USA > Pennsylvania > Columbia County > A history of Columbia County, Pennsylvania. From the earliest times. > Part 39
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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
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no such treachery. They not only took care of the trial by jury, but they regulated every step to be taken in a criminal trial. " They knew very well that no people could be free under a government which had the power to punish" without restraint. ' Hamilton ex- pressed. in the Federalist, the universal sentiment of his time, when he said, that the arbitrary power of conviction and punish- ment for pretended offenses, had been the great engine of despot-' ism in all ages and all countries. The existence of such a' power is utterly incompatible with freedom. The difference between . a master and his slave, consists only in this: that the master holds. the lash in his hands and he may use it without legal restraint; while the naked back of the slave is bound to take whatever is laid on it.
But our fathers were not absurd enough to put unlimited power in the hands of the ruler and take away the protection of law from the rights of individuals. It was not thus that they meant "to se- cure the blessings of liberty to themselves and their posterity." They determined that not one drop of the blood which had been shed on the other side of the Atlantic, during seven centuries of contest with arbitrary power, should sink into the ground ; but the fruits of every popular victory should be garnered up in this new government. Of all the great rights already won they threw not an atom away. They went over Magna Charta, the Petition of Rights, the Bill of Rights, and the rules of the common law, and whatever was found there to favor individual liberty they carefully inserted in their own systeni, improved by clearer ex- pression, strengthened by heavier sanctions, and extended by a more universal application. They put all those provisions into the organic law, so that neither tyranny in the executive, nor party rage in the Legislature could change them without destroy- ing the Government itself.
Look for a moment at the particulars and see how carefully everything connected with the administration of punitive justice is guarded.
1. No ex post facto law shall be passed. No man shall be answerable criminally for any act which was not defined and made punishable as a crime by some law in force at the time when the act was done.
2. For an act which is criminal he cannot be arrested without a
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judicial warrant founded on proof of probable cause. He shall not be kidnapped and shut up on the. mere report of some; base spy who gathers the materials of .a false accusation by crawling into his house and listening at the key-hole of his chamber door.
,8. He shall not be compelled to testify against himself. He may be examined before he is committed, and tell his own story if he.pleases .; but the rack shall be put out of sight, and even his conscience shall not be tortured ; nor : shall his unpublished papers be used against him, as was done most wrongfully in the ease of Algernon Sydney ......
4. He shall be entitled to a speedy trial ;. not kept in prison for an indefinite time without. the opportunity of vindicating his innocence .. .
5. He shall be informed of the accusation, its nature, and grounds. The public accuser must put the charge into the form of a legal indictment, so that the party can meet it full in the face.
.6. Even to the indictment he need not answer unless a grand jury, after hearing the evidence, shall say upon their oaths that they believe it to be true.
7. Then comes the trial, and it must be before a regular court, of competent jurisdiction, ordained and established for the State and district in which the crime was committed ; and this shall not be evaded by a legislative change in the district after the crime is alleged to be done.
8. His guilt or innocence shall be determined by an impartial jury. These English words are to be understood in their English sense, and they mean that the jurors shall be fairly selected by a sworn officer from among the peers of the party, residing within the local jurisdiction of the court. When they are called into the box he can purge the panel of all dishonesty, prejudice, per- sonal enmity, and ignorance by a certain number of peremptory challenges, and as many more challenges as he can sustain by showing reasonable cause.
9. The trial shall be public and open, that no underhand ad- vantage may be taken. The party shall be confronted with the witnesses against him, have compulsory process for his own wit- nesses, and be entitled to the assistance of counsel in his defense.
10. After the evidence is heard and discussed, unless the jury
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shall, upon their oaths, unanimously agree to surrender him up into the hands of the court as a guilty man, not a hair of his head can be touched in way of punishment.
11. After a verdict of guilty he is still protected. No cruel or unusual punishment shall be inflicted, nor any punishment at all, except what is annexed by the law to his offense. It cannot be doubted for a moment that if a person convicted of an offense not capital were to be hung on the order of a judge, such judge would be guilty of murder as plainly as if he should come down from the bench, tuck up the sleeves of his gown, and let out the prisoner's blood with his own hand.
12. After all is over, the law continues to spread its guardian- ship around him. Whether he is acquitted or condemned he shall never again be molested for that offense. No man shall be twice pnt in jeopardy of life or limb for the same cause.
These rules apply to all criminal prosecutions. But, in addition to these, certain special regulations were required for treason- the one great political charge under which more innocent men have fallen than any other. A tyrannical government calls every- body a traitor who shows the least unwillingness to be a slave. The party in power never fails, when it can, to stretch the law on that subject by construction, so as to cover its honest and consci- entious opponents. In the absence of a constitutional provision it was justly feared that statutes might be passed which would put the lives of the most patriotic citizens at the mercy of the basest minions that skulk about under the pay of the Executive. Therefore a definition of treason was given in the fundamental law, and the legislative authority could not enlarge it to serve the purpose of partisan malice. The nature and amount of evidence required to prove the crime was also prescribed, so that prejudice and emnity might have no share in the conviction. And lastly, the punishment was so limited that the property of the party could not be confiscated and used to reward the agents of his persecutors, or strip his family of their subsistence.
If these provisions exist in full force, unchangeable and irre- pealable, then we are not hereditary bondsmen. Every citizen may safely pursue his lawful calling in the open day; and at night, if he is conscious of innocence, he may lie down in security and sleep the sound sleep of a freeman.
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I say they are in force, and they will remain in force. We have not surrendered them, and we never will. If the worst comes to the worst we will look to the living God for His help, and defend our rights and the rights of our children to the last extremity. Those men who think we can be subjected and ab- jected to the condition of mere slaves are wholly mistaken. The great race to which we belong has not degenerated so fatally.
But how am I to prove the existence of these rights ? I do not propose to do it by a long chain of legal argumentation, nor by the production of numerous books with the leaves dog-eared and the pages marked, If it depended upon judicial precedents, I think I could produce as many as might be necessary. If I claimed this freedom, under any kind of prescription, I could prove a good long possession in ourselves and those under whom we claim it. I might begin with Tacitus and show how the con- test arose in the forests of Germany more than two thousand years ago ; how the roughi virtues and sound common sense of that people established the right of trial by jury, and thus started on a career which has made their posterity the foremost race that ever lived in all the tide of time. The Saxons carried it to England, and were ever ready to defend it with their blood. It was crushed out by the Danish invasion; and all that they suffer- ed of tyranny and oppression during the period of their subjuga- tion resulted from the want of trial by jury. If that had been conceded to them the reaction would not have taken place which drove back the Danes to their frozen homes in the North. But those ruffian sea-kings could not understand that, and the reaction came. Alfred, the greatest of revolutionary heroes and the wisest monarch that ever sat on a throne, made the first use of his power, after the Saxons restored it, to re-establish their ancient laws. He had promised them that he would, and he was true to them because they had been true to him. But it was not easily done; the courts were opposed to it, for it limited their power-a kind of power that everybody covets-the power to punish with- out regard to law. He was obliged to hang forty-four judges in one year for refusing to give his subjects a trial by jury. When the historian says that he hung them, it is not meant that he put them to death without a trial. He had them impeached before the grand council of the nation, the Wittenagemote, the parlia-
.
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ment of that time. During the subsequent period of Saxon. domination no man on English soil was powerful enough to refuse a legal trial to the meanest peasant. If any minister or any king, in war or in peace, had dared to punish a freeman by a tribunal of his own appointment, he would have roused the wrath of the whole population ; all orders of society would have resisted it; lord and vassal, knight and squire, priest and penitent, bocman and socman, master and thrall, copyholder and villein, would have risen in one mass and burnt the offender to death in his castle, or followed him in his flight and torn him to atoms. It was again trampled down by the Norman conquerors ; but the evils resulting from the want of it united all classes in the effort which compelled King John to restore it by the Great Charter. Everybody is familiar with the struggles which the English people, during many generations, made for their rights with the Plantaganets, the Tudors, and the Stuarts, and which ended final- ly in the revolution of 1688, when the liberties of England were placed upon an impregnable basis by the Bill of Rights.
Many times the attempt was made to stretch the royal author- ity far enough to justify military trials ; but it never had more than temporary success. Five hundred years ago Edward II closed up a great rebellion by taking the life of its leader, the Earl of Lancaster, after trying him before a military court. Eight years later that same king, together with his lords and commons in Parliament assembled, acknowledged with shame and sorrow that the execution of Lancaster was a mere murder, because the courts were open and he might have had a legal trial. Queen Elizabeth, for sundry reasons affecting the safety of the State, ordered that certain offenders not of her army should be tried according to the law martial. But she heard the storm of popular vengeance rising, and, haughty, imperious, self-willed as she was, she yielded the point; for she knew that upon that sub- ject the English people would never consent to be trifled with. Strafford, as Lord Lieutenant of Ireland, tried the Viscount Stormont before a military commission, and cut off his head. When impeached for it, he pleaded in vain that Ireland was in a state of insurrection, that Stormont was a traitor, and the army would be undone if it could not defend itself without appealing to the civil courts. The Parliament was deaf ; the King himself
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could not save him; he was condemned to suffer death as a traitor aud a murderer. Charles I. issued commissions to divers officers for the trial of his enemies according to the course of mil- itary law. If rebellion ever was an excuse for such an act, he could surely have pleaded it; for there was scarcely a spot in his kingdom, from sea to sea, where the royal authority was not dis- puted by somebody. Yet the Parliament demanded in their pe- tition of right, and the King was obliged to concede, that all his commissions were illegal. James II claimed the right to suspend the operation of the penal laws-a power which the courts denied -but the experience of his predecessors taught him that he could not suspend any man's right to a trial. He could easily have con- victed the seven bishops of any offence he saw fit to charge them with if he could have selected their judges from among the mer- cenary creatures to whom he had given commands in his army. But this he dared not do. He was obliged to send the bishops to a jury and endure the mortification of seeing them acquitted. He, too, might have had rebellion for an excuse, if rebellion be an excuse. The conspiracy was already ripe which a few months afterwards made him an exile and an outcast ; he had reason to believe that the Prince of Orange was making his preparations on the other side of the channel to invade the kingdom, where thous- ands burned to join him; nay, he pronounced the bishops guilty of rebellion by the very act for which he arrested them. He had raised an army to meet the rebellion, and he was on Hounslow Heath reviewing the troops organized for that purpose, when he heard the great shout of joy that went up from Westminster Hall, was echoed back from Temple Bar, spread down the city and over the Thames, and rose from every vessel on the river-the simul- taneous shout of two hundred thousand men for the triumph of justice and law.
If it were worth the time, I might detain you by showing how this subject was treated by the French Court of Cassation in Geoffroy's case, under the constitution of 1830, when a military judgment was unhesitatingly pronounced to be void, though ordered by the King, after a proclamation declaring Paris in a state of siege. Fas est ab hoste doceri : we may lawfully learn something from our enemies-at all events we should blush at the thought of not being equal on such a subject to the courts of
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Virginia, Georgia, Mississippi, and Texas, whose decisions my colleague, General Garfield, has read and commented on.
The truth is, that no authority exists anywhere in the world for the doctrine of the Attorney General. No judge or jurist, no statesman or parliamentary orator, on this or the other side of the water, sustains him. Every elementary writer from Coke to Wharton is against him. All military authors who profess to know the duties of their profession admit themselves to be under, not above, the laws. No book can be found in any library to justify the assertion that military tribunals may try a citizen at a place where the courts are open. When I say no book, I mean, of course, no book of acknowledged authority. I do not deny that hireling clergymen have often been found to disgrace the pulpit by trying to prove the divine right of kings and other rulers to govern as they please. It is true, also, that court syc- ophants and party hacks have many times written pamphlets, and perhaps large volumes, to show that those whom they serve should be allowed to work out their bloody will upon the people. No abuse of power is too flagrant to find its defenders among such servile creatures. Those butchers' dogs that feed upon garbage and fatten upon the offal of the shambles are always ready to bark at whatever interferes with the trade of their mas- ter.
But this case does not depend on authority. It is rather a question of fact than of law.
I prove my right to a trial by jury just as I would prove my title to an estate if I held in my hand a solemn deed conveying it to me, coupled with undeniable evidence of long and undis- turbed possession under and according to the deed. There is the charter by which we claim to hold it. It is called the Constitu- tion of the United States. It is signed by the sacred name of George Washington, and by thirty-nine other names, only less illustrious than his. They represented every independent State then upon this continent, and each State afterwards ratified their work by a separate convention of its own people. Every State that subsequently came in acknowledged that this was the great standard by which their rights were to be measured. Every man that has ever held office in the country, from that time to this, has taken an oath that he would support and sustain it through
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good report and through evil. The Attorney General himself became a party to the instrument when he laid his hand upon the gospel of God and solemnly swore that he would give to me and every other citizen the full benefit of all it contains.
What does it contain ? This, among other things :
"The trial of all crimes except in cases of impeachment shall be by jury."
Again : "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 shall any person be subject for the same offense to be twice put in jeopardy of life or limb, nor be com- pelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property without due process of law ; nor shall private property be taken for public use without just compensation."
This is not all ; another article declares that "in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district where- in the crime shall have been committed, which district shall have been previously ascertained by law ; and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for the wit- nesses in his favor, and to have the assistance of counsel for his defense."
Is there any ambiguity there ? If that does not signify that a jury trial shall be the exclusive and only means of ascertaining guilt in criminal cases, then I demand to know what words or what collocation of words in the English language would have that effect? Does this mean that a fair,' open, speedy, public trial by an impartial jury shall be given only to those persons against whom no special grudge is felt by the Attorney General, or the judge advocate, or the head of a department? Shall this inestimable privilege be extended only to men whom the admin- istration does not care to convict ? Is it confined to vulgar crim- inals, who commit ordinary crimes against society, and shall it be denied to men who are accused of such offenses as those for which Sydney and Russell were beheaded, and Alice Lisle was
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hung, and Elizabeth Gaunt was burnt alive, and John Bunyan was imprisoned fourteen years, and Baxter was whipped at the cart's tail, and Prynn had his ears cut off? No; the words of the Con- stitution are all-embracing-
"As broad and general as the casing air.",
The trial of ALL crimes shall be by jury. ALL persons ac- cused shall enjoy that privilege-and NO person shall be held to answer in any other way.
That should be sufficient without more. But there is auother consideration which gives it ten fold power. It is a universal rule of construction, that general words in any instrument, though they may be weakened by enumeration, are always strengthened by exceptions. Here is no attempt to enumerate the particular cases in which men charged with criminal offenses shall be enti- tled to a jury trial. It is simply declared that all shall have it. But that is coupled with a statement of two specific exceptions : cases of impeachment; and cases arising in the land or naval forces. These exceptions strengthen the application of the general rule to all other cases. Where the law-giver himself has declared when and in what circumstances you may depart from the general rule, you shall not presume to leave that onward path for other reasons, and make different exceptions. To exceptions, the maxim is always applicable, that expressis unius exclusio est alterius.
But we are answered that the judgment under consideration, was pronounced in time of war, and it is therefore at least, mor- ally excusable. There may or there may not be something in that. I admit that the merits or demerits of any particular act, whether it involve a violation of the Constitution or not, depend upon the motives that prompted it, the time, the occasion and all the at- tending circumstances. When the people of this country come to decide upon the acts of their rulers, they will take all these things into consideration. But that presents the political aspect of the case with which, I trust, we have nothing to do here. I decline to discuss it. I would only say, in order to prevent misap- prehension, that I think it is precisely in a time of war and civil commotion, that we should double the guards upon the Constitu- tion. If the sanitary regulations which defend the health of a
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city are ever to be relaxed, it ought certainly not to be done when pestilence is abroad. When the Mississippi shrinks within its natural channel, and creeps lazily along the bottom, the inhabi- tants of the adjoining shore have no need of a dyke to save them from inundation. But when the booming flood. comes down from above, and swells into a volume which rises high above the plain on either side, then a crevasse in the levee, becomes a most serious thing. So in peaceable and quiet times, our legal rights are in little danger of being overborne ; but when the wave of ar- bitrary power lashes itself into violence and rage, and goes surg- ing up against the barriers which were made to confine it, then we need the whole strength of an unbroken Constitution to save us from destruction. But this is a question which properly le- longs to the jurisdiction of the stump and the newspaper.
There is another quasi political argument-necessity. If the law was voilated because it could not be obeyed, that might be an excuse. But no absolute compulsion is pretended here. These commissioners acted, at most, under what they regarded as a moral necessity. The choice was left them to obey the law or disobey it. The disobedience was only necessary as means to an end which they thought desirable ; and now they assert that though these means are unlawful and wrong, they are made right, because without them the object could not be accomplished; in other words, the end justifies the means. There you have a rule of conduct denounced by all law, human and divine, as being per- nicious in policy and false in morals. See how it applies to this case! Here were three men whom it was desirable to remove out of this world, but there was no proof on which any court would take their lives ; therefore it was necessary, and being necessary it was right and proper, to create an illegal tribunal which would put them to death without proof. By the same mode of reason- ing you can prove it equally right to poison them in their food, or stab them in their sleep.
Nothing that the worst men ever propounded has produced so much oppression, misgovernment, and suffering as this pretence of State necessity. A great authority calls it "the tyrant's devil- ish plea ;" and the common honesty of all mankind has branded it with everlasting infamy.
Of course, it is mere absurdity to say that these relators were
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necessarily deprived of their right to a fair and legal trial, for the record shows that a court of competent jurisdiction was sit- ting at the very time and in the same town, where justice would have been done without sale, denial, or delay. But concede for the argument's sake that a trial by jury was wholly impossible ; admit that there was an absolute, overwhelming, imperious neces- sity operating so as literally to compel every act which the com- missioners did, would that give their sentence of death the validity and force of a legal judgment pronounced by an ordained and established court ? The question answers itself. This trial was a violation of law, and no necessity could be more than a mere excuse for those who committed it. If the commissioners were on trial for murder or conspiracy to murder, they might plead neces- sity if the fact were true, just as they would plead insanity or anything else to show that their guilt was not willful. But we are now considering the legal effect of their decision, and that de- pends on their legal authority to make it. They had no such au- thority; they usurped a jurisdiction which the law not only did not give them, but expressly forbade theni to exercise, and it fol- lows that their act is void, whatever may have been the real or supposed excuse for it.
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