New-York tribune., 1873-02-08

assumption fell to the ground. Now, Mr.. JUS
tice Hawley, sitting in the u. s. Court in
Utah. has, in effect reafirmed the Mexican de-
csion, which was overruled by the United
States Supreme Court, last Winter. He holds
the Legislative enactment to be void. We
shall never bring order out of chaos in Utah at
this rate; this is simply judicial anarchy and
this is what Congress is called on to cure.
1t is, in truth, hard nut to crack. Accord
ing TO Chief Justice Chase, the Territorial
Governments are organized upon the theory
Of leaving to the inhabitants all the powers
of self-g0veTnment consistent with the supre-
macy of national authority and certain funda-
mental principles established by Congress.
The Chief-Justice also said, in the Engelbrecht
case Z" In all the Territories full power was
"gven over all ordinary subjects of legisa-
ton. The terms in which it was granted
"weTe various but the import was the same
" in all" Furthermore, he said, speaking of
the Territorial Courts: Congress makes no
L" attempt to confer criminal jurisdiction on
"any Court; but leaves all criminal matters,
including the mode of drawing jurors, to the
Territorial legislature Under such con-
| struction of law, therefore, the Utah Leglsla-
ture organized, in 1856, Probate Courts, on
| which were conferred original jurisdiction,
both criminal and civil, as well IN chancery
AS at common law, when not prohibited by
| legislative enactment. Congress never dlsap-
nroved that act of the Legislature; OF course
il must stand as law until it is so dlsapproved ;
especially as the United States Supreme Court
has expressly reaflirmed Gn the Engelbrecht
decision) the principle that Territorial Legis-
lature has control over this as one OF the
ordinary subjects of legislation. The Probate
Court law was enacted in 1855, and the Jury
law in 1859; simple disapproval or Congress
would have annuled them. They never were
80 disapproved; the reasonable inference Is
that they were approved by that body.
We do not discuss now the expediency of
permitting the Legislature OF Utah TO erect
courts which shall have original jurisdiction
in criminal common law. But there Is nothing
in the Organic Act prohibiting the Legislature
from exercising that right; everything points,
as Chief Justice Chase indicates, to the theory
that the Territorial Legislature is clothed with
full power over all ordinary subjects OF legls-
laton of which this is one. AT any rate, the
Utah Legislature exercised that power seven
teen wears ago; and Congress has never
disallowed it. Yet, such being the law Pro-
bate Courts being given criminal jurisdictlon),
U. S. Justice Hawley decides that the Act of
january II, 1855, is null and void because
CONTRARY to the Organic Act" 1t Is Justice
Mexican over again. The Organic Act says
the Probate and other courts shall have such
jurisdiction as "shall be limited by law"
That limit was not fixed by Congress in the
Organic Act nor by any subsequent enact
ment; this duty was left to the Territorial
Legislature, as one of the ordinary subjects
"of legislation; :" and it has been so regulated.
The United States Courts have no common
law jurisdiction in criminal cases, says Kent.
Mr. Justice Hawley says the Territorial courts
have not; therefore, there is none in Utah.
This is simply anarchy. The United States
| Supreme Court will Overrue such violent
decision as this, if it ever reaches it. Mean
time, let us see if Congress cannot reduce the
judicial dislocation.