Show RULING OF or JUDGE hawney HAWLEY REPORTED BY GEO F GIBBS in the case of the people versus ottle ger and others that was examined yesterday I 1 regret to say I 1 have not had time to give it that careful and thorf ough examination particularly as touching the law of ahe the case as I 1 could have desired owing to my indisposition I 1 was unable to take up the question and examine ittin itin any degree until this morning all governments are based upon authority tho rity the bulwark of that authority is that of mental and physical force in a republic like ours thie thle authority is granted by the consent of the people of the states in the union A territory is not a part of the union or a part of the government of the united states its territorial elements are part however of the domains of the united states and its people subject to the government of the united states it has no part or the people have no part in the election of the president or other general off omm meers officers of the government it has no senator or member of the house of representatives but is permitted to have a delegate to congress to represent the interests of the people and territory this delegate is not permitted to vote nor lo 10 take part fn an the C general discussions and deliberations on business other than that pertaining to the territories the constitution of the united states affeld ar iele lele icle 2 sections 1 and 2 9 section 1 provides the executive power shall be vested in a president of the united states of america section 2 of the same article provides the president shall be commander in chief of the army and navy of the united states and of the militia of the several states when called into actual service of the united states article 4 section 3 provides that congress shall have power to dispose of and make all needful rules and regulations respecting the territory pr oiher other property belonging to the united state states I 1 article 2 of the lat amendments provides A well regulated militia ml litta being necessary to the security of a freestate the right of the people to keep and bear arms shall lot be infringed I 1 this right to this amendment of the constitution does not mean mein nor can it be construed to permit insubordination I 1 to the rightful constituted authorities over the people of the states nor insubordination of the military organization in the states nor insubordination of that or any of the subordinate commanders of such military organizations for instance it is the right of the president to declare a state arother or other particular place under certain circumstances in rebellion and to place such state or place under martial law so also it is the right of the governor to do the same thing under certain circumstances if such buch was done by the president or by the tho governor by due proclamation no one would insist I 1 apprehend upon the right of any one to disobey the presidents order or that of the governor or to disobey the proclamation to that effect if he had eo so disobeyed such proclamation he be would unquestionably be in rebellion to the authority of the government that had issued that proclamation that had issued it rightfully rightfully the governor of illinois who is under tinder the constitution of that state commander in chief of the jeet to the president under the constitution of the united states in 1863 if my memory serves me correctly issued le sued his order to a certain regiment of that state directing them where to rendezvous this regiment under the lead of its off omm meers officers j ald said that they were dissatisfied with that order of the gover cover arnor that they wished to join a certain brigade of the city of st louis the governor was not willing that they should join that briga held them subject to his military order they secured to themselves a boat went on board and pursued their way down the mississippi river intending to go to the city of st louls louis louls louis to join the brigade of their choice the governor issued his order that they be put under arrest this military organization or regiment then embarked as they neared the city of quincy they met there one or more of the staff of the governor who under the direction of the governor had planted his bis cannon upon its bank that regiment was put under arret arre t by his big military order and no one either in the state or in the general government has from that day to my knowledge questioned his authority to doso boso do so bythe by the organic act of this territory gie gge ec 2 the governor is i s charged with the duty of f being commander in chiet chief of the militia of this territory and also is charged with the duty I 1 to see that the laws not nob only of this territory T errit ory but the laws of congress that are applicable shall be faithfully executed by sec 17 of the organic act the constitution of the united states and the laws of the united states are extended here hero and de declared einred eldred to be in force in this territory territory so far ar as they may be applicable e it is ii claimed by the counsel for foi the defendants that there is a law of the territory organizing a militia it was disputed on the part of one of the counsel for the defendants and on the part of the other counsel ic it was waa insisted upon as being an illegal law or enactment the counsel for the ibe defendants also insist that to this military or militia law of the territory there is a military organization iza tion it is not needful with this proceeding that I 1 should decide whether this militia law of the territory is not all or in any particular legal I 1 shall for the present assume its legality I 1 will remark however that the attempted revision of this law pages igo 0 2 3 of the territorial statutes probably is not a statute there is no evidence that it was ever enacted by the legislature or approved of by the governor if not toot it is not a law nor nok is it of force but there ia is an organization under the previous vio us law of 1852 which may be found on pages to inclusive this organization is denominated by this law the nauvoo legion of this organization the governor of this territory by virtu virtue e of the authority of the united states in the organic act contained is the commander in chief aa As such his orders and proclamations when rightfully put forth have the force of law and must be obeyed on the tho of september 1870 the governor of this territory issued the following proclamation I 1 which was admitted by the defendants counsel to have been issued and there is no dispute to its being in due form of law the proclamation was here read this thia proclamation is admitted by the defendants to bave have been made there is no doubt from rom what bag baa preceded or the remarks which I 1 have made of the governors GOvernor ls riat to issue it when issued jt itt is binding upon all persons whatsoever whether there is any mili military or animation aniza tion or otil otti otherwise berwise ari ati and d all are bound to take notice of such proclamation As to the wisdom or expediency of issuing it I 1 have nothing to say aay it does not become me to comment upon it I 1 was pas was not nor never have been the adviser of governor shaffer ldla idia I 1 did not know that this proclamation was even contemplated until it was in print the governor must be acknowledged the principal representative of the government of the united states and also the representative of the executive authority of the united states in this territory As such this court is bound to respect him and his authority as a such the people pre pro re also so bound to respect and obey him in all that he may issue lawfully in 1862 congress enacted a law to punish treason and rebellion which may be found in the twelfth united states statutes at large pages and this statute or so much of it that ia is pertinent to the question before the court is as follows be it enacted by the senate and house of representatives of the united states of america in congress assembled that every person who shall hereafter commit the crime of treason against the U states and shall be adjudged guilty thereof shall suffer death and all bib bis slaves if any he behave have 2 hall shall hali hail be declared a and nd made free or at the discretion of the courthen cour the shall be imprisoned for not less than five years and fined not less than ten thousand dollars and all his slaves if any he have shall be declared and ana made free said fine shall bhail be Tae levied and collected on any or all of toe property real or personal excluding slaves slaves of of which the said person so convicted was the owner at the time of committing the said crime any sale or conveyance to the contrary notwithstanding sec 2 and be it further enacted that if any person shall hereafter incite set on foot assist or engage in any rebellion or insurrection against the authority of the united states or the laws thereof thereof or shall give aid or ok comfort thereto or shall engage in or give aid wid aid ald and comfort to any such existing rebellion or insurrection and be convicted thereof such person shall be punished by imprisonment for fora oora a period not exceeding ten years 0 or f by a tine not exceeding ten thousand dollars and by the liberation of all his hia slaves if any he be have or by both of said punishments at the discretion of the court sec 3 and be it further enacted that every person guilty of either elther of the of fences described in this act shall be forever incapable and dlab disqualified dali dall fled to hold any office under the this is a civil law jaw and this is a court of civil and criminal jurisdiction charged by congress with the duty of enforcing the laws of this thia territory and those of the united states this law was passed july 17 1862 it is therefore not so go late as to become obsolete as was intimated by counsel nor is the great rebellion rebell ibn that induced its enactment so long past in the history of our country as to C ause cause either the president of the united states the governors of the states and territories courts and judges or the people to forget the sad results of that treason and that rebellion let us look at thia thib statute for one moment it will be observed from the 2nd and sect section loh that crime is varied in id its ap if any person shall here after incite set on foot assist or engage either of these I 1 in any rebellion or insurrection against the authority of the united states or the laws thereof the particular charge and proof seems to have been this under this clause that if any person shall hereafter engage in rebellion to the authority of the united states now it has been remarked here and I 1 was sorry for one that such remarks were made that mormon QuIl religion may have something to do with this matter I 1 wish it distinctly understood that the administrators of the laws of this territory or the united states cannot knob know either mormon or roman noman catholic episcopalian presbyterian methodist congregationalist or other denominations all are entitled to the protection of the law and their religion when it does not con eon conflict filet with the authority of the government and shall be protected as far as I 1 am concerned this proclamation of the governor ia Is ili still ill a applicable P P to the military organizations izat tons ions 8 and people of this territory without distinction it was said by one of the counsel on the part of the defendants yesterday that there thero were nAili military tary organizations drilling frilling other than tho those 9 e of mormon rmon organ zan tiona if so go and that knowledge Is brought to this court by proper affidavit fi this crime upon any one of tb officers whether they ana aria ania la ibis cit citrin yin ogden Corl CoriD corinne neg nev or elsewhere they shall be arrested if there is power enough in the government of the united states to arrest him law was not made for one class of individuals any more than for all classes of persons and courts and governors are not to be re specters of persons persona in the administration of the law there is but very little authority upon this new statute of the united states there has been so far as I 1 have been enabled to examine the authorities but ong one decision under the law there may be others probably are others but this is the only one I 1 have been able to find I 1 will refer to it before I 1 abdone am done In Bishops criminal law f vol sec 11 he says in a previous chapter under the title combinations of intents some principles r i n c aples relevant to the present su subject J e e t were mentioned it n was as there shown to be immaterial what intents other than those of the law existed in the mind of a man when he committed a criminal act provided the jaws laws intents were present influencing him in the same bame way fay we are to consider this act it is immaterial what a man does of a leally aily ial lyth indifferent nature providing he oes 0 e s the e thing which the law forbids in other words all intents and all acts not lying within the cognizance of the criminal law are deemed to be mere surplus matter which has no effect one W way or the other upon the question of legal lai guilt etc quoted also sec of same vol also from and 2nd vol of the same work sections 1207 1208 and 1209 also cited the chapman treason case that arose in california under sec 1209 how far the defendants may be guilty I 1 am not called upon to decide nor to construe the statutes of this territory under which they have been arrested except so far as to decide that the defendants however probably have committed a crime I 1 shall leave the matter therefore to be further considered and investigated and to that end shall leave the defendants to answer to the deliberations of a grand jury I 1 will fix the bali bail bond in the case of of the higher grade of officers to the sum ot of oooo and to the lesser 2000 |