing officer; but am I to understand your honor to indicate that you consider j that the oihoc of Warden of tho poni-tentinry poni-tentinry has descended byuny appoint- ment, or has become veslod by virtue of any j)rocesa whatever in Mr, 1 Patrick? , TijK CuL'Kr. Tlmt was not the i case, I supposed. Mb. Baskin. We shall uoutetid I that tho funot'ious of the office of i Warden are in the U. S. Marshal. M R. Jmtvh. A littlo while ago in the j opening oi' the ease, it was urged by I Judije Morgan that the Wardon of the i penitentiary wuh no officer whalovcr; ; that no power existed in the Tcrrito- rial Legislature lo cream ihe office ol ! Wardon of the penitentiary, and that there was, therefore, no such officer at i all; but now we are fold that the pro-I pro-I secution intend to insist that tho United States Marshal nuecooded in I the- functions of this officer, who it is claimed has no exiiteuce at all I Upon 1 which ' "of 'thedo conflicting pro-i pro-i positions do the prosecution insist ? ff Mr. Haskin shall maintain herealter : that the United States Marshal sue ;ceeded to the Amotions of tho Warden 1 ofthe penitontiary, then what will he I do with tho position of his colleague ; that there is no such officeri If 'iu a ! midtiludo of uouuecllors there is wisdom," wis-dom," there may sometimes Lo also j confusion, ltoicrriug here to tho sug- gestion advanced a lew minutes ngo, ;that, if the Marshal of tho United t States, deeming himself, undor the law, entitled to the custody of this prisonor had applied to your honor for a writ oi'haboas corpus, to test ihe legal le-gal ideations involved, and your honor i had upon such proceeding di-cided that i tho Marshal was entitled to his cus-I cus-I tody, then such decisiun would have been "an order of court;" within the ;meaning of the act of 1700, and on a refusal to comply wilh that order the I Territorial officer would have been lia- ble under tho laws ofthe United States that havo been ojted here, iiut it ! seems that tho Marshal determined to ' proceed without a process of court. 1 Why he came to this conclusion I dc inot know. If he warisht'in his construction con-struction of fhe act of Congress, an ! order of court could have been obtained j at no greater cont or trouble than thit i proseeutian; and it sccma that he wil I need the order of court al'tor all, foi i the counsel who opened the case for the i prosecution stated to your honor thai j in the event of tho commilment of thi ! defendant ho shouldctoo ask for anordoi i of the court that tho prisoner be turned over to tho custody of tho United Slates Marshal. lie asks now foi that which ho should havo (solicited boforn, and which, had he obtainod il, ; would have superseded tho necessity ol itiiis proceeding, u tnere had been j a successful application for the custody ! of Kilfoyle by habeas corpus, or if there had been any kind of an order j of this court issued and directed to the ; Warden oi' the penitentiary, oommand- ing him to surrender luffoyle to tho i U. S. Mar.-hal, he would at onco havo ! surrendered the prisoner, and there I would have been no cause for urgu-ment urgu-ment in his delcnco upon thii criminal ; charge. All that the defendant, a.-ked, as appears from the testimony, was on order of court. In his written protest I be says, "1 will surrender this convict j on the orde, of omo court of compc-! compc-! tout jurisdiction." lie deems himself j invested by I lie Legislature of ihe j Territory with certaiu duties and ! responsibilities be has given bonds I for the faithful performance pi I those duties and die discharge i of those respousibtliiifs It is but j litde to ask, when he is called upon to ; divest himself of the.-e responsibilities responsibili-ties aud to cease to perform tho.-e j duties that he should do it on sumo j demand more formai and s.ome decision more binding than tho construct ion of ! an act of Congress made by the ' United States Marshal The United ! States Marshal who, is uot responsi- i Jblototbe people oi' this Territory or! j the Legislature of this Territory and : whose construction would not avail tho j Warden as on excuse or defence ibr : official malfeasance if perchance he I should he charged with such lor thus ' j relinquishing his trust. IJabeas cor-! pus would, it teems to me, have been! J the better way to test this question; i but being less calculated lo make tur- j bulccce and create ill-feeling than the f : method of procedure which has bccni ! pursued it may, by souio, be thought! 'a matter of congratulation that it was! ! not invoked. However, wo have per-: i haps cause to congratulate ourselves' ; that the services ot your honor have) ' been invuked Lt al!; the defendant in i this case has perhaps reasou iv ho thankful tliut force and violence have j not been resorted to. Perhaps wo' luiay eomrratulate O'irselves that the' jguiis of the lor! have not been turned ion the ciiy, a..d tl-e City Hall sur-j : rounded with cayjhy, ni'a.ia'y and i lartillory, and the Warden compelled i : at the point of the bayufiel to .iiirreu-! dcr iii- prisoner- j Mk- iiAsKlN.Thai w.mld have , been my way to do it. Mit. I-'ITCII. I pre.-ume that Mr. . Ua.-kin would have knocked the City Hall aul City Jail down. Mn. Bask ix. I would that. Mil. FiiL-ii. The acting law wilcer' ofthe United States intbnns us that; he would have "let loose ihe docs of war" had hU advice been followed" aud hi wishes con.-,ukcd. And why were they not'.' Where was ail the- power which with all the pomp and parade ' o!" war once interfered to prevent by m aia u poveci'ul parade of American cutietis ou ihe louuii uf Julv",) V-'as if asleep'.' ashamed.' or ajraid.' ' I Govtaxoa Wooi. (who was tcai-J on the tljiit-liaad of Judvc Ijawky t Neither. XH? lord: . Jij'.E. Iam assured by the1 Lxeeuuve ot the Tenrito.-y of Utah, I who honors with his arjdience and - encourages the prosecution with approving ap-proving smiles, that my surmises are incorrect. The Executive of the Ter-rii.irv Ter-rii.irv who perhap agrees with the opinion once expressed by the present President of the United States that the .lii'iiot'B of the Supreme Court are "member-! of tho Governor's stuff," and who designs possibly to tfive to your Honor, as his staff officer, tho benefit of his protecting presence while at the same time he stands ready to answer questions of defendants' counsel whether he be the party interrogated inter-rogated or no T;iE Couur. This discussion is becoming be-coming exciting and I shall not permit further remarks outside ofthe case. Mil. FiTvir. I beg your Honor's pardon, but I have not traveled out of the proper line of argument, except to comment upon interruptions made irregularly by Mr. Baskin and improperly improp-erly by Governor Woods. Since theu we are to be tried before being punished, pun-ished, 1 will now proceed to the consideration con-sideration ofthe important questions involved. Tho length of Mr. Fitch's argumeut and the press upon our columns, compel com-pel us to hold over tha rest until tomorrow. to-morrow. (Kds. Herald. |