448 ARGUMENT IN METROPOLITAN BANK v. VAN DYCK. issued upon motives of general policy as a common medium of circulation.' It is to be remembered, too, that this is not an issue between the States and the nation-between two clashing sovereignties-but simply a question whether the power we contend for has been annihilated, or whether it exists in the federal government for the common protection of the people and the States. We submit that, in determining this issue, the Constitution is to be read as an ordinance of sovereignty, by the people of a continent, for the maintenance of public law and liberty, and the defense of themselves and their posterity. It is also to be remembered that the paramount duty of every citizen, every officer, every judge, State and federal, is to uphold the government and defend the Constitution. Especially is this our duty when the issue presented is, whether the Constitution, adopted by the people for their protection, shall be so wrested from its objects as to inure only to the benefit of the public enemy. It happens, by a singular coincidence, that the appeal to your Honors, to declare the government impotent for its own defense, is made at a time when the heels of the rebel soldiery are polluting the soil of a free State, between the capitol of New York, in which we hold our deliberations, and the capitol of the nation, where final judgment is to be pronounced. On the theory we maintain, the Constitution was designed as a citadel to secure public liberty and repose. On the theory of our adversaries, it was to serve as a grave, in which sovereignty should be buried alive, to linger only until life should be extinguished by suffocation. “E pluribus unum” is not a mere rhetorical phrase, but the terse record of the philosophy of our system of government—a stumbling-block only to those who reject even the mathematical postulate that the whole is greater than either of its parts. The effect of yielding to the views of these tenacious friends of the Constitution, would be to relieve them and us from its burdens and its protection. It would be to deliver over the government to its enemies, "monstrum ingens—cui lumen ademptum"-nay, more, with its inherent force and its constitutional power of self-defense, bound to helplessness with cords spun from its own fibre. II Statesman's Manual, 330. ARGUMENT OF WILLIAM A. BEACH, IN DEFENSE OF SAMUEL NORTH AND OTHERS, CHARGED WITH TAMPERING WITH SOLDIERS' VOTES. BEFORE A MILITARY COMMISSION AT WASHINGTON, D. C., FEBRUARY, 1865. ANALYSIS OF MR. BEACH'S ARGUMENT. 1. Powers assumed by military courts. 3. A military commission has authority to 4. General observations as to the nature of crime, and the philosophy of punishment. 5. The authority of the court extends only to violations of military law. 6. The charges against defendants do not embrace a military crime. 7. The charges not sustained by the specifications. 8. Civil offenses not within the jurisdiction of the court. 9. No authority conferred upon the court to try civil offenses. 10. Military law defined. 11. Ruinous consequences which must fol- 12. Defendants entitled to an acquittal. 14. Rule as to the existence of martial law. 15. Consequences of the doctrine advanced by the judge advocate. 16. Constitutional rights cannot be suspended. 17. The doctrine of suspending the Constitution novel and startling. 18. Provisions of the Constitution sufficient for every political possibility. 19. All constitutional authority clearly de- 20. Case of Vallandigham distinguished. ment. 22. Whether defendants can be punished under the State law immaterial. 23. Duty of government to protect its soldiers considered. 24. Jurisdiction of the court must arise from positive law. 25. Questions of fact involved. 26. Private character of Colonel North. Samuel North, Levi Cohn, Marvin M. Jones, and two others, were tried before a military commission, convened at the city of Washington in February, 1865, charged with having falsely and fraudulently signed and issued election blanks, purporting to have been sent by soldiers in the field, to their homes in the State of New York; and for attempting to cast the votes of absent soldiers, in fraud of the rights of the true elector. The accusation was rendered doubly criminal and detestable, in view of the events transpiring at the time, and ex[449] 29 cited popular wrath and indignation everywhere. It was during the war of the rebellion, at the critical period, when it became necessary to choose a President of the United States. In the dark and perilous hours of that great conflict, which was to decide the existence of our institutions, any attempt to interfere with the political rights of our country's defenders could not be tolerated or excused upon any pretext. The circumstances surrounding the case were as follows: The legislature of the State of New York, on the 21st of April, 1864, passed an act to enable qualified electors of the State, absent therefrom, and in the military service of the United States and navy thereof, to vote (Laws 1864, ch. 253). The soldier was required, by the provisions of the act, to authorize any elector of the town or city where he resided to cast his vote for him, such authority to be in writing properly executed and acknowledged. The ballot and the written authority were to be sealed in an envelope, which was to be placed inside of another envelope marked "soldier's vote," and forwarded to the elector authorized to cast it, by mail or otherwise. The delivery or presentation of any forged, altered or changed ballot was declared to be a misdemeanor, subjecting the offender upon conviction to fine and imprisonment. It was alleged that the defendants had prepared and forwarded spurious votes, and also that they had abstracted genuine votes and inclosed others instead. The charge was, therefore, of the most heinous character, being a political crime and an offense against society, meriting the severest punishment. Public opinion and public prejudice were strongly against the prisoners, and their condemnation was demanded by the press of the country. The accused were arraigned before a military court, sitting at the national capitol, a tribunal which, as the sequel shows, had no power or authority to detain the prisoners. and was without jurisdiction of the offense charged. Under such circumstances Mr. Beach made his masterly argument in behalf of the defendants. But it was at a juncture when the advocate appears to the best advantage and is of the greatest service. As was truly remarked by Mr. James T. Brady, in his address in defense of the "Savannah Privateers," the advocate is of very little use in the days of prosperity and peace, in the periods of repose. It is only when public opinion, the strong power of government, the formidable array of influence, the force of a nation, or the fury of a multitude is directed against you, that the advocate is of any use." The defense presented by Mr. Beach was twofold in its character: first, he contended that the court had no power or authority to detain, try or sentence the prisoners, and, secondly, that from the evidence in the case it appeared that the defendants were innocent of the charges preferred. The result was complimentary, not only to the intellectual powers of the advocate, but to the sterling integrity of the members of the tribunal whom he addressed, who despite the pressure of public opinion and the clamor of an injured community, refused to usurp powers which they did not possess, and discharged the prisoners. For the prosecution appeared General John A. Foster, the judge advocate. The prisoners were represented by William A. Beach, of New York, and John D. McPherson and Mr. Gillet, of Washington. After the evidence was all in, Mr. Beach addressed the court as follows: MAY IT PLEASE THE COMMISSION:-I may assume, with propriety, that Your Honors and myself have a common purpose in our present labor. It is, to accomplish essential justice. Of course this is the sole object of this honorable Court. I know the partisanship of counsel, the partial prepossessions of professional effort. But there are occasions of exalted interest, which inspire the spirit of advocacy with something of their own elevation. I deem this one of them. It reaches the domain of executive power. ciates with the cardinal principles of government. sacred rights of personal liberty and of trial by jury. It is magnified by the demands of exigent war. We cannot but feel that it is invested with unusual and elevating consequence. While I acknowledge the enlarged sentiments it excites, I greatly regret that it does not confer a corresponding ability for their expression. It assoIt concerns the I. POWERS ASSUMED BY MILITARY COURTS. I design no disrespect by the remark, that I speak rather for my cause than for the Court. As an organized tribunal of the country I render to it, personally and collectively, the respect due to its dignified position. Still, I cannot resist the conviction, that this is not the safest judgment seat for civil right and individual liberty. Your Honors are a military tribunal, instructed soldiers, imbued, it is true, with the chivalric characteristics of your profession, but inclined, nevertheless, to the severe and summary conclusions taught by the necessities of the camp and the field. I miss the forms and the principles of civil judicature, the atmosphere of legal experience and thought pervading the courts of common law. I cannot forget, that I stand in the presence of military power, associated with all the terror it brings to the sensitive apprehension of organized and regulated justice. Nor can I forget, that in the progress of this case, this Court has already demonstrated its natural tendencies, manifested the influences which inhere in and surround it. By an excusable association of ideas, one would connect with a military court like this, the trial of military crimes. Propriety would seem to require that its jurisdiction should be limited to the soldier, and the necessities of armies; that, untaught in the profound wisdom of municipal law, unfamiliar with the vast system of rules within which civil right is enshrined, this Court would be content so to administer its office, as to protect military organization and secure military efficiency. It has adjudged otherwise. It asserts the power to punish a It civilian for an offense against the domestic law of a State. claims jurisdiction over the citizen of New York, to punish an alleged crime against her dignity and peace. It arrogates the power to supersede her authority not only, but here, in the midst of regular courts, active and efficient in the exercise of all their functions, to assume the trial and punishment, by military law, of private citizens charged only with civil malefaction. Surely the incongruity of this proceeding cannot fail to excite astonishment and dread. It invests this cause with a new dignity, elevating it far above personal consequences. It will be engrafted upon the history of these deplorable times, not the least among the many indications marking the decay of American liberty. It is for this cause I speak, with the hope of demonstrating its true character, and exposing dangerous violations of public law and private right. Your Honors, I am sure, have no desire to usurp authority. You cherish the rights of a common citizenship. You recognize the ancient principles which constitute this government a government of law, and upon which, alone, American freedom can securely rely. In the great emergency oppressing our country, the fear is, that an ardent patriotism will forget its reverence for the law; that, in eager pursuit of desirable ends, it will be less scrupulous of the means employed. Such is the necessary tendency of war. It is hostile to regulated peace. It is the element of force acting destructively upon civil institutions. Unless restrained within the limits of actual necessity, it grows into turbulent despotism. 2. THE ACTION OF THE COURT CANNOT BE JUSTIFIED ON THE PLEA OF MILITARY NECESSITY. I do not overlook or deny the prerogatives of military necessity. I acknowledge the presence and rights of war, and would not, if I could, abridge the power which shall arm this government with the amplest ability to maintain its integrity. Purest patriots may differ in the details by which this result may be attained, but to that result every loyal heart is irrevocably pledged. Quite possibly Your Honors and myself might differ as to the circumstances creating the extreme necessity, before which the ordinary functions of government, and the securities of society, are at once prostrated. I raisc no abstract issue of principle. Conceding the doctrine in its most |