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WHIP•PO•WILL
11Y nimaer, ST. CLAIR.
I always loved the twilight hour,
And many times I've crept,
And, pushing back the tangled vines
From which the dewdrops wept,
Stood almost breathless with my hands
Clasped on the window sill
To listen to th it strange bled,
Cry out its "
II cannot toll you why It Is
Such memories will awake;
Nor why this spell creeps o'er me
I nave no power to break,
I only know its faintest note
My very pulse will thrill,
And happier clays come back to me
At itsstrange whip-p0 , ,v111."
It was a night, long, long ago,
I cannot tell how long
The future was before I kuow,
And heart uud pulse beat strong ;
She stood beside me and our hands
Were chuiptil upon the sill;
And we bent our heads to listen
To the strange " whip-po•will."
I'm going to traverse distant lauds,
To stand where Arne flows;
To tread proud Venice's princely halls;
And tiwitzer's Alpine Knows;
And when I come you'll be my wife?
I felt toypulses thrill,
As that bird caught her low response
And echoed buck "I will."
I stood by Arne's moonlit wave
And saw proud Venice's walls,
And saw the glowing sunset hood
I towers and lutlls
And then I came to Claim her heart,
. .
But It, was cold uud od,111;
Ono mourner lingered by her grave
Thal, atrango, htrange " whip pn•w11I!"
I alumd alone, alone to•nlght—
And nul ere is asleep;
it look upon • Lhat tombstone while,
'Men bow my head and weep,
tio Mlle hand lm clumped In inlglu
• -
Upon the wiudow slll.
No BOUIlli tub painful killenee brealim,
Have that unu whlp•po•will."
piotuannuo.
MILITARY TRIALS OF CIVILIANS.
Arqullu•ul of Hull. Jeremiah N. Distric t
before the Supremo Court. or Alm 11111•
dell MOWN. ill the ilmilanit Compirstry
irsute.
In September, ISO I, 1,. P. Milligan,
W. A. Bowles, Stephen Horsey, and
others, were arrested and brought before
a military commission at Indianapolis,
Indiana, charged with being members
.of the order of "American Knights,"
.or " Sons of Liberty," in league with
.armed rebels, and with having conApir
,ed to release the rebel prisoners of war
.eonlined in the United States military
prisons at Indianapolis, Chicago, and
Rock Island. The three parties named,
after a protracted trial, were found
guilty of the charges and specifications
preferred against them, and condemned
to death. The findings and sentence
were approVed by the President and
promulgated by the War Department
on the 2,1 of May, 111115 c and the 19th
day of the same month was fixed for
the execution. On the 111th of May,
however, they applied by petition to the
circuit court of the United States for the
.district of Indiana (Judges Davis and
Mellonald) for a writ of habeas corpus,
.or for an order of discharge, under the
act of Congress approved March 3, 1813,
,entitled, "An act relating to habeas
.empus, and regulating judicial proceed
dugs in certain cases." The Judges of
the circuit court were divided in opin
don upon this application, and certified
the following questions, on which they
41111.9 red, to the Supreme Court for de
clslou
1. "On the firda staled In said mtition
and exhibits, ought a writ of imbeds corpus
to be issued according to tha prayer of said
petition ?"
2. "Oti the facts stated in said petition
and exhibits, ought the said parties to be
I ischarged front I . llBteti)'. UM In said petition
prayed?"
ti. "Whether, upon the fuels stated in said
petition and exhibits, the military commis
slot' mentioned therein had Jurhullation lo•
gaily to try and sentence said parties in
lind form as in said petition and
exhibits Is stated?"
After the action of 11w circuit court,
certifying the case to the Supreme
Court fur final decision, the President
commuted the sentence of the petition.
en to hnprlsonment. for life.
The argument of these lillUalollB,
which commenced on the lith and
terminated oil the Mit of March,
1866, was conduetod on the part
of the petitioners by J. H. McDonald,
Esq., of Indiana, Hon. J. A. Garfield,
of Ohio, lion. J. S. Black, of Pennsyl
vania, and David Dudley Field, of New
York; and on behalf of the United
States by B. F. Butler, Esq., of Massa
chusetts, Hon. 11. Statiberry, of Ohio,
and Hon. James Speed, Attoruey•Gen
eral of the United States.
The argument of Judge Black, which
.is pronounced by good lawyeie every
where to be one of the finest ever made
+before any court In the United States,
was as follows:
May it please your Honors :
I am not afraid that you will under
nate the importance of this case. It eon
.eerns the rights of the whole people.
.Such questions have generally been
:settled by arms. But since the begin
ming of the world no battle lies ever
been lost or won upon which the liber
ties of a nation were so distinctly staked
as they are on the result of this argu
ment. The pen that writes the judg
ment of the Court, will be mightier for
good or for evil than any sword that
ever was wielded by mortal arm.
As might be ex peeled front the nature
of the subject, it has been a good deal
discussed eisewhere,in legislative Isadies,
in public assemblies, and in the news
paper press of the country. But there
it has been mingled with interests 'and
feelings not very friendly to a correct
conclusion. Here we are in a higher
atmosphere, where no passion can dis
turb the judgment or shake the even
balance in which the scales of reason
are held. Here it is purely a judicial
question; and I can speak for my col
leagues as well as myself, when I say
that we have no thought to suggest
which we do not suppose to be a fair
element in the strictly legal judgment
'which you are required to make up.
In performing the duty assigned to
'me In the case, I shall necessarily refer
to the mere rudiments of constitutional
.law ; to the most` commonplace topics
.of history, and to those plain rules of
justice and right which pervade all our
institutions. I beg your honors to be
lieve that this is not done because I
think that the Court, or any member of
it, is less familiar with these things
than I am, or less sensible of their
value; but simply and only because,
according to my view of the subject,
there is absolutely no other way of deal
ing with it. If the fundamental prat
, elpies of American liberty are attacked,
and we are driven behind the inner
walls of the Constitution to defend
them, we can repel the assault only with
those same old weapons which our an
cestors used a hundred years ago. You
must not think the worse of our armor
because it happens to be old-fashioned
• and looks a little rusty from king disuse.
The ease before you presents but a
oiskple point, and that an exceedingly
plaln.one. it is not enciimbered with
say cif those vexed questions that might
he expected to arise out of a great war
You are not called upon to decide what ;
kind of rule a military commander may
impose upon the inihabltants of a hostile
country which he occupies as a conquer
or, or what punishment he may inflict
upon the soldiers of his own army or the
followers of his camp ; or yet how he
may deal with civilians in At beleaguered
city or other place in a state of actual
siege, which he Is required to .defend
against a public enemy. This contest
covers no such ground as that. The
men whose acts we complain of erected
A. J. STEINMAN
VOLUME 68.
themselves into a tribunal for the trial
and punishment of citizens who were
connected in no way whatever,with the
army or navy. And this they did In
the midst of a community whose social
and legal organization had never been
disturbed by any war or ins.urrection,
where the courts were wide open,
where judicial process was executed
every day without interruption, and
where all the civil authorities, both
State and national, were in the full
exercise of their functions.
My clients were dragged before this
strange tribunal, and aftera proceeding,
which it would be mere mockery to call
a trial, they were ordered to be hung.
The charge against them was put into
writing and is found on this record, but
you will not be able to decipher its
meaning. The relators were not accused '
of treason ; for no act is imputed to
them which, if true, would come within
the definition of that crime. It was not
conspiracy under the act of 1861; for all
concerned In this business must have
known that conspiracy was nota capital.
offense. I f the commissioners were able
to read English, they could not help but
see that it was made punishable even by
fine and imprisonment, only upon con
dition that the parties should first be
convicted before a circuit or district
court of the Unite States. The
Judge advocate mus have meant to
charge them with some offense un
known to the laws, which ho chose to
make capital by legislation of his own,
and the commissioners were so pro-
. _
foundly ignorant as to think that the
legal innocence of the parties made no
difference In tile case. I do not say
what Sir „James Mackintosh said of a
similar proceeding: that the trial was a
mere conspli•acy to commit will fulrnur
der upon three innocent men. The com
missioners are not on trial ; they are
absent and undefended ; and they are
entitled to the benefit of that charity
which presumes them to be wholly un
acquainted with just principles of na
tural Justice, and quite tillable to com
prehend either the law or the facts of a
criminal cause.
Keeping the character of the charges
in mind, let us come at once to the
simple question upon which the court
below divided in opinion : Had the
commissioners jurisdiction—were they
Invested with legal authority to try the
relators and put them to death for the
offense of which they are accused? We
answer, no; and therefore the whole
proceeding, from beginning to end, was
utterly null and void. On the other
hand, it is absolutely necessary for those
who oppose us to assert, and they do as
sert, that the commissioners had com
plete legal jurisdiction both of the
subject•matter and of the parties, so
that their judgment upon the law and
the facts is absolutely conclusive and
binding, not subject to correction nor
open to inquiry in any court whatever.
Of these two opposite views,
you must
adopt one or the other; for there Is no
middle ground on which you can pos
sibly stand.
I need not say, (for it is the law of the
horn books), that where a court, (what
ever may be its power hi other respects,)
presumes to try a man for an offense of
which It has no right to take judicial
cognizance, all its proceedings in that
case are null and void. If the party is
acquitted, he cannot plead the acquittal
afterwards in bar of another prosecu
tion; ll' he is found guilty and sen
tenced, he Is entitled to be relieved from
the punishment. If a circuit court of
the United States should undertake to
try a party for an offense clearly within
the exclusive jurisdiction of the State
courts, the judgment could have no
effect. It' a county court in the Interior
of a State should arrest an officer of the
Federal navy, try him, and order him
to be hung for some offence against the
law of nations, committed upon the high
seas or In a foreign port, nobody
would treat such a judgment other
wise than with mere derision. The
Federal courts have jurisdiction to try
ofilinses against tile laws of the United
States, and the authority of the State
courts is confined to the punishment of
acts which are made penal by State
laws. It follows that where the accu
sation does not amount to an offense
against the law of either the State or
the Federal Government, no court can
have Jurisdiction to try it. Suppose for
example that the judges of this Court
should organize themselves into a tri
bunal to try a man for witchcraft, or
heresy, or treason against the Confed
erate States of America, would anybody
say that your judgment had the least
validity.
I care not, therefore, whether the re
lators were intended to be charged with
treason or conspiraoyl or with some of
fense of which the law takes no notice.
Either or any way, the men who un
dertook to try them hail no jurisdiction
of the sul&ct•mal ter.
Nor had they jurisdiction of the
parties. It is not pretended that this
was a ease or Impetwhwent, or a case
arising in the land or naval Acmes. It
is either clothing at all or else it is a
simple crime against the United States,
conintitteti by private individuals not
in the public service, civil or military.
Persons standing in that relation to the
Government are answerable for th 6
offense which they may commit only to
the civil courts of the country. Sosayslthe
Constitution, as we read it; and the act
of Congress of .11Iareh 4, 1803, which was
passed with express referenee to persons
precisely In the situation of these men,
declares that they shall be delivered up
for trial to the proper civil authorities
There being no jurisdiction of the
subject-matter or of the parties, you are
bound to relieve the petitioners. It Is
as much the duty of a judge to protect
the innocent as it is to punish the
guilty. Suppose that the Secretary of
some department chould take it Into
his head to establish an ecclesiastical
tribunal here hi the City of Washingto,
composed of clergymen " organized to
convict" everybody who prays after a
fashion inconsistent with the supposed
safety of the 040. If he would select
the members with a punier regard to the
odium theologicum, I think J mild in
sure him a commission that would hang
every man and woman who might be
brought before it. But would you, the
judges of the land, stand by and see
their sentences executed? No; you
would Interpose your writ of prohibi
tion, your habeas corpus, or any other
process that might be at your command,
between them and their victims. And
you would do that for precisely the
reason which requires your interven
tion here—because religious errors, like
political errors,
are not crimes which
anybody in this country has jurisdic
tion to punish, and because ecclesiastical
commissions, like military commis
sions, are not among the judicial insti
tutions of this people. Our fatherelong
ago cast them both aside among the
rubbish of the dark ages;
and they in
tended that we, their children, should
know them only that we might blush
and shudder at the shameless injustice
and the brutal cruelties which they
wero allowed to perpetrate In other
times and other countries,
. _
But our friends on the other side are
not at all impressed with these views.
Their brief corresponds exaotly with
the doctrines propounded by the Attor
ney General, in a very elaborate official
paper which he published last July,
upon this same subject. He then avow
ed it to be his opttled and deliberate
opinion that the military might "take
and kill, try and execute" (I use his own
words) persons who had no sort of con
nection with the army or navy. And
though this be done in the face of the
open courts, the judicial authority, ac
cording to him, are utterly powerless to
prevent the slaughter which may thus
be carried on. That is the thesis which
the Attorney General and his assistant
counselors are to maintain this day, if
they can maintain it, with all the power
of their artful eloquence.
We, on the other band, submit that a
person not in the military ornaval service
cannot be punished at all until he has had
afair, open, publiotrial before an impar•
tial jury, in an ordained and established
court, to which the )urisdlcgon has been
given by law to try )aim foF that specific
offense. There is our proposition, Ile
twesit the ground we take and the
ground they occupy there is and there
can he no ccanpremlse. xt is one way
or the other,
Our proposition ought to be received
as true without any argument to sup
port it; because if that, or something
precisely equivalent to it, be not a part
of our law, this is not what we have
always supposed it to be, a free coun
try. Nevertheless, I take upon myself
the burden of showing affirmatively
not only that It is true, but that it is
immovably fixed in the very frame
work of the Government, so that it is
utterly impossible to detach it without
destroying the whole political structure
under which we live. By removing it
youjdestroy the life of this nation as
completely as you would destroy the
life of an individual by cutting the
heart out of his body. I proceed to
the proof.
In the first place, the self-evident
truth will not be denied that the trial
and punishment of an offender against
the Government is the exercise of Ind!.
dal authority. That Is a kind of au
thority which would be lost by being
diffused among the masses of the peo
ple. A judge would be no judge if
everybody else were a judge as well as
lie. Therefore in every society, how
ever rude or however perfect its organi
zation the Judicial authority is always
committed to the hands of particular
persons, who are trusted to use it wisely
and well; and their authority is exclu
sive ; they cannot share it with others
to whom it has not been committed.
Where, then, is the judicial power in
this country? Who are the depositaries
of it here? Tho Federal Constitution
answers that question in very plain
words, by declaring that "the judicial
power of Ow United Slates shallbe vested
in one Supreme Court, and in such in
ferior courts as Congress may from time
to time ordain and establish." Congress
has, from time to time, ordained and
established certain and ferior courts;
and In them, together with the one
Supreme Court to which they are sub
ordinate, is vested all thej udicial power,
properly so called, which the United
States can lawfully exercise. That was
the compact made with the General
Government at the time It was created.
The States and the people agreed to be-
stow upon that Government a certain
portion of the Judicial power which
otherwise would have remained in their
own hands, but gave It on a solemn
trust and coupled the grant of It with
this express condition, that it should
never be used in;ply way but one; that
is, by means of orflained and established
courts. Any person, therefore, who
undertakes to exercise judicial power
In any other way not only violates the
law of the land, but he treacherously
tramples upon the most important part
of that sacred covenant which holds
these States together.
May it please your honors, you know,
and I know,and everybody else knows,
that it was the intention of the men
who founded this Republic to put the
life, liberty, and property of every per
son In It under the protection of a regu
lar and permanent judiciary, separate,
apart, distinct from all other branches
of the Government, whose sole and•ex
elusive business Rshould be to distribute
Justice among -the people according to
the wants and needs of each individ
ual. It was to consist of courts,
always
open to the complaint of the injured,
and always ready to hear cinalual accu•
sations when founded upon probable
cause ; surrounded with all the machi
nery necessary for the investigation of
truth, and clothed with sufficient power
to carry their decrees into execution.
In these courts it was expected that
judges would sit who would be upright,
- honest, and sober men, learned in the
laws of their country, and lovers of jus
tice from the habitual practice of that
virtue; independent because their sala
ries could not be reduced, and free from
party passion because their tenure of
office was for life. Although this would
place them above the clamors of the mere
mob and beyond the reach of Executive
Influence, it was not Intended that they
should be wholly irresponsible. For any
willful or corrupt violation of their duty ,
they are liable to be impeached; and
they cannot escape the control of nu en
lightened public opinion, for they must
sit with open doors, listen to full discus
sion and give satisfactory reasons for
thejudgments they pronounce. In or
dinary tranquil times the citizen might
feel himself safe under a judicial system
so organized.
ljut our wise forefathers knew that
tranquility was not to be always an
ticipated in a republic; the spirit of a
free people is often turbulent. They ex
pected that strife would rise between
classes and sections, and even civil war
might come, and they supposed that
in such times judges themselves might
not be safely trusted in criminal cases—
especially in prosecutions for political
offenses, where the whole power of the
Executive is arrayed against the ac
cused party. All history proves that
public officers of any government when
they are engaged in a severe struggle to
retain their places,
: become bitter and
ferocious, and hate those who oppose
them, even in the most legitimate way,
with a rancor which they never exhibit
towards actual crime. This kind of ma
lignity vents itself in prosecutions for
political offenses, sedition, conspiracy,
libel, and treason, and the charges are
generally founded upon the information
of hireling spies and common delators,
who make merchandise of their oaths,
and trade in the blood of their fellow
men. During the civil cOmmotions in
England, which lasted from the begin
ning of the reign of Charles I to the
revolution of 14Hii, the best men and
the purest patriots Quit ever and
by the hand of the public executioner.
Judges were made the instruments for
inflicting the most merciless sentences
on men, the latchet of whose shoes the
ministers that prosecuted them were
not worthy to stoop down and unloose.
Let me say here, that nothing has oc
curred in the history of this country to
justify the doubt of judicial integrity
which our forefathers seem to have felt
On the contrary, the highest compli
ment that has ever been paid the Ameri
can bench, is embodied in this simple
fact ; that if the executive officers of
this Government have ever desired to
take away the life or the liberty of a
citizen contrary to law, they have not
come into the courts to get it done, they
have gone outside of the courts, and
stepped over the Constitution, and
created their own tribunals, composed
of men whose gross ignorance, and sup
ple subservience could always be relied
on for those base uses to which no judge
would ever lend himself. But the
framers of the Constitution could act
only upon the experience of that coun
try whose history they kpew most
about, and there they saw the brutal
ferocity of Jeffreys and Soroggs, the
timidity of (-Wilford, and the base
venality of such men as Saunders and
Wright. It seemed necessary therefore,
not only to make the Judiciary as per
fect as possible, but to give the citizen
yet another shield against the wrath
and malice of his Government. To that
end they could think of no better pro•
vision than a public trial before an Im
partial jury.
I do pot assert that the Jury trial is au
infallible mode of ascertaining truth.
Like everything human, MIAs its imper
fections. I only say that it is the best
protection for innocence and the surest
mode of punishing guilt that has yet
been discovered, It has borne the test
of a longer experience, and borne it
better than any other legal institution
that ever existed amqng men. England
owes more of her freedom, her grandeur,
and her prosperity to that, than to all
other causes put together. It has had
the approbation not only of those who
lived under it, but of great thinkers who
looked at it calmly from a distance,'and
judged it impartially: Montasquieu
and De Tocqueville speak of it with an
admiration as rapturous as Coke and
Blackstone. Within the present century
the moot enlightened states of continen
tal Europe have transplanted it into
their countries; and no people ever
adopted it once and were after
wards willing to part with it. It
was only in 1830 that an interference
with it in Belgium provoked a success
ful insurrection which permanently di
vldetj one kingdom into two. In the
same year, the revolution of the Barri
otkdes eve the right pf 441 by Jury to
every ,terenchrcian.
LANCASTER PA. WEDNESDAY MORNING, FEBRUARY 27, 1867
Those colonists of this country who
came from the British Islands brought
this institution with them, and they re
garded it as the most precious part of
their inheritance. The immigrants from
other places where trial by jury did not
exist, became equally attached to it as
soon as they understood what It was.
There was no subject upon which all
the inhabitants of the country Were
more perfectly unanimous than 'they
were in their determination to main=
tain this great right unimpaired. An
attempt was made to set it aside and
substitute military trials in its place by
Lord Dunmore, In Virginia, and Gen.
Gage, in Massachusetts, accompanied
with the excuse which has been repeat
ed so often in late days, namely, that
rebellion had made it necessary ; but it
excited intense popular anger and every
colony from New Hampshire to Geor
gia, made common cause with the two
whose rights had been especially in
vaded. Subsequently the Continental
Congress thundered It into the ear of
the world, as an unendurable outrage,
sufficient to justify universal insurrec
tion against the authority of the Gov
ernment which had allowed it to be
•
done.
If the men who fought out our revo
lutionary contest, when they came to
frame a government for themselves and
their posterity, had failed to insert a
provision making the trial by Jury per
petual and universal, they would have
covered themselves all over with infamy
as with a garment; for they would have
proved themselves basely recreant to the
principles of that very liberty of which
they professed to be the special champ.
ions. But they were guilty of no such
treachery. They not only took care of
the trial by Jury, but they regulated
every step to be taken in a criminal
trial. They knew very well that no
people could he free under a government
which had the power to punish without
restraint.—,Hamilton expressed In the
Federalist the universal sentiment of
Ills time, when he said that the arbi
trary power of conviction and punish
ment for pretended offenses had been
the great engine of despotism in all ages
and all countries. The existence of such
a power is utterly incompatible with
freedom. The difference between a
master and his slave consists only In
this: that the master holds the lash In
his hands and he may use IL without
Legal restraint, while the naked back of
Lime slave is bound to take whatever Is
laid on it.
But out' fathers were not absurd
enough to put unlimited power in the
hands of the ruler and take away the
pTotection of law from the rights of In
dividuals. It was not thus that they
meant "to secure the blessings of liberty
to themselves and their posterity."
They determined that not one drop of
the blood which had been shed on the
other side of the Atlantic, during seven
centuries of contest with arbitrary
power, should
ground ; but the
popular victory should be garnered up
n this new government. Of all the
great rights already won they threw not
an atom away. They went over Magna
Charta, the Petition of Bights, the 71111
of Rights, and the rules of the common
law, and whatever was found there to
favor Individual liberty they carefully
inserted lu their own system, Improved
by clearer expression, strengthened by
heavier sanctions, and extended by a
more universal application. They put
all those provisions into the organic law,
so that neither tyranny in the Execu
tive nor party rage in the Legislature
could change them without destroying
the Government itself.
Look for a moment at the particulars
and see how carefully everything con
:meted with the administration of pun l•
Live Justice Is guarded.
1. No cx post facto law shall he pass
ed. No man shall be answerable crim
inally for any act which was not delined
and made punishable as a crime by some
law in force nt the time when the act
was done.
IL For au act which Is criminal he
cannot be arrested without a Judicial
warrant founded on proof of probable
cause. He shall not be kidnapped and
shut up on the mere report of some base
spy who gathers the materials of a false
accusation by crawling into his house
and listening at the key-hole of his
chamber door.
3. He shall not he compelled to testify
against himself. He may be examined
before he is committed, and tell his own
story if he pleases ; but the rack shall
be put out of sight, and even his con
science shall not be tortured ; nor shall
his unpublished papers be used against
him, as was done most wrongfully in
the case of Algernon E-Ildney.
.1. Ho shall be entitled to a speedy
trial; not kept In prison for an indefi
nite time without the opportunity of
vindicating his Innocence.
5. He shall be informed of the accusa
tion, Its nature, andgrounds. The
public accuser must put the charge into
the form of a legal indictment, so that
the party can meet it full in the face.
U. Even to the Indictment lie need
not answer unless a grand Jury, after
hearing the evidence, shall say upon
their oaths that they believe it to be
true.
7. Then comes the trial, and it must
be before a regular court, of competent
jurisdiction, ordained and established
for the State and district in which the
crime was committed ; and this shall
not be evaded by a legislative change
in the district after the crime is alleged
to be doup.
}flyggllt or innocence shall be de
termined by an Impartial jury. Those
English wpilds are to be understood in
their English sense,
and they mean that
the jurors shall be fairly selected by a
sworn officer from among the peers of
the party, residing within the local
jurisdiction of the court. When they
are called into the box he can purge the
panel of all dishonesty, prejudice, per
sonal enmity and ignorance, by a cer
tain number of peremptory challenges,
and as many more challenges as he can
sustain by showing reasonable cause.
9. The trial shall be public and open,
that no underhand advantage may be
taken. The party shall be confronted
with the witnesses against him, have
compulsory process for his own wit
nesses, and be entitled to the assistance
of counsel in his defense.
10. After the evidence is heard and
discussed, unless the jury shall, upon
their oaths, unanimously agree to sur
render him up into the hands of the
court as a guilty man, not a hair of his
head can be touched by way of punish
ment.
11. After a verdict of guilty he Is still
protected. No cruel or unusual punish
ment shall be indicted, nor any pun
ishment at all, except what is an
nexed by the law to his offense. It
cannot be doubted for a moment that
if a person convicted of an offense
not capital were to be hung on the order
of a judge, such judge would be guilty
of murder as plainly as if he should
come down from the bench, tuck up the
sleeves of his gown and let out the
prisoner's blood with hisown hand.
12. After all is over, the law Continues
to spread its guardianship around him.
Whether he is acquitted or condemned
he shall never again be molested for that
offense, No man shall be twice put in
jeopardy of life or limb for the same
cause.
These rules apply to all criminal pros.
ecutions. But, in addition to these, cer
tain special regulations were required
for treason—the one great political
charge under which more innocent men
have fallen than any other. A tyranni
cal government calls every body a traitor
who shows the least unwillingness to be
a slave. The party in power never falls,
when it can, to stretch the law on that
subject by construction, so as to cover
its honest and conscientious opponents.
In the absence of a constitutional
provision it was justly feared that
statutes might be passed which would
put the lives of the most patriotic citi
zens at the mercy of the basest minions
that skulk about under the pay of the
Executive. Therefore a definition of
treason was given in the fundamental
law, and the legislative authority could
not enlarge it to serve the purpose o f
partisan malice. The nature and amount
of evidence required to prove the crime
Was also prescribed, so that prejudice
and enmity might have no share in the
conviction. And lastly, the punishme at
was so limited that the property of the
party could not be confiscatcd and used
to reward the agents of his persecutors,
or strip his family of their subsistence.
If these provisiol a exist in full force,
unchangeable and irrepealable then
we are not hereditary bondsmen. Every
Citizen may safely pursue his lawful
calling in the open day ; and at night,
if he is conscious of innocence, he may
lie down in security and sleep the sound
sleep of a freeman.
I say they are in force, and they will
remain in force. We have not surren
dered them, and we never will. If the
worst comes to the worst, we will look
to the living God for His help, and de
fend our rights and the rights of our
children to the latit extremity. Those
men who think we eau be subjected and
objected to the condition of mere slaves
are wholly mistaken. The great race to
which we belong has not degenerated so
fatally.
But how am I to prove the existence
of these rights? I donot propose to do
it by a long chain of legal argumenta
tion, nor by the production of numerous
books with the leaves dog-eared and the
Jpages marked. If it depended upon
udicial precedents I think I could pro
duce as many as might be necessary. If
I claimed this freedom under any kind
of prescription, I could prove a good
long possession in ourselves and those
under whom we claim it. I might be
gin with Tacitus and show tow the
contest arose lu the forests of Germany
more than two thousand years ago; how
the rough virtues and sound common
sense of that people established the right
of trial by jury, and thus started on a
career which has made their prosperity
the foremost race that ever lived in all
the tide of time, The Saxons carried it
to England, and were ever ready to
defend it with their Wood. It was
crushed out by the Danish invasion ;
and all that they suffered of tyranny
and oppression during the period of their
subjugation resulted from the want of'
trial by jury. If that had been conceded
to them the reacticni would not have
taken place w lull drove back the Danes
to their frozen homes in the North. But
those ruffian sea•kings could not under
stand that, and the reaction came.
Alfred, the greatest or revolutionary
heroes and the wisest monarch that
ever sat on a throne, made the first use
of his power, after the Saxons restored
it, to re-establish their ancient laws.
He had promised them that he would,
and he was true to them because they
had been true to him, But It was not
easily done; the courts' were opposed to
it, for it limited their power—a kind of
power that everybody covets—thepower
to punish without regard to law. He
was obliged to hang forty-four judges in
one year for refusing to give his sub
jects a trial by jury. When the historian
says that he hung them, It isnot meant
that he put them to death without a
trial. He had them impeached before
the grand conduit of the nation, the
Wittenagemole, the parliament of that
time.. During the subsequent period of
Saxon (I°llllllloAm' no man on English
soil was powerful' enough to refuse a
legal trial to the meanest peasant. If
any minister or any king, in war or in
peace, had dared to punish a freeman
by a tribunal of his own appointment,
he would have roused the wrath of the
whole population ; all orders of society
would have resisted it; lord and vassal,
knight and squire, priest and penitent,
human and socman, master and thrall,
copyholder and villein, would have
risen I u one mass and burnt the offender
to death in his castle, or followed him
hi his flight and torn hint to atoms. It
was again trampled down by the Nor
man conquerors; but the evils re
sulting front the want of it united
all classes hi the eflbrt which compelled
King John to restore it by the Great
Charter. Everybody is familiar with
the struggles which the English people,
during many generations, made for
their rights with the Plantaganets, the
Tudors, and the Stuarts, and which
ended finally In the revolution of It3BB,
when the liberties of England were
placed upon an Impregnable basis by
the Bill of Eights.
Many times the attempt was made to
stretch the royal authority far enough
to justify military trials ; but it never
had more than temporary success. Five
hundred years ago Edward II closed up
a great rebellion by taking the life of its
leader, the Earl of Lancaster, after try
ing him before a military court. Eight,
years later that same king, together
with his lords and commons in Parlia
ment assembled, acknowledged with
shame and sorrow that the execu
tion of Lancaster was a mere mur
der, because the courts were open
and he might have had a legal
trial. Queen Elizabeth, for sun
dry reasons affecting the safety of
the State, ordered that certain offenders
not of her army should be tried accord -
log to the law martial. But she heard
the storm of popular vengeance rising,
and, haughty, imperious, self-willed as
she was, she yielded the point; for she
knew that upon that subject the Eng
lish people would never consent to he
trifled with. Stra Wird, as Lord Lieu
tenant of Ireland, tried the Viscount
Stormont More a military commission,
and cut off his head. When impeach
ed for it, he pleaded in vain that Ire
land was in a state of Insurrection, that
Stormont was a traitor, and the army
would be undone if It could not defend
Itself without appealing to the civil
courts. The Parliament was deaf; the
King himself could not save him ; he
was condemned to suffer death as a
traitor and murderer. Charles I Issued
commissions to divers officers for the
trial of his enemies according to the
course of military law. I r rebellion ever
was an excuse for such an act, he could
surely have pleaded it; for there was
scarcely aspotin his kingdom,from sea to
sea, where the royal authority was not
disputed by somebody. Yet the Parlia
ment demanded in their petition of
right, and the King was obliged to con
cede, that all his commissions were
illegal. James II claimed the right to
suspend the operation of the penal laws
—a power which the courts denied—but
the experience of his predecessor taught
him that he could not suspend
any man's right to a trial. He
could easily have convicted the
seven bishops of any offense he saw
fit to charge them with if he could have
selected their judges front among the
mercenary creatures to whom he had
given commands in his army. But this
he dared not do. He was obliged to
send the bishops to a jury and endure
the mortification of seeing them ac
quitted. He, too, might have had re
bellion for an excuse, if rebellion be an
excuse. The conspiracy was already
ripe which a few months afterwards
made him an exile and an outcast ; he
had reason to believe that the Prince of
Orange was making his preparations
on the other side of the channel to in
vade the kingdom, where thousands
burned tojoin him ; nay, he pronounced
the bishops guilty of rebellion by the
very act for which he arrested them.
He had raised an army to meet the re
bellion and he was on Hounslow Heath
reviewing the troops organized for that
purpose, i when he heard the great shout
of joy that went up from Westminster
Ha 1, was echoed back from Temple
Bar, spread down the city and over the
Thames, and rose from every vessel on
the river—the simultaneous shout of
two hundred thousand men for the
triumph ofjustice and law.
If it were worth the time, I might
detain you by showing how this subject
was treated by the French Court of Ces
sation in Geoffroy's case, under the
constitution of 1810, when a military
judgment was unhesitatingly pronounc
ed to be void, though ordered by the
King, after a proclamation declaring
Paris in a state of siege. Fas est ab hosts
doeeri : we may lawfully learn some
thing from our enemies—at all events
we should blush at the thought of not
being equal on such a subject to the
courts of Virginia, Georgia, Mississippi
and Texas, whose decisions my col
league, General Garfield, has read and
commented on.
The truth is, that no authority exists
anywhere in the world for the doctrine
of the Attorney General. No judge or
Jurist, no statesman or parliamendry
sink into the
fruits of every
orator, on this or the other side of the
water, sustains him. Every elementary
writer from Coke to Wharton Is against
him. All military authors who profess
to know the duties of their profession
admit theuiselves to be under, not above
the laws. No book can be found in any
library to justify the assertion that
military tribunalsmay try a citizen at a
place where the courts are open. When I
say no book, I mean,of course, no book of
acknowledged authority. I do not deny
that hireling clergymen have often been
found to disgrace the pulpit by trying
to prove the divine light of kings
and other rulers to govern as
they please. It is true, also, that
court sycophants and party hacks
have many times written pamphlets,
and perhaps large volumes, to show
that those whom they serve should be
allowed to work out their bloody will
upon the people. No abuse of power is
too flagrant to find its defenders among
such servile creatu res. Those butchers
dogs that feed upon garbage and fatten
upon the offal of the shambles are al
ways ready to bark at whatever Inter
feres with the trade of their master.
But this ease does not depend on au
thority. It Is rather a question or fact
than of law.
I prove my right to at Hal by Jury Just
as I would prove my title to an estate if I
held In toy hand usolemu deed convey
ing It to me, coupled with undeniable
evidence of long and undisturbed pos•
session under and according to the deed.
There Is the charter by which we ehdin
to hold It. It is called the Constitution
or the United :States. It Is signed by
the sacred name of George \ Vashing
ton, and by thirty-nine other
names, only less Illustrious than his.
They represented every independent
State then upon this continent, and
each State afterwards ratified their
work by a separate convention of its
own people. Every Stale that subse
quently Caine lu acknowledged that
this was the great standard by which
their rights were to he measured, Every
man that has ever held °lnce in the
.ountry, 6'olll thal. time to 11118, luts
Laken au oath that hp would Hupport
tud Muvl,iin IL through good rt.porL mid
through evil. The Attorney]lent ral
himself became a party to the Instru
ment when he laid his hand upon the
gospel ot' (led awl solemnly swore that
he would give to nit , and every other
citizen the full benefit of all It contains.
What does It contain? 'Phis among
other things:
"The trial of all eriwos, except in
cases of impeachment,shall be by Jury."
Again : " No person shall be held to
answer for a capital or otherwise Infa
mous crime unless on a presentment or
indictment of a grand jury, except in
cases arising in the land or naval forces,
or in the militia when in actual service
in time of war or public danger; nor
shall any person be subject fur the same
offense to he twice put In jeopardy of
life or limb, nor be commpelled in any
criminal case to be a witness against
himself, nor he deprived of life, liberty,
or property without due process of law;
nor shall private property be taken for
public use without just compensation."
This Is not all ; another article de
clares that "In all criminal prose•
tuitions the unused shall enjoy
the right to a speedy and public
trial .by an Impartial jury of the-
State district wherein the crime
shall have been committed, which dis
trict shall have been previously ascer
tained by law; and to be informed of
the nature and cause of the accusation ;
to be confronted with the witnesses
against him ; to have compulsory pro
cess for the witnesses In his favor, and
to have the assistance of counsel for his
defense."
Is there any ambiguity there ? If
that does not signifst hat a Jury trial
shall be the exclusive and only means
of ascertaining guilt in criminal
cases, then I demand to know what
words or what collocation of words In
the English language would have that
effect? Does this mean that a fair,
open, speedy, public trial by an impar
tial fury shall be given only to those
persons against whom no special grudge
Is felt by the Attorney Uencral, or the
Judge advocate, or the bead of a depart
ment? Shall this Inestimable privilege
be extended only to men whom the
administration does not care to convict?
Is IL confined to vulgar criminals, who
commit ordi nary crimes against society,
and shah it be denied to men who are
accused of such ()muses us those for
which Sydney and Russell were be
headed, and Alive Lisle was hung, and
Eliznheth Gaunt wns burnt alive, and
John Bunyan was Imprison'ed fourteen
years, and Baxter was whipped
at the earl's tall, and Prynn had
lIH enrn MIL oir No; the words or the
',institution aro all•entbruclog—
N lifUad Ilnd general an t hu caning ;lir
The trial of ALL crimes shall be by
LL persons le, n.e,l shall enjoy
hat privilege—and Nt) p.•rson shall be
i'l , l to answer hl any other way.
That would be soffielent without
Hut there Is nnother eonsideru
ion which gives It tenfold power. It is
uulversal rule of construction, that gen
eral words in any Instt umen t, though
they may be weakened by enutner-
Ilion, are always strengthened Ly ex
uptions. Itertlis il.,:diempt. to (limner
ale the particular eases in which men
charged with criminal ofrenses shall he
entitled to a Jury trial. It Is simply de•
(dared that all shell have it. But that
Is 'coupled with a statement of two
specific exceptions; cases of impeach
ment; anti cases arising In the land
or naval forces. These exceptions
strengthen theapplleadon of the general
rule to all other• eases. Where the law
giver himself has declared when and hi
what circumstances you May depart
from the general rule, you shall not
presume to leave t hat onward path for
other reasons, and make different ex
ceptions. To exceptions the maxim Is
always applicable, that cap ITSSIQ WILILY
cal alkriUS.
But we are answered that the judg
ment under consideration was pro
nounced in time of war, and it id
therefore at least morally excusable,
There may or there may not be
something in that. I admit that the
merits or demerits of any particular act,
whether it involve a violation of the
Constitution or not, depend upon the
motives thatprompted it, the time, the
occasion, and all the attending circum
stances. When the people of this coun
try come to decide upon the acts of their
rulers, they will take all these things
into consideration. But that presents
the political aspect of the case with
which, I trust, we have nothing to do
here. I decline to discuss it. I would
only say, in order to prevent misappre
hension, that I think it is precisely In a
time of war and civil commotion, that
we should double the guards upon the
Constitution. If the sanitary regula
tions which defend the health of a city
are ever to be relaxed, it ought certainly
not to be done when pestilence is abroad.
When the Mississippi shrinks with.
In its natural channel, and creeps
lazily along the bottom, the inhabitants
of the adjoining shore have no need of
a dyke to save them from inundation.
But when the booming Hood comes
down from above, and swells into a
volume which rises high above the plain
on either side, then a crevasse in the
levee becomes a most serious thing. So
In peaceable and quiet times, our legal
rights are in little danger of being over
borne ; but when the wave of arbitrary
power lashes itself into violence and
rage and goes surging up against the
barriers which we made to confine it,
then we need the whole strength of an
unbroken Constitution to save us from
destruction. But this is a question
which properly belongs to the jurisdic
tion of the stump and the newspaper.
There is another quasi political argu•
ment—necessity. If the law was vio
lated because It could not be obeyed
that might be an excuse. But no
absolute compulsion is pretended
"here. These commissioners acted, at
most, under what they regarded as a
moral necessity. The choice was left
them to obey the law or disobey it. The
disobedience was only necessary as
means to an end which they thought
desirable; and now they assert that
though these means are unlawful and
wrong, they are made right, because
withodt them tile *object could not be
NUMBER 8.
accomplished; in other words, the end
justifies the means. There you have a
rule of conduct denounced by all law,
human and divine, as being pernicious
In policy and false in morals. See how
it applies to this case. Here were three
men whom it was desirable to remove
out of this world, but there was no proof
on which any court would take their
lives; therefore it was necessary, and
being necessary it was right and proper,
to create an illegal tribunal which
would put them to death without proof.
By the same mode of reasoning you can
prove it equally right to poison them
In their food, or stab - them in their
sleep.
Nothing that the worst men ever pro
pounded has produced so much-,oppres
sion, misgovernment, and suffering as
this pretence of State necessity. A great
authority calls it "the tyrant's devilish
plea ;" and the common honesty of all
mankind has branded it with everlast
ing infamy.
Of course, it is mere absurdity to say
that these relators were necesearilll de
prived of their right to a fair and legal
trial, for the record shows that a court
of competent jurisdiction was sitting
at the very time and in the same town,
where Justice would have been done
without sale, denial or delay. But con
cede for the argument's sake that a trial
by Jury was wholly impossible; admit
that there was an absolute, overwhelm
ing, imperious necessity operating so as
literally to compel every act which the
commissioners did, would that give
their sentence of death the validity
and force of a legal Judgment pro
nounced by an ordained and estab
lished court? The question answers
itself. This trial was a violation of law,
and no necessity could be more than a
mere excuse for those who committed
it. If the commissioners were on trial
for murder or conspiracy to murder,
they might plead necessity if the fact
were true, Just as they would plead in
sanity or anything else to show that
their guilt was not wilful. But we aro
now considering the legal effect or their
decision, and that depends on their
legal authority to make IL. They had
no such authority; they usurped a Jur
isdiction Nit Mob the law not only did
not give them, gut expressly forbade
them to exercise, and it follows that
their act is void, whatever may have
been the real or supposed excuse for it.
If these commissioners, instead of
aiming at the life and liberty of the re
lators, had attempted to deprive them
of their property by a sentence of con
fiscation, would any court in christen
dom declare that such a sentence di
vested the title? Or would a person
claiming under the sentence make his
right any better by showing that the
illegal assumption of jurisdiction was
accompanied by some excuse which
might save the commissioners from a
criminal prosecution ?
Let me illustrate still further. Sup
pose you, the judges of this Court, to be
surrounded in the hall where you are
sitting by a body of armed insurgents,
and compelled by main force to pro
nounce sentence of death upon the
President of the United States for some
act of his upon which you have no
legal authority to adjudicate. There
would be a valid sentence if necessity
alone could create jurisdiction. But
could the President be legally execu
ted under it? No ; the compulsion un
der which you acted would be a good
defense for you against an impeach
ment or an indictment for murder, but
it would add nothing to the validity of
a judgment which the law forbade you
to give.
'That a necessity for violating the law
is nothing more than a mere excuse
to the perpetrator, and does not in any
legal sense change the quality of the
act itself in its operation upon other
parties, is a proposition too plain on
original principles to need the aid of
authority. Ido not see how any man
of common sense is to stand up and dis
pute It. But there is decisive authori
ty upon the point. In 1815, at New
Orleans, General Jackson took upon
himself the command of every person
In tile city, suspended tile functions of
all the civil authorities, and mule his
own will for a time the only rule of con
duct. It was believed to be absolutely
necessary. Judges, Officers of tile city
corporation, and members of the State
Legislature Insisted on it as the only
wuy to save the "booty and beauty" of
tile place from the unspeakable outrages
committed at Badajoz and St. Sebastian
by the very same troops then marching
to attack. Jackson used tile power thus
taken by him moderately, sparingly,
benignly, and only for tile purpose of
preventing mutiny in his camp. A
single mutineer was restrained by a short
confinement, and another was sent
four miles up the river. But after he
bad saved the city, and the danger was
all over, he stood before the court to be
tried by the law ; his conduct was de
cided to be illegal by the same judge
who had declared it to be necessary, and
he paid the penalty without a murmur.
The supreme court of Louisiana, in
Johnson vs. Duncan, decided that every
thing done during the siege in pursu
ance of martial rule, but in conflict with
the law of the land, was void and of non
effect, without reference to the circum
stances which made it necessary. Long
afterwards the fine imposed upon Jack
son was refunded because his friends,
while they admitted him to have vio-
lated the law, insisted that the necessity
which drove him to it ought to have
saved him. from the punish ment due
only to a willful offender.
The learned counsel on the other side
will not assert that there was war at
Indiunapolls in 1861, for they have read
Coke's Institute l and Judge Grier's opin
ion in the prize can's, and of course
they know it to be a settled rule that
war cannot be said to exist where the
civil courts are open. They will not set
up the absurd plea of necessity, for they
are well aware that it would not be true
in point of fact. They will hardly take
the ground that any kind of necessity
could give legal validity to that which
the law forbids.
This, therefore, must be their posi
tion : That although there was no war
at the placd where this commission sat,
and no actual necessity for it, yet if
there was a war anywhere else, to
which the United States were a party,
the technical effect of such war was to
take the Jurisdiction rway from the
civil courts and transfer it to army
officers.
GEN. BUTLER. We do not take that
position.
MR. 13Lack. Then they can take no
ground at all, for nothing else is left. I
do not wonder to see them recoil from
their own doctrine when its nakedness
is held up to their eyes. But they must
stand upon that or give up their cause.
They may not state their proposition
precisely as I state it; that is too plain
a way of putting it. But, in substance,
it is their doctrine—has been the doc
trine of the Attorney General's °lnce
ever since the advent of the present in
cumbent—and is the doctrine of their
brief, printed and filed in this case.
What else can they say? They will
admit that the Constitution is not al
together without a meaning ; that at a
time of universal peace it imposes some
kind of obligation upon those, who
swear to support it. If no war existed
they would not deny theexcluslve Juris
diction of the civil courts in criminal
cases. How then did the military get
Jurisdiction in Indiana?
All men who hold the Attorney Gen
eral's opinion to be true, answer the
question I have put by saying that
military Jurisdiction comes from the
mere existence of war; and it conies in
Indiana only as the legal result of a war
which is going on in Mississippi, Ten
nessee, or South Carolina. The Consti
tution is repealed or its operation sus
pended in one State because there is war
in another. The courts are open, the
organization of society is intact, the
Judges are on the bench, and their
process is not impeded; but their Juris
diction is gone. Why? Because, say
ouropponents, war exists, and the silent,
legal, - technical operation of that fact is
to deprive all American citizens of their
right to a fair trial. •
That class of Jurists and statesmen
who hold that the trial by jury is lost to
the citizen during the existence of war,
carry out their doctrine theoretically
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and practically to its ultimate conse
quences. Tho right of trial by jury be
ing gone, all other rights are gone with
it' therefore a man may he arrested
without au accusation and kept In
prison during the pleasure of his cap
tors; his papers may be searched with
out a warrant • his property may be
confiscated behind his back, and he has
no earthly means of redress. Nay, au
attempt to get a Just remedy is construed
as a new crime. He dare not even
complain, for the right of free speech
is gone with the rest of his rights.
If you sanction that doctrine, what is
to be the consequence? I do not
speak of what is past and gone; but in
case of a future war, what results will
follow frbm your decision endorsing the
Attorney General's views? They are
very obvious. At the Instant when the
war begins our whole system of legal
government will tumble into ruin, and
if we are not all robbed, and kidnapped,
and hanged, and drawn, and quartered,
we will owe our immunity, not to the
Constitution and laws, but to the mere
mercy or policy of those persons who
may then happen to control the organ
ized physimi lime of the country.
This certainly puts us In a most pre
carious condition ; we must have war
about half the tline, do what we may to
avoid it. Thu President or Congress
can wantonly provoke a war whenever
it sults the purpose of either to do so;
and they can keep It going as long as
they please, even after the actual con
flict of arms Is over. When peace woos
them they can ignore her existence;
and thus they can make the war a
chronic condition of the country, and
the slavery of the people perpetual. Nay
we are at the mercy of any foreign po
tentate who may envy us the possession
of those liberties which we boast of so
much ; he can shatter our Constitution
without striking a single blow or bring
ing a gun to bear upon us, A Mingle
declaration of hostilities Is more terri
ble to us than all army with banners.
'Po me, this seems the wildest delusion
that ever took possession of a human
brain. If there be one principle of poli
tical ethics more universally acknowl
edge than another, It is that war, and
especially civil war, can be justified
only when It Is undertakon In vindicate
and uphold the legal and constitutional
rights of theeople ; not to trample
them down, lie who carries on a sys
tem of wholesale slaughter forany other
purpose, must stand without excuse be
fore God or moan. 1n a time of war,
more titan at any other time, public
liberty Is In the hands of the public
officers. And she is there in double
trust; first, as they are citizens and
therefore bound to defend her, by the
common obligation of all citizens ; and
next, as they are her special guardians—
" wueshould against her murderers shut the
door
Not bear tho Icnifo thomsol %Mai"
The opposing argument, WllOll turned
Into phtin Englishoneans th IS, and this
only : that when the Constitution Is at
tacked upon one side, its °Melia guar
dians may assns l it upon the other ; when
rebellion strikes It In the face, they may
take advantage of the blindness pro
duced by the blow, to Moak hehind It
and stab It In the back.
The Convention when IL framed the
Constitution, and the people when they
adopted It, could have had:no thought
like that. I f;theyllhad supposed that It
would operate only while perfect peace
continued, they certainly would have
giveh us smile other rule to go by In time
of war; they would not have left us to
wander about hi a howling wilderness
of anarchy ' without a lamp to our feet,
or a guide to our path. Another thing
proves their actual Intent still more
strikingly, They require that everyman
In any kind of public employment, state
or national, civil or military, should
swear, Without reserve or qualification,
that he would support the Constitution.
Surely our ancestors had too much re
gard for the moral and religious welfare
of their posterity, to Impose upon them
an oath like that, If they intended and
expected It to be broken half the time.
The oath of an olilcer to support the
Constitution Is as simple as that of a
witness to tell the truth hi, a court of
Justice, What would you think of a
witness who should attempt to Justify
perjury upon the ground that he had
testified when civil war was raging, and
lie thought that by swearing to a lie he
might promote some public or private
object connected with the strife?
'o, no, the great men who made this
country what It is—the heroes who won
her independence, and the statesmen
who settled her institutions—had no
such notions hi their minds. Washing
ton deserved the lofty praise bestowed
upon him by the President of Congress
when he resigned Ills comllliBHloll—
he had always regarded the
rights of the civil authority through all
changes and through all disasters.—
When his duty as President after
wards required him to arm the public
force to suppress a rebellion hi Western
Pennsylvania, he never thought that
the Constitution was abolished, by vir
tue of that fact, in New Jersey, or Mary
land, or Virginia. It would have been
a dangerous experiment for an adviser
of his at that time, or at any time, to
propose that he should deny a citizen
his right to be tried by a Jury, and sub
stitute hi place of It a trial before a tri
bunal composed of men elected by him
self from among his own creatures and
dependents.
You can well Imagine how that great
heart would have swelled with Indig
nation at the bare thought of such an
Insulting outrage upon the liberty and
law of his country. In the war of 181'2,
the man emphatically called the Father
of the COlllititlitioll was the supremo
Executive Magistrate. Talk of perilous
times! there was the severest trial this
Union ever saw.
That was no half-organized rebellion
on the one side of the conflict, to be
crushed by the hostile millions and un
bounded resources of the other. The
existence of the nation was threatened
by the most formidable military and
naval power then upon the face of the
earth. Every town upon the northern
frontier, upon the Atlantic seaboard,
and upon the Gulf coast, was In daily
and hourly danger. The enemy had
penetrated the heart of Ohlo. New York,
Pennsylvania, and Virginia were all of
them threatened from the west as well
as the east. This Capitol was taken,
and buried, and pillaged, and every
member of the Federal Administra
tion was a fugitive before the
invading army. Meanwhile party
spirit leas breaking out into actual
treason all over New England. Four
of those States refused to furnish a man
or a dollar even for their own defense.
Their public authorities were plotting
the dismemberment of the Union, find
individuals among them were burning ,
blue lights upon the coast as a signal
to the enemy's ships. But in all this
storm of disaster, with foreign war In
his front, and domestic, treason on his
lien it, Madison gave out no sign that
he would aid old England and New
England to break up this government
of . laws: flu the contrary he and all
his supporters, though corn passed"rou lttl
with darkness and with danger, stood
faithfully between the Constitution and
Its enemies,
To shield It, and save tt, or perish three too."
The frawerH of the Constitution and
all their eotemporaries died and wero
buried; their children succeeded them
and continued on the stage of public
affairs until they, too,
Lived out. their lease of life, and paid their
breath
To time uud mortal (instant ;"
and a third generation was already far
on its way to the grave before this
monstrous doctrine was conceived or
thought of, that public officers all over
the country might disregard their oaths
whenever a war or a rebellion was com
menced.
Our friends on the other aide are quite
conscious that when they deny the
binding obligation of the Constitution
they must put some other system of law
in its place. Their brief gives us notice
that, while the Constitution, and the
acts of Congress, and Magna (Marla,
and the common law, and all the rules
of natural justice shall remain under
foot, they will try American citizens
according to the law of nations I But
the law of nations takes no notice of the
subject. If that- system did contain a.