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00Arbitrary Arrests.The case of Andrew Humphreys v». Samuel McCormick et al., is before the Supreme Court on appeal by the defendants. From the brief of Judge Hanna, counsel for the appellee, we makethe following extracts :The petition shows the status of appellants— that they were citizens of Sullivan county and members of a militia company of the State, of which McCormick was captain. It is then alleged that before the trespass complained of there was, towards those in authority, a t-urbu-itI.■lent, disosderly and insubordinatespirit abroadlaifiIamong the people, and that the plaintiff hadknowledge of and sympathized in that feeling. This is the full purport and extent ef the allegation upon that *point. It is true, the idea is clothed in inflammatory language, about “secret treasonable organizations,” whose purpose is avowed to be inimical to law and order. But until people commit an overt act, there can be no crime, however hostile they may be, in feeling, towards those in authority. (It is possible this might be illustrated by reference to the feel ing of certain secret organizations that now exist, towards the present President.) If people go so far as to put this feeling in the shape of acts, in levying war, Ac., then they become amenable to the courts of justice—not to every upstart supposing himself to be clothed with a little brief authority.—See ex parte Milligan.— If, in a given ease, the civil arm is powerless, its remedies insufficient, an insuirection might, by the proper authorities, be proclaimed to exist, Ac. But no such thing is shown to have been done. With Americans, peace is tne normal state of society. If Avar existed in Indiana, jusby a too willing subordinate militia officer. 1 subordinate cannot “call out” the militia of In dina, and an attempt to so act might lead te scenes of great violence and discord.But it may be said the U. S. authorities may upon occasion, act in reference to State matters Let us see. Art. 4, sec. 4 U. S. const, provide* when such an emergency may arise, namely “On the application of the Legislature, or o the Executive, (when the Legislature cannot blt; convened) against domestic violence.”No such application was made in this in stance; and if it had been; the President, undei the act of Feb. 28, 1795, could only have called forth “such number of the militia of any other Stmte or States” as might have been necessary. And even after help had been asked, it would have been a question for the President—not for Hovey—whether an exigency had arisen upon which the gov’t of the U. S. was bound to interfere. 7 Howard 11. He could not call the militia of the State asking help, for in theory they are under the control of that State.In Indiana the constituted authorities bad not proclaimed that an insurrection existed; nor had the Governor called forth the militia because of or to suppress domestic violence in her borders; nor had martial law been proclaimed witlun her limit*.The government of the State, under the* constitution, requires and rightfully expect* obedience from every citizen; but at the same time it owes and guarantees to him protection, freedom from illegal arrest and false imprisonment. “Thevery essence of civil liberty certainly consists in %. * •the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is | to afford that protection.” Marbury vs. Madi-tifying warlike acts by these home-brewed war- ; 80n j Craneh, 163. If there is any act, of Con-• .v vt ill *« m i ... r. 1 •.*riora, the record should show it. 3 hereforc it j violative of this fundamental principle of*on ; a free government we are not aware of it; and arc without justification; namely; That Hovey, J jf jg it deserves to bespit upon by a freea General in the U. S. military forces, issued anorder to one Hay, a captain in the same service, for the arrest of citizen Humphreys; and that *aid Day should call upon Hughes, a general of the State militia, for assistance. It is averredpeople.This Brig. Genl. had no authority by virtue of any express constitutional provision, nor any law of Congress, to make this arrest. Had he. 1 i any authority under military law to d(» so? Wethat Hughes issued an order to said McCormick ; 8Ily no^ because such laws were not intended toto detail twenty-five men for special duty and report to Capt. Day; that he detailed deft*, and they made said arrest, Ac.nor do they reach private citizens. It is “a body of rules and ordinances prescribed by competent authority for the government o f the military State1 liese pretended orders are not set forth. The ( considered as a distinct communityO’Brien question is, Does this bring the case within the • Qourts Martial, 26. In the U. S., Congress has,irevisions of the act of 186*1—no motion having e«an made under any act of a later date.Civil liberty cannot exist in any country unless plain and well-established rules maintainfor the guidance of those in authority, and the government of subordinates and citizens. It is so declared by our highest.court, viz; “The government of the United States lias been emphatby the Const., power “to make rules for the government and regulation of the land and naval forces.” Under this the “Articles of War” ! have been established. These articles or laws are adjudicated by court* martial. Where persons are properly arrested for a violation of these laws, court* martial have authority totry them. As the right to a speedy trial is a ically termed a government of laws and not of \ favorite doctrine of freedom, and secured by men.” Marberry vs. Madison, 1 Craneh, lo3. .constitutional guarantees, trials for a violationWhat provision of the fundamental or statute , 0f military law cannot be unreasonably deferred.atlaw is shown to authorize the act complained of? i jf thig armt had been rightfully made by willWe ’ 11. n. . _ .a. -1Genmay be answered b}’ pointing to the act of j fal-y authority, by that authority the appellee ’1 Hovey. Aye, but laws govern, not men, | conjq have been tried; and yet the SupremeWe want to see the law empowering a military j CoUYt of the n g % in ex-part,e Milligan, haveofficer, in the U. S. forces, to order the arrest of a private citizen of Indiana, not in tin* military or naval service or in anv wo j connected therewith. This is not a trifling question; it is notone of the past; but it is vitally important to theupresent and the immediate future—to citizen Humphreys and, perhaps, more to those who have differed with him, if light does not gleamthrough the dark clouds now obscuring our horizon. Once let it be firmly established by judicial decisions, that the President, as commander in chief of our armies; or his subordinates,held that such a trial was a nullity—that the acta of the military officers was a usurpation in the trial, and, we say, consequently, in making the arrest, and holding the plff. in custody. This surely follows, for no civil writ had been issued —no court or its officer had called for the assistance of these men. Their act was voluntary. They must abide its consequences.But it may be assumed tnat the necessities of the times justified such arrests. The plea of the law of neeessity is a tyrant s plea. It is one that has in all ages, and in none more than the pres-^ 9 | . i j. jh. A A ^ \ y VV A A 11 v/ * « v. « 4, * vy a v V * k lmay arrest private citizens here, and there, and en^ ftn^ jT1 eVl.ry part icular, been so abused—everywhere, for cause, or without cause; and tliat very day the doom of personal liberty is sealed—it is in the hands of men and not oflaw—and 111011 that may be wicked, corrupt or tyranical; for men ore falible. When a citizens% 1 . « 1 • 1rights have been violated; let the disturber be required to place his hand on the law that authorized his act.But if Congress possessed the power—which it does not; and had by an act authorized the seizure of private citizens by U. S. Military Officers; that would not have justified General Hovey in ignoring;, pushing aside as it were, the Governor of the State, and issuing orders to a subordinate militia officer. If he possessed thia right our rulers have been exceedingly foolish in spending millions of dollars to fill up thearmies by draft Ac., when they might have sentHovey into each State and Whim order out the militia, and place them under the command of a U. S. Officer. No such right exist*, and every man is presumed to know the law. The order of Hovey, to a State officer, was a nullity—-and its obedience could not be rightfully required. This was well known to Hovey, Hughes, and every one that acted under them. No agreement of U. S. and State military officers to violate the law,can render that valid which is otherwise void—that legal which is otherwise a trespass.Congress provides for calling forth the militia —not a Brig. Genl. Art. I, sec. 8, const. Even the President cannot assume command of such forces until thus “called into the actual service of the United States.” Art 2, sec. 2, const And, we repeat, that call must be by Congress. 3 Elliott’s Deb. 103; Story on Const.,sec. 1493.Well may we say, then, that the attempt of Hovey to assume command of the State forces, was not only absolutely null and void, but was also a dangerous innovation upon the rights of the State authorities; and an unscrupulous, notto say corrupt usurpation of power. Why do we say this? because: Art. 5, sec. 12, const, of Ind. says that “The governor shall be commander-in-chief of the military and naval forces, and may call out such forces to execute the laws, or to suppress insurrection or repel invasion.” A State cannot, without the consent of Congress,engage in war, unless actually invaded. Art. 1, sec. 10, const.; but it has been held that it may use it* military to put down an armed insurrection too strong to be controlled by the civil authority. Luther vs. Borden, (Dorr ease) 7 How. 1-45 ; and that “the State itself must determine what degree of force the crisis demands.” id. As neither Hovey, Hughes nor McCormick can, in the language of the Supreme Court, be considered “the State,” they could not, singly or collectively, determine the degree of force wfcich should he brought into requisition.Who should determine this? Art. I, sec. 33 const. Ind. provides that “The military shall be kept in strict subordination to the civil power;” and sec. 12 secures the right of persons from unreasonable seizures, and declares that “the operation of the lows shall never be suspended except by the authority of the General Assembly.” sec. 26. Whether the Legislature should resolve, direct, or legislate in a given instance before the Governor could “call out the militia” for any of the purposes named in Art. 5, we need not inquire, feut certainly the State, that is the body politic, through it* regularly constituted agents, must determine several points:— First, is there an invasion, or insurrection, or are the laws set at defiance and the civil power too weak? These are serious questions, m the determination of which may depend domestic peace or violence. There are chosen agent* of the people to solve these questions, and they are not subordinate military officers of the U. S. or State forces, In Indiana a million and a half of people have a present interest in the prudent exercise of this dangerous, but necessary, power.It is not shown that an insurrection existed— nor was such the fact; but that it was surmised that such a thing was contemplated. Surmised by whom? By a man that had no right to de-ri /I A ... V i Tj ° « •such cold-blooded outrages committed under its shield, that I cannot trust myself in its discussion. Under it the Irish have been exiled that their native land may be converted into a sheep walk; the Sepoys shot from the cannon’s mouth that British rule may be perpetuated in India; PoJandcns murdered upon their hearthstones or banished to the wilds of Siberia that their once beautiful land might be divided among their conquerors.I shall rest content in quo! ing the language of a very loyal (as the word goes) author on that point, viz: “Plainly to commend an unlawful thing, on the ground that it is necessary is toconfound not only all legal distinctions, blit all moral ones also. It is to overturn into one lump obedience and disobedience, virtue and vice, Heaven and hell. Woe to our country if such gabble takes the place of legal doctrine. ” 1 Bishp. Cr. L., sec. 54.Something may be said as to the amount of damages. The record shows that the plff. was forcibly seized, carried away and closely imprisoned for three months and partially deprived of freedom of action for six months more—that he was treated with rigor and efforts made to humble and humiliate him. Who can measure, in paltry dollars and cents, the air, the sunlight, the right to move and breathe and have a being —in a word freedom. Who, better than a jury, can do this. No man can place an estimate upon these God given blessings. He who unlawfully deprives his fellow man of this invaluableheritage must, in this country of laws, abide thehijudgment of his peers, upon his act.An Incident—The Release of SiteHon. L* P» Milligaa-The late decision by the Supreme Court of the United States in the case ofthe Hon. L. P. Milligan, of Indiana, thevictim of an illegal and arbitrary military commission, revives in our memory an incident connected with his imprisonment in the Ohio Penitentiary, which has not been published hitherto. The partisan officers in the care of ti e Columbus Pen-IfMilliganifenfiary at first treated who was as innocent of any oliense as they were—with great brutality. Among other things they compelled him,although he was a lawyer by profession and knew nothing about dentistry, to draw the teeth of such of the prisoners as had the toothache. Upon one occasion, after he had protested his ignorence of the art of tooth extraction, he was compelled, underthreat of punishment, to put the forceps upou a tooth of one of the convicts. In his inexperience he put them upon roots that were connected with two teeth, and drew them both at once, frightfully lacerating the poor prisoner's jaw and inflicting a terrible amount of pain upon1thim.eide on that point. It was not a part of his business to usurp the powers of the General Assembly and the Governor of Indiana; and whenhe undertopk'to do so he was guilty of a blun der, a folly and a crime. Nor does it in theVirvlefpt* Viim nn fn ahntxr flinf hp vnn flit nrl I WTOTlCFS:r. Milligan states that when he saw what he had done, he had a mental anguish only inferior to that of the prisoner, and all was owing to the refined cruelty.of the keeper in putting such a task upon him.Mr. Milligan was first taken to the fileshop, one of the unhealthiest places in the prison, and given a kind of work that soon entirely prostrated him and sent him to the hospital. All sorts of such indignities and outrages were inflicted upon this gentleman, who is a prominent citizen of Indiana, simply because he was a Democrat and had been cruelly treated by a military commission. There ought to be, somewhere, a legal remedy for suckICincinnati Enauirer.flt;lt;v11tis11i1(i.It
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Sullivan Democrat
Sullivan, Indiana, US
Thu, Jan 10, 1867
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Anonymous
USA 11 Jul 2020
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