USA > Pennsylvania > Columbia County > A history of Columbia County, Pennsylvania. From the earliest times. > Part 41
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ed by instant execution ; he let loose the Prætorian guards upon men, women, and children to drown, butcher, and burn them, Herod saw fit, for good political reasons, closely affecting the permanence of his reign in Judea, to punish certain possible trait- ors in Bethlehem by anticipation. This required the death of all the children in that city under two years of age. He issued his "general order ;" and his provost marshal carried it out with so much alacrity and zeal that in one day the whole land was fill- ed with mourning and lamentation.
Macbeth understood the whole philosophy of the subject. He was an unlimited monarch. His power to punish for any offence or for no offence at all was as broad as that which the Attorney- General claims for himself and his brother officers under the United States. But he was more cautious how he used it. He had a dangerous rival, from whom he apprehended the most seri- ous peril to the "life of his government." The necessity to get rid of him was plain enough, but he could not afford to shock the moral sense of the world by pleading political necessity for a. murder. He must
"Mask the business from the common eye."
Accordingly he sent for two enterprising gentlemen whom he took into his service upon liberal pay-"made love to their assis- tance;" and got them to deal with the acrused party. He acted as his own judge advocate. He made a most elegant and stirring speech to persuade his agents that Banquo was their oppressor, and had "held them so under fortune" that he ought to die for that alone. When they agreed that he was their enemy, then said the king-
"So is he mine, and though I could With barefaced power sweep him from my sight And bid my will avouch it; yet I must not, For certain friends, who are both his and mine, Whose loves I may not drop."
For these, and "many weighty reasons" besides, he thought it best to commit the execution of his design to a subordinate agency. The commission thus organized in Banquo's case sat upon him that very night at a convenient place beside the road where it was known he would be traveling ; and they did pre- cisely what the Attorney General says the military officers may do in this country-they took and killed him, because their em-
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ployer at the head of the government wanted it done, and paid theni for doing it out of the public treasury.
But of all the persons that ever wielded this kind of power, the one who went most directly to the purpose and object of it was Lola Montez. She reduced it to the elementary principle. In 1848, when she was minister and mistress to the King of Bavaria she dietated all the measures of the government. The times were troublesome. All over Germany the spirit of rebellion was rising; everywhere the people wanted to see a first-class revolution, like that which had just exploded in France. Many persons in Bava- ria disliked to be governed so absolutely by a lady of the ehar- acter which Lola Montez bore, and some of them were rash enough to say so. Of course that was treason, and she went about to punish it in the simplest of all possible ways. She bought herself a paek of English bull dogs. trained to tear the flesh, and mangle the limbs, and lap the life-blood ; and with these dogs at her heels, she marched up and down the streets of Munieh with a most majestie tread, and with a sense of power which any judge advocate in America might envy. When she saw any person whom she chose to denounce for "thwarting the government" or "using disloyal language," her obedient followers needed but a sign to make them spring at the throat of their vic- tim. It gives me unspeakable pleasure to tell you the sequel. The people rose in their strength, smashed down the whole ma- ehinery of oppression, and drove out into uttermost shame king, strumpet, dogs, and all. From that time to this neither man, woman, nor beast, has dared to worry or kill the people of Ba- varia.
All these are but so many different ways of using the arbitrary power to punish. The variety is merely in the means which a tyrannieal government takes to destroy those whom it is bound to protect. Everywhere it is but another construction, on the same principle, of that remorseless machine by which despotism wreaks its vengeance on those who offend it. In a civilized country it nearly always uses the military foree, because that is the sharp- est, and surest, as well as the best looking instrument, that ean be found for such a purpose. But in none of its forms can it be in- troduced into this country ; we have no room for it; the ground here is all preoccupied by legal and free institutions.
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Between the officers who have a power like this and the people who are liable to become its victims, there can be no relation ex- cept that of master and slavc. The master may be kind and the slave may be contented in his bondage ; but the man who can take your life, or restrain your liberty, or despoil you of your property at his discretion, either with his own hands or by means of a hired overseer, owns you and he ean force you to serve him. All you are, and all you have. ineluding your wives and children, are his property.
If my learned and very good friend, the Attorney General, had this right of domination over me, I should not be very much frightened, for I should expect him to use it as moderately as any man in all the world ; but still I should feel the necessity of being very disercet. He might change in a short time. The thirst for blood is an appetite which grows by what it feeds upon. We can- not know him by present appearances. Robespierre resigned a country judgeship in early life, because he was too tender-hearted to pronounce sentenee of death upon a eonvieted criminal. Calig- ula passed for a most amiable young gentleman before he was clothed with the imperial purple, and for about eight months after- wards. It was Trajan, I think, who said that absolute power would convert any man into a wild heast. whatever was the origi- nal benevolence of his nature. If you decide that the Attorney General holds in his own hands or shares with others the power of life and death over us all, I mean to be very cautious in my intercourse with him; and I warn you, the judges whom I am now addressing, to do likewise. Trust not to the gentleness and kindness which has always marked liis behavior heretofore. Keep your distance ; be careful how you approach liim; for you know not at what moment or by what a trifle you may rouse the sleep- ing tiger. Remember the injunction of Seripture: "Go not near to the man who hath power to kill; and if thou come unto him, see that thou make no fault, lest he take away thy life presently ; for thou goest among snares and walkest upon the battlements of the city."
The right of the executive government to kill and imprison citi- zens for political offenses has not been practically claimed in this country, except in cases where commissioned officers of the army were the instruments used. Why should it be confined to them ?
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Why should not naval officers be permitted to share in it ? What is the reason that common soldiers and seamen are exclud- ed from all participation in the business ? No law has bestowed the right upon army officers more than upon other persons. If men are to be hung up without that legal trial which the Consti- tution guarantecs to them, why not employ commissions of clergy- men, merchants, manufacturers. horse-dealers, butchers, or drovers, to do it ? It will not be pretended that military men are better qualified to decide questions of fact or law than other classes of people ; for it is known on the contrary that they are, as a gener- al rule, least of all fitted to perform the duties that belong to a judge.
The Attorney General thinks that a procceding which takes away the lives of citizens without a constitutional trial is a most merciful dispensation. His idea of humanity as well as law is em- bodied in the bureau of military justice, with all its dark and bloody machinery. For that strange opinion he gives this curious reason : that the duty of the commander-in-chief is to kill, and unless he has this bureau and these commissions he must "butcher" indiscriminately without mercy or justicc. I admit that if the commander-in chief or any other officer of the Government has the power of an Asiatic king, to butcher the people at pleasure, he onght to have somebody to aid him in selecting his victims, as well as to do the rough work of strangling and shooting. But if my learned friend will only condescend to cast an eye upon the Constitution, he will see at once that all the executive and milita- ry officers are completely relieved by the provision that the life of a citizen shall not be taken at all until after legal conviction by a court and jury.
You cannot help but see that military commissions, if suffered to go on, will be used for most pernicious purposes. I have criti- cized none of their past proceedings, nor made any allusion to their history in the last five years. But what can be the meaning of this effort to maintain them among us ? Certainly not to pun- ish actual guilt. All the ends of true justice are attained by the prompt, speedy, impartial trial which the courts are bound to give. Is there any danger that crime will be winked upon by the judges? Does anybody pretend that courts and juries have less ability to decide upon facts and law than the men who sit in military trib-
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unals ? The counsel in this eanse will not insult you by even hint- ing such an opinion. What righteous or just purpose, then, can they serve ? None, whatever.
But while they are utterly powerless to do even a shadow of good. they will be omnipotent to trample upon innocence, to gag the truth, to silence patriotism, and erush the liberties of the country. They will always be organized to conviet, and the con- viction will follow the accusation as surely as night follows the day. The Government of course, will accuse none before such a commission except those whom it predetermines to ruin and de. stroy. The aceuser can choose the judges, and will certainly se- lect those who are known to be the most ignorant, the most un principled. and the most ready to do whatever may please the power which gives them pay, promotion and plunder. The will- ing witness can be found as easily as the superserviceable judge. The treacherous spy, and the base informer-those loathsome wretches who do their lying by the job-will stoek such a market with abundant perjury, for the authorities that employ them will be bound to protect as well as reward them. A corrupt and tyrannical government, with such an engine at its command, will shoek the world with the enormity of its erimes. Plied as it may be by the arts of a malignant priest- hood, and urged on by the madness of a raving crowd, it will be worse than the popish plot, or the French revolution-it will be a combination of both, with Fouqnier Tinville on the bench, and Titus Oates in the witness's box. You can save us from this horrible fate. You alone can "deliver us from the body of this death." To that fearful extent is the destiny of this nation in your hands .- From the Reporter.
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OPINION OF THE COURT.
No. 350 .- DEOEMBER TERM, 1865.
Ex parte : In matter of Lambdin P. Milligan, petitioner. On a eertifi- cate of division of opinion between the Judges of the Circuit Court of the United States for the Distriet of Indiana.
Mr. Justiee Davis delivered the opinion of the Court :
On the 10th day of May, 1865, Lambdin P. Milligan presented a petition to the Cireuit of the United States for the district of Indiana, to be dis- charged from an alleged unlawful imprisonment. The ease made by the petition is this : Milligan is a eitizen of the United States ; has lived for twenty years in Indiana; and, at the time of the grievances complained of, was not, and never had been in the military or naval service of the United States. On the 5th day of October, 1864, while at home, he was arrested by order of Gen. Alvin P. Hovey, commanding the military dis- trict of Indiana : and has ever sinee heen kept in elose confinement.
On the 21st day of October, 1864, he was brought before a military commission, convened at Indianapolis by order of Gen. Hovey, tried on certain charges and specifications; found guilty, and sentenced to be hanged ; and tbe sentence ordered to be executed on Friday, the 19th day of May, 1865.
On the 2d day of January. 1865, after the proceedings of the military commission were at an end, the Circuit Court of the United States for Indiana met at Indianapolis and empanneled a grand jury, who were charged to inquire whether the laws of the United States had been violat- ed: and, if so, to make presentments. The court adjourned on the 27th day of January, having, prior thereto, discharged from further service the grand jury, who did not find any bill of indictment or make any pre- sentment against Milligan for any offence whatever, and, in faet, since his imprisonment, no bill of indietment has been found or presentment made against him by auy grand jury of the United States.
Milligan insists that said military commission had no jurisdiction to try him upon the charges preferred, or upon any charges whatever, because he was a citizen of the United States and of the State of Indiana, and had not been, since the commencement of the late rebellion, a resident of any of the States whose citizens were arrayed against the Government, and that the right of trial by jury was guaranteed to him by the Constitution of the United States.
The prayer of the petition was, that under the act of Congress, approv- ed March 3, 1863, entitled "An act relating to hubeas corpus and regulating
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judicial proceedings in certain cases," he may be brought before the court, and either turned over to the proper civil tribunal to be proceeded against according to the law of the land or discharged from eustody altogether.
With the petition were filed the order for the commission, the charges and specifications, the findings of the court, with the order of the War Department reciting that the seutence was approved by the President of the United States, and direeting that it be carried into execution without delay. The petition was presented and filed in open court by the counsel for Milligan; at the same time the District Attorney of the United States for Indiana appeared, and, by the agreement of counsel, the application was submitted to the court. The opinions of the Judges of the Circuit Court were opposed on three questions which are certified to the Supreme Court-
1st. "On the facts stated in said petition and exhibits ought the writ of habeas corpus to be issued ?"
2d. "On the faets stated in said petition and exhibits, ought the said Lambdin P. Milligan to be discharged from custody as in said petition prayed ?"
3d. "Whether, upon the facts stated in said petition and exhibits the military commission mentioned therein had jurisdiction legally to try and sentence said Milligan in manner and form as in said petition and exhibits is stated ?"
The importance of the main question presented by this record cannot be overstated; for it involves the very framework of the Government and the fundamental principles of American liberty.
During the late wicked rebellion, the temper of the times did not allow that calmness in deliberation and discussion so necessary to a correct conclusion of a purely judicial questiou. Then, considerations of safety were mingled with the cxereise of power; and feelings and interests prevailcd which are happily terminated. Now that the public safety is assured, this question, as well as all others, can be discussed and decided without passion or the admixture of any element not required to form a legal judgment. We approach the investigation of this case, fully sensi- ble of the magnitude of the inquiry and the necessity of full and cautious deliberation. But we are met with a preliminary objection. It is insist- ed that the Circuit Court of Indiana had no authority to certify these questions ; and that we are without jurisdiction to hear and determinc them. The sixth section of the "Aet to amend the judicial system of the United States," approved April 29, 1802, declares "that whenever any question shall occur before a circuit court upon which the opinions of the judges shall be opposed, the point, upon which the disagreement shall happen, shall, during the same term, upon the request of cither party or tbeir counsel, be stated under the direction of the judges and certified under the seal of the court to the Supreme Court at their next session to be held thereafter; and shall by the said court be finally decided: And
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the deeision of the Supreme Court and their order in the premises shall be remitted to the circuit court and be there entered of record, and shall have effect according to the nature of tbe said judgment and order : Provided, That nothing herein contained shall prevent the cause from pro- ceeding, if, in the opinion of the court, further proceedings can be had without prejudice to the merits." * * * * * *
It is under this provision of law that a circuit court has authority to certify any question to the Supreme Court for adjudication. The inquiry, therefore, is, whether the case of Milligan is brought witbin its terms. It was admitted at the bar that the circuit court had jurisdiction to enter- tain the application for the writ of habeas corpus and to hcar and determine it ; and it could not be denied, for the power is expressly given in the 14thi section of the judiciary act of 1789, as well as in the later act of 1863. Chief Justice Marshall, in Bollman's case, (4 Cranch, ) construed this branch of the judiciary act to authorize the courts as well as the judges to issue thie writ for the purpose of inquiring into the cause of the commitment ; and this construction has never been departed from. But it is maintained with earnestness and ability that a certificate of di- vision of opinion can occur only in a couse ; and that the proceediug by a party moving for a writ of habeas corpus does not become a cause until after the writ has been issued and a return made.
Independently of the provisions of the act of Congress of March 3, 1863, relating to hubeas corpus, on which the petitioner bases his claim for relief, and which we will presently consider, can this position be sus- tained ?
It is true, that it is usual for a court on application for a writ of habeas corpus, to issue the writ and on the return to dispose of the case ; but the court can elect to waive the issuing of the writ and cousider whether, upon the facts presented in the petition, the prisoner, if brought before it, could be discharged. One of thie very points on which the case of Tobias Watkins, reported in 3 Peters, turned, was whether, if the writ was issued, the petitioner would be remanded upon the case which he had made.
The Chief Justice, in delivering the opinion of the court, said: "The cause of imprisonment is shown as fully by the petitioner as it could ap- pear on the return of the writ; consequently the writ ought not to be awarded if the court is satisfied that the prisoner would be remanded to prison."
The judges of the Circuit Court of Indiana, were, therefore, warranted by an express decision of this court in refusing the writ, if satisfied that the prisoner, on his own showing, was rightfully detained; but it is con- teuded if they differed about the lawfulness of the imprisonment, and could render no judgment, the prisoner is remediless, and cannot have the disputed question certified under the act of 1802. His remedy is complete by writ of crror or appeal, if the court renders a final judgment refusing to discharge him ; but if he should be so unfortunate as to be
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placed in the predicament of having the court divided on the question whether he should live or die, he is hopeless and withont remedy. He wishes the vital question settled, not by a single judge at his chambers, but by the higliest tribunal known to the Constitution ; and yet the privilege is denied him, because the circuit court consists of two judges instead of oue. Such a result was not iu the contemplation of the Legis- lature of 1802 : aud the language used by it cannot be construed to mean any such thing. The clause under cousidcration was introduced to fur- ther the ends of justice, by obtaining a speedy settlement of important questions where the judges miglit be opposed in opinion.
The act of 1802 so changed the judicial system that the circuit court, instead of tlirec, was composed of two judges; and, without this provi- sion or a kindred one, if the judges differed, the difference would remain, the question be unsettled, and justice denied. The decisions of this court upon the provisions of this section have been numerous. In United States vs. Daniel, (6 Wheaton,) the court, in holding that a division of the judges on a motion for a new trial could not be certified, say : "That tlie question must be one which arises in a cause depending before the court relative to a proceeding belonging to the cause." Testiug Milligan's case by this rule of law, is it not apparent that it is rightfully here; and that we are compelled to answer the questions on which the judges below were opposed in opinion? If, in the sense of the law, the proceed- ing for the writ of habeas corpus was the "cause" of the party applying for it, then it is evident that the "cause" was pending before the court, and that the questions certified arose out of it, belonged to it, and were mat- ters of right and not of discretion.
But it is argued that the proceeding does not ripen iuto a cause until there are two parties to it. This we deny. It was the cause of Milligan when the petition was presented to the circuit court. It would have beeu the cause of both parties if the court had issued the writ and brought those who hield Milligan in custody before it. Webster defines the word "cause" thus : "A suit or action in court, any legal process which a party institntes to obtain his demand, or by which he seeks his right, or supposed right"-and he says, "this is a legal, scriptural and popular use of the word, coinciding nearly with case, from cado, and action, from ago, to urge and drive."
In any legal sense action, suit and cause are convertible terms. Milli- gan supposed he had a right to test the validity of his trial and sentence ; and the proceeding which he set in operation for that purpose was his "cause" or "suit." It was the only one by which lie could recover his liberty. He was powerless to do more; he could neither instruct the judges nor control their action, and should not suffer because, without fault of his, they were unable to render a judgment. But the true mean- ing to the term "snit" has been given by this court. One of the ques- tions in Weston vs. City Council of Charleston (2 Petcrs) was, whether a writ of prohibition was a suit ; and Chief Justice Marshall says : "The
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term is certainly a comprehensive one, and is understood to apply to any proceeding in the court of justice by which an individual pursues that remedy which the law affords him." Certainly Milligan pursued the only remedy which the law afforded him.
Again, in Cohens vs. Virginia (6 Wheaton) he says : "In law language a suit is the prosecution of some demand in a court of justice." Also, "To commence a suit is to demand something by the institution of pro- cess in a court of justice ; and to prosccute the suit is to continue that demand." When Milligan denianded his release by the proceeding relat- ing to habeas corpus he commenced a suit; and lic has since prosecuted it in all tlic ways known to the law. One of the questions in Holmes vs. Jennison (14 Peters) was, whether under the 25th section of the judiciary act a proceeding for a writ of habeas corpus was a "suit " Chief Justice Taney hield that "if a party is unlawfully imprisoned the writ of habeas corpus is his appropriate legal remedy. It is his suit in court to recover his liberty." There was much diversity of opinion on another ground of jurisdiction, but on this, that in the sense of the 25th section of the judi- ciary act, the proceediug by habeas corpus was a suit, was not controverted by any except Baldwin, Justice, and he thought that "suit" and "cause" as used in the section mean the same thing.
The court do not say that a return must be made and the parties appear and begin to try the case before it is a suit. When the petition is filed and the writ prayed for it is a suit - the suit of the party making the ap- plication. If it is a suit under the 25th section of the judiciary act when the proceedings are begun, it is by all the analogies of the law, equally a suit under the 6th section of the act of 1802.
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