New-York tribune., 1872-04-27
TINE yJORMON FOLLY.

Tho counsel for the custodian OF Brigham
Young protests against his release on the
order of a Mormon Probate Court, and thr IT.
ems to test the legality Of the discharge in
higher tribunal. But whether the decision OF
the Mormon Judge be Oycrruled or not, we
presume the Mormon prosecutions are virtually
at an end, and the prisoners now held IN GUS
tody under the indictments found i'll Judge
McKean's Court must nearly all he released
in accordance of the recent decision of the
Supreme bench The more we examine the
blunder of the Administration the worse
it looks. For it was Dlundcr made
in the face of such clear light that it can
hardly be called anything else than the result
of Willful ignorance. The Orgaric law Of the
Territory prescribes that for the first six days
of the term the Supreme Court of Utah shall
sit as Il District and Circuit Court of the
United States, to try oflenses against the
United States, and when 1t adjOurns rs n
Federal court it shall Immediately reopen as
a Territorial court. with the same judges, but
with a different prosecuting attorney and dif-
fercnt subordinate officials. Its business now is
to try ofienses against tho statutes OF Utah, and
to decide civil causes under the Territorial
laws and although in certain cases it is en-
powered TO exercise jurisdiction for the United
States the ruling of all the authorities is clear
that it is local and not a Federal tribunal.
The point which the Supreme Court has just
emphasized is not a new one, but has been
established by the precedents of nearly half
century. Chief-Justicc Marshall q Peters u.
S. Reports, page 5iG) decided that /" the
"Territorial courts were not courts in
(which the judicial power conferred on
"thc Federal Government could be de-
"pOstcd; they were incapble of receiving
"it, as the terms of the incumbents are but
d" four years." while u. s. Judges must be ap-
pointed during good behavior. The same
view has been reiterated time and time again.
The Supreme Court of Iowa held in the case
of Lormer and GratiOt agt. the State Bank
of Illinois q Morris, D. 223) that "under no
circumstances are these courts properly
"speaking District Courts of the United
"States they are mere Territorial Courts
"having the powers Of District and Circuit
Courts of the United States, but only when
enforcing tho laws of the United States"
There are opinions of successive Attorneys Cen
eral to the same effect, and the practice of the
Government hitherto has always been in ac
cOrdance with what was 30 obviously the law.
Now it is evident that while the court is q
Territorial court its jures must be impaneled
by tho proper Territorial officer, its processes
must be executed by the Territorial marshal
and sheriff, and the Territorial prosecuting at
tOrney must present indictments under Terri
torial laws. Murder. lewd cohabitatiOn, and
other crimes which Judge Mexican has re-
Gently pursued with 80 much zeal, are of1cnses
| not against the United States, but against the
| statutes of Utah; and, according to all the
decisions we have above alluded to, they could
consequently be punished only by the court
sitting as q Territorial tribunal and acting
| through the Territorial machinery.
Exactly why Judge Mexican chose to proceed
| differently is not entirely clear. The Mormon
crusade is understood to have been preached
at Washington by the Rev. j. p. Newman, q
gentleman whose Christian zeal ip this instance
seems to have got the better of his discretion.
Judge Mexican was q willing recruit, and the
President was induced to support the move
ment with oil the weight Of his authority.
There Is statute against poygamy,
passed by Congress in 1869, under which
indictments might have been presented
by the United States District Attorney, while
the Court was sitting as Federal tribunal
and tried by a jury of Gcntiles impaneled by
the United States Marshal. But the statute OF
| limitations would save most of the older
richer, and more Influential Mormons from the
operation of this law. because very few of
! them have contracted polygamous marriages