To the Senate and House of Representatives:
I consider it my duty to call the attention of Congress to the condition of affairs in the Territory of Utah, and to the dangers likely to arise if it continues during the coming recess, from a threatened conflict between the Federal and Territorial authorities.
No discussion is necessary in regard to the general policy of Congress respecting the Territories of the United States, and I only wish now to refer to so much of that policy as concerns their judicial affairs and the enforcement of law within their borders.
No material differences are found in respect to these matters in the organic acts of the Territories, but an examination of them will show that it has been the invariable policy of Congress to place and keep their civil and criminal jurisdiction, with certain limited exceptions, in the hands of persons nominated by the President and confirmed by the Senate, and that the general administration of justice should be as prescribed by Congressional enactment. Sometimes the power given to the Territorial legislatures has been somewhat larger and sometimes somewhat smaller than the powers generally conferred. Never, however, have powers been given to a Territorial legislature inconsistent with the idea that the general judicature of the Territory was to be under the direct supervision of the National Government.
Accordingly, the organic law creating the Territory of Utah, passed September 9, 1850, provided for the appointment of a supreme court, the judges of which are Judges of the district courts, a clerk, marshal, and an attorney, and to these Federal officers is confided jurisdiction in all important matters; but, as decided recently by the Supreme Court, the act requires jurors to serve in these courts to be selected in such manner as the Territorial legislature sees fit to prescribe. It has undoubtedly been the desire of Congress, so far as the same might be compatible with the supervisory control of the Territorial government, to leave the minor details connected with the administration of law to regulation by local authority; but such a desire ought not to govern when the effect will be, owing to the peculiar circumstances of the case, to produce a conflict between the Federal and the Territorial authorities, or to impede the enforcement of law, or in any way to endanger the peace and good order of the Territory.
Evidently it was never intended to intrust the Territorial legislature with power which would enable it, by creating judicatures of its own or increasing the jurisdiction of courts appointed by Territorial authority, although recognized by Congress, to take the administration of the law out of the hands of the judges appointed by the President or to interfere with their action.
Several years of unhappy experience make it apparent that in both of these respects the Territory of Utah requires special legislation by Congress.
Public opinion in that Territory, produced by circumstances too notorious to require further notice, makes it necessary, in my opinion, in order to prevent the miscarriage of justice and to maintain the supremacy of the laws of the United States and of the Federal Government, to provide that the selection of grand and petit jurors for the district courts, if not put under the control of Federal officers, shall be placed in the hands of persons entirely independent of those who are determined not to enforce any act of Congress obnoxious to them, and also to pass some act which shall deprive the probate courts, or any court created by the Territorial legislature, of any power to interfere with or impede the action of the courts held by the United States judges.
I am convinced that so long as Congress leaves the selection of jurors to the local authorities it will be futile to make any effort to enforce laws not acceptable to a majority of the people of the Territory, or which interfere with local prejudices or provide for the punishment of polygamy or any of its affiliated vices or crimes.
I presume that Congress, in passing upon the subject, will provide all reasonable and proper safeguards to secure honest and impartial jurors, whose verdicts will command confidence and be a guaranty of equal protection to all good and law-abiding citizens, and at the same time make it understood that crime can not be committed with impunity.
I have before said that while the laws creating the several Territories have generally contained uniform provisions in respect to the judiciary, yet Congress has occasionally varied these provisions in minor details, as the circumstances of the Territory affected seemed to demand; and in creating the Territory of Utah Congress evidently thought that circumstances there might require judicial remedies not necessary in other Territories, for by section 9 of the act creating that Territory it is provided that a writ of error may be brought from the decision of any judge of the supreme or district court of the Territory to the Supreme Court of the United States upon any writ of habeas corpus involving the question of personal freedom--a provision never inserted in any other Territorial act except that creating the Territory of New Mexico.
This extraordinary provision shows that Congress intended to mold the organic law to the peculiar necessities of the Territory; and the legislation which I now recommend is in full harmony with the precedent thus established.
I am advised that United States courts in Utah have been greatly embarrassed by the action of the Territorial legislature in conferring criminal jurisdiction and the power to issue writs of habeas corpus on the probate courts in the Territory, and by their consequent interference with the administration of justice. Manifestly the legislature of the Territory can not give to any court whatever the power to discharge by habeas corpus persons held by or under process from the courts created by Congress, but complaint is made that persons so held have been discharged in that way by the probate courts. I can not doubt that Congress will agree with me that such a state of things ought not longer to be tolerated, and that no class of persons anywhere should be allowed to treat the laws of the United States with open defiance and contempt.
Apprehensions are entertained that if Congress adjourns without any action upon this subject turbulence and disorder will follow, rendering military interference necessary--a result I should greatly deprecate; and in view of this and other obvious considerations, I earnestly recommend that Congress, at the present session, pass some act which will enable the district courts of Utah to proceed with independence and efficiency in the administration of law and justice.