A history of Columbia County, Pennsylvania. From the earliest times., Part 37

Author: Freeze, John G. (John Gosse), 1825-1913
Publication date: 1883
Publisher: Bloomsburg, Pa. : Elwell & Bittenbender
Number of Pages: 594


USA > Pennsylvania > Columbia County > A history of Columbia County, Pennsylvania. From the earliest times. > Part 37


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1st. The trial by jury is placed by the Constitution among the original reserved rights of the people, and must, in favor of natural liberty, be held safe as against the exercise of any doubtful power upon the principle of construction applied to constitutions, that grants of power are to be construed strictly as against the power and in favor of liberty.


2. But being last in point of time and of equal authority with the provisions in relation to the suspensions of habeas corpus, the amendments must be held to restrain that provision so far as may be necessary to the perfect enjoyment of the rights asserted in the amendments.


3. Simply, however, because they are amendments to the Con- stitution, everything in that instrument that may in any view be held to impair rights therein asserted must give way to them. To that extent they change and modify the powers conferred on the


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Government in the original instrument. The right of trial by jury in the cases referred to cannot be impaired- much less taken away-by the suspension of the habeas corpus, nor indeed by any order of the Executive or law of Congress. To this effect see 2d Story on Con., Sec's 1,778 to 1,795, inclusive.


4. But not only may this right of trial by jury be regarded as affirmatively asserted and scoured to the citizen by the provis- ions of the Constitution, but any and every other mode of trial must be taken to be excluded and prohibited. Thus : "No per- son shall be held to answer for any capital or otherwise infamous crime unless in case of presentment and indictment by a grand jury," &c., clearly precludes the notion of any other form of trial.


The old common law and great statutes of England, brought over with them by the founders of the English colonies, and in force at the time of the adoption of the Constitution of the United States, excluded all other modes of trial of any citizen not in the military commission. Mr. Justice Story, as already cited, expressly appeals to and quotes Magna Charta upon this point and in support of this position. The 39th chapter of this great act is as follows :


"No freeman shall be taken or imprisoned, or disseized or out- lawed, or banished, or in any way destroyed ; nor will we pass upon him unless by the lawful judgment of his peers. or by the law of the land."


"The judgment of his peers," here alluded to, says Story, "is the trial by jury, who are called the peers of the party accused, being of like condition and equal." He also expressly says ;


"When our more immediate ancestors removed to America they brought this great privilege with them, as their birth right and inheritance, as a part of that admirable common law which had fenced round and interposed barriers on every side against the approaches of arbitrary power." P. 1779.


But this denial of any other form of trial, and especially that by military commissions, was asserted in the "Petition of Rights passed in the third year of Charles the First. It is therein en- acted and established, "That no man of what state or condition should be put out of his lands or tenements, nor taken, nor ini-


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prisoned, nor disinherited, nor put to death without due process of law."


And in speaking of the commissions, aforesaid, the act useth the following terms:


"Which commissions, and all others of like nature, are wholly and directly contrary to the said law and statutes of the realm."


Similar language was employed in the Bill of Rights passed at the time of the Revolution of 1688.


And it may be safely stated that since that time no proceed- ings of this nature have taken place in England against any person not a member of the army or navy or in the militia in actual ser- vice. Indeed, a distinguished English Judge has said : "Mar- tial law as of old does not exist' in England at all," and is con- trary to the Constitution, and has been for a century totally ex- ploded." Grant vs. Gould 2 Hume Bl. 69 I Hale P. C. 246. Hale com. law (. 2. 36; This, it has been remarked by a learned judge, "is correct, as to the community generally, both in war and peace."


By an act. approved July 31, 1864, Vol. 12, statutes at large, page 2184, conspiracies are defined, and the mode of punishment provided, namely . By trial in the Circuit or District Court of the United States of the proper circuit or district.


Can these parties be tried before any other tribunal ? We hold not. By the President's proclamation of Sept. 24th, 1862, suspending the writ of habeas corpus, it was ordered, "That during the existing insurrection and as a necessary measure for suppressing the same, all rebels and insurgents, their aiders and abettors, within the United States, &c., shall be subject to martial law and liable to trial and punishment by court martial or mili- tary commission." Without stopping to inquire whether the proclamation was authorized. and if so, whether it embraced per- sons charged with committing a substantial offense within a State not in insurrection, and when the courts are in full exercise of their powers, the defendant claims that it has been superceded by the act of Congress of the 3rd of March, 1863, (Vol. 12, stat- utes at large 775) relating to the writ of habeas corpus and the President's proclamation, based thereon of the 15th of September, 1862.


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The first section of the act of 1863, authorizes the President to suspend the writ of habeas corpus.


The second requires the Secretary of State and of War to re- port to the Judges of the United States Circuit and District Courts the names of persons held in military custody by order of the President in their respective districts, and if the grand juries of the proper districts fail to find bills, it is the duty of the judges to have all such persons discharged on taking the oath of allegi- ance and giving bond if required.


The third section provides that all persons so held and not re- ported, shall be entitled to a discharge in the same manner as is provided in the second section, after a failure on the part of the proper Grand Jury to indict him.


Here are all the sections of this act which bear on the question and it will be seen that while they contemplate and sanction mil- itary arrests, they do not countenance or authorize military trials. On the contrary they fairly discountenance them.


The President's proclamation based on this act, limits the sus- pension of the habeas corpus to persons amenable to military law, or to the rules and articles of war, &c. No order is contain- ed in this proclamation in regard to trials, and the inference is ir- resistible that the proper courts are left to act under the rules of law upon that subject, and these are too well defined to require comment. Civil courts try offences against the law committed by citizens. Military courts and commissions try such as are sub- ject to the rules and articles of war, and the defendant claims that he does not fall within that class.


5. The recent act giving military courts jurisdiction of of- fences against the civil laws, when committed by soldiers, excludes citizens by its silence from any such jurisdiction, and leaves them to be tried by the civil courts for all such offences. See Rev. reg. 1863, p. 541.


But all doubt, if there could be any on this question, is put to rest by the act of 3rd of March, 1863, entitled or known as the Enrollment Act, where it is cxpr ssly provided, That where per- sons are charged with resisting the draft, they shall be forthwith delivered to the civil authorities," and upon conviction be pun- ished. Statutes at large, vol. 12, p. 735, pl. 25.


The President's proclamation of 15th of September, 1863, pro-


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fesses to conform to the statute, indeed makes the statute the rule of action under the proclamation, and does not impair the right of trial by jury. We have, however, in the enrollment act of the 24th of July, 1864, the Executive and legislative construction of the then existing law, for the hearing of the party in such like cases is exclusively assigned to a Court of competent jurisdiction and the Circuit Court of the United States, in the district in which the offence was committed, is specified as the only proper tribunal. Statutes at large, vol. 13, p. 8, pl. 12.


The defendant further desires the commission to consider this question in determining that of the jurisdiction, viz: Can the sentence of this court be pleaded in bar to a prosecution upon in- dictment for the offence charged in the civil courts ? It would seem not, in view of the recent legislation of Congress, already cited. The legislation clearly gives jurisdiction of this case to the civil courts, and upon their failure to try and convict him en- titles him to be discharged, either upon terms or absolutely.


In view of these considerations, the defendant respectfully sub- mits that he is not triable by this commission, not being within the jurisdiction thereof, or any other military tribunal whatever.


All of which is respectfully submitted.


JOHN RANTZ.


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MILITARY TRIALS AT HARRISBURG.


Some note ought to be made of the military trials that took place in this city, during the late civil war, and I may premise that, living on the spot at the time, I believed then and believe now, that they were arbitrary and unconstitutional, were wholly unnecessary and without justification; palliation, or excuse: It must be recollected, that we in Pennsylvania were living, or thought we were, in a State which was not engaged in the rebellion against the government ; but it turned out that we were mistaken, or the War Department was: for notwithstanding the legislation on the subject, by our State legislature and by Congress, the War De- partment arrested the citizens of this State, and tried them by military commission, as if the State was in open rebellion, and as if all the courts in the State had been closed ; and this, too, after the State had sent two hundred thousand men to suppress the rebellion.


The Constitution of the United States has provided in the third article that "the trial of all crimes, except in cases of im- peachment, shall be by jury, and such trial shall be held in the State where such crime shall have been committed ;" and then in the amendments to the Constitution, article 5, that "no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces or, in the militia when in actual service, in time of war or public danger," "nor be deprived of life, liberty, or property. without due process of law." And in article sixth, "in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury in the State and district wherein the crime shall have been com- mitted, which district shall have been previously ascertained by lour."


Our State legislature in order to prevent any person from giving aid or assistance to the rebellion, passed an act on the 18th of April, 1861, by which, in one lengthy section, they provide for


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every possible case, in which any person could give aid or comfort to the "enemies of this State or the United States of America," and also where any one should persuade any person or persons from entering the service of this State or the United States. "or induce any person to abandon such service" and enacting that "every person so offending, and being legally convicted thereof, shall be guilty of a high misdemeanor and shall be sentenced to undergo solitary imprisonment in the penitentiary at hard labor not exceeding ten years, or be fined in a smm not exceeding five thousand dollars, or both, at the discretion of the court."


Congress, by an act passed 3d March, 1863, directed that where persons are charged with resisting the draft they "shall be forth- with delivered to the civil authorities."


And by the act approved on the 31st of July, 1864, further provided for the trial and punishment of conspiracies against the government, and directed and required these trials to be had before "the Circuit or District Court of the United States for the proper circuit or district."


As many perhaps as twenty or thirty private citizens, all living east or north of the Susquehanna river, principally in Luzerne or Columbia counties, were arrested at their homes and tried by military tribunals in this city in the year-1864 or 1865. Some of the trials were held in the lower room of the north corner of Market street and River alley, others in the most easterly upper room of the court house over the court room. The mode of trial was by three military men sitting as a military court, with a per- son acting as judge advocate, who took no oath to perform his duty honestly, but whose decision on every point was taken as conclusive. A guard stood at the door, and no person was admit- ted but the one witness called and the counsel of the prisoner. Every question was required to be submitted in writing. It was with great difficulty that the prisoner's counsel could gain admit- tarice to the prisoner's room to see the prisoner. He was required on every visit to produce an order from the provost marshal. The charges against these persons were generally the same; cither for combining to resist the draft, or uttering disloyal sentiments and threatening to resist the officers of the government. The writer was never acquainted with any one of these prisoners.


These offences were such as the State courts were authorized


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by the act above cited to try, and on conviction to punish. And they were the very kind of cases for which Congress had specially provided by legislation and had directed and required to be tried before the United States Circuit or District Courts of the proper district.


The prisoners in every instance pleaded to the jurisdiction of the military court ; that is, denied that the court had jurisdiction in the case, and asked that they be tried by the State Court, as provided by the Act of Assembly, or by the United States Court as directed by Act of Congress. But these pleas were disregard- ed by the War Department. That Department had the military in its hands and would treat every other branch of the govern- ment with contempt. The Act of our State Legislature and the State courts, the Act of Congress and the United States Courts, as well as the Constitution of the land, were all treated with utter contempt, and the party arrested was tried in each case as if we had no written Constitution and no law, and as if the states not in rebellion were under a military despotism. The evidence in most of these trials revealed a case so trifling and insignificant as to be only fit to be heard before the quarter sessions ; and after a stately and elaborate military trial nearly every prisoner was ac- quitted.


In no instance, I believe, was any man arrested with arms in his hands, or in a military company, but every one was arrested at his peaceable home. A large force, of perhaps seven hundred soldiers, had been sent to Columbia county, and after encamping there for ten days they arrested about forty farmers in the neigh- borhood, all of whom were at their respective homes, and many of them in bed with their families, at the time of arrest. These prisoners were all taken to Fort Mifflin and afterwards brought to this city for trial. Had any of these men violated the Act of the State Legislature, or the Act of Congress, and been tried in the State or the United States courts and convicted and punished; no reasonable man could have objected or found fault with the proceeding ; but these prisoners were unnecessarily dragged away, in the face of the Act of our Legislature and the Act of Congress, in contempt of the courts, and tried at the seat of government, as if to cast contempt upon the reputation of this Commonwealth and her citizens. I have not heard of a single instance in which


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any civil or military officer had been injured in an attempt to ar- rest any of these prisoners. But if it was necessary to take a military force to the ground to arrest them, then why were they not taken before the civil courts for trial ? If the Court of Col- umbia county could not be trusted with the trial, why were the prisoners not taken to the United States Court at Williamsport, in the adjoining county, pursuant to the Act of Congress ? All these courts were open and unobstructed by the rebellion. No armed rebel ever set his foot on the eastern shore of the Susque- hanna, nor within one hundred miles of the place where these prisoners lived and were arrested ; and no State or United States Court east of the Susquehanna was ever closed or interfered with by the rebellion. Indeed, some of these trials were held in our court house while our conrt was sitting. I ask then, where was the necessity for these trials by the military ? It was not pretend- ed that the prisoners tried were in the army "in actual service in time of war or public danger." Some of them could not belong to the army, for one, a farmer by occupation, named Samuel M'- Henry, was seventy years of age. The mode of trial in some of the cases would have disgraced any military despotism in Europe, and is a scandal to the age in which we live.


Take for instance the case of Daniel M'Henry, of Columbia county. The charges against him were substantially those above stated. The trial proceeded before three military men for a day or more, when suddenly one of these judges or members of the court disappeared, and a new inan in military dress, who had not been present at the trial, nor heard any of the evidence, appeared and claimed to take the place of the absentee without consulting the prisoner. The counsel for the prisoner of course objected, and the two remaining officers or jurors or judges, agreed to adjourn the case until they could hear from Washington. In a few days afterwards the prisoner was informed that the War Department had been heard from and the trial must proceed. And it did pro- ceed. Those who gave the orders in the War Department no doubt hoped that notwithstanding this scandalous violation of the rights of the citizens and of the Constitution of the United States, some effort would be made by an unscrupulous partisan Congress, which lost no opportunity to show its contempt for the Constitution and which treated the Supreme Court of the United States with un-


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mitigated hatred, to screen them afterwards from the consequen- ecs of their acts. But it must be recollected that Congress canl . pass no law that contravenes the Constitution of the United States. Congress was created by the Constitution and is inferior to it. This conduct of the War Department, exhibiting the most strin- gent exercise of a military despotism, was not attempted to be justified; but our courts were overawed and would not have dared to grant a writ of habeas corpus in any case, and I am confident that if any man had declared publicly that these trials were in the face of the Constitution, he would have been picked up on the same day, by the military at the point of the bayonet, and would have been subjected to a trial before this very military court whose power and jurisdiction he utterly denied.


When one prisoner was up for trial a piece of paper was pinned over his head having written on it the words, "Death to Traitors."


However trifling the offenses for which these men were tried, yet the punishment authorized by our State law of imprisonment for ten years in the penitentiary, made the crime an infamous one, and therfore clearly within the Constitution which requires a presentment or indictment.


The people of this whole land ought to understand that the Constitution of the United States is the foundation of our gov- ernment, and the Supreme Court of the United States is the ju- dicial expounder of the Constitution. If the Supreme Court of the United States can be so manipulated by Congress, as to become a political partisan institution, instead of a judicial one, and the constitution can be construed in such a way as to con- travene the whole genius of our government in establishing a military despotism over the whole land, because of a partial re- bellion, that there is an end to all appeal to civil government. The people must either submit to this military despotism in the hands of the War Department, or o.f'er open resistance, and stand upon their rights guaranteed to them by our form of government. It would be useless to talk of amending the Constitution or making a new one, for if a Constitution framed by Washington and the men of the revolution can be treated with contempt and disregarded, no reasonable man would suppose that a Constitu- made by the men of the present day, or by the men of any future generation would be regarded.


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I solemnly believe that it was never intended by the framers of the Constitution to confer upon the military the powers that have been claimed and exercised by them in the late war.


I ask the question who, what min. of common sense in this broad land ever believed that the Constitution framed by Wash- ington and his compeers, established as a rule of government, that when a rebellion takes place in one part of the Union, the people in every other part are to be subjected to a military .les- potism in the hands of the War Department, until the rebellion is suppressed ? This is the great question that lies at the founda- tion of these military trials.


Does it not furnish further evidence of a military despotism, that after men have been dragged away from the civil courts, tried by a tribunal unknown to the laws, and acquitted (as was the case with most of these men,) that after being turned loose they should be denied in every case all knowledge of the name of the person at whose instance they had been arrested.


Take another illustration of the workings of this military law : A drunken officer galloped one day furiously up and down our streets, and rode across the pavement in the centre of the town into a large hotel on horseback, then turned and rode out again. When remonstrated with by the police, he arrested the police, took them into the house and put them under guard, whilst his aids flourished their naked pistols in the faces of the citizens who came in to look on. No magistrate nor court would have dared to issue a warrant for the arrest of these military rowdies, and no warrant could have been executed. But the conduct of these mil- itary men was of course all right and necessary as a "war meas- ure" because a rebellion existed in the Southern States.


Do the leaders of the present party in Congress reflect that if they shall by their repeated assaults on the judiciary, and their ef- forts to make it partisan, destroy its independence, its stability and fidelity. that in a short time their party may pass into a min- ority, and their successors in office may imitate their bad example and show themselves as reckless and desperate as the present lead- ers? and if they should prove so, what the ? With a Supreme Court which is a mere shuttlecock between political parties, what will the Constitution be worth to the people of the whole land ? what protection will it afford to any man ?


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What would any citizen of Pennsylvania say while living, as he supposes, securely under the Constitution of the United States if he was told that a rebellion had been inaugurated in New Eng- land, and that instantly every person in Pennsylvania had been divested of his right of personal security, and of trial by jury, guaranteed to him by the constitution, and that any day or hour, for any expression of opinion he was liable to be picked up at the point of the bayonet, by a file of soldiers, to be tried by three strangers, in military dress, and whether convicted or not, would be sent to Fort Delaware, to sleep in an apartment below the surface of the surrounding water, and have an open privy used by a dozen of men kept in the room in which he drank and slept ? what would he say to such law, as the law of the land ? the law insisted upon and practiced upon in Pennsylvania. at its seat of government, in the late civil war. Can it be pretended that when a citizen, not in the army, is arrested by the mili- tary, and wlien the civil courts are all open aud unobstructed in the administration of justice, the military can try him, and when acquitted, if the prisoner asks why he was tried, and at whose instance he was arrested, he may be answered "that is none of your business ; it is a matter about which you have no right to inquire ; you can go !" If this is so, then why were our civil courts established ? Are the people living in a State not in rebel- lion to be treated as if they were slaves or brutes? Had the War Department placed in every other county in the State, as they did in this, a military court, and that court, backed by its soldiers, had demanded the right to try all the criminal business of the county, it is doubtful whether the claim would have been resisted.




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