#### THE STATE *v.*COULTER, RUTAN, SPINK AND OTHERS.

Contempt — proceedings in — militia muster — the rights of the military and civil authorities.

The military in all free governments is an arm of the executive department, and not a distinct department.

In Ohio, the constitution declares, that the following are among the essential principles of liberty and free government, unalterable forever:

1st. That the courts shall be kept open, and right and justice administered without denial or delay.

2d. That the military be kept under strict subordination to the civil authority.

Where a body of militia perform their evolutions with martial music and firing', so near the court house as to interrupt or suspend the business of the court, the officers may be proceeded against for a contempt, if they refuse to desist on request.

A person brought in on process of contempt, may purge the contempt on oath denying knowledge of the sitting of the court, and all intention to contemn its authority.

Soon after the court opened and engaged in business in the morn-in'g, several companies of militia were paraded with martial music near the windows, and made so much noise and disturbance, as wholly to interrupt the business of the court. An officer was sent several times to advise those in command that the court could not, proceed,' and to request them to desist, or remove. This produced no effect. The court being unable to procure from the sheriff, or *422other person in attendance, the name of any person in command directed him to make another effort to persuade them to remove, and if they did not go, to take and bring before the court the person appearing to have the command of the party. • The confusion continued. The officer soon returned, and brought with him an officer, whom he informed the court appeared to have the command of the men making the disturbance. This produced a temporary suspension of the disturbance at the door, and a great rush into the court house. The name of the person arrested was obtained, and he was ordered into the custody of the sheriff, until the court- should finish the trial in which it was engaged, and had leisure to attend to the case, and in the mean time the prosecuting attorney was requested to proceed.

Soon after this, and while the officer brought into court continued under arrest, the noise without increased; martial music was struck up near the doors and windows of the court house, so as wholly to interrupt the business of the court. On inquiry, the court was informed that Gen. Spink, with his staff, Coulter and others, had taken command of the regiment, placed the music within a guard of soldiers, and refused to desist. They were soon in that way marched -off the ground to a field. This conduct and noise, as represented to the court, wore the aspect of a design openly to set the authority of the court at defiance. Inquiry was made as to the names of the chief officers, and rules issued for them to show cause forthwith why they should not be attached for a contempt of court.

The officer in court was. soon after put to answer interrogatories, and disclaiming, on oath, all intentional disrespect to the court, or design to interrupt its business, was discharged.

Sometime in the afternoon, the regiment approached the court house, while the court was still engaged in the trial of a jury cause, with loud music, repeated shouts, and a great uproar. As they passed the door and windows of the court house,loud and repeated yells and hallooing were uttered, and guns fired under the windows and at the door of the court, sometimes singly, and sometimes in bumbers, as if it was the fire of platoons; this was so near, that the smoke of the discharges entered the house. The confusion was so great, that all business had to be suspended. The court inquired the names of the principal officers in command, ordered attachments for them, returnable forthwith, and despatched the sheriff for their arrest. He soon returned, bringing in the defendants in their military array, within the bar of the court. They were ordered into the custody of the officer, that the court might proceed with the *423trial interrupted, and the writs of attachment handed to the prosecuting attorney to take the proper steps in the prosecution. So soon as sufficient order was restored, the business of the court was resumed and proceeded. The trial in which the court was engaged was not finished until late in the evening.

On behalf of the defendants, it was then stated, that they were ready to answer to what should be objected against them.

Avery, appeared for some of the defendants.

*Dean,*for others; and

*Harris,*for others of them.

*Cox,*prosecuting attorney for the state.

■ By the Court.

The court has already sat later than usual, in order to finish the case interrupted by the confusion of the day. We can sit half the day to-morroW, and will not now proceed to the examination of these cases. The defendants may remain in custody, or at their option be recognized to appear at the opening of the court in the morning.

Recognizances were then taken for the appearance of the defendants, and the court adjourned.

At the opening of the court, the defendants appeared.

Written answers to the interrogatories, on the oaths of the defendants, were read. They were much alike. In them, each insisted for himself, that he had nó command or authority; that he made no disturbance himself; that he was not aware the court was sitting when the troops returned; and that he had no design to contemn the authority of the court, or interrupt its proceedings, feeling for it the most perfect respect. On these answers it was moved to discharge the defendants.

Wood. J. and Wright, J.

severally expressed their views on the questions that arose. The following summary expresses the substance of what was said:

By the Court. In the eighth article of the constitution of Ohio, the framers of our government have placed in the schedule of the ‘great and essential *principles*of liberty and free government’ to ‘be recognized *forever*and unalterably established,’ the following:

First. ‘ That all courts shall be open, and every person for an injury done him in,his lands, goods, person, or reputation, shall have remedy by the due course of law, and right and justice administered without denial or delay.’ *Section*7, *Art.*8.

Second. ‘ The people have a right to" bear arms for the defence of themselves and *the slate,*and as • standing armies in time of peace *424are *dangerous to liberty,*they shall not be kept up, and that *the military shall be hept under strict subordination to the civil*power.’ *Section*20.

The freedom and security of the whole people is found in the certainty of the laws; in the general and equal operation of their provisions; and in their'fitness to promote what is right and just. To secure these important ends the powers of free governments are divided into classes and distributed to three departments: the legislative, the judiciary, and the executive. To each of these departments appropriate functions are allotted. To the legislature is confided the power of making and publishing the law. The judiciary is required to expound the laws and apply them to public and private grievances. To effect this end, without denial or delay, its courts are to be kept open, that *every person, without denial or delay, may have remedy for injury by due course of law.*The faithful execution of the laws when enacted, expounded, and applied by the courts to cases when necessary, is confided to the executive. The governor is our chief executive officer; and as such, is made commander-in-chief of the militia, except when in the service of the general government. The militia is air arm of the executive power; and is a military force combining the citizen with the soldier, pervading the entire community, subject to the general laws, and directly interested in their faithful execution. A force every where present, whose interests and feelings are the interests and feelings of the people of whom they are a part — a force ever ready to protect the civil officer from violence, and aid him in executing the laws, thus carrying out the principles of its organization as an arm of the executive, and giving permanency and safety to our free institutions. The preservation of the public peace, the maintenance of law and order, is a fit and appropriate employment for free citizens in the performance of military duty; a duty, which makes them in fact, what they are held to be in theory, 'a bulwark of liberty.

Other governments keep up standing armies, composed of mercenary troops, in time of peace; free governments rely upon the militia. The clause in the constitution adverted to, clearly shows the light in which the framers of that instrument viewed a resort to mercenary troops in any degree independent of the civil authority. They held such a force *dangerous to liberty,*and that unalterably and forever to regard it so, was *a great and essential principle of liberty and free government.*The determination to constitute the militia, as only a, portion of the executive authority, upon whom was devolved the duty of executing the laws and protecting its ministers *425From violence. It is declared a duty equally *essential to*liberty to regard even the militia, a military force, to be forever kept under *strict subordination*to the civil authority. The fathers of the republic had studied human nature deeply.- Devoted to free institutions, they were jealous of any influence tending to their destruction. Hence the emphatic annunciation of the essential principle, that the military *should be kept under strict subordination to the civil authority.*Not a word is found in the constitution giving countenance to the opinion sometimes expressed, and more frequently felt, that the militia, or the military force, instead of being a means to be employed by the executive department in executing the important duty of executing the laws, are a distinct department of the government, equal to either of the others, and independent of their control.' The principles of the constitution, we, as judges, and the individuals before us as officers of the militia, are bound by our solemn official oaths to support. Whenever we depart from them, and recognize the military, as a distinct power in the government, controlled by its own will, maintaining an equality with either of the three departments of free governments, we shall have become criminally negligent in the execution of the sacred trust confided to orneare : when such notions shall have become so far prevalent in our country, as to be openly acted upon and shall receive countenance, our government will have received its death-blow, and ruin will be the inevitable consequence.

As a court of justice we *must*administer the laws without respect to circumstances or persons. We *must*perform our functions, and have no authority to do or to forbear the performance of any duty, to suit our discretion or convenience. When the path of duty is open to our view, we *must*proceed. We are equally without authority to surrender to another any portion of the sovereign power confided to our keeping, as to refuse or deny justice from caprice, or personal feeling. Should the. fear of consequences to ourselves, induce the forbearance of any known duty, or an attempt to surrender to others any portion of the sovereign power of the whole people intrusted to us, we should be criminally culpable, unworthy the place we fill, and should be removed. Submission to the law is due from all good citizens; and respect for the ministers of the law in the discharge of their official functions, is evidence of such submission. As individuals, we exact nothing; but as a court of justice in the administration of the laws, it is our duty to exact respect and obedience to the law, to protect ourselves in the orderly and decent discharge of our duties. And whenever efforts are made *426to disturb our proceedings — to interrupt the *due course of lato*— to turn the temple of justice into a scene of riot and confusion, although physical force may for a little time interrupt the courts, yet all may be assured the law *will be found able to sustain itself*— stronger *than any force that can be arrayed against it under the government*— strong *enough speedily to resume its empire, and to punish its violators.*As a court, we have no physical means to put forth for our protection; we rely only upon the moral influence of law, the exertions of other departments of the *government,*and of all good *citizens;*but, as a court, *we cannot be put down. The law, in a free country, is omnipotent.*In case of continued and violent interruption, we should look with perfect confidence to the militia, composed as it- is of citizen-soldiers, enjoying the same rights, and protected in them by the 'same laws with ourselves. We feel that the confidence would be well grounded. They would be ready at their posts, protecting the courts, and their own rights and privileges, restoring order, and imparting to the laws their accustomed force. It is true that men under the influence of excitement may fall into error, and even do violence to the public tribunals and to individuals; but no great body of men, organized like our militia from citizens of all ranks and conditions, will continue in violent opposition to laws of their own making, administered for their own good, after passion has subsided. When liberty and law is in jeopardy, the militia of a free people will be the first to meet and repel the aggressor, even if the aggression come from a misguided portion of its own body. If we are mistaken in this, and a time shall ever arrive, when a portion of the militia shall rise in opposition to the civil authority, and violently attempt to trample under foot the courts of justice, or subject them to military control in the performance of their duties; if such violence is sustained by public opinion, or shall receive the sanction of the community, or of the great body of the militia, the fact will incontestibly prove that liberty has fled from the country; that our institutions are sapped to the foundation; and we may soon look for a government more despotic in character, to be erected on the ruins. Some of the individuals before us we know personally, and highly respect as citizens. Should the public peace be threatened, or common order violated, they would be first at the rescue, bringing to the charge a moral influence, equally inspiriting others and securing success. To such men,'in time of commotion, all eyes would be directed. It is difficult fo believe men of this description would engage in any act evincing intentional disrespect to the court.

*427As a court, we can only sit in the place where under the law the public has provided the conveniences for transacting the public business. We have no means of providing any other place to do business in, if we had authority to change the place of our sittings. The time allowed to the court here, is too short to permit us to delay for the tumult to subside; if we do so, the interest of some suitor we are sent here to decide, must be sacrificed or delayed. The militia, on the other hand, although legally mustered under the law at the same time, are neither confined to any fixed place, nor compelled to remain where they first parade; and if, inadvertently, their rendezvous has been fixed at the courthouse, or by its side, when the court is in session, common politeness would seem to suggest their removal to a place so remote from the court, that their manoeuvres would not interrupt its business, or affect the rights of litigants. In doing so, we do not see that there would be a compromise of dignity or military pride: on the contrary, such a course seems to us in strict accordance with true dignity, and commendable pride.

These cases certainly present themselves to us in a most singular aspect. That the business of this Court was interrupted, and wholly suspended, by the noise of martial music, the rush and yells of a multitude of armed men, by the firing of guns singly and in numbers, at or near the doors and windows of the courthouse, we all know. That this interruption, for violence, has surpassed any thing either of us ever before witnessed, is an admitted truth, yet from where we sat on the bench, we-could not see who were the actors in the disturbance.' The officer, sworn to keep the peace, whose especial duty it is to attend upon the court and execute its legal mandates, on being called upon to suppress the disturbance, declared his inability to do so, as the. request of the Court had been disregarded, gave us with others *the*names of the defendants, on which these proceedings were instituted. The object of the assailants seemed too palpable to be mistaken, and no alternative was left *us,*but to issue process and assert the majesty oí .the law, or surrender our authority to a mob. In this state of fact, known to the court, the individuals before us have been arrested and placed at the bar. They disclaim on oath any intention of interrupting the business of the court, or design to contemn its authority. They assert the most perfect respect for the court, and their want of knowledge that it was holding its session as they approached and passed by the courthouse. Singular as this state of fact appears, the character of these *428gentlemen forbid all suspicion that they have not uttered the truth. If it were otherwise the contempt is purged. If the proper persons were before us, we should have felt it our duty to have inflicted an exemplary punishment, to deter others from the like offence.-

Let the defendants be discharged.