Friday, August 02, 2013

"but their right as citizens to meet and bear arms . . . remains to them"


The Great Governor Does Not Consent to a Cavalry Company At Ogden.

The Revival of an Old Matter.

   On Wednesday morning we published from the Ogden Herald, correspondence between R.K. Williams, A.S. Condon and M.H. Beardsley, of Ogden, and Governor Murray of this territory. The three gentlemen first named represent a committee appointed by the Ogden city council to give a celebration on Independence Day, "without distinction of political parties or religious creeds," and this subcommittee at the instance of the central committee were instructed to ask his "excellency if there were any objections or known reasons" why a cavalry company could not join in the parade. The question was asked lest such a company so participating "might conflict with some previous executive order." The Governor replied by stating: "The orders of my predecessors as to the militia are yet in effect, the same necessity of their promulgation existing. If there was an available company or battalion at hand I should be pleased to issue the necessary orders for it to join in the ceremonies of the day. There is no authority under the law for the Governor to authorize the organization of the cavalry company you suggest."

   In this letter it is stated that the same necessity exists for the promulgation of the orders of his predecessors. The question involved is one that the people of the whole territory are interested in, and is also one that has never been satisfactorily settled and it may be, never will be settled to the satisfaction of all. The whole subject has gone so long that those directly interested care to have neither the occasion nor the organizations which originated the trouble resurrected, but in view of the fact that slurs and charges of treason are continually thrown out against the people of this territory because they do not see fit to do just what a class of people--who are perpetually abusing them--see fit to dictate it would be a little satisfaction all round to know who was right and who wrong in the original difficulty. The letter of Governor Murray says the same necessity for the proclamations of Shaffer exists today that existed when proclamations were issued. This is true but not in the sense implied. It is true for the reason, that such necessity never did exist; and any man who states anything to the contrary must have the inward satisfaction of feeling that he has deliberately lied; or else he is a fool. But the time has so long since past that the character of these orders are nearly forgotten, and in view of the interest attaching to them at the present moment, we reproduce them here:


Salt Lake City, U.T.
September, 15, 1870.

   Know ye that I, J. Wilson Shaffer, Governor of the Territory of Utah, and commander-in-chief of the militia of said territory, by virtue of the power and authority in me vested by the laws of the United States have this day appointed and commissioned P.E. Connor major general of the militia of Utah Territory; and W.M. Johns colonel and assistant adjutant general of the militia of Utah territory. Now, it is ordered that they be obeyed respected accordingly.
      Witness my hand and the
[SEAL] great seal of said territory, at
Salt Lake City this the 15th
day of September, A.D. 1870.

   By the Governor
     Secretary of Utah Territory.


    Salt Lake City, U.T.
September, 15, 1870.
  Know ye, that I, J. Wilson Shaffer, Governor of the Territory of Utah, and commander-in-chief of the militia of the Territory of Utah, do hereby forbid and prohibit all musters, drills, or gatherings of militia of the territory of Utah, and all gatherings of any nature, kind, or description of armed persons within the territory of Utah, except by my orders, or by the order of the United States marshal, should he need posse comitatus to execute any order of the court, and not otherwise. And it is hereby further ordered that all arms or munitions of war, belonging to either the United States or the territory of Utah, within said territory, not in the possession of U.S. soldiers, be immediately delivered by the parties having the same in their possession to Col. Wm. M. Johns, assistant adjutant general. And it is further orderedthat, should the United States marshal need a posse comitatus to enforce any order of the courts, or to preserve order, he is hereby authorized and empowered to make a requisition upon Maj. Gen. P.E. Connor for such posse comitatus or armed force; and Maj. Gen. P.E. Connor is hereby authorized to order out the militia or any part thereof, as of my order for said purposes and no other.
          Witness my hand and the
[SEAL]  great seal of said territory.
        at Salt Lake City this the
15th day of Septemper, A.D. 1870.
By the Governor.
   Secretary Of Utah Territory.

   In the first order Shaffer violated the law plainly--that is, he tried to, but having no power he could not do so--in deposing the officers elected as commanders according to law by the militia, and taking it upon himself to appoint General P.E. Connor and Colonel W.M. Johns in their stead. Dropping all these matters, however, a HERALD reporter yesterday afternoon called on several of the leading lawyers of the city and asked them their opinion on the legality of the orders causing this difficulty.

   The first stated that he was not posted on the subject, but so far as the order applied directly to the militia the governor being commander-in-chief, he believed it was valid; but to forbid the assembling of men with arms, met for lawful purposes, he could see no authority whatever, and no reason why the citizens could not celebrate, carry arms and parade every day in the week when the object was lawful.

   The next gentleman held the same views, as did a third, regarding the power of the governor to forbid the assembling of the militia, but said there was no authority for trying to depose those elected as officers and to appoint others. To forbid the assembling of men with arms, who did not meet as a militia, and whose purposes were lawful, was absurd. If that were legal, every time citizens held a pigeon match, or two or three men went hunting together, they would be guilty of a violation of the law. The citizens of Ogden should have proceeded with their celebration, organized their cavalry company, and gone ahead, and not a word would have been said. It appeared to these lawyers that an attempt was made to get the governor to say something which could be construed as rescinding Shaffer's order; and that while the governor would have said nothing about the cavalry company, he did not feel like being lead into a trap, and therefore made the answer he did, which they construed as admitting that he had no authority in the matter.

   These gentlemen are three of the soundest lawyers in the territory; and they admit that the governor is powerless to prevent a parade by armed persons so long as the parade is peaceful and for lawful objects, and there have never been parades of any other character here. But the following is what a fourth and equally as well posted and profound a lawyer said to the reporter, his words being given verbatim: Every man has a right to bear arms. Article 2 of the amendment to the Constitution provides that the right of the people to keep and bear arms shall not be infringed This right exists and extends over the people of the Territory of Utah. Congress could not take it away; the President, still less, could take it away; the legislature of the territory could not take it away; the governor, less powerful than any of the foregoing has no power whatever in the matter. Any order he might make on the subject is an impertinence that every good citizen ought to reject and resent, and should scorn the man who would attempt to enforce it. The people of Utah have borne with a great deal of insolence from these federal officials. It does not imply any disrespect for the federal government to disregard the direction of such officials as are set over the territory. For the federal government the greatest respect ought to be, and believe is felt; but to obey such an order as is contained in Shaffer's proclamation and ratified by Gov. Murray in his answer to the Ogden committee, would be to confess that the people of Utah were slaves, and had no idea of their own rights or the duties to themselves and their fellow citizens. The people have no idea of kissing the foot of this insolent Kentuckian; they should appear, and bear arms, if they wish to, and parade in honor Independence Day, as the law and the Constitution guarantees them the right to do. It is the privilege of the citizens of this territory to parade with guns, loaded or unloaded, as they please, under any name they please, and in any number they please; and it is their duty on this Fourth of July, to appear and parade in sufficient numbers to convince his insolent excellency that it would be unsafe for him to interfere. If he should interfere, or direct others to do so he would stand in the position of any other assailant. Persons formed in such procession would have the usual rights of self-defense; and the right to protection as a public assemblage met for a lawful and honorable purpose. They owe it to themselves and this territory to appear in uniform and in arms. There is no law which justifies such a pretended order as the one which has created all this trouble. Shaffer had no more right in this respect than any private citizen. As commander-in-chief of the militia he could order them as a militia to accomplish any duty within the scope of the organization; he could disband the militia even under the statute; but their right as citizens to meet and bear arms--and under any name they choose--remains to them, and nothing short of a constitutional amendment can take it away.

   It may be as well to remark that all these lawyers are Gentiles, and some of them ring attorneys.

[The Salt Lake Herald, Salt Lake City, Thursday Morning, June 16, 1881. Vol. XII. No. 10. Pg. 8]

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