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Show JIRIIICT1D OT I'UODATK In Hie mairtrof tlie Several Application Appli-cation m of Eilm uiid, Jvtauiuu, Alex ander Toaucc, licorgf Builtr-bfiucli, Builtr-bfiucli, Ihumii n. ilcller, W iu. Vlioouuvtr and Ot ltUo H rlglit, tor rllt ot lidliaa Corjju. .;f-re Horrible C. M. Unwley. ! A--'''.'iie Ju-tn:e. 1 OpiQi'.'U rt-'udcred by AOfjiate Justice Jus-tice C. M. Jiawii-y revi.;Wud by a a.'.m-ber a.'.m-ber of the Salt Lake Bar: The o;ini'.-n delivered by judge 1 1 aw ley iu tlio above entitled cautc, ami pubii.-h d in the Kvening Journal , ui the ii..-t. , ii ol a luot eX'raui-dinary eX'raui-dinary character; Iirt, because of the want 'A' hiipjiuruiiif authority ; i-eond, lt;caii.- of autliorili'-'S fjuoted having no relation to tlio subject matter con-.idered con-.idered ; third, becau.io of the dcart-iin; dcart-iin; from w..il tiled rules for the rendering ren-dering of Biatute?; and fourth, because it in altogether unround in law and lorde.. An a meuib-rr of the bar 1 would not presume to critiei-c an opinion of a court, nor attempt to question publicly tho orrcc'ne-s of its decision. The relation existmir between attorneys and tho court demands rcj cctfu! acquiescence acquies-cence to tho rulitiL's and decisions of the latter. But tbis is not an opinion, nur is it a decision of a court. It de-if de-if riuines neither the law or practice of tho subject matter considered; it is a mere dictum ol one ot the associate ju-tici'H, biding at chambers in a matter ol ' k'thta cvritts. Aiain. the manner of its publication gives license to the conviction thai public criticism is challenged, and ko believing, I bhall endeavor to show its unsoundness. I piopo.-c to touch only such points as are presented aLd pa.iscd upon at the time the returns to the several writs were made. There is much of his honor's published opinion that bears no relation to the law involved or ihc question of jurisiiieiion int'.rpo;c J 1 With such mutter, evidently u:-.ed a I "chinking." to ti!l i: , iibi'onunate openint's, I shall have no:hing to do, but shall proceed to lucii matters as are prominent in tho true question at issue; suoh as materially concern the public aud the profession of which 1 am a member. Iu order to a lull understanding un-derstanding of tho questions involved it will bo neceesary briefly to refer to the history of the several casc3. Complaints in due form wherein tho several parties, hereinbefore named, wcro accused of the crime of larceny, (an ollencc created by tho law of this Territory.) wore filed in the court of O. 11. Kiliott, justice of tho peace in and for Box Kldcr county. Upon those several criminal complaiuts the said parties were placed upon examination, ex-amination, and waiving examination they wero severally held to answer bo-Ibro bo-Ibro tho probate court of Box Elder county, then holding its term at Brigbam City, The grand jury in attendance at-tendance upon that court found true bills of indictment, accusing them (severally (sev-erally of the crime of larceny, and by order of that court they were severally held under bonds to answer unto the said indictments. This plain statement of facts brings mo at onco to the question ques-tion passed upon in tho published opinion of judge Hawlcy "fla?o the probato courts jurisdiction of crimes created by tho laws of this Territory." Tho learned judgo says "counsel for tho sheriff and probate judge insist that tho district courts of this Territory Terri-tory havo not original jurisdiction of criminal matters, and that the probate courts have this jurisdiction." Precisely Pre-cisely so, your honor, and you have not and cannot show the contrary. It is truo that tho soureo of executive, legislative and judicial authority in this Territory is vested in congress. Congress in order to confer upon the people of this Territory political power, and to enable them to lorm such government gov-ernment as would oreatc full protection of life and properly, delivered to them for that purposo a chnrtor. Tho preliminaries pre-liminaries ot government wore established estab-lished by the Organio act. By virtue of tho power thus delegated, the people of this Territory wero authorized to put on robes of government, fully em-powrcd em-powrcd to legislate upon all rightful subject sub-ject matter hold in cheek only by the constitution thus given, -still subject to tho right of congress to revise or annul all legislative acts. The object and operation of our Organio law was to cooler upon the people the authority to make aws lor tlio good government of the Territory. The power conferred by the sixth section of the Organic act to wit; "that tho legislative power of said Territory shall extend to all rightful subjects of legislation, consistent with the constituticn of the United States, aud tho provisions of this net," embraces within its scopo tho whole range of legislation necessary to the protection, security and prosperity prosper-ity of the people. In the caso of Swan vs. Williams, et al Michigan reports, page -130, 431., tho supremo court of the State of Michigan, hold tho following language in reference to theordinanco of'JTST "It is and ever has been regarded as l lie organio law, or constitution of such Territories, declaring and guarantying tho rights of the citizens, providing for tho formation and organisation ol territorial governments, and delegating delegat-ing to such governments full powers of local legislation. - It must not be understood that no restraints re-straints wero, in our view, imposed upon the legislature; but that such wero rather in tho nature of constitutional constitu-tional restraints than .of a reservation of power in tho general government, perfectly consistent with every exercise of sovereignty compatible with republican repub-lican institutions, aud such as the people, in tho erection of every State of this Union, have imposed upon kt'is'ativc authority." Again, ib 431, "Ellectivc Territorial governments were as fully in view of the f'ramers of the ordinance, as effective Stato governments gov-ernments which were to "succeed them; and the restraints imposed upon the Territorial legislatures, were upon their form anil constitution rather than upon their general powers and jurisdiction. juris-diction. The authority to make laws 'for the good government of the Territory, Terri-tory, not repugnant to the principles aud articles of the ordinance, was expressly ex-pressly delegated. Tho term "good government" embraces within its scopo, the whole range of legislation necessary neces-sary to secure the comfort, prosperity, and happiness of a people; and the authority could not be exercised except ex-cept as the usual attributes of sovereignty were lodged in the Territory! Territo-ry! governments." Wliy wiii not this ri:;nninc apply to the rights of the p-.-op'-e of this Territory under their Organic law ? Is it not a rightful subject of legislation to provide what 3t-;s snail con.-titute crime ? Is it not ; wrh:n the re-ipe of the powers dc!e-,-arcd. to provide for the punishment of en ire by legislative enactment ? I'. es th: power cease at this point 'i (.' :n::o: the people go one step further, :ir:d i:etc;-iiine tlio imcstioa of juris didicn, ai;d provide by law th.it ti-e probate court shall have authority to put criminals upon their trid '.' lie ai;svr..r to thee several pro; o-.-liions inur-t be in the normative; ih.t thi.- crmit of power has bvn ni.ui-v arid th;u the richt to legislate upon th:s si-r oc; i? lolled wbh the people o' 'h. icnit'-ry, u;ilcs expressly pro halted by ti.e Organic act. Acaio, uo v esc rigb:lui subjects of leais-Lti',ur.J leais-Lti',ur.J I'o cut tu:;e mattsrs imm;-d imm;-d ately concern th-' comfort. rro.-p-"r-ty, acd security of the people.' Docs t not concern the interest, security. 1 acd safety or" the peopie, aud of .their property, tha: ioc.il courts existing io j each coun;y of tbis wide-extended, and j ;i.l s partly s.;;;ja Territory, sh-tii have jur: i:ei; p o: crime c.'Lnxirtt. d w.ii:;a tl.eir lcrri'onal jin.-diciioa' ' A::u i- n..t iLis ruht to so legL-.a-e as mcc-sry to ceoj govercLicat ar:i i s 1 rtiioicL'cy acd ; r-.'--trv :oa. - th- c-r i tr-ict;ri; ro:id.- jud t di.s acd issc-. ins .-.'i C'j:..i.: -.j it li r,j. w.;j i ov . i ho .cjrii-jj j jj-,, iu liis y-i:-":?b.c : ep:ncn. -.j-, -u-J.-t-:u;u1.y, ihar this coal-rs j ::.-::: n; :!..- i-t : co i r" ir c; .:l:m' mi:;. r-, f .Id r: 1 t.y the Orun c act, ad taat the pro- j hi biting cause ii embraced in the I ninth section thereof. Let uj examine thij se'j'.ien aad hw houur's reasoning upon it. Section 'J provides. t "lhat the ju'iicial power of sid Territory -hall be vested io a supreme court, district couris. probate curie, atd ia ju-'.ic;.-i tf the peaee. The juriaJtction of the several courts herein provided lor, both app'.-iljte and ori-laal, ori-laal, and that of prooate courts aud of ja--tic-'s of the peaee, f-liall be an limited lim-ited by law." Conre-s, iu the t-co- Uon above referred to, c'a-.-i li d the judicial branch of the Territorial government gov-ernment and l-fc the question of juris- diction to subsequent lei-lation, as 1 wiii b-; gathered from tiro terms "as 1 limi'ed by law," and thin evidently conferred, Ui-on ttie Territorial leyi-la- , ture, authori'y 'o provide and deter- 1 mine the juri diction of then: several Courts, huiject, however, to the.-e two 1 fold powerr-; the reirictinn-i of the i Organic act, and the riylit of congress ( to revise or annul Territorial legi-da- tion upon ilii- rulj ct. It is not openly contended by the learned judi;e that tho lr rm.. of that section as limited by law" do not refer to local legislation; th-it there is not a power lodged somewhere lor future uciion. Upon this point the learned j'idgo is not clear. I am left in doubt u-i to his '(, lifMil:.rion noon flll.- ject of juridiction is fixed by the Organic Or-ganic act except, lit; that in tjrviug chancery and common law jurisdiction to the district courts; and, Hud; that concerning the powers of justices of tho peace, and in rclerence to that office, section 'J of the Organic act declares: "Provided that justices of tho peaco shall cot have jurisdiction ot any matter iu eotitrover.-y, when the ti'lo or boundaries ot land may bo in dispute, or where the debt or sum claimed thall exceed oue hundred dollars." dol-lars." Unquestionably, congress referred to Territorial legislation tliat "the jurisdiction juris-diction of t he several courts herein 1 provided for, both appellate and orig-uai, orig-uai, and thar of probato courts and of the justices of peace, shall be as limited bylaw." What law? Why, tho law of tho Territory I An irrcsistablo evidence evi-dence in support of this view of tho intent of congress lies in tho exception which follows Tho limitation fixed upon tho powers of the Territorial legislature as to tho jurisdiction ot justices of tho peace Will tho learned judge answer, that congress has thus placed restriction upon its own powers, that it is provided io tho Organic act that eongrcss shall not cnlargo the jurisdiction of iustices of peace? To LhiBend he is driven, unless he concedes con-cedes that the terms "as limited by law," refer to sub-equont Territorial legislation. Immediately preceding tho sentence "as limited by law," in the same section, is to be found tho following : "The said Territory Ter-ritory shall be divided into three judicial judi-cial districts, and a district court shall be held in each of said districts by out of the justices of the supreme court,at i such time and place as may bo prescribed pre-scribed bylaw." Is it not evident thai congress intended that tho "iimo and place" of holding theso courts shall b( fixed by Territorial legislation? Certainly; Cer-tainly; and it is equally certain thai congress designed to refer all matter: concerning tho comfort, convenience, happiness and protection of the people, to the Territorial legislature ; anc jurisdiction of the several courts is noi an exception. The next objection urged to the ex crcisc of this power is tho restrictive clause of tho Organio act, to wit "and the said supreme and diatric oourts, respectively, shall posses: chancery as well as common law juris diction." Tho learned judgo hold! that tho exercise of criminal jurisdio tion on tho part of the probato courti is expressly prohibited by that portioi of section 9 of tho Organio act jus above quoted. What does his honor mean when he speaks of tho "oommoi law?" Docs ho mean that the oommoi law has been adopted by tho fedcra government, and that it prevail? ove tho Territory of Utah ? The oommoi law has never been adopted by ou government. It requires legislate action to rvork the adoption of th common law ; this action has nevci been taken by congress ; nor by th legislature of (his Territory of Utah There is a di-tinction between commoi law proper,and the rules and rcmcdic known to the common law. Ili honor does not make this distinction "It is clear that there can be no com mon law of tho United States. Th federal government u composed o twenty-four sovereign and independen 9tates,cach of which has its local usage oustoms and common Jaw. There is n principle which pervades the union,an' has the authority of law, that is not cm bodied in tho constitution or laws c tho union. The common law could b made a part of our federal system on, by legislative adoption." Whcaton vs 1'eters; S Peters GoS. "It is insistc that our anccstors.when they migrate: to this country, brought with them th English common law, as a part of the) heritage. That this was tho case to : limited extent is admitted. No on will contend that the common law,as i existed in England, has ever been ii force, in all its provisions, in any Stat In this Uniooi" lb., page G5U. Hi honor doos uot inform us when or bj what authority the common law wa adopted in this Territory. I respect fully urge against tho weight of hi honor's opinion, that tho common lai has nover been adopted in tho Terri tory of Utah. It is yet an open que; tion whether tho rules and rcmcdic known to the common law prcvai hear, or the civil law furnishes rules c judicial government, when not other wise provided by local Btatute. Th question presented ia his honor' b put lished opinion is not, whether the dit triot court has jurisdiction at commo law? It is simply this: Have the pre bate courts jurisdiction of crime created by tho Territorial laws. It i true that the common law hag it criminal side, but will the learne judge contend that tho district court have jurisdiction of oflfo rices d-. fined a the common law? Whence did the district dis-trict courts derive that jurisdiction Congress has not conferred it. Th Territorial legislature, most assuredly has not. I hardly think the lcarnc' judge will bold that the district court of this Territory, by virtuo of inhcrcn power, or o:terwisc, have crimina jurisdiction never yet conferred upoi the federal courts. .Neither the cireui or district courts of the United State have jurisdiction of crimes created h the common law. Now grant, if yoi please, that the district eaurts of thi. Territory have "ccaimen law jurisdio tion; then what ?j jDccs it follow tha the district courts have jurisdictioi ot offences made trinble by lav in th: probate courts? l!y rn mean-! His honor dce-i n-'t refer us to am congressional leci-h-ttoo upon thi. subject, except in tho simple terms "common l.w jtiris.lle'ior,;" and wi hive endeavored to -!vtw, ari tbonl we h.av--, that it cani;i be he id iron the Organic ach. that the di-tnet court: have jt risdictiua of critnii-,'! o Hence; crea'ed by the statutes of this Territory. Territo-ry. I- n:u-1 b' home in mind that iht per-oos n-inird w-to not indicted ?t corumon law. hit were .iccu-ed an I indicted in-dicted e-f.i iitn- cr.-atcd by act of tht let-ir-i'me of l he Terri'iry of U'aii: and, tor the triitl of the orb'neca c: which said persou-i ,-tand r,c:as-?d, legislature of this Territory has cockr ru jurisdic:ion on the prebu: rurs, and has not civen it to the a-s-rici Cjurts. Neither the rules nor re medio; known to the common law partake ir. tLe trial of the ca-s considered. The acts constituting the crime, as well a; ali the mach;Lery, the complaint, ar-rilcnicent, ar-rilcnicent, tn l and seoteLce, if convicted, con-victed, are rcgu at;d by the statutes of t-its Tcrnury, a id not by tt e comrnoc 'w W'o -:-y tiierefjre, tnjt this is a s . u i- j :rL;'-icri a, and the territorial :i : i i;:e, u:.aer the Organic acr, b ive ti.e authoriiy to co. f- r it upoc ti.e iTl-a'e c u:;s, i;d ia the ex. rest o: it ir..- t-jte court in no ro.-p-ct tn njhes up- a the jiirij-diciioa of :he di.-rrij: c- urr, t It i? as-u-.-.;?, by the x-ir-.i j . I,- oiinr jun-d-.ln tt...-; ii.r ic the ame import-, '.he stiieu:cnt ol the estate ot dvcea.-d per -was, probite ol wils, etc, etc. Why not? Caunot j the powers of the- court be extended i in tne Territories by act of cooiiress Congress hat frtquently tlven the pro j bate courts civil j-iriad.otion in the Territories, and. if civil jurisdiction ! can be corjf,rpd, why uot criminal iuidlcliot' It' congress can to leg'.s-late. leg'.s-late. why not ti.e Territory exercise the same power, when not prohibited by the Or-'anic act? There is but oue au-wer to this proposition; the powers ' of the probate courts are not uecessa- ! ri' y limited by the name of the court; ttn-ir jurisdiction C'tn be changed, en- larked, or ex'ended by legislative en- 1 aetment , aud there is nothing in the O.'.i-'iij:1: act that uiaU-s against tho cx'-rci.-.c ol iwuch authority. The laws of i ho Territorial loitMamre, within the liiuits of tho Territory, have tho force aud effect of acts of congress, and for tlte saui'j reasons; the ouly check bt-imi th i Z ri-:ht of concress to revise or annul. Says chief justice Campbell, -21 Michigan reports, pac 7.0 : "But until revoked or ttuuullcd, an act of tho Territory was ju-,t ari obligatory as an act of congress, aud for the sauio reasons." And the chief iustiec of the supreme court of , the United States I olds the same doctrine, urged in still stronger terms; "In the drat place we observe that the law has received tho implied sanction of coimres The simple disapproval by congress at any time, would have annulled it. It is no unreasonable inference, therefore that it was approved by that body." Clinton vs Eug'ebrccht 13 Wallace -lb',. The legislature of the Territory of I Utah has conferred cri r iual juiisdsc-i juiisdsc-i ti n on the probate courts, aud the law iu relation thereto have continued the laws of the Territory for more than niueteen years. Now, mark tho apt words of chief justice Obase : "The simple disapproval of cooeress, at any I time, would have anuulled it. It is no unreasonable inference, therefore, that it was approv jd by that body." But Mr. Associate Justico says that the Territorial legislature has conferred confer-red criminal jurisdiction on the district courts, and refers to chapter 1, section sec-tion 1, of tho Torritorial judicial judi-cial act, which provides: "The district courts shall exercise original jurisdiction both in civil and criminal cases, when not olhcrwiso provided by law." liut your honor, it has been "otherwise provided by law," for, in section 2d of tho same act, page 31 of tho statutes, it is provided, "tho several probate courts in their respective counties have power to exercise original jurisdioton both civil and criminal," eto. Now, for the ingenuity of our most worthy judgo, he has discovered that tho word have is of no significance, that it means i merely judgment, opinion, the mental conclusions of the legislative body, that tho probate court by virtue of Rome iuherent power already possessed such jurisdiction. This is a new and quite novel way of construing statutes. ! The well-settled rule of interpretation, inquiring into tho intent of the legislature, legis-lature, is wholly ignored, la this, the . learned judge's mode of rendering ! statutes, ho runs counter to well eet- tied decisions. All the authorities aie , against him. Sec Cooley's "Constitutional "Consti-tutional Limitations," pages bb, 57, ' 58, S-t, iSo, 18b, and authorities there cited. But we arc not without - further evidence that the legislature of this Territory has conferred jurisdic-. jurisdic-. tion of crime, created by the local laws, , upon the probato courts. The act ia relation to crimes and punishments, . laws of Utah, page 50, and the act regulating the mcde of proceduic in . criminal cacs, page 04, settle tho ques-5 ques-5 tion conclusively, so far as legislative . action is concerned. The published 5 opinion, of our worthy and intelligent ! associato justice, seems to be a "double header." After having disposed of , tho subject of jurisdiction, ho urges j that he could not hold tho prisouers to j answer, for that there was no legal evidence before him that the defend-r defend-r ants were charged of any crime ia the j court of justico Elliott; in other words r that tho return to tho writ did not 3 present certified copies of the com-Q com-Q plaints filed with the justice, nor of his . commitment. Tho answer to this is, B the record sshowa that no issue waE made upon this point; that tho return j stood coufesscd. liut what of the 9 statute remedy for such defects. Sec-a Sec-a tion 19 of the habeas corvus aot makes amjile provision for defective commit-1 commit-1 ments. See laws of Utah, page 40. e His honor refers to lectors vs. Meters, f S Oush, 529. Wo wonder at the cita-t cita-t tion, for it presents no analogj s to tho cases under consideration, 0 Tho leading questions, discussed by 3 chief-justice Shaw in that case, wen . the right of the writ of Ccrliorart,auc If of appeal from the judgments of the c probato courts of Massachusetts. Tht y question whether the legislature of thai L Stato had, or could enlargc.oi change, j the jurisdiction of probate courts, was not presented; indeed, it did not entei 0 iuto the caso. The cases cited by hi; r honor, viz.,Danphy vs. Klein, Orchardt a vs. Hughes, and Noonan vs. Lee, are c not at all in point as will be readily t seen by examination, and tho wonder 3 is that they were referred to as sus-e sus-e taining the theory "that the legisla-8 legisla-8 ture cannot confer jurisdiction on the , probato courts of crimes created bj g local law." The question of the powei r of Territorial legislatures to create 8 courts aad confer jurisdiction, is very v thoroughly discussed by ohicf-justice Marshall in the case of American In ,. surancc Company vs. Canter 1st a Peters, 511, and to that case I make 1 reference to s1 ow that tho Territorial , legislature may confer concurrent juris . diction when it is not expressly pro 0 hibited. ,. I have endeavored to discuss this question fairly and respectfully, having but ;one purpose in view an earnest ,. desire to Bud the right path and follow s it, to maintain the law, and abide by it s until annulled by.the legislative branch s of our government. In the judicial d history of this Territory, it is worthy 8 of note, that our judircs have not been t in harmony in their decu-ions. Two ol . the former judges of Ut h both gen-? gen-? tlemcn of conceded ability held the c very reverse of the opinion cow dc-i dc-i elarcd by judge Hawlcy. I am not j aware that the supreme court of this s Territory bus ever decided that the t probato courts have not criminal j uris j diction. I am ihformcd, and I believe j correctly, that this question has never 1 been presented to our supreme court. a Hiat the probate courts havo jurisdic-y jurisdic-y tion of crimes deSned by the laws of x this Territory I havo not the least doubt, and this I say, abiding in no . other feeling than tha', of profound t respect for judge C. M. Jliwlcy, whose , opinion I have cndcavorcl to review. t Memuku TflE S.M.T LKE B VII. |