Columbia democrat and star of the north. (Bloomsburg, Pa.) 1866-1867, April 18, 1866, Image 1

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Two Dollar per Annum in AdVancc.
Truth and Bight God and our Country.
JACGBY & IKELER; Publisher.
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, VBRMS. ei PO-jn advanew." If not pif till the
enri oflhRyear. S rent additinnul will bo charged,
, tCT" Nopnpr flipcontinueJ until all arrearage
T are jaid excrpt anhe-opi'.iou of tde editor.
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I .111 W
r tr..-.,it'. and Administrator' Nolicfi.
. Auditor' Notice V. 2 20
Other advertieiuetn maenea ncruiumj iu i.-..a,
contra-; r- .' r ' " V r, ; ' "
liuhici aotiee. without aJVerineruent, twenty,
tent per line. - ... . ,.,
. Transient advertisement payable in adtante, Bill
other due after the Oral inaurtion.
AUdxes. . - JACOBY& IKELER. -
Blooruaburg.. Columbia County, Pa.
Unitedj States Supreme Court.
Thendiana Conspiracy Case.
In September; 1664,'. L. P. Milligan.
V. A.' BowIes, ' Stephen Horsey, and
other, were arrested and brought before
a 'military commission at Indianapolis,
Indiana, charted with being member?, of
iha "order-.- of "American Knights," or
'Sons of Liberty," iu League with arm
- -t ---a
fined in the United States military pri
ons at TndianaDolis. Chicago and Lock
The three parties named, after
tcted trial, were found guilty of
i j u
a protracted
the charges and specifications preferred
against thrm, and condemned to aeain.
The findings and sentence were approved
by the President and promulgated by the
Wa Department on the 2d of May,lSG5
and the l9:h day of the same month was
fixed for'the exeeution. , On the 10th of
May? however, they applied by petition
lo thecirciut'eourt of the United States
... . . ----- v o
inr i nm uiHiricL ! iiiuiaua t vuunv " .
and McDonald"! for a w rit of habeas cor
ptt?, or for .'an order of discharge, under
the act of Congress approved March 3,
1863, entitled ".An act i elating to habeas
corj)ustknd regulating judicial proceed
iDga in certain cases." The judges of
the circuit court were divided in opinion
opon this application, and certified the
JoHowing questions, on which they dif
fered, to the Supreme Court for decision.
' 1. "On the facta stated in said petition
and exhibits, ocght a writ of habea cor
pus to be issued according. to the prayer
of said petition 1" . -
2.'On the "facta, stated in said peti
4ion and exhibits, ought the said parties
to be discharged from Ciiatfidys in said
petition prayed t"
3 ;,Vbethct, upon the facta stated in
petition and exhibits, the military com
mission mentioned therein had jurisdic
tion legally to try and sentence said par
ties in manner and form as in said peti
tion and txhibifd is stated ?''
After the action cf the circuit court;
certifying the case to the Supreme Court
for final dcision, the President commu
ted' the sentence of the petitioners to im
prisonment for life.
- The argument of thosev questions,
which commenced on the 5 b and tcr-
' ruinated on the 13th of March, 18G6,was
conducted on the part of the petitioners
by J. E. McDonald, Esq., of Indiana,
Hon; J. A.Garfild, of Ohio, Hon. J.S.
Black, cf Pennsylvania, and David Dad
lew Meld, of New York a and on behalf
.0 the United States by
, of. Massachusetts, lion H
B F.Butler,
Ohio and lion. Jamea Speed, Attorney
General of the Unitod States. Ihe ar
gument of lit. BtACKj for the petition
ers taken in short-hand by Mr. D. F. of the conductors of The
Kepobteb, waa as lollows :
May it Please your Honors :
I am not afraid, that you trill under
rata' the imnortancc of this case. It con
ferns the rights of the whole people.
Such qaettions have generally been set
tled by arms. But since the beginning
of the world noNbattle had ever been
ipavr.wuu ur - -
a nation were so distinctly staked as they
: .. ... . . mc. Tk
- are on the result of this argument. Ihe
pen that writes the judgment of the
Cnnri w II Ti- miirhlier for POOd or lor
cvil thari'any sword that ever vras wiel
ded by mortal arm.
, As might bo expected from the nature
cf the subject, it has been a good deal
discussed elsewhere, in legislative bodies,
in public assemblies, and in the newspa
per press of the country. But there it has
' leen mingled with interests and feelings
not very friendly .'lo a correct conclusion.
Here'-we7 are in a higher atmosphere
wbert: no passion caa duturb the judge
mentor shake the even balance in which
the scalea of reason are held. Here it
is purely a judicial question j and I can
Bp'oak .for my colleagues as well ai my
telL when 1 ny that we have no thought
to safest whichv we tla not suppose to be
a fair element in the strictly lfgaljutlg
cient which you are required to make
la perfornaing tue auty assrgiiuu
xie in the case, I shall nceS3ari!y refer
(x tie mere rudiments cf Ccnstitution-L-Uwj
to the most commonplace topics
f history and to those plain ruls of
slice and right, which jpervade all our
iliirtiions - beg your honor3 to be
1 V3 that ihU is not done because I think
t the Court,, cr any member cf itr is
i familiar with these things than S am,
sensible cf therrvalm ; bul eiru-'is-I
onlv becaa?3, accsrdio to my
view of the subject, there is absolutely
no other way of dealing with it. If the
fundamental principles of American lib.
ertj arc attacked, and we are driven be
hind the inner walls of the Constitution
to tlefend them, we can repel the assault
only with thoso same old weapons which
our ancestors used a hundred ears ago.
You must not think the worse of our armor
because it happens to be old-fashioned
and looka'a ''little rusty from long dis
uio !
The case before yon present but a
single point, and that an exceedingly
plain one. It is not encumbered with
any ot those vexed questions that might
be expected to arise out of a great war.
Von are hot called upon to decide what
kind of a rula a military commander may
impose upon the inhabitants 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
follower! of his camp ;,or yet how he
may deal with civillians in a beleaguered
city or other place in a state of actual siege
which he is required to defend against a
public enemy. This coniest covers no such
ground as lha'. The men whose acts we
complain elected themselves into a 'tribu
nal lor ihe trial and ponihment of citizens
who were connected in no way whatever
wih ihe army or navy. And ihey did in
the midst of a community whose socia'
and legal organiz.i'ion had never been dis
turbed by any war or insurrection, where
the courts were wide open, where judicial
process waa executed every day without
interruption, and where all the civil author
lies, boih Slate and national, were in the
t fuit exercise of their fanciions.
Sly clients were dragged before this
strange tribunal, and after a proceeding,
which it would be mere mockery to call a
irial, they were ordered to be hung. The
charge against them was put into writing
and is found on this record, bat you will
not be able to decipher its meaning. The
relators were no t accused of-treason., for
no act is imputed to them which, if true,
would come within ihe definition of lhat
crime. Ii was not conspiracy under Ihe act
of 186!, for all concerned in this buiness
) musi have known, that conspiracy wan not
f ...
. nHnriku IF t Ti 14 rnmmuiinnprt
IfX LOIini V W W I t a .mw v.- ......
.. t r. i - i .,. i I
were aoie lo reaa iriiisn, uiey cuinu not ic ni '""s juuiuibi uisuiuuons oi
help but see that it was made punishable J this people. Ojr fathers long ago cast them
even by fine and imprisonment, only upon j both aside among the rubbish of ihe dark
condition that the parties shoulJ first be i ges, and they intended that we, their
convicted before a circuit or district court Children, should know ihem only that we
of the United States. The judge advpcaie I might blush aod shudder at the shameless
must have meant, lo charge them wi:h injustice and the brutal cruelties which
some offense unknown to the laws, which they were allowed to perpetrate in other
he chose to make capital hy legislation of , times and other countries,
his own, and ihe commissioners were so i Dut our friends on ihe other side are not
profoundly ignorant as lo think lhat the all impressed with these views. Their brief
legal innocsr.ce of the panies made no correspond? exactly with the doctrines pro
difference in ihe case. I do not say what pounded by the Attorney General, in a very
Sir James Mackintosh said' of a similar elaborate official paper which he published
proceeding, thai ihe trial was a mere con-, last July, opon this same subject. He then
spiracy to commit willful murder opon .
three innocent men. The commissioners
are not on trial, ihey are absent and unde
fended, and they are entitled to the benefit
ol that charity which presumes ihem lo be
wholly unacquainted with ju-t principles
of natural jnMice, and quite unable to com- ,
prchend 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
ooesiion upon which the court below divi
ded in opinion : Had the commissioners
jurisdiction were they invested with legal
authority lo try Ihe relators and put them 10
death for the offense of which ihey were
accused ? Ve answer, no,4 and therefore j
the whole proceeding from beginning to
end was utterly null and void. Ga the j
other hand, it is absolutely necessary for
'. those who oppose us to assert, and they do i
asseri.ihat the commissioners had complete (
legal jurisdiction both of ihe subject matter j
arid of the parties, so that their judgment i
upon the law arid the facts is absolutely i
conclusive and binding, not aot-ject to cor
rection nor open to inquiry in any couit
whatever. Of these two opposite views,
; y0U must adopt one or ihe other, for tbere
is nd middle ground on which you can pos'
bibly stand.
1 need not say, (for it is the law of the
horn books.) lhat where a court, (whatever
may be its power in o'her respects,) pre-
B0ffte9 f man fof an 0Ttnse of which
f . ' .
t has no right to lake judicial cognizance,
. . H .
! al1 ,s proceedings in that case are null and
lue " "c
another prosecution ; it he is found guilty
and sentenced, h is entitled to be relieved
from the punishment. Ifacircuit court of
the United States, should undertake to try a
party for an offense clearly wiibircihe ex
elusive jurisdiction of ihe State Courts, the
judgement conlJ have no eflect. II a
county court in the interior of a State should
arret an officer of the Federal navy, try
him, and order bim lo be hung, for some
offense aaainst-the law of nations, commit
ted upon the high teas or in a foreign port,
nobody would treat such a judgment other
wise than with mere derision. The Federal
courts have . jurisdiction to try offenses
against the laws of the United States, and
the auihnrity of the State Courts is confined
lo '.he puninhment ofacts which are made
penal by State laws. It follows ibat where
the accusation 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 th judges of this Court should organ
ize themselves into a tribunal to try a man
for witchcraft, or heresy, or treason.against
the Confederatetatea of America,- would
anybody say thai your judgment had the
least validity T " V
I care not, therefore, whether the rela
tors were intended lo be charged with trea.
son or conspiracy, or with pome offense of
.which the law lakes no notice
Either or
any way, the men who underlook to try
them had no jurisdiction of the autject-
Nor had ihey jurisdiction of '.he pnrUcs.
li is not pretended that this was a case of
I impeachment, or a eae arising in the land
or naval forces. 1 1 is either noihing at all
or efee it is a simple crime against the Uni
ted States, committed by private individu
als not in the public cervice. civil or rnilita
ry. . i'ersons standing in that relation to the i
Government are answerable for theofleoes
which they may commit only lo thu civil
courts of the country. So says the Consti
tution, as we read it ; and ihe act of Con
gress of March 3, 1363, which was passed
with express reference to persons precisely
in the situation of these men, declares that
they shall be deli vered up for trial to the
proper civil authorities.
There being no jurisdiction of the subject
matter or of the parlies you are bound lo
relieve the petitioners. It is as much the
dnty of a judge to protect the innocent as it
is lo punish ihe guilty. Suppose that the
Secretary ol fome department should take
it into his lieXd to establish an ecclesiasti
cal tribunal here in the city of Washington,
composed or clergymen "organized lo con
vict" everybody who prays after a fashion
inconsistent with ihe supposed safety of
ihe State. If he would select Ihe members
with a proper regard to ihe odium theologicnm
1 think i could insure him a commission
that would hang every man and woman
who might be brought before it.' Hut would
you, Ihe judges of the land, aland by and
see their sentences executed ? No ; you
would interpose your writ ol prohibition,
your habeas coipus, or any other process lhai
might be at your command, between them
and their victims And you woold do lhat
for precisely the same reason whi?h requires
your intervention here because religious
j errors like political errors, are not crimes
which any tody in this country has juris-
d.cnon lo punish, ar.d because ecc!eas:ical
i ... .... ..
! cammissmna. Iiira militarv pnmmiecmno
1 . j ..... .ui.jj
...... , .u J it:i : ..-
avowed it to be bis settled and deliberate
opinion lhat the military might ''take and
till,try arul execute," (1 use his own words)
persons wbo had no sort of connection with
the army or navy. And ihongh ihis be
done in Ihe face of the open courts, ihe ju
dicial authority, according to him, are ut
terly powerless to prevent the slaughter
which may thus be carried on. That is ihe
theeis which the Attorney General and his
assistant counsellors are to
maintain this
day, if they can maintain it, wi h
all the
power of iheir artful eloquence.
We, on the other hand, submit that a
person not in the military or naval service
cannot be punished at all until he has had
a lair, open, public trial belore an impartial
jury, in an ordained and established'court,
lo which the jurisdiction has been given by
law to try him lor ;nat specific offense.
i nere is our proposition. Between tne
ground we lake and the ground they occupy
there is and there can be no coproraiso.
It ae way or the other.
Our proposition ooght to be received as
true without any argumenf to support it ;
because if that, nr something precisely
equivalent to it, bo rot a part of our law,
this is not what we have always supposed
it to be, a free country. Nevertheless I
lake upon myself the burden of showing
affirmatively no, only that it is true, but Ibat
it is immovably fixed in the very frame
work of the Government, so that if is ut
terly impossible to detach it without de
stroying the -Ahole'political structure under
which we live. By removing it you destroy
the life of this nation as completely as you
would destroy the Me of an individual by
cuttinz the heart out of his body. I pro
ceed lo the proof.
In Ihe first rlace, the self-evident truth
will not be denied that ihe trial and pun
ishment of an-o.Tender against the Govern
ment is the exercise of judicial authority.
That is a kind of authority which woold
be lost by being diflused among the masses
of the people. A judge wcold be no judge
if everybody else were a jjdge as well as
be. Therefore in every society, however
rude ot however perfect i's organization,
the judicial authority is always commuted
to the hands of particular persons, who are
trufted lo use it wisely and well ; and their
authority is exclusive ; they. cannot share
it with others to whom it has not teen com
mitted. Where, then, is ihe judicial power
in this country? Who are ihe depositaries
of ii here ? The Federal Constifotisia an
swers that question in very plain words, by
declaring that "the judicial power of the
United States shall be vested in one Su
preme Court, and- in Bach inferior courts
as Congress may from time to lime ordain
and establish." Congress has, from time
to time, ordained and established certain
inferior courts j and ia ihem, together' with
I ih9 one Supreme Court tp wbici "they ate
subordinate, is vested all ihe judicial power
i properly to called, which" the United Slates
1 can lawfully exercise. That was the corn-
; pact made with the General Government at
J the time it was created. I ne stages anu
J he people agreed to bes ow upon that
Government a certain portion of '.ha judicial
Power which otherwise woulJ have re
: mamed in theirown hand., out gave n on
a solemn Irusl and coupled the grant of it
with this express condition thai it should
never be ued in any" way bot one ; that is,
bv means of ordained and established
coons. Any person, iherafore. who under
takes to exercise judicial power in any
! other waV not on'y "iolates the law of the
land, but he treacherously tramples opon
the most important part of lhat sacred cov
enant which holds these Stales together.
May it please your honor, you know,
and I know, and everybody else knows'
that it wa ihe' intention of the men who
founded this republ:c to put the life, liberty
and property of every person in it under
the protection of a regular and permanent
judiciary, separate, apart, distinct, from all
other branches of the Government, whose
sole and exclusive business it should be to
distribute justice amon; the people accord
ing to ihe wants and need of each individ
ual. It was Xo consist of courts, always
open to the complaint of ihe injured, and
always ready to hear criminal accusations
when founded upon probable cause; sur
rounded with all the machinery necessary
for the investigation of truth, and clothed
with sufficient power to carry their decrees
into execution. In these courts it was ex
pected that judges would sit who would be
nnriahl hnnpst unit KiiSir mpn. learned in
theUwa of their countrr. and lovers of 1
justice from the habitual practice of lhat
virtue ; independent bcaue theit salaries
could not be reduced, and free from party
pasiun because their tenure of office was
for life. Although this would place them j
. i. l . . n I . m . . f I hi marn mnS Q rut I
ttUU.C tilts kldliiUIS V, uic llicic? ,1, w anu
beyond the rech of executive ipfluenre, it
was not intended that they should be whol
ly irresponsible. For any willful or cor
rupt violation of their duty, they are liable
to be impeached ; and they cannot escape
the control of an elightened public opinien.
for they must sit with open door, listen to
full discussion, and give sitisfactory rea
sons for the judgments they pronounce. In
ordinary tranquil times ihe citizen might
feel himself sale under a judicial system so
But our wise forefathers knew that tran
quility was not always to be anticipated in .
a republic ; the spirit of a free people is
often turbulent. They exppcted that strife
would rise between classes and sections,
and even civil war might come, and ihpy
supposed, lhat in such times, judges them
selves mihl not be safely trusted in crimi
nal cases especially in prosecutions for
political offenses, where the whole power
of Ihe Executive is arrayed against ihe ac
cused party. All history proves lhat put
lie officers of any government when they
are engaged in a severe struggle to retain
their places, become bitter and ferocious,
and hale those who oppose them, even in
the raot legitimate way, with a rancor
which ihey never exhibit towards actua' ,
crime. This kind of malignity vents itself
ii prosecutions for political offenses, sedi- i
tion, conspiracy, libel, and treason, and the
charges are generally founded upon the in
formation cf hireling spies and common de
lators, who make merchandise of their
oaths, and trade in the blooJ of their lei
low men. During the civil commotions in
England, which lasted from the beginning
of the reign ot Charles I to the revolution
of 16S3, the oest men, and the purest pa. ;
. .
triots lhat ever lived, ien oy me nana or
the public executioner. Judges were made
the instruments lor inflicting the most mer
ciless sentences on men, the la'.chet of
whose hoes the ministers lhat prosecuted
them were not worthy to stoop down and
unloose. Let me say here, that nothing has
occurred in the history of this country to
justify the doubt of judicial integrity which
onr lorelathers seem to have felt. O.i the
contrary, the highest compliment that has
ever been paid to the American bench, is j
embodied in this simple fact: that if the j
executive officers of this Government have ;
ever desired to take away the life or the!
i liberty ol a citizen contrary to law, they
have not come into Ihe courts to get it
done, they have gone outside of the courts,
and stepped over the Constitution, and cre
ated their own tribunals', composed of men
whose gross ignorance, and supple subser
vience could always be relied on for those
base uses to which no judge would ever
lend himself. But the framers of the Con
stitution could act only upon the experi
ence of lhat country whose history ihey
knew most about, and there they saw the
brutal ferocity of Jeffreys and Scrogg, the
tim'wliiv of Guilford, and the base venality
of such men as Saunders and Wright. It
seemed nec-sary iherelore. nct only to
make ihe judiciary as perfect a possible,
bui lo give the citizen yel anoiher shield
against ihe wrath and malice of his Gov
ernment. To that end they could ihir.k of
no better provision than a public trial be
lore an impartial jary-,
I do cot assert that the jury trial is an in
fallible mode of ascertaining truth. Like
everything human, it bat i's imperfections.
I ocly say it is the best protection ol inno
xence and the surest mode of panishiug
guilt lhat has yet been discovered. Ii has
borne the lest of a longer experience, and
borne it better than any other legal insti
tution that eveexisted among men. Eng- j
an- I
deur, and her prosperity to that, than to all
other causes put together. !t has had the
approbation not only of those who lived
under it, but of great thinkers who looked
at it calmly from a di.tance, and judged it
impartially; Montesquieu and DeTocque
ville speak of it with an admiration as rap
turous as Coke and BlackMone. Within the
present ceniury, the most enlightened
states of continental,- Kurope have trans
planted it into their countries ;
and no peo-
aor ,,ir,nt(rl it once and were
wards willing to part with it. It was only
in 1830 that an interference with it in Bel
gium provoked a successful insurrection
which permanently divided one kingdom
into two. In the same year, the revolution
of the Barricades gave the right of trial b
jury to every Frenchman.
Those colonists of this counlry who came
from Ihe British Mauds, brought this insti
tution with them, and they regarded it as
Ihe most precious parts of their inheritance.
The immigrants from other places where
trial by jury did not exist Lecame equally
attached lo it as soon as they understood
whatltwas.- There was no subject upon
which all the inhabitants of the country
were more perfectly unanimous than ihey
were in their determination to maintain
this reat right unimpaired. An attempt
was made to 6et it aside and substitute mil
itary trials in its places, by Lord Dunmore,
in Virginia, and General Gage, in Massa
chusetts, accompanied with the excuse
which has been repeated so often in late
day", namely, lhat rebellion had made it
necessary; but it excited intense popular
anger and every colony from New Hamp
shire to Georgia, made common cause with
he two whose rights had been especially
invaded. Subsequently the Continental
Congress thundered it into the ear of
the world, as an unendurable outrage, suffi
cient to jtisiify universal insurrection against
the authority of the Government which
had allowed it to be done.
If the men who fought out our revolu
tionary contest, when they came lo frame
a government for themselves and iheir pos
terity, had failed to insert a provision mak
in" the trial by jury perpetual and univer
sal, ihey would have covered themselves all ;
over with inlarnv as wi.h a sarment : for
i they would have proved themselves basely
! recreant lo the principles of that very lib
! eny of which they professed to be the spe
1 cial champions. But they were guilty of
no such treactiery. 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 conld
be free under a government which had the
power to punish wiihout restraint. Hamil
ton expressed in the Federalist, the univer
sal sentiment of his
time, when
he said
that the arbitrary power of conviction and
punishment 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 mas
ter and his slave, consists only in this:
that the master holds the lash in his hands
and he may use it wiihout legal restraint,
while the naked back of the 6,'ave is bound
lo take whatever is laid on it.
Rut nnr fathers were uol absurd enonsh
to put unlimited power in thf hands of the '
ruler and take away the protection of law j
from the rights of individuals. It was not
thus that they meant "to secure the bless
incs of liberty to themselves and their prrs
tertty." Tftey determined that not one drop
of the blood which had been shed on the
other side of the Atlantic; during peven
centuries of contest with arbitrary power,
-l 1 i ..:..(, ).,. t.A Kit, tha frnitj
suou.u ....a . t, --
nf pvrv nonulax victory should be aarnered
1 ..
up in tins new government, ui on inu
great rights already won they threw not'an
atom away. They went over Magna Cnarta,
the Petition of Risk's, the Bill of Rights,
and the rules cf the common law, and what
ever was found there to favor individual
liberty they carefully insered in their own
systam, improved by clearer expression,
strengthened by heavier sanctions, and ex
tended by a more universal application.
They put all those provisions into the or
ganic law, so thai neither tyranny in the
Executive, nor party rage in the Legisla
ture could change them wiihout destroying
the Government iise'.f.
Look for a moment at the particulars and
see how carefully evert thing connected
with the administration of punitive justice
is guarded.
l". No ex postfnct'i lao shall be passed.
No man'shall be answerable criminally for
any act which was not defined and made
punishable as a crime by some law in force
at the time when the act was done.
... . . fir -ii . i.
2. For an act which is criminal he can
not be arrested wiihout a judicial warrant
founded on proof of probable cause. He
shall not be kidnapped and shut op on the
mere report of some base spy who gathers
the materials ol a false accusation by crawl
ing into his house and listening at the key -
hole of his chamber door.
3. He shali not be compelled to testify
against himself. He may be examined be
fore be is committed, and tell his own story
if he pleases ; but the rack shall be put out
of sight, and even his conscience shall not
be tortured ; nor shall his unpublished pa
pers be used against him, as was done most
wrongfully in the case of Algernon Sydney.
4. He shall be entitled to a speedy trial,
not kept in prison for an indefinite time
wiihout the opportunity of vindicating his
5. He shall be informed cf the acensa
acenser must put the charge into lite lorm
of a legal indictment, eo ihai the party can
meet it full in the face.
6. Even o the indictment he need not
answer unless a grand jury, after hearing
the evidence, shall say upon their oaths that
they believe it lo be true.
7. Then comes ihe trial, and it must be
before a regular court, of competent juris
diction, ordained and established for the
Stale und district in which the crime was
committed, and this 6hal! not be evaded by
a legislative change in the district after the
crime is alleged to de done.
8. His guilt or innocence shall be deter
mined by an impartial jury. These Eng
lish words are to be understood in iheir
English sense, ani! they mean that the ju
rors shall be fairly selected by a sworn of
ficer from among the peers of the party .re
siding within the local jurisdiction of the
court. When they are called into thS box
he can purge the panel of all dishonesty,
prejudice, personal enmity, anu ignorance
by a certain nhmbfer of peremptory chal
lenges, and as many mofe challenges a he
car, sustain by showing reasonable cause.
9. The trial shall be public and open,
lhat no under-hand advantage may be ta
ken. The party xhall be confronted with
the witnesses against him, have compulso
ry provess for his own witnesses. and be en
titled to the assistance of counsel in his de
fense. 10. After the evidence is heard and dis
cussed, unless the jury shall, upon Iheir
oaths, uniinithmiily agree to surrender him
up into the hands of the court as a guilty
man, not a hair of his head can be touch
ed by way of punishment.
1 1 After a verdict of guilty he is still pro
tected. No cruel or unusual punishment
shall be inflicted, nor any punishment at
all, except wnat is annexed by the law to
his offinse. It cannot be doubted for a
moment that if a person convicted of an of
fense not capital were to be hung on the
order of n judge. such judge would be guil
ty of murder as plainly as if he should
come down Irorn the bench, tuck up tt.e
tleeves of his gown, and let out the pris
oner's blood with his own hand.
12. After all is over, the law coniinues to
spread its guardianship aronnd him.
Whether he is acquitted or condemned he
shall never again be molested for that of
fen e. No man shall be Iwice put in jeoap
ard) of lite or limb for the same cause.
These rules apply to all criminal prose
cutions. But, in addition to these, certain
special regulations were required for trea
son (he one great political charge under
which more innocent men have fallen than
any oiher. A tyrannical government calls
everybody a traitor who shows ihe least
unwillingness to be a slave. The party in
power never falls, when it can, to stretch
the la vv on that subject by construciicn, so
as to cover its honest and conscientious op
ponents. In the absence of a constitution
al provision it was justly feared lhat stat
utes miht be passed which would put the
lives of the most patriotic citizens at the
mercy of the basest minions that skulk
abount under the pay of the Executive.
Therefore a cefinitiou of treason was given
in the fundamental law, and the legislative
authority could not enlarge il to serve the
purpose of partisan malice. The nature
and amount of evidence required to prove
the crime was also prescribed, so that prej
udice and enmity might have no share in
the conviction. And lastly, ihe punishment
was so limited that the property ol the par
ty could not be confiscated and used to re
ward the agents of his persecutors, or strip
hi- family of thier subsistence.
If these provisions exist in full force, un
changeable and irrepealable, then we are
not hereditary bondrnen. Eevry 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 ol a freeman.
I say they are in fcrce, and they will re
main in fo"ice. We have not surrendered
ihem, and we never will. If ihe worst
comes to the worst we will look to the liv
ing God lor His help, and defend our rights
and the rights ol our children to the lat e.t-
'T- 1 . C- . . . . ikt..r ... r. t n I. at
iremiiy. uomi men m,i.& iu
subjected and abjected to the condition of
mere slaves a:3 wholly mistaken. The
great race to which we belong has not de
generated so fatfclly.
But how am 1 to prove the existence of
these rights 1 1 do not propose lo do it by
a long chain of legal argumenlaticn,nor by
the production of numerous books with
the dog-eared and the pages marked. It it
depended upoi judicial precedents, I think
I could produce as many as might te nec
If I claimed this freedom, under
any kind of prescription, I cculd prove a j
sood long possession in ourselves and those
under whem we claim it. I might begin j
with Tacitm and show how the contest:
arose ia the forel of G ermany more than I
turn Tin ihsi u , r ii i r a w . " - - r
tues and sound common sense of thai peo
ple established the right of trial by jury,
and thus stared on a career wnicn nas mauw
their pos.eriir the foremost race that ever you by showing how this subject was ireai
tneir posiemj me ed bv ihe french Court of Cassation in Ge
lived in all .be tide of lime. The Saxons j J V;'nJer the Constitution of 1830.
carried it to England, and were ever ready i whn a roiitary judgment was unhesita
to defend it with their blood, lr-was crush- tin2y pronounced to be void, though order
ed out by the Danish invasion; and all that ! ed by the King ifhet a proclamation declare
. Tr '"dvoppre"',?" i
ring the period ot iheir subjugation reset-. ,rom our enernies-at alt cvenn we should
ed from the want of trial by jury. If that j. b,Qgh at lbe th0nght of not being equal on
had been conceded to them the reaction PUch a subject to the courts of Virginia,
would nol have taken place which drove Georgia, Mississippi and Texas, whose da-
wouiu uuw.a v , - my col eagoe, General Garfield, haa iha njneatn their frozen homes in the -" j e
North. But those mtnan sea-Kings couia
Alfred, the greatest of revolutionary heroes
and the wisest monarch that ever sat on a
throne, made the first use of his power, af
ter the Safons restored it, to re establish
ancient laws. He had promised them that
he would, and he was true to them because)
ihey had been true to him. But it was not
easily done ; the courts were opposed to it,
for it limited flieif power a kind of power '
that everybody covets the power to pun
ish without regard to law. He was obliged
lo hang forty-four jndes in one year for re
fusing to give his subjects a trial by jury. ,
When the historian says that he hung '
them, it is not meant that he put therti to
death without a trial. He had them im
peached before the grand council of the na
tion, the Wittenagemete, the parliament of
lhat time. During the subsequent period
of Saxon domination no man on English
soil was powerful enough to refuse a legal
trial to ihe meanest peasant. If any min
ister or any king, in war peace, had
dared to punish a freeman by airibunal of
his own appointment, lib would have tous"
ed the wrath of the whole population ; all '
orders of society would have resisted it ;
lord and vassal, knight end " equite; ptlest
and penitent, bncrhan and socman, master
and thrall, copyholder and villain, would
have risen in one mass and burnt the of
fender to death in his castle, or followed
him in his flight and lorn him to atoms. It
was again trampled down by the Norman
conquerors; but the eviU resulting from Ihe
ward of il united all classes in the effort
which compelled King John to restore it by
the Great Cha ner. Everybody is familiar
with the struggles which the English peo
ple, during many generations, made for
their rights with the PIantfig2nets, the Tu
dors, and ihe Stuarts, rind which ended fi
nally in the revolution of 1CS3, when the
liberties of England were plaited upon an
impregnable basis by the Bill of rights.'
Many times ths attempt was made id
stretch the royal authority farenoogh to jus
tify military trials ; but it never had more ,
than temporary success. Five hundred
years ago Edward 11 closed up a great re
bellion by takiug the life of its leader, the
Earl of Lancaster, after trying bim before
a military court. Eight years later. thai
same klng.logether with his lords and com
mons ia Parliament assembled, acknowl
edged with shame and sorrow that the ex
ecution of Lancaster waa a mere murder,
because the courts were open and he might
have had a IsgEl trail, tjueen Elizabeth';
for sundry feaons affecting the safety of
the State, ordered that certain offenders not
of her army should be tried according irj
the law martial. Bat she beard ihe slOrrh of
popular vengeance rising. and; haughty, im
perious, sell-willed as she was, 6he yielded
the point : for she knew that upon thai sub
ject the English people would never con
sent to be trifled wi h. Strafford, as Lord
Lieutenant of Ireland, tried the Viscount
Stormont before a military commission, and
cut off his head. When impeached for it,'
he pleaded in vain that Ireland was in a
state of insurrection, lhat Stormont was a
traitor, and ;he army would be undone if it
could not defend itself wiihout appealing
to ihe civil courts. The' Parliament was
deaf . the King himself could not save him;
he was condemned to suffer death as a trai
tor and a murderbr. Charles 1 issued com
missions to divers officers for. ibe trial of .
his euemies according to the course of mil- .
itary law. If rebellion ever was an excuse
for such an act, he could surely have plead
ed il : for there was scarcely a spot in his
kingdom, from sea to sea, where the royal
authority was not disputed by somebody;
Vet the Parliament demanded iu their peti
tion of r.ight, and the King was obliged to
concede, that afl his commissions were iU
legal. James 11 clamied the right to sus
pend the operation or ihe pensl laws a
power which the courts denied bullhe" ex
perience bl his predecessors taught bim.
lhat be 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 be could have se
lected their judges rom among the meY'
cenary creatures to whom he bad given'
commands in his army. But this be dared
not do. He was obliged to 6end ths bieha
ops to a jury and endur'a the mortification'
of seeing them acquitted. He, loo, might .
have had rebellion lor an excuse, If rebel
lion be in excuse.
The conspiracy, was already ripe
which a lew months afterwards made hinrf
an exile and an outcast ; he had reason trf
believe that the Prince of Orange was mak"
ing his preparations' on the other side of
the channel to invade the kingdom, where
thousauds burned to join him ; nay.he pro-
nounced the bishops guilty ot rebellion by
ihe very act for which he arrested them.-
Hrt had raised an array to meet th rebel
lion, and he was on Houns'ow Heath re
viewing the troops organized fof that pur
pose, when he heard the great shout ol jny
that went up from Westminister Hall, wae
echoed back from Temple Bar.spread down
the city and over the Thames, and rose
from every vessel on the river ihe simol
ultaneous shout of two hundred thousand
men for the triumph of justice and law.
If it were worth the time, I might detain
read and commeniea on.
i . .
(Co7iinudn wtk )