USA > Pennsylvania > Columbia County > A history of Columbia County, Pennsylvania. From the earliest times. > Part 38
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43
To a person who would stand by and look on at these mili- tary proceedings it was perfectly astonishing to see with what ease a civil government, founded on a written Constitution and laws, could be made, by usurpation, to slide over into a military one.
Had we now a Congress that respected or regarded the interest of the people, we might hope that some proceeding would be adopted repudiating all these military trials where the civil courts were open and had jurisdiction:
It is very evident that the construction put upon the Constitu
513
HISTORY OF COLUMBIA COUNTY.
tion by the War Department in the late war on the subject of military arrests and military trials, leaves to the citizen, living in a State not in rebellion, no personal security whatever, and treats him as if he lived in a land where the government is a sheer mili- tary despotism. Whether the people of the United States are willing to allow the construction of the War Department to stand as a precedent in case of another insane rebellion or not, is a ques- tion of such vast import as ought to command the attention of the people of this whole land from the Atlantic to the Pacific.
Harrisburg, 1867. H. A., 2d street.
-
$14
HISTORY OF COLUMBIA COUNTY.
APPENDIX NO. 2. - UNITED STATES SUPREME COURT.
. MILITARY TRIALS OF CIVILIANS. THE INDIANA CONSPIRACY CASES.
Argument of the Hon. Jeremiah S. Black.
In September, 1864, L. P. Milligan, W. A. Bowles, Stephen Horsey, and others, were arrested and brought before a military commission at Indianapolis, Indiana, charged with being members of the order of "American Knights," or "Sons of Liberty," in league with armed rebels, and with having conspired to release the rebel prisoners of war confined in the United States military prisons at Indianapolis, Chicago and Rock Island. The three parties named, after a protracted trial, were found guilty of the charges and specifications preferred against them, and condemned to death. The findings and sentence were approved by the Pres- ident and promulgated by the War Department on the 2d of May 1865, and the 19th day of the same month was fixed for the exe- cution. On the 10th of May, however, they applied by petition to the circuit court of the United States for the district of Indi- ana (Judges Davis and McDonald) for a writ of habeas corpus, or for an order of discharge, under the act of Congress approved March 3. 1863, entitled "An act relating to habeas corpus, and regulating judicial proceedings in certain cases." The judges of the circuit court were divided in opinion upon this application, and certified the following questions, on which they differed, to the Supreme Court for decision :
1. "On the facts stated in said petition and exhibits, ought a writ of habeas corpus to be issued according to the prayer of said petition ?"
2. "On the facts stated in said petition and exhibits, ought
515
HISTORY OF COLUMBIA COUNTY.
the said parties to be discharged from custody, as in said petition prayed ?"
3. "Whether, upon the facts stated in said petition and exhib- its, the military commission mentioned therein had jurisdiction legally to try and sentence said parties in manner and form as in said petition and exhibits is stated ?"
After the action of the circuit court, certifying the case to the Supreme Court for final decision, the President commuted the sen- tence of the petitioners to imprisonment for life.
The argument of these questions, which commenced on the 5th and terminated on the 13th of March, 1866, was conducted on the part of the petitioners by J. E. McDonald, Esq., of Indiana, Hon. J. A. Garfield, of Ohio, Hon. J. S. Black, of Pennsylvania, and David Dudley Field, of New York ; and on behalf of the United States by B. F. Butler, Esq , of Massachusetts, Hon. H. Stanberry, of Ohio, and Hon. James Speed, Attorney General of the United States. The argument of Mr. BLACK for the petitioners was as follows :
May it please your Honors :
I am not afraid that you will underrate the importance of this case. It concerns the rights of the whole people. Such ques- tions have generally been settled by arms. But since the begin- ning of the world no battle has ever been lost or won upon which the liberties of a nation were so distinctly staked as they are on the result of this argument. The pen that writes the judgment of the Court, will be mightier for good or for evil than any sword that ever was wielded by mortal arm.
As might be expected from the nature of the subject, it has been a good deal discussed elsewhere, in legislative bodies, in public assemblies, and in the newspaper press of the country. But there it has been mingled with interests and feelings not very friendly to a correct conclusion. Here we are in a higher atmosphere where no passion can disturb the judgment or shake the even balance in which the scales of reason are held .. Here it is purely a judicial question ; and I can speak for my colleagues as well as myself, when I say that we have no thought to suggest which we do not suppose to be a fair element in the strictly legal judgment which you are required to make up.
516
HISTORY OF COLUMBIA COUNTY.
In performing the duty assigned to me in the case, I shall nec .- ... essarily refer to the mere rudiments of constitutional law ; to the most commonplace topics of history, and to those.plain rules of justice and right which pervade all our institutions. I.beg your honors to believe that this is not done because I think that the Court, or any member of it, is less familiar with these things than I am, or less sensible of their value; but simply and only because, according to my view of the subject, there is, absolutely no other way of dealing with it .. If the fundamental principles of Amer- ican liberty are attacked, and we are driven. behind the inner walls of the Constitution to defend them, we can repel the as- sault only with those same old weapons which our ancestors used a hundred years ago. You must not think the worse .of our ar- mor because it happens to be old-fashioned and looks a little rusty. from long disuse.
. The case before you presents but a single point, and that an exceedingly plain one. It is not encminbered with any of those vexed questions that might be expected to arise out of a great- war. You are not called upon to decide what kind of a rule a military commander may impose upon the inhabitants of a hostile country which he occupies as a conqueror, or what punishment he may inflict upon the soldiers of his own army or the followers of his camp; or yet how he may deal with civilians in a beleag- uered city or other place in a state of actual siege, which he is re. quired to defend against a public enemy. This contest covers no such ground as that. The men whose acts we complain of erect- ed themselves into a tribunal for the trial and punishment of citi- zens who were connected in no way whatever with the army or navy. And this they did in the midst of a community whose so- cial and legal organization had never been disturbed by any war or insurrection, where the courts were wide open, where judicial process was executed every day without interruption, and where all the civil authorities, both State and national, werc in full exer- cise of their functions.
My clients were dragged before this strange tribunal, and after a proceeding, which it would be mere mockery to call a trial, they were ordered to be hung. The charge against them was put into writing and is found on this record, but you will not be able to decipher its meaning. The relators were not accused of treason ;
5.1.7.
HISTORY OF COLUMBIA COUNTY
for nothing is imputed to them which, if true, would come within the definition of that crime. It was not conspiracy under the act of 1861 ; for all concerned in this business must have known that . conspiracy was not a capital offense: If the commissioners were able to read English, they could not help but see that it was made. punishable even by fine and imprisonment, only upon condition that the parties should first be convicted before a circuit or dis- trict court of the United States. The judge advocate must have meant to charge them with some offense unknown to the laws, which he chose to make capital by legislation of his own, and the commissioners were so profoundly ignorant as to think that the legal innocence of the parties made no difference in the case. I do not say what Sir James Mackintosh said of a similar proceed- ing ; that the trial was a mere conspiracy to commit willful mur- der upon three innocent men. The commissioners are not on trial; they are absent and undefended; and they are entitled to the ben- efit of that charity which presumes them to be wholly unacquaint- . ed with just principles of natural justice, and quite unable to com- prehend either the law or the facts of a criminal cause.
Keeping the character of the charges in mind, let us come at once to the simple question upon which the court below divided in opinion : Had the commissioners jurisdiction-were they in- vested with legal authority to try the relators and put them to death for the offense of which they were accused ? We answer, no; and therefore the whole proceeding from beginning to end was utterly null and void. On the other hand, it is absolutely necessary for those who oppose us to assert, and they do assert, that the commissioners had complete legal jurisdiction botli of the subject-matter and of the parties, so that their judgment upon the law and the facts is absolutely conclusive and binding, not subject to correction nor open to inquiry in any court whatever. Of these two opposite views, you must adopt one or the other for there is no middle ground on which you can possibly stand.
I need not say, (for it is the law of the horn books,) that where a court, (whatever may be its power in other respects,) presumes to try a man for an offense of which it has no right to take judic- ial cognizance, all its proceedings in that case are null and void. If the party is acquitted, he cannot plead the acquittal afterwards in bar of another prosecution; if he is found guilty and sentenced,
518
HISTORY OF COLUMBIA COUNTY.
he is entitled to be relieved from the punishment. If a circuit court of the United States, should undertake to try a party for an offense clearly within the exclusive jurisdiction of the State courts, the judgment could have no effect. If a county court in the interior of a State should arrest an officer of the Federal navy, try him, and order him to be hung for some offense against the law of nations, committed upon the high seas or in a foreign port, nobody would treat such a judgment otherwise than with mere de- rision. The Federal courts have jurisdiction to try offenses against the laws of the United States, and the authority of the State courts is confined to the punishment of acts which are made penal by State laws. It follows that where the accusation does not amount to an offense against the law of either the State or the Federal Government, no court can have jurisdiction to try it. Suppose for example that the judges of this Court, should organ- ize themselves into a tribunal to try a man for witchcraft, or heresy, or treason, against the Confederate States of America, would anybody say that your judgment had the least validity ?
I care not, therefore, whether the relators were intended to be charged with treason or conspiracy or with some offense of which the law takes no notice. Either or any way, the men who under- took to try them had no jurisdiction of the subject-matter.
Nor had they jurisdiction of the parties. It is not pretended that this was a case of impeachment, or a case arising in the land or naval forces. It is either nothing at all or else it is a simple crime against the United States, committed by private individuals not in the public service, civil or military. Persons standing in that relation to the Government are answerable for the offenses which they may commit, only to the civil courts of the country. So says the Constitution, as we read it; and the act of Congress of March 3, 1863, which was passed with express reference to persons precisely in the situation of these men, declares that they shall be delivered up for trial to the proper civil authorities.
There being no jurisdiction of the subject matter or of the parties, you are bound to relieve the petitioners. It is as much the duty of a judge to protect the innocent as it is to punish the guilty. Suppose that the Secretary of some department should take it into his head to establish an ecclesiastical tribunal here in the city of Washington, composed of clergymen "organized to
519
HISTORY OF COLUMBIA COUNTY.
convict" everybody who prays after a fashion inconsistent with the supposed safety of the State. If he would select the mema- bers with a proper regard to the odium theologicum, I think could insure him a commission that would hang every man and woman who might be brought before it. But would you, the judges of the land, stand by and see their sentences executed ? No ; you would interpose your writ of prohibition, your habeus corpus, or any other process that might be at your command, between them and their victims. And you would do that for precisely the reason which requires your intervention here- because religious errors, like political errors, are not crimes which anybody in this country has jurisdiction to punish, and because ecclesiastical commissions, like military commissions, are not among the judicial institutions of this people. Our fathers long ago cast them both aside among the rubbish of the dark ages ; and they intended that we, their children, should know them only that we might bluslı and shudder at the shameless injustice and the brutal cruelties which they were allowed to perpetrate in other times and other countries.
But our friends on the other side are not at all impressed with these views. Their brief corresponds exactly with the doctrines propounded by the Attorney General, in a very elaborate official paper which he published last July, upon this same subject. He then avowed it to be his settled and deliberate opinion that the military might "take and kill, try and execute," (I use his own words) persons who had no sort of connection with the army or navy. And though this be done in the face of the open courts, the judicial authorities, according to him, are utterly powerless to prevent the slaughter which may thus be carried on. That is the thesis which the Attorney General and his assistant counselors are to maintain this day, if they can maintain it, with all the power of their artful eloquence.
We, on the other hand, submit that a person not in the military or naval service cannot be punished at all until he has had a fair, open, public trial before an impartial jury, in an ordained and established court, to whichi the jurisdiction has been given by law to try him for that specific offense. There is our proposition. Between the ground we take and the ground they occupy, there is and there can be no compromise. It is one way or the other.
520
HISTORY OF COLUMBIA COUNTY.
... Our proposition ought to be received as true without any argu- ment to support it ; because if that, or something precisely equiv- alent to it, be not a part of our law, this is not what we have always supposed it to be, a free country. Nevertheless 1 take upon myself the burden of showing affirmatively not only that it is true, but that it is immovably fixed in the very framework of the Gov- ernment, so that it is utterly impossible to detach it without de- stroying the whole political structure under which we live. By removing it you destroy the life of this nation as completely as you would destroy the life of an individual by cutting the heart. out of his body. I proceed to the proof.
In the first place, the self evident truth will not be denied that the trial and punishment of an offender against the Government is the exercise of judicial authority. That is a kind of authority which would be lost by being diffused among the masses of the people. A judge would be no judge if everybody else were a judge as well as he. Therefore in every society, however rude or however perfect its organization, the judicial authority is always committed to the hands of particular persons, who are trusted to use it wiscly and well ; and their authority is exclusive ; they can- not share it with others to whom it has not been committed Where, then, is the judicial power in this country? Who are the depositaries of it here ? The Federal Constitution answers that question in very plain words, by declaring that "the judicial pow- er of the United States shall be vested in one Supreme Court, and in such inferior courts as Congress may from time to time ordain and establish." Congress has, from time to time, ordain- ed and established certain inferior courts ; and in them, together with the one Supreme Court to which they are subordinate, is vest- ed all the judicial power, properly so called, which the United States can lawfully exercise. That was the compact made with the General Government at the time it was created. The States and the people agreed to bestow upon that Government a certain portion of the judicial power which otherwise would have remain- ed in their own hands, but gave it on a solemn trust and coupled the grant of it with this express condition that it should never be used in any way but one; that is, by means of ordained and es- tablished courts. Any person, therefore, who undertakes to ex- ercise judicial power in any other way not only violates the law
521
HISTORY OF COLUMBIA COUNTY.
of the land, but he treacherously tramples upon the most import -. ant part of that sacred covenant which holds these States togeth- er.
May it please your honors, you know, and I know, and everybody else knows that it was the intention of the men who founded this Republic to put the life, liberty, and property of every person in it under the protection of a regular and permanent judiciary, separate, apart, distinct, from all other branches . of the Government, whose sole and exclusive business it should be to distribute justice among the people according to the wants and needs of each individual. It was to consist of courts, always open to the complaint of the injured, and always ready to hear criminal accusations when founded upon probable cause ; surrounded with all the machinery necessary for the investigation of truth, and clothed with suffici- ent power to carry their decrees into execution. In these courts it was expected that judges would sit who would be upright, honest, and sober men, learned in the laws of their country, and lovers of justice from the habitual practice of that virtue; inde- pendent because their salaries could not be reduced, and free from party passion because their tenure of office was for life. Although this would place them above the clamors of the mere mob and beyond the reach of Executive influence, it was not intended that they should be wholly irresponsible, For any willful or corrupt violation of their duty, they arc liable to be impeachcd ; and they cannot escape the control of an enlightened public opinion, for they must sit with open doors, listen to full discussion, and give satisfactory reasons for the judgments they pronounce. In ordi- nary tranquil times the citizen might feel himself safe under a judicial system so organized.
But our wise forefathers knew that tranquillity was not to be always anticipated in a republic ; the spirit of a free people is often turbulent. They expected that strife would rise between classes and sections, and even civil war might come, and they supposed, that in such times, judges themselves might not be safe- ly trusted in criminal cases -- especially in prosecutions for politi- cal offences, where the whole power of the Executive is arrayed against the accused party All history proves that public officers- of any government when they are engaged in a severe struggle to
522
HISTORY OF COLUMBIA COUNTY.
retain their places, become bitter and ferocious, and hate those who oppose them, even in the most legitimate way, with a raneor which they never 'exhibit towards actual crime. This kind of malignity vents itself in prosecutions for political offences, sedi- tion, conspiracy, libel, and treason, and the charges are generally founded upon the information of hireling spies and common dela- tors, who make merchandise of their oaths, and trade in the blood of their fellow men. During the civil commotions in England, which lasted from the beginning of the reign of Charles I. to the revolution of 1688, the best men, and the purest patriots that ever lived, fell by the hand of the public executioner. Judges were made the instruments for inflicting the most merciless sentences on men, the latchet of whose shoes the ministers that prosecuted them were not worthy to stoop down and unloose. Let me say here, that nothing has occurred in the history of this country to justify the doubt of judicial integrity which our forefathers seem to have felt, On the contrary, the highest compliment that has ever been paid to the American bench, is embodied in this simple fact; that if the executive officers of this Government have ever desired to take away the life or liberty of a citizen contrary to law, they have not come into the courts to get it done, they have gone outside of the courts, and stepped over the Constitution, and created their own tribunals, composed of men whose gross ignor- ance, and supple subservience could always be relied on for those base uses to which no judge would ever lend himself. But the framers of the Constitution could act only upon the experience of that country whose history they knew most about, and there they saw the brutal ferocity of Jeffreys and Scroggs, the timidity of Guilford, and the base venality of such men as Saunders and Wright. It seemed necessary therefore, not only to make the judiciary as perfect as possible, but to give the citizen yet another shield against the wrath and malice of his Government. To that end they could think of no better provision than a public trial be- fore an impartial jury.
I do not assert that the jury trial is an infallable mode of ascer- taining truth. Like everything human, it has its imperfections. I only say that it is the best protection for innocence and the surest mode of punishing guilt that has yet been discovered. It has borne the test of a longer experience, and borne it better than any other
523
HISTORY OF COLUMBIA COUNTY.
legal institution that ever existed among men. England owes more of her freedom, her grandeur, and her prosperity to that, than to all other causes put together. It has had the approbation not only of those who lived under it, but of great thinkers who looked at it calmly from a distance, and judged it impartially : Montesquieu and DeTocqueville speak of it with an admiration as rapturous as Coke and Blackstone. Within the present century, the most enlightened states of continental Europe have trans- planted it into their countries ; and no people ever adopted it once and were afterwards willing to part with it. It was only in 1830 that an interference with it in Belgium provoked a successful in- surrection which permanently divided one kingdom into two. In the same year, the revolution of the Barricades gave the right of trial by jury to every Frenchman.
Those colonists of this country who came from the British Is- lands, brought this institution with them, and they regarded it as the most precious part of their inheritance. The immigrants from other places where trial by jury did not exist became equally at- tached to it as soon as they understood what it was. There was no subject upon which all the inhabitants of the country were more perfectly unanimous than they were in their determination to maintain this great right unimpaired. An attempt was made to set it aside and substitute military trials iu its place, by Lord Dunmore, in Virginia, and General Gage, in Massachusetts, ac- companied with the excuse which has been repeated so often in late days, namely, that rebellion had made it necessary: but it ex- cited intense popular anger and every colony from New Hampshire to Georgia, made common cause with the two whose rights had been especially invaded. Subsequently the Continental Congress thundered it into the ear of the world, as an unendurable outrage, sufficient to justify universal insurrection against the authority of the Government which had allowed it to be done.
If the men who fought out our revolutionary contest, when they came to frame a government for themselves and their posterity, had failed to insert a provision making the trial by jury perpetual and universal, they would have covered themselves all over with infamy as with a garment; for they would have proved themselves basely recreant to the principles of that very liberty of which they professed to be the special champions. But they were guilty of
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.