The new North-west., 1871-11-04
THE RECENT DECISION.

lhority with Sheriffs to serve processes IN
all the Courts of Montana. In the Herald
of Oct. 30th we find the decision cited, and
reproduce it in our columns. It covers the
statement made by the Gazette Although
neither the petition or the granting Of it !!
i. being merely for transfer of the case
from one Court to othcr--necessarily in |
VOWED the other points decided, Judge |
Wade took occasion to give the opinion.
and it is before the people: ...
Holding that the Courts are and should
be on.political. and recognising,i in them
the constituted and qualified expositors OF
our Constitution and laws, We are 10th, in
our acknowledged ignorance Of the subject,
to assume any arbitrary positions, and
should regret to see the decisions OF the
Courts dragged furiously over the hot ccdls
Of partizan journalism. defended or con-
demncd with the vehement vigor, prejudice
aud bias that characterize our political dis.
cussions. Still, the journalist has not only
the privilege, but it is his duty to review
decisions having bearing on the public
welfare, and especially those which, under
new construction of organic or statutory
law, break down precedent and recognized
institutions, and establish in their stead
new order of things. OF such, is the recent
decision. We believe that in important
particulars Judge Wade is in error. But in
saying this and in showing cause therefor,
il is withtluc Difference to the Court and the
knowledge which he should have, and
which we have not. q
His premise that ''thc Territories are
creatures of Congress" is undisputed, and
Chief Justice Marshall, we believe, held
further that the Courts Of the Territories
are creatures of Congress, and are instituted
under the power delegated to it in the Con-
stitution to make all needful rules and reg
ulations respecting them. =
Judge Wade says there is but one Court
here and that is the Court created by the
Organic Act 1t is held that this is Uni
ted States Court, and that no Territorial
Court can be established. If Judge Wade
means by this that our Courts arc created
by our Organic Act, which is an act of Con
grcss, and that the Legislature of Montana
cannot of itself create Court, VIC agree
with him; but if he means by it that our
Courts arc U. s. Courts. and that oil Acts
which apply to the Federal judiciary, epply
| in like manner to them, We disagree. Our
Courts are Territorial Courts, because they
are created especially for this Territory by
the Organic Act creating this Territory
itself. But this Territorial Court, by a
special conference of power IL enabled to
:.haye and exercise the same jurisdiction IN
in all cases arising under tie Constitutso"
and laos Of tie United States az i uestea In
the Circuit and District Courts Of tho Uni
ted States. and for this particular purpose
SIX days OF the ierriuor,ai court teiu' ~ sc
apart. The distinction between them ap
pears plain. From the preceding views
Judge Wade reaches the case of the Mar
shall and District Attorney, and says III
may well be supposed" the object of the Or
ganic Act WAS to have them prosecute ant
serve processes under the Territorial rs wei
as the National laws, land it is further be
lievcd that any writ or warrant duly scrvet
| by the Marshal would be legally served"
The Organic Act provides. in Sec. 10
that the Marshal '.sl,all execute all process
cs issuing from the said Courts sches ezerci
sinq their jurisdiction az Circuit and Dis
,rict Courts Of the United States, thus limit
ing and contining him to particular duties
and confirming our theory Of an especisll
conferred authority to exercise larger lu
risdiction not inherent in the Court. It l
true the Marshal can arrest, as In case
felony, outside this conferred power, but .
r can any citizen. -'- :"
Further, by tracing back the Organic Act
to ascertain the fees he 10 entitled to.
leads to a judiciary bill, limiting his fees
r cases arising under tho Constitution mn
laws of the United States, alone. tt, b.
This theory Of Judge Wade's has devel
=, oped before. It came up in Colombo, whel
=. for years it occssioned perple1ity m
. trouble, and litigants had to assume the n
. sponsibility for fees before cases could b
brought to trial. InUtal, year ago
developed, and the Courts ran in debt und'
it $4,000. The Auditors Office at Wasl
: ington virtually decided against 1t by ref
=. sing to allow the account One Of Il
Judges then visited Washington tn get
bill passed by Congress authorizing speci
:. tax levy on the people of Utah to pay 1t, ~
I If our recollection 10 right, this failed, als
y The Herald cites Washington Territo'
- having only U. 8. Courta We kno
:. nothing of the facts IN that case, but
Kansas, Nebraska and Nevads while tn
were Territories. andria Idaho, Wyomir
n and other Territories at this time We kno
! the present system has prevailed and b
+ been sustained ~ correct. n 53s
5, Then there il another point raised. q
y decision says: "Itr would be just - %,
. petent for the Legislature OF the Terrific
!" = 10 establish the Office and provide for I
y selection OF : Territorial Judge In e.
" "County or District - to establish the d
T. .s ccs Of Sheriff or Territorial District A
n "torney and elect officers thereto. IA
:. What. offices then are contemplated
10 Rec. Z Of the Organic Act! wherein It
10 provided: THAT all township, distrl