A history of Columbia County, Pennsylvania. From the earliest times., Part 43

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 43


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).


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It is essential to the safety of every Government that, in a great crisis, like the one we have just passed through, there should he a power some- where of suspending the writ of habeas corpus. In every war there are men of previously good character wicked enough to counsel their fellow citi- zens to resist the measures deemed necessary hy a good government to sustain its just authority and overthrow its enemies, and their influence may lead to dangerous combinations. In the emergency of the times an immediate public investigation according to law may not be possible, and yet the peril to the country may he too imminent to suffer such persons to go at large. Unquestionably, there is then an cxigency which demands that the government, if it should see fit in the exercise of a proper discre- tion to make arrests, should not he required to produce the persons ar- rested in answer to a writ of habeas corpus. The Constitution goes no further. It does not say after a writ of habeas corpus is denied a citizen, that he shall be tried otherwise than by the course of the common law ; if it had intended this result, it was easy by the use of direct words to have accomplished it. The illustrious men who framed that instrument were guarding the foundations of civil liherty against the abuscs of unlimited power ; they were full of wisdom, and the lessons of history informed them that a trial by an established court, assisted by an impartial jury, was the only sure way of protecting the citizen against oppression and wrong. Knowing this, they limited the suspensiou to one great right and left the rest to remain forever inviolable. But it is insisted that the safe- ty of the country in time of war demands that this hroad claim for mar- tial law shall be sustaiucd. If this were true it could be well said that a


563


HISTORY OF COLUMBIA COUNTY.


country preserved at the sacrifice of all the cardinal principles of liberty is not worth the cost of preservation. Happily, it is not so.


It will be borne in mind that this is not a question of the power to pro- claim martial law when war exists in a community, and the courts and civil authorities are overthrown. Nor is it a question what rule a mili- tary commander, at the head of his army, ean impose on States in rehel- lion to cripple their resources and quell the insurrection. The jurisdic- tion elaimed is much more extensive. The necessities of the service, during the late rebellion, required that the loyal States should be placed within the limits of certain military districts and commanders appointed in them ; and, it is urged, that this, in a military sensc, constituted them the theatre of military operations; and, as in this ease, Indiana had been and was again threatened with invasion by the enemy, the occasion was furnished to establish martial law. The conclusion does not follow from the premises. If armies were collected in Indiana they were to be em- ployed in another locality, where the laws werc obstructed and the na- tional authority disputed. On her soil there was no hostile foot; if onee invaded, that invasion was at an end, and with it all pretext for martial law. Martial law cannot arisc from a threatened invasion. The necessity must be actual and present, the invasion real, such as effectually closes the courts and deposes the civil administration.


It is difficult to see how the safety of the country required martial law in Indiana. If any of her citizens were plotting treason. the power of ar- rest could secure them, until the Government was prepared for their trial, when the eourts were open and ready to try them. It was as easy to protect witnesses before a civil as a military tribunal; and as there eould be no wish to conviet, exeept on sufficient legal evidence, surely an or- dained and established court was better able to judge of this than a mili- tary tribuual composed of gentlemen not trained to the profession of the law.


It follows, from what has been said on this subject, that there are oc- casions when martial rule can be properly applied. If in foreign inva- sion or civil war thic courts are actually elosed; and it is impossible to administer criminal justice according to law, then, ou the thicatre of ac- tive military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to pre- serve the safety of the army and society; and as no power is left but the military, it is allowed to govern hy martial rule until the laws can have their free coursc. As necessity ereates the rule, so it limits its duration; for if this government is continued, after tlic eourts arc reinstated, it is a gross usurpation ot power. Martial rule can never exist where the courts are open, aud in the proper and unobstrueted exercise of their jurisdie- tion. It is also confined to the locality of aetual war. Because during the late rebellion it could have been enforced in Virginia, where the na- tional authority was overturned and the courts driven out, it does not follow that it should obtain in Indiana, where that authority was never


564


HISTORY OF COLUMBIA COUNTY.


disputed, and justice was always administered. And so in the case of a foreign invasion, martial rule may become a necessity in one State, when in another it would be "mere lawless violence." We are not with- out precedents in English and American history illustrating our views of this question ; but it is hardly necessary to make particular reference to them.


From the first year of the reign of Edward the Third, when the Parli- ament of England reversed the attainder of the Earl of Lancaster, be- cause he could have been tried by the courts of the realm, and declared, 'that in time of peace no man ougut to be adjudged to death for treason or any other offence without being arraigned and held to answer; and that regularly when the king's courts are open it is a time of peace in judgment of law," down to the present day, martial law, as claimed in this case, has been condemned by all respectable English jurists as con- trary to the fundamental laws of the land, and subversive of the liberty of the subject.


During the present century an instructive debate on this question oc- curred in Parliament, occasioned by the trial and conviction by court- martial, at Demarara, of the Rev. John Smith, a missionary to the ne- groes, on the alleged ground of aiding and abetting a formidable rebel- lion iu that colony. Those eminent statesmen, Lord Brougham and Sir James MacIntosli, participated in that debate, and denounced the trial as illegal, because it did not appear that the courts of law in Demarara could not try offences, and that "when the laws can act every other mode of punishing supposed crimes is itself an enormous crime."


So sensitive were our revolutionary fathers on this subject, although Boston was almost in a state of siege, when Gen. Gage issued his proc- lamation of martial law, they spoke of it as an "attempt to supercede tbe course of the common law, and iustcad thereof to publish and order the use of martial law." The Virginia Assembly also denounced a similar measure on the part ot Gov. Dunmore "as an assumed power, which the King himself cannot exercise ; because it annuls the law of the land and introduces the most execrable of all systems, martial law."


In some parts of the country, during the war of 1812, our officers made arbitrary arrests, and by military tribunals, tried citizens, who were not in the military servicc. These arrests and trials, when brought to the notice of the courts, were uniformly condemned as illegal. The cases of Smith vs. Shaw, and McConnell v. Hampton, (reported in 12 Johnson) arc illustrations, which we cite, not only for the principles they determine, but on account of the distinguished jurists concerned in the decisions, one of whom for many years occupied a seat on this benchi.


It is contended that Luther vs. Borden, decided by this court, is an au- thority for the claim of martial law advanced in this case. The decision is misapprehended. That case grew out of the attempt in Rhode Island to supercede the old colonial government by a revolutionary proceeding. Rhode Island until that period had no other form of local government


1


565


HISTORY OF COLUMBIA COUNTY


than the eliarter granted by King Charles II., in 1663, and as that limited the right of suffrage, and did not provide for its own amendment, many citizens beeame dissatisfied because the legislature would not afford tlie relief in their power; and without the authority of law formed a new and independent constitution, and proceeded to assert its authority by foree of arms. The old government resisted this; and as the rebelliou was formidable, ealled out tlie militia to subdue it, and passed an act deelar- ing martial law.


Borden, in the military service of the old government, broke open the house of Luther, who supported the new, in order to arrest him. Luther brought suit against Borden ; and the question was, whether under the constitution and laws of the State, Borden was justified. This eourt held that a State "may use its military power to put down an armed insurree- tion too strong to be controlled by the eivil authority;" and if the legisla- ture of Rhode Island thought the peril so great as to require the use of its military forees and the declaration of martial law, there was no ground on which this court eould question its authority; and as Borden aeted under military orders of tbe eharter government, which had been reeog- nized by the political power of the country, and was upheld by the State jndieiary, he was justified iu breaking into and entering Luther's house. This is the extent of the decision. There was no question in issue about the power of deelaring martial law under the Federal Constitution, and the eourt did not consider it necessary even to inquire "to what extent nor under what cireumstanees that power may be exercised by a State."


We do not deem it important to examine further the adjudged eases ; and shall, therefore, conclude without any additional referenee to authori- ties. To the third question, then, on which the judges below were op- posed in opinion, an answer in the negative must be returned.


It is proper to say, although Milligan's trial and eonvietion by a mili- tary commission was illegal, yet, if guilty of the erimes imputed to him, and his guilt had been aseertained by an established court and impartial jury, he deserved severe punishment. Open resistanee to the measures deemed necessary to subdue a great rebellion, by those who enjoy the protection of Government, and have not the exeuse even of prejudice of seetion to plead iu their favor, is wicked ; but that resistance becomes an enormous crime when it assumes the form of a seeret politieal organization, armed to oppose the laws, and seeks by stealthy means to introduce the enemies of the country into peaceful communities, there to light the torell of civil war, and thus overthrow the power of the United States. Con- spiraeies like these, at such a juneture, are extremely perilous, and those eoneerned in them are dangerous enemies to their country, and should receive the heaviest penalties of the law, as an example to deter others from similar eriminal eonduet. It is said the severity of the laws caused them; but Congress was obliged to enaet severe laws to meet the erisis; and as our highest eivil duty is to serve our country when in danger, the late war has proved that rigorous laws, wlien necessary, will be eneerfully


566


HISTORY OF COLUMBIA COUNTY.


obeyed by a patriotic people, struggling to preserve the rich blessings of a free government.


The two remaining questions in this case must be answered in the affir- mative. The suspension of the privilege of the writ of habeas corpus does not suspend the writ itself. The writ issues as a matter of course, and on the return made to it the court decides whether the party applying is denied the right of proceeding any further with it.


If the military trial of Milligan was contrary to law, then he was enti- tled, on the facts stated in his petition, to be discharged from custody by the terms of the act of Congress of March 3d, 1863. The provisions of this law having been considered in a previous part of this opinion, we will not restate the views there presented. Milligan avers he was a citizen of Indiana, not in the military or naval service, and was detained in close confinement, by order of the President, from the 5th day of October, 1864, until the 2d day of January, 1865, when the Circuit Court for the district of Indiana, with a grand jury, convened in session at Indianapo- lis ; and afterwards, on the 27th day of the same month, adjourned with- out finding an indictment or presentment against him. If these averments were true (and their truth is conceded for the purposes of this case,) the court was required to liberate him on taking certain oaths prescribed by the law, and entering into recognizance for his good behavior. But it is insisted that Milligan was a prisoner of war, and therefore, excluded from the privileges of the statute. It is not easy to see how he can be treated as a prisoner of war, when he lived in Indiana for the past twenty years ; was arrested therc, and had not been, during the late troubles, a resident of any of the States in rebellion. If, in Indiana, he conspired with bad men to assist the enemy, he is punishable for it in the courts of Indiana, but, when tried for the offence, he cannot plead the rights of war, for he was not engaged in legal acts of hostility against the Government, and only such persons when captured, are prisoners of war. If he cannot enjoy the immunities attaching to the character of a prisoner of war, how can he be subject to their pains and penalties ?


This case, as well as the kindred cases of Bowles and Horsey, were dis- posed of at the last term, and the proper orders were entered of record. There is, therefore, no additional entry required.


-


..


GENERAL INDEX.


-


Annals of Luzerne connty


32


Buck Horn


113


Augusta township,


39


Benton


117


Acreage


60


Beaver Valley I21


Attorneys-at-Law


127


Bibliography


187


Anthony Hon. Joseph B.,


132


Berwick Newspapers 192


342


Army aggregate.


241


Baldy Guards


358


Arrests of '64-see Military Occupation 392


506


Black, argument of


514


Appendix No 1


500


Appendix No. 2


514


Catawissa


10-12


Chillisquaque


30


Bosley's Mills


13


Boone's Fort


17


Names of killed


18


Beaver Run


50


Briarcreek


48


Catawissa Mountain


50


Bear Run


49


Catawissa Railroad


52


Bever Run


50


Buck Mountain


51


Census Montour county


62


Boroughs, formation of


56-57


County election 1882,


81-82


Bloomsburg


85


Codorus Steambeat


97


Buildings


90


Canal North Branch ground broken


97


Industries


90


Catawissa sketch of


101


Churches


90


Hughes


102


Banks


92


Mears


103


Iron Companies


92


Hauck


105


Cemetery Company


92


Paper Mill


105


Gas Company


93


Brobst


106


The Park


93


Seesholtz, Capt. I. H


107


Water Company


93


Newspaper


192


Oldest Settlers


94


Coles Creek


118


Berwick


96


Colley Jonathan


119


Academy


98


Centralia borough


121


Old Settlers


98


Chapman, Hon. Seth


130


Low Water


99


Conyngham. Hon. John N.


139


Library


99


Colley, Alexander


169


Brockway Charles B.


100


Congressional


226


Barber Phineas


109 Conscientious Scruple Exempts


241


Bilhime Michael


109 Columbia County Guards


312


Brugler Peter


109 Catawissa Guards


316


Battery "F."


877


Argument of Judge Black


514


Buckalew, Hon. C. R.


209


Connecticut claim


37


Columbia county lines


41-45


Catawissa Creek


46


Coles Creek


48


Cabin Run


40


Census


61


Sanitarium


91


Sharpless


103


Agricultural Society


181


Battery "F."


Alricks Herman-Review


570


GENERAL INDEX.


Columbia Guards


359


Hunlocks Creek Rallroad 53


Cole Leonard R. case of


495


Hodge Joseph 110


Chapin Dyer L. case of


489


Hess, William 118


Captain Wm. Silvers


497


Half Way House


120


Hurley Guards 352


Herald Shenandoah


496


Donnel, Hon. Charles G.


132


Drafted Militia


254


Paths


7


Iola


114


Draft June 3, 1864,


267


Drafted Militia, 178th Regiment


283


Espy, Miss


41


Jenkins Fort


29


Espy, George


41


Jackson, Clarence G.


100


Election returns 1860 to 1880,


74


Jerseytown 108


Eves, John


112


Jackson, Daniel


117


Eyer Grove


114


Judiciary


122


Ent, Gen.


115


Judges, President


124


Eager, William


117


Kemplen, Capt. Thomas


15


Elwell, Hon. William


146


Kinney's Run


50


Enrollment of the county


238


Kile, John


118


Emergency Men 1863


247


Kessler, William, case of


487


Eleventh Regiment


302


Eighty-Fourth Regiment


352


Eighty-First Regiment


386


Eightieth Regiment


388


Late's Run


49


Forts


6-13


Limestone Run


50


Fishingcreek, Indian name of


10


Lackawanna & Bloomsburg railroad


52


Freeland's Fort


18


Limestone shipped


54


Capitulation of


19


Local Option


78


Killed there


20


Lapapeton


102


Fishingcreek course of


47


Lightstreet


115


Funston John


108


Laubach, Christian


118


Fritz, Philip


118


Lewis, Hon. Ellis


130


Frick, George A.


130


Legislature


212


Fourteenth Regiment


303


Lowenberg Guards


250


First Artillery


342


Montour family


5


Forty-Third Regiment


342


Montgomery Fort


15


Forty-Second Regiment


345-384


Meninger Fort


15


Fifty-Seventh Regiment


385


Mcclure's Fort


22


Fifth Regiment


387


Maclay, Wm.


25


Fishingcreek Confederacy


496


Milkmaids the


24


Greencreek


48


Montour, erected


43


Grotz, John K.


93


Mugsers' Run


49


Hiakatoo


21


Mud creek


50


Hartley, Col.


29


Montour's Ridge


51


Hunter, Col.


30


McCalla Mountain


51


Hill, Jacob


31


Muncy Railroad


53


Hemlock Creek


47


Masters, James


111


Huntingdon Creek


48 Millville


114


Associate


124


Espytown


119


Knob Mountain,


29


Early Schools


168


Keeler, John


117


Emergency Men 1862


242


Knorr, Sam'l. Col.


120


Le Tort, James


10, 101


Little, Capt. John


21


Lick Kun


49


Demott, Richard


111


Indian Names


3-10-102


Draft September 17, 1863,


201


Iron Guards


330


Mcclure, James


37-40


MIIl creek


49


GENERAL INDEX.


571


McReynolds, John McHenry, John Mainville Mifflinville


114


One hundred thirty-sixth regiment 319


116


eighty-fourth = 308


¥


eighty-seventh = 373


66


twelfth


¥


377


Montour, Madame


195


sixty-first


=


386


Catharine


196-202


sixth


=


387


Queen Esther


196-202


fifty-second


387


Margaret


201


Mary


203


Paths, Indian


7


Military Record


235


Patterson's Narrative


21


Military Occupation


892


Pence, Peter


25


Couch


395-423-432-439


Pike, Abram


26-32


Paxton


395


Pearce, Hon. Stewart


32


Cadwallader


398-401


Painter Run


49


Arrested persons


399


Pine Creek


49


Tharp's letter


401


Penna. Canal Company


52


Troops at the polls


403


Pig Iron


54


Alexander Hess' case


405


Population


54


Rev. Mr. Rutan's case


408


State by counties 1882,


63-64


David Lewis' case


412


Popemetung-Roaringcreek


102


Ezekiel Cole's case


413


Pegg


Daniel B. Hartman's case


413


Prothonotaries


125


Thomas Downs case


414


Pollock, Hon. James


134


Daniel W. Fry's case


415


Peckham, Hon. Aaron K.


144


Holter and Heller's case


416


Poor House


184


Furman and Fruit's case


417


Post Offices


206


Expedition to Chambersburg


436


Col. A. K. McClure


438


Rice Fort


16


The trials


442


Robinson, Capt. Thos.


17-23-32


Roaringcreek


46-102


Other convictions


444


Raven Creek


49


Stott E. Colley


444


Removal, history and vote


66-73


Daniel McHenry


445


Runyon, George


110


The Rantz meeting


472


Rupert


113


The club meetings


483


Reay


114


Special cases


487


Ricketts, Col.


117


Shenandoah Herald


496


Rogers, Samuel


117


Roaringcreek


121


Names Indian


3


Register and Recorder


127


Northumberland, first court


39


Rantz, John, trial


442


Nescopeck Mountain


51


Rantz, John, plea


500


Nob Mountain


51


Rantz, meeting the


472


North & West Branch Railroad


53


Shawanese


1


Susquehanna


2


Neyhard, Solomon


173


Schwartz Fort


16


Stewart, Charles


37


Nine Months' Service


283


Scotch Run


47


Ninety-Third Regiment


358


Shingle Run


49


Spencer's Run


49


Oskohary


102


Orangeville


115


One hundred seventy-eighth regiment 288


=


= seventy-first = 300


Seated lands


60


=


ninety-third


305


State Voters 1882


63


thirty-second


309


Election 1882


83


S. H. & W. Railway


52


Newspapers


187


Stony Brook


49


Spring Run


49


Numidia and Slabtown


121


Normal School


151


Rohrsburg


113


Captain Wm. Silvers


497


Rantz


442


109


5


121


120


66


572


GENERAL INDEX.


Steamboat Codorus


97


Sixteenth Regiment .305


Susquehanna


97


Seventy-fourth Regiment 321


Schuyler, Lewis


112


Sixth Reserves 330


Swisher Jacob


110


Seventh Cavalry 388


Sereno


115


Shenandoah Herald 496


Stillwater


117


Silvers, Capt. Wm. statement


497


Swaby, Frederick B.


Teedyescung


35


Turbut


40


Common


167


Toby Run


50


Snyder, William H. Report


168


Telephone


54


Schools, early


168


Tide Water Pipe Line


54


16


Beaver


168


Townships, Formation of


55-56-57-58


Benton


169


Taxables


60


Berwick


169


Thomas, Evan


108


Bloom


170


Three months' service


302


Briarcreek


171


Two hundred and ninth Regiment.


325


Catawissa


172


Thirty Fifth Regiment


330


Centralla


173


Two hundred and Tenth Regiment


387


Centre


173


Conyngham


173


Union township


43


Fishingcreek


174


Unseated lands


60


Franklin


174


United States draft


261-267


Greenwood


174


United States Court


514-550


Hemlock


175


Jackson


175


Van Campen


9-23-32


Locust


176


Vincent, Daniel


21


Madison


176


Voters of the State


63


Main


176


Volunteers from each state


241


Mifflin


177


Montour


177


Welser, Conrad, letters


10


Mt Pleasant


178


Wheeler's Fort


23


Orange


178


Weltner, Col


31-33


Pine


179


Wyoming township


40


Roaringcreek


179


Welliver, Adam


111


Scott


179


John


111


Sugarloaf


180


Christopher


111


Superintendents Common Schools


180


Daniel


110


Senate, United States


209


Watson Hugh


109


State


220


Woodward, Hon. Warren J.


141


119


Sheriff's


126


School Normal


151


Ten Mile Run ,


48


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