Barbour County index. [volume] (Medicine Lodge, Kan.) 1880-current, 1884-05-23
Law In ths Territory.


try are brought face to face with the
fact that there is large portion of ter
ritory within the limits of the United
States, and subject TO the EXCLUSIVE
jurisdiction of the United States, in
which crime may be committed with
impunity. This seems like a bold as
sertion, but it is true. Col. IIallowell,
on the application of some Of our own
leading citizens gave it as his opinion
that there is no law to punish the crime
of malicious mischief committed in the
Indian Territory.
professional representative of the Unit
ed States gave his opinion is substan-
tally as follows: Roberts & Windsor
took carload of fence wire down into
the Indian Territory short distance be-
low Arkansas City, to fence the range
they hold there as members Of the Cher
okee Strip Live Stock association. The
entire carload of wire (worth several
hundred dollars) was piled up in a COM
pact mass to await the demand of the
fence builders. Certain parties, who
are now well known, maliciously des-
troyed the wire by putting combustibles
on it and setting it afire. Application
was made to the United States district
attorney for warrant for the arrest Of
the malefactors, and the attorney on ex-
animation Of the case, reached the con-
clusion that there is no law to punish
them for the crime they committed.
The United States attorney may be
right, but we cannot subscribe to that
ideaGust now. We freely admit that
congress has never passed any act either
defining or prescribing punishment for
malicious mischief. But congress has
passed an act which provides in sub
stance, that in all places which are ex-
clusively under the jurisdiction of the
United States las is the Cherokee Strip
in default of statute to punish any Of
fense committed, the common law shall
be in force. That leaves but the one
question to be settled, viz Did congress
mean what it said in that statute If
Motif Col. Hallowell is right in his
opinion-then the Indian Territory is
lawless land indeed.
OF course we are forced to bow to the
opinion of this functionary at present,
and we may have to yield to confirma-
ton of the opinion by the attorney gem
eral of the United States, To whose at
tention the question will be brought to-
day. But even if the attorney general
should hold in accordance with Hallow-
ellis opinion, we shall always believe
that even if the statute referred to had
never been enacted, still the common
law would be in force in the Indian
Territory, and every other portion Of
the country exclusively within the juris-
diction of the United States, for the
punishment of crime.
The common law came to this coun-
try with the pilgrims who landed OH
Plymouth Rock. 1t was the only law
the pioneer settlers of America had.
Long before specific forms of colonial
government were established, it was the
only rule of decision, and our forefath-
ers used it as they had learned it in the
mother country. twas the law by which
rights of property were settled, and by
which murder, theft and robbery were
punished; for its fundamental maxim
is that common law is the perfection of
common sense. Insensibly it became
engrafted upon the governments of the
colonies as they grew into form, and
thpra has pavar haoy, a f;p,a syba,, ~ 10,
not been recognized and accepted in ev-
cry part of this country with perhaps
the exception of Louisiana) as the grand
reservoir of law to which recourse could
always be had when the ingenuity of
legislatures has been exhausted. States
have engrafted it upon their constitu-
tions. Times almost without number
the highest courts of the country have
held that it is the ultimate law when all
other Laws fail; and if it were possible
that all the statutes in the country could
be annihilated at one stroke, still the
common law would be in force for the
redress of grievances and the punish
ment Of crime. 1t is part of the genius
of our people. 1t was the foster mother
of our system of government. 1t was to
secure the protection of its principles
that our fathers fought the revolution,
and can only die when the spirit of
Freedom has flown fir ON the world.
Suppose there was no statute to pun
ish murder in the Indian Territory
Would it be contended that the willful,
deliberate, premeditated killing of hui
man being with malice aforethought
could not be punished under the law as
murder? If there was no statute un.
der what law would the crime be pun
ished? There can be but one answer
the common law. just so with the
crime of malicious mischief. While it
is less heinous than murder, it is no less
malum in Sc. 1t is abhorrent to the very
spirit of the government under the
American constitution that such a
crime can be committed with impunity.
Congress having failed to provide
statute to punish it, in our judgment
the common law applies.
4 AS beforta said, application will be
made to-day at Washington to the at
torney general for his opinion on this
question. We say momen-
tous question because if Col. Hallowell
is right, millions Of dollars worth Of
property is at the mercy Of every ma
liciously disposed scallawag in the Ter
ritory. If the attorney general should
be Of the opinion that the common law
does not punish crime in the Territory,
should be memorialized at once
to pass law at this session providing
for the punishment of crime committed
there, and every possible influence ought
to be used to induce action on the part