linking your names nobly with the fate of constitutional freedom. It may be that the forebodings of many good men are but the childish fears of a timid conservatism. The lessons of the past may be reversed; triumphant power may surrender its victories over violated right, and restore a mangled Constitution; but, Your Honors, it is not for you to speculate upon the desperate venture. As a court you will administer the supreme law, temporizing with no considerations of expediency, fearless of all dictation, animated only by an unswerving love of justice. It cannot be concealed that this cause derives further interest from its conflict with the claimed power of the State of New York. The defendants are her citizens. The law violated, if any has been violated, is the law of her legislature. The offense, if any, is against her sovereignty. By taunt and gibe and innuendo, her executive has been assailed, and the purity of her elective franchise has been impeached. These have been justified by the revelations of this trial. The calumnies of a reckless partisanship have been refuted by the clearest demonstration. They answered their temporary purpose; but their calculating and baseless malice has been exposed. It remains for this Court to recognize and acknowledge the jurisdiction of the State of New York over these defendants. She claims the power to vindicate her own majesty, to avenge her own laws, and purify her own record. She asks no aid from the military arm of this government. Competent to punish, if guilty, and to protect, if innocent, she demands her citizens from the hands of this Court. Your Honors may heed her not. In the flush of armed authority, environed by the "pomp and circumstance" of war, her remonstrating voice may be unheard. She raises above her persecuted children the double shield of the Constitution and her own sovereignty. You may suspend the one and deride the other; but your judgment must meet the review of posterity, if it shall escape the swift retribution of the present. And why, Your Honors, deny her claim? Is the justice of New York distrusted? Is her loyalty to our institutions suspected? Is she so debauched and impotent that the general government, by military tribunals, must assume to vindicate her honor? What overwhelming State necessity demands a remedy so revolutionary and perilous? Is the army endangered? Is the government shaken? Have rebellion and anarchy uprooted the constituted forms of peaceful society? Oh no! Your Honors; not in these must you seek the cause of this unrighteous prosecution. It is honored by no love of country, dignified by no zealous fear for her security. It is all selfish and malignant. It is the instrumentality of despotism, or it is the refuge for political depravity. It may be both; but whichever it is, it is destined to ignoble failure and perpetual malediction. These defendants may be immolated, but the purpose which sacrifices them shall not be secured. The rebounding vigor of the Constitution, the elastic vitality of the law, will ultimately prevail. Patriotism may sleep on in its strange apathy; the delusion of a vicious prosperity may mislead its vigilance; its deathless love for the Union of the fathers may stifle its alarms; but the awakening will surely come. The deadly heresies, infecting the political faith of the people, shall be uprooted; these daring invasions upon republican liberty shall be rebuked; and then, if not now, my clients shall be vindicated and avenged. WITHOUT LAW THERE IS NO SECURITY. JEREMY BENTHAM. Law, alone, has accomplished what all the natural feelings were not able to do; Law, alone, has been able to create a fixed and durable position, which deserves the name of Property. The law, alone, could accustom men to submit to the yoke of foresight, at first painful to be borne, but, afterwards agreeable and mild; it alone could encourage them in labor-superfluous at present, and which they are not to enjoy till the future. Economy has as many enemies as there are spendthrifts, or men who would enjoy without taking the trouble to produce. Labor is too painful for idleness; it is too slow for impatience: Cunning and Injustice underhandedly conspire to appropriate its fruits; Insolence and Audacity plot to seize them by open force. Hence Society, always tottering, always hreatened, never at rest, lives in the midst of snares. It requires, in the legislator, vigilance continually sustained, and power always in action, to defend it against his constantly reviving crowd of adversaries. The law does not say to a man, “Work, and I will reward you ;" but it says to him," Work, and by stopping the hand that would take them from you, I will insure to you the fruits of your labor, its natural and sufficient reward, which, without me, you could not preserve." If industry creates, it is the law which preserves; if, at the first moment, we owe everything to labor, at the second, and every succeeding moment, we owe everything to the law. In order to form a clear idea of the whole extent which ought to be given to the principle of security, it is necessary to consider, that man is not like the brutes, limited to the present time, either in enjoyment or suffering; but that he is susceptible of pleasure and pain by anticipation, and that it is not enough to guard him against an actual loss, but also to guarantee to him, as much as possible, his possessions against future losses. The idea of his security must be prolonged to him throughout the whole vista that his imagination can measure. This disposition to look forward, which has so marked an influence upon the condition of man, may be called expectation-expectation of the future. It is by means of this we are enabled to form a general plan of conduct; it is by means of this that the successive moments which compose the duration of life are not like isolated and independent points, but become parts of a continuous whole. Expectation is a chain which unites our present and our future existence, and passes beyond ourselves to the generations which follow us. The sensibility of the individual is prolonged through all the links of this chain. The principle of security compre hends the maintenance of all these hopes; it directs that events, inasmuch as they are dependent upon the laws, should be conformed to the expectations to which the laws have given birth.-[ The Principles of the Civil Code. ARGUMENT OF JEREMIAH S. BLACK IN DEFENSE OF THE RIGHT TO TRIAL BY JURY. IN THE SUPREME COURT OF THE UNITED STATES, CONSTITUTIONAL LAW.-Where the courts are open, and in the proper exercise of their jurisdiction, the right of a citizen to a jury trial, guaranteed by the Constitution, cannot be denied or abridged. ANALYSIS OF MR. BLACK'S ARGUMENT. open -The title by which a jury trial is secured. 10. In turbulent times the rights of the 12. Necessity could but excuse a violation 14. The rights of the civil authorities have 17. A military commission an anomaly authorized by no law, and governed by no laws of its own. 18. Military commission synonymous with arbitrary power-Review of the various modes in which it has been exercised throughout the world. Lambdin P. Milligan, W. A. Bowles, and Stephen Horsey, during the war of the rebellion, in October, 1864, were arrested by order of General Alvin P. Hovey, commanding the military district of Indiana, brought before a military commission convened at Indianapolis, tried on certain charges and specifications, found guilty, and sentenced to be hanged. Friday, May 19th, 1865, was the day [481] fixed for their execution. The charges on which Milligan and his associates were convicted, were substantially that they had joined and aided a secret society known as the " Order of American Knights, or Sons of Liberty," for the purpose of destroying the government, communicating with the enemy, conspiring to seize munitions of war belonging to the Union forces, and to liberate rebel prisoners confined within the Federal lines. Nine days prior to the time fixed for his execution, Milligan applied by petition to the Circuit Court of the United States for his discharge, on the ground that his imprisonment and detention were unauthorized and illegal. Upon the matters presented by the petition the court were divided in opinion, and certified the following questions to the Supreme Court of the United States, based upon all the facts set out in the record: (1.) Should a writ of habeas corpus be issued? (2.) Should Milligan be discharged as prayed for? (3.) Had the military commission jurisdiction legally to try and sentence the petitioner? The court held that the writ would issue, and that Milligan was entitled to his discharge, on the ground that the military commission was unauthorized and illegal, and acquired no jurisdiction to try and sentence him. Although the court were unanimous in their judgment that the relator should be discharged, there seemed to be a difference of opinion as to the power of Congress to establish military commissions. In view of this fact, a separate opinion was written by Chief Justice Chase, which was concurred in by Justices Swayne, Wayne and Miller, declaring that while the particular commission which sentenced Milligan was not authorized, yet the power of Congress to authorize trials for crimes against the security and safety of the national forces may be derived in time of war but not in peace, from its authority to raise and support armies and to declare war, if not from its Constitutional authority to provide for governing the national forces. Mr. Justice Davis was the organ of the court, and delivered the opinion of the majority with a power of convincing logic, which does infinite honor to his name. He fully adopted the views of the counsel for the relator. This defense of the right of trial by jury is a marvelous display of Judge Black's extraordinary power and abilities as a lawyer, and the enduring importance of the subject will render it interesting as long as the individual liberty of the citizen shall be preserved as part of the frame-work of human government. It was delivered during a period of great political excitement, before the passions and prejudices stirred up by the greatest civil war in history had been allayed. It affected the destiny of one whose crimes were aimed at the destruction of the government itself, and the public desire to see the sentence of the commission executed, was very general. Since the anger and excitement of the times have passed away, and the great questions involved in this case present themselves in their true aspect and importance, the argument of Judge Black becomes conspicuous as a defense of the dearest rights of the citizen, and stands like a monument to which the eyes of mankind will turn in the hour when their rights are assailed. It will be admired by the student as a comprehensive exposition of the fundamental principles upon which the law of civil liberty depends, and the causes which led to their perfection and adoption under our system. The subject loses the dry, tedious detail of a legal argument, and becomes animated with the spirit and genius of the speaker, while presenting a review of the struggle between freedom and arbitrary power which the world has witnessed for centuries. |