USA > Pennsylvania > Columbia County > A history of Columbia County, Pennsylvania. From the earliest times. > Part 43
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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.
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..
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
THE END.
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