USA > Washington > History of Washington; the rise and progress of an American state, Vol. III > Part 35
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This was a bold move, made on very doubtful authority. Five years later President Lincoln, a far abler lawyer than Stevens-who made no claim to be a lawyer at all-and then occupying the one position of highest authority in the land, was doubting his own right to suspend the writ. The Con- stitution does not expressly declare who may suspend it, but says only that it "shall not be suspended, unless when, in case of rebellion or invasion, the public safety may require it." Mr. Lincoln was president of the United States, and, for the time being, the whole executive authority of the government, which the Constitution had created, was vested in him. Clearly he or the Congress was to suspend it, when it was to be suspended .* But as governor of a territory- one of the "possessions of the United States," and not yet a part of them-Stevens could not have felt himself in such a dilemma. He had nothing to do with the Constitution.
*Precedents for suspending the civil authority were not numerous in the United States before Mr. Lincoln's time. General Jackson had pro- claimed martial law in New Orleans a short time before the battle, but in doing so had declared that he did it "on his own responsibility, not alone to the government, but to individuals," as the measure was "un- known to the Constitution and laws of the United States." He also arrested a judge who had issued a writ to take a prisoner out of his charge, but after the battle he surrendered himself to the court, and was fined $1,000 for contempt, which fine he paid. Twenty-six years later he was reimbursed by act of Congress, and this was in some sense an approval of his action. Martial law was also declared in Rhode Island by the legislature in 1842, during a heated political controversy. These cases are fully reviewed in the decision of the Milligan case. IV. Wallace.
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His powers were derived solely from Congress, and were limited to such as were described in the act creating the territory, and the laws specially assigned for its government, and in these no such authority was mentioned. It is pre- sumable that Stevens realized, at the time he issued this proclamation, that he was exceeding his authority. But more was depending on the issue, as now raised, than the holding of these men, and preventing them from aiding the enemy, if they were so disposed. It was still necessary to impress teams for the quartermaster's service, forage for their subsistence, and even grain and beef for the subsistance of the volunteers, now about to be sent across the range into the eastern part of the territory. To jeopardize their supply was not to be contemplated. To make sure of it, the authority by which they had been regularly supplied so far, and could without doubt be supplied thereafter, must be defended. He therefore acted on the principle which General Butler once declared to be one of the simplest and clearest maxims of the common law, viz .: "When in doubt take the trick." The act might not be approved; it might subsequently appear that his method was wrong, but mean- time a most important result, in comparison with which the release or detention of these men was a matter of but little consequence, would be accomplished.
The proclamation caused some excited comment, as was to be expected, and developments were awaited by the public with some expectation. Colonel Casey, wishing to avoid the embarrassment of having to choose between a possible order of court, and the orders of the governor, notified the latter that he doubted whether his proclamation could relieve him from the obligation to obey the civil authority, and therefore he requested to be relieved of his prisoners.
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They were accordingly removed to Olympia and confined in the stockade.
As the regular term of court in Pierce County would not begin until May 5th, it was not possible for the lawyers to bring the prisoners immediately to trial, or take any further steps to test the right of the military authority to detain them, and meantime, as is usual in such cases, the question at issue was more or less fully tried at the bar of public opinion. As ex-employees of the Hudson's Bay Company, and "squaw- men" they were not greatly in public favor, but they were not wholly without friends, or advocates for their cause. Discussion of their possible relations with the enemy, as well as of the justice or injustice of their arrest, continued, pending the assembling of court at Steilacoom, and the public temper became more and more excited.
As the day for opening court approached Judge Cheno- weth, claiming that he was ill, and possibly wishing to avoid the embarrassment of the situation, asked Chief Justice Lander to preside for him. The chief justice was at that time captain of Company A, which was stationed on the Duwamish River above Seattle, where it had built a stockade. He accepted the invitation, and repaired to Steilacoom, where on the day appointed he opened court, but adjourned immediately in order that a message might be sent to the governor, in the hope of inducing him to revoke his proc- lamation. After a conference with Colonel Shaw, who was present, the message was sent, but the governor refused the request, and directed Shaw to enforce the proclamation.
On the morning of May 7th, at the appointed time, Judge Lander again opened court. Several deputy marshals had been busy during the previous day, in summoning citizens to be in attendance, as jurymen or otherwise, and some
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twenty-five or thirty were present, together with the lawyers and court officers. As soon as court was called Colonel Shaw, with a file of volunteers, entered the room, arrested the judge and his clerk, and took them, together with the court records, to Olympia. A day or two later both were liberated.
As soon as the soldiers with their prisoners had left the courtroom, the lawyers present held a meeting of the bar, and adopted resolutions denouncing the governor for having been guilty of "flagrant usurpation" and committing a "high- handed outrage." These were signed by W. H. Wallace, George Gibbs, Elwood Evans, C. C. Hewitt, Frank Clark, B. F. Kendall, H. A. Goldsborough, E. O. Murden and William C. Pease. Immediately afterward a citizens' meet- ing was held, at which these same lawyers were present, and similar resolutions were adopted, after a number of speeches had been made, in all of which the governor was roundly scored.
The resolutions adopted by these two meetings, together with a long memorial address, were duly forwarded to the president, and various members of Congress. In the address the governor was sharply arraigned for "high-handed tyr- anny" and usurpation of power. It was charged that the treaties he had made were the cause of the war, and he was accused of oppressing and persecuting the Indians, and with drunkenness and embezzlement. The very bitterness of these charges did much to defeat their object. It was known at Washington authoritatively, through the reports and bills already presented, that the governor was feeding a large number of Indians-some four or five thousand, in fact-at the expense of the government, so that he could not be very seriously oppressing and persecuting them. Besides Gibbs,
JUDGE EDWARD LANDER.
First chief justice of the supreme court of the terri- tory of Washington. He was captain of Company A during the Indian war. Disregarded Governor Stevens' proclamation of martial law, and was arrested, and held a prisoner for some time at Fort Montgomery.
THE RISE AND PROGRESS
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ay or two later both were
Aa wonin as the oblogs with their prisoners had left the courtroom. the lawyers present behl a meeting of the bar, and adopted resolution denouncing the go mor for having been guilty of " flagrant usurpation" and comming a "high- handed outrage." There were signed by W. H. Wallace, George Gibbs, Elwood Evans, C. C. Hewitt, Frank Clark, B. F. Kendall, H. A. Goldsborough, E. O. Murden and William C. Pease. Immediately afterward a citizens' meet- ing was held, at which these same lawyers were present, and similar revolutions were adopted, after a number of speeches had been made, in all of which the governor was roundly scored.
The resolutions adopted by these two meetings, together with a long memorial address, were duly forwarded to the president, and various members of Congress. In the address the governor was sharply arraigned fur "high-handed tyr- anny" and usurpation of power. It was charged that the treaties he had made were the cause of the war, and he was accused of oppressing and persecuting the Indians, and with drankenness and embezzlement. The very bitterness of these charges did much to defeat their object. It was known at Washington authoritatively, through the reports and bills already presented, that the governor was feeding a large Number of Indians-some four or five thousand, in fact-at the expense of the government, so that he could not be very s minily oppressing and persecuting them. Besides Gibbs,
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who was one of the signers of the bar resolutions, and doubt- less in some degree responsible for those of the citizens' meeting, and the address which accompanied them, had long before stated in writing, as heretofore shown, that the treaties were not the cause of the war. In the same paper he had also very clearly pointed out what the causes of the war really were. But while these facts were of record, and prob- ably were more or less generally known, these resolutions and the address, together with other reports sent to the capi- tal, had their effect in delaying the ratification of the treaties and prolonging and aggravating the troubles of both Indians and white people. In time the governor made his reply, in which, after stating the whole cause as he saw it, he said: "It is a question as to whether the military power, or public committees of citizens, without law, as in California, shall see that justice is done in this case."
A week after Judge Lander's arrest, court was to be held in Thurston County. This was in Lander's own district, and the proclamation did not apply to it. That the attorneys who had taken part in the meetings at Steilacoom, and particularly those who were endeavoring to secure the release of the prisoners, would make some move to bring the governor within the power of the court, either by contempt proceedings or otherwise, or perhaps that the court would itself take some action, was confidently expected. But the day before court was to convene another proclamation was issued, declaring Thurston County under martial law. As the first proclamation had been disregarded by Judge Lander it was but natural that this should be similarly treated, and court was accordingly convened on May 14th, at the hour appointed. Notice was immediately issued to the governor to appear and show cause why he should not be punished
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for contempt, but no response was made to it. A warrant was then issued and this was also disregarded. On the following day an attachment, to be served instanter, was issued, and George W. Corliss, the marshal, who had suc- ceeded J. Patton Anderson upon his election to Congress, with necessary assistants, was sent to bring the contumacious governor into court. He was found in the executive office, and greeted the posse with dignity, but did not surrender himself, or offer to accompany them. They did not attempt to take him by force, and the situation became embarrassing for a moment, when it was relieved by the clerks, under the lead of Adjutant-General Tilton and Captain Cain, who hustled the posse into the street.
Within a few moments a detachment of mounted volun- teers rode into town, headed by Captain Bluford Miller, and upon hearing of their arrival, Lander adjourned court and went to the office of Elwood Evans, the clerk, which was in a small building of two rooms, in the immediate vicinity. Here Miller and his soldiers applied for admittance, a few moments later, and, finding the door locked, broke it down and arrested both the judge and clerk. Evans was released soon after, but Judge Lander was taken to Camp Mont- gomery, where he was detained until May 26th, when martial law was terminated by the governor's own proclamation.
It is worthy of note here that, during his detention, Judge Lander was guarded, during part of the time, by a tall rugged youth of nineteen, who perhaps at that time seemed as little likely to make a name for himself in the world as any other member of Captain Swindall's company. This same beardless youth had enlisted on February 2d, from Sawamish, now Mason, County, where his family then lived, and had done faithful service ever since. He had marched with
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his comrades through rain and mud; had charged with them against the Indian center at Connell's Prairie, and fired shot for shot with the best of them in that day's battle. After the Indians were dispersed by that last battle in the Sound country, he had helped Maxon and his own captain to hunt them out of the canyons, and marshes, and the dense masses of timber in which they had taken refuge, during which time, he says, "we killed all we could, unless they surrendered at once," and now he was standing guard, as his turn came, over a Federal judge, who was a prisoner. This same beard- less youth of that day is living yet, and in the newspaper world no name is perhaps more widely known, certainly none is more favorably known on this coast, or in the United States, than that of Harvey W. Scott of the "Oregonian."
On July 22d he was mustered out, and later went to Oregon to attend school, and never returned to Washington as his home. After leaving Forest Grove academy, where he studied during the winter months for several years, he secured employment on the "Oregonian," of which in time he became a part owner, and together with his partner, Mr. H. L. Pittock, they have, in something over fifty years, made the paper one of the most influential in the United States.
Immediately after the departure of the soldiers from Olympia with their prisoner, a public meeting was held in the street, at which Evans and Kendall were the principal speakers. The governor was as roundly denounced as he had been at the Steilacoom meeting. Both speakers were skilful in the use of invective, and probably never more skilful than on this occasion, but their efforts were not notably applauded. Following this a larger meeting of citizens was held at the blockhouse on the public square, at which the governor's action was approved, almost unanimously, and
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a memorial strongly defending the course he had pursued was adopted and sent to Washington.
On May 23d Judge Chenoweth opened court at Steilacoom in disregard of the governor's proclamation. The first day nothing was done but to attend to some matters of routine, but the general expectation was that troops would be sent to arrest the judge, and fearing that this might be done-or perhaps after receiving some information to that effect- the judge summoned about fifty citizens to appear on the following morning for his protection. Many did so appear, and shortly afterwards Lieutenant Curtis, with about thirty men from Camp Montgomery, arrived. Seeing that resistance was likely to be offered, the lieutenant sent for reinforce- ments, and while waiting for their arrival Lieutenant-Colonel Casey appeared from Fort Steilacoom. He had been called upon by the court to come to his defense with his regulars, but had declined doing so, fearing that a battle might follow, and hoping to be able to show Curtis how to avoid a clash, or at least to persuade him or his men not to take any violent action. No reinforcements arrived, the matter was arranged, and court proceeded without further interruption.
On the previous day the court had issued two orders directing Colonel Shaw to bring Judge Lander, and the prisoners who had been the cause of all this trouble, before the court for a hearing, as to the cause of their detention, but Shaw disregarded the order, as it was expected he would do. An attachment was then issued for his arrest, and he was brought into court, but, as he refused to produce the prisoners, he was ordered into the custody of the marshal to be held without trial.
By this time the prisoners had had a hearing before a military court held at Camp Montgomery, which had decided
COL. BENJAMIN F. SHAW.
This noted pioneer crossed the plains with his family in 1844 and settled at Olympia in 1847. He was one of the partners who built the first sawmill at Tum- water; also one of the purchasers of the brig Orbit. He was employed by Governor Stevens as Indian agent; commanded the 2d regiment during the Indian war, and defeated the Indians at Grand Ronde. He was subsequently a member of the Territorial Council. Died in Portland, December 1808.
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a momscod atongly dejeniling the course he had pursued -
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on amved, Seeing that resi tance was ley m be aded de lieutenant sent for reinforce- mens, and while woke for dor arrival Lieutenant-Colonel Coy igpetred fome Ffet Sheilacoom. He had been called upon , ko cour to come to lie defense with his regulars, Lot bih Andused duing av, fearing that a haltle might follow, cod boyay tu be able to show Curtis how to avoid a clash, ve a les wade him or his men not to take any violent Notexto ments arrived, the matter was arranged, wod cmui poured& without further interruption.
Os de priewos doy the court bud issued two orders (0) Shaw bring Judge Lander, and the who had been the cause of all this trouble, before as for à heating, at by the cause of their detention, Un des darparled die order, as i was Expected he would -on wax then lemed to Ids arrest, and he bh be fort, but, as he refused to produce the & ul oderyd into the custody of the marshal
We di sor the pripowers had had a hearing before a Away . wow held at Camp Montgomery, which had decided
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that the offense charged constituted treason, and it was without authority to try them. One of them had been discharged from custody, but the other three were held until an amended charge could be prepared.
There was now no further need for the exercise of arbi- trary power. Shaw's two columns, which were to move by way of the Nachess Pass and the Columbia into eastern Washington, were nearly ready to start. Their supplies, and means for their transportation, had been procured. There were few hostiles remaining west of the mountains to which anybody could give aid and comfort. The gover- nor was therefore about to proclaim martial law at an end, and he wrote to Judge Chenoweth, asking that Shaw be released on bail, or punished by fine, as there was urgent need for his services in the field. His trial was accordingly fixed for the November term, and he was released on his own parole. Within the next few days the prisoners at Camp Montgomery were again brought up for trial by the military court, when the judge-advocate, doubtless by authority, recommended that there be no further prosecution, and they were allowed to return to their homes.
At the July term of court, held by Judge Lander in Thurs- ton County, Governor Stevens was again notified to appear and show cause why he should not be punished for contempt. He appeared by counsel, disclaimed any disrespect for the court, and represented that he had interfered with its authority only in response to extreme public necessity. Upon full hearing, a fine of $50 was imposed, and in response to this the governor filed with the court a document, in the form of a reprieve, in which, as an official, he pretended to give himself, as an individual, permission to postpone pay- ment until the president could be consulted. But the court
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refused to recognize this as effective, and ordered him into custody until the fine was paid, and it was paid accordingly.
Martial law was at an end, but there were consequences to follow, and they were not to be very agreeable to the gover- nor. Every excess is followed by reaction and depression. A majority of the people had seemingly sustained him for the time being. The prisoners whose arrest had caused all the trouble were not popular. They were not native born, nor yet fully naturalized. They had declared their inten- tion to become citizens, and had taken claims; some possibly suspected that they had declared their intention only in order that they might take claims. Many were prejudiced against them because of their mode of living, and some because of their former connection with the Hudson's Bay Company, which they remembered had long kept the Ameri- can traders out of the country. It had also kept them, or some of them, from taking claims where they wished, while it had protected these people in possession of the claims they occupied.
But notwithstanding all this, everyone realized that his own right to have his day in court, to be confronted with his accusers, and know the nature of the charge made against him, had been violated in the persons of these prisoners. This is a right of which the free citizen everywhere is jealous, and it is well that he is so. The American people also are most jealous of the authority and the dignity of their courts, and this is also well. Many criticize them, and find fault with them, but they do not permit their functions to be sus- pended, except in case of the gravest danger; nor will they easily consent to see their authority limited, or their freedom of action circumscribed, and it is well that this is so, for otherwise their liberties would crumble.
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The many protests, memorials and resolutions sent to Washington by the governor's opponents called down upon him much criticism in Congress. The supervision of the Indians in Washington and Oregon was committed to one superintendent, instead of two, by the next Congress, and Colonel Nesmith was appointed to the place. General Wool naturally made use of the opportunity to make further criticism and adverse comments. The president disap- proved the governor's action, upon the decision of the attorney-general, Caleb Cushing, a great lawyer in his time, that "the power to suspend the writ of habeas corpus belongs exclusively to Congress," and that "the power to suspend the laws, and substitute military in the place of civil authority, is not within the legal attributes of the governor of one of the territories."
In his message to the legislature in December, the gover- nor reviewed the circumstances which led to the issuance of his proclamation and said: "The testimony of the military officers in the field that their exertions were fruitless to find the enemy till the decisive step had been taken of ordering and keeping in the suspected persons, and that afterwards they repeatedly struck them, and effectually prevented their rallying again, is the best evidence of the neces- sity of the course taken by the executive. I took the responsibility as an incident of the war, and as neces- sary to its successful prosecution and termination. The whole territory was in a state of siege; more than one- half of the able-bodied men were in the field; the sole business almost of the territory was the war. It was no time for half-measures, or for running the risk of the slaughtering of our families and the destruction of our property.
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"Not only was the executive frequently besought, previous to the proclamation of martial law, to enforce it all over the territory, but a military officer in command of regular troops was urgently advised to do so, over a portion of the territory, by persons who felt aggrieved by the action of the executive. "When the time has come for all members of the com- munity to resort to arms-when the officers of justice are in the field in command of troops, it would seem to be the dictate of patriotism, and to be an obligation of duty, to avoid a collision with the authority entrusted with the general defense. Least of all, would it be expected that the field should be abandoned, not only without orders, but without notice, to enter upon a course, the inevitable result of which was to bring about a collision, and engender strife and ill feeling amidst a population already too small when united, to defend itself from the common enemy, and leave hands enough at home to procure food for the coming year."
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