1859 March 22 Memorial and Petition to Alfred Cumming


1859 March 22 Memorial and Petition to Alfred Cumming


Through a signed petition the citizens challenge the legality of Judge Cradlebaugh's court due to the date and place being changed, US. troops surrounding the courthouse and trials held in which the United States is party.




Citizens of Utah Territory


Alfred Cumming


1859 March 22


Great Salt Lake City

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To His Excellency Alfred Cumming,
Governor of the Territory of Utah.

Your memorialists, citizens of Utah Territory, respectfully represent that the Honorable John Cradlebaugh, associate Justice of the Supreme Court of the Territory of Utah and ex-officio Judge of the 2d. Judicial District, commenced holding a term of Court of Provo, Utah County, U. T. on the 8th day of March, A. D. 1859; by what law, as to time and place, of the United States, or of this Territory, is unknown to your Memorialists, for in the Statutes at large, Chap. cxxiv Sec. 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," approved, August 16th, 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 assembled, at their respective seats of Government, fix and appoint the several times and places of holding 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. V111 of the Deseret News, we learn that Chief Justice D. R. Eckels and associate Justice E. E. Sinclair in accordance 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 Territory, fixing and appointing the time and place for the judicial district in which Judge Cradlebaugh is now holding court, as follows:--

"2d District Court will be holden at Fillmore City on the 1st Monday in Nov. by Mr. Justice Cradlebaugh," and it is obvious that the 8th of March is not the "1st Monday in November," neither is Provo on the Site of Fillmore City; Judges Eckels and Sinclair also limited that "each term of District Court will be for 30 days, if the business shall require it." Congress, Statutes at large, chap. CLXVII. approved 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 Territory, 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 cannot be holding court under this law, for he is examining 'matters and causes' 'in which the United States is a party;' and in Sec. 2, Chap. XLIII. Statutes at large, approved July 4th, 1840, we find "That the presiding Judge of any Circuit Court may, at his discretion, appoint special sessions thereof, to be held at the places where the stated sessions thereof are holden;" but at such special sessions are prohibited from "trying any cause by a jury;" now were such discretion 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 a requisition by Judge Cradlebaugh a detachment of United States troops was marched from Camp Floyd and halted at the building provided for the accommodation 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 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 inform you that the Governor and other civil officers of Utah are now performing their appropriate functions without molestation. The authority of the Constitution and the laws has been fully restored, and peace prevails throughout the Territory;" directly contrary to an express understanding with the Peace Commissioners, as made public in Provo by Gov. Powell, June 16, 1858, when he stated to some four 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; Genl 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 12th, 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 commissions from your Excellency, promptly informed the Judge that they were ready and amply able and responsible for the arrest, security, care, and forthcoming 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 emigrants from molestation by the Indians within our borders, 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 inhabitants of every state and Territory in the Union, that you shall be obedient to the laws of your country, 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 requirements 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 requirement. And President Buchanan, in his Message before quoted from, states, that "These gentlemen (Messrs Powell and McCulloch the Peace Commissioners) conducted themselves to my entire satisfaction, and rendered useful services in executing the humane intentions of the Government. I also affords me great satisfaction to state that Governor Cumming has performed his duty in an able and conciliatory 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 Executive of our Nation, notwithstanding the President's proclamation of April 6th 1858, and the consequent results of the Peace conference in G. S. L. City in June last, so satisfactory to both parties and the agreements 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 advantage 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 following the authority above alluded to, and which, perhaps, 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 zealous, harmonious and thorough co-operation with him, or to frequent and full consultation, and will conform your action to his requests and views in all cases where your military judgement and prudence do not forbid, nor compel you to modify, in execution, the movements he may suggest." It thus appears by those very instructions, under which a District Judge is they are not already rescinded, claims authority for making a requisition on Gen. Johnston for troops, that your Excellency, as was very properly considered, has the superior authority in counseling their movements in the capacity of a prose. 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 Administration 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 it is well known is not so very 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 be not subverted by the wily schemes of such suttlers, 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 by bench warrants and unfed and without bedding guarded by troops; nor juries 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 restrain 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 Excellency "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 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 Washington City the official proceedings of Judge John Cradlebaugh in the 2d Judicial District of this Territory, and, for such wise, legal, and just action by your Excellency, your Memorialists and Petitioners will every pay.

Utah Territory
March 22d 1859

The above Petition has 4733 signatures.

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