Daily State sentinel. [volume] (Indianapolis, Ind.) 1861-1865, 1864-09-24
THE TRIAL OF H. H. DoDD
Third Days Proceeding. ..

! "' N""'' "es " i"fe ~ ~ Wh"'os feah
aud approved
The prisoner entered he following protest
against the jurisdiction OF the court:
Mn PREsIpKNr And GrNrLENrN OF rHr Consis.
SION!
In support Of his objection to theiursdlc,ion OF
| the commission TO try him upon the charges
preferred against him the defendant respectfully
submits the following considerations:
l. These charges involve capital and infamous
CT mes and the Constitution of the United States
expressly provides that ono person shallb held
to answer for n capital or otherwise infamous
crime unless on presentment or indictment by
grand jury except IN eases arising from the
land or naval iorces, or IN the militia when Ia
active service IN time OF war or public danger.
Amendment Const. Art. . And again:
lin all criminal cases the prisoner shall enjoy the
right OF speedy public trial by an impartial
jury OF the State aud district where the crime
shall have been committed" Amen. Const.
Art.
These provisions we're adopted after the or
ganzation of the Government Of the United
States under the Constitution, and for the purpose
OF placing the trial by jury entirely beyond the
power OF Congress aud all other bodies OF the
Government The Constitution AS originally
adopted. contained the following provision on the
subject: The trial of all crimes. except in
of mpeachments. shall be by jury; aud such
trial shall be held in the State where such crime
shall have been committed 4, sec =.
So jealous were the people OF the right in ques'
ton that they required the amendment quoted
Notwithstanding the original provision.
The defendant is citizen of the United States.
aud OF the State of Indiana. not in the land or
naval forces, or in the militia in active service
lie is. therefore. not within the exception OF
Art. 9th OF amendments, above cited. That ex-
ception does not affect his rights any more than
> if IL did not exist The several provisions OF
the Constitution are absolute a TO him; and il
any constitutional provision can protect right.
il would seem that he ought to be protected
from a trial not in conformity with them. IL
seems that he cannot, in fairness, be tried with
out being presented by grand jury; or tried
without petit jury of the district wherein the
alleged offences were committed
! But IL may lie said that in state of
wer; that the writ of habeas corpus is suspended
, ali the provisions Ia question are under similar
e suspension But there is provision for the
suspension OF any branch of the constitution
The constitution, indeed, authorizes the suspen
sion OF the habeas corpus acts law of the land.
> generally adopted in the States prior TO the adOp
ton OF the constitution. The right of trial by
2 Jury however il placed on different and higher
ground. IL is secured by these several absolute
provisions of the constitution, against all
? chances, aud under all circumstances. The fiat
that suspends il must be potent enough TO abol-
] ish every principle of the constitution, and all
those primordeal rights that existed before the
constitution. aud, 30 far as human foresight
could provide against their invasion protected
7, by plain constitutional provisions
Ii ID should be eontended, then that the pow
er necessary for the suspension of the habeas
corpus involves in its exercise the suspension OF
J the right of trial by jury, he begs leave TO say
that, in his opinion, il cannot for the following
: reasons:
L. The trial by iury il placed by the constitu-
ton among the orig inal reserved rights of the
people, aud must. in favor of natural liberty, be
held safe against the exercise of any doubtful
e power upon the principle OF construction applied
TO constitutions that grants of power are to be
construed strictly as against the power, and in
favor OF liberty.
> But. being last in point of time. aud OF
equal authority with the provisions in relation To
the suspension of habeas corpus, the amend
ments must be held to restrain that provision so
far may be necessary To- the perfect enjoyment
OF the rights asserted in the amendments.
3 Simply, however. because they are amend
ments to the Constitution, everything in that in
strument that may in any view be held to impair
rights therein asserted, must give way to them.
To that extent they change aud modify the pow
G ers conferred on the Government in the original
instrument. The right OF trial by jury in the
cases referred to cannot be impaired, much less
taken away by the suspension of the habeas cor
7 or Law of Congress To this effect see "a Story
on Con. sec /, IFS to ,795. inclusive
4. But not only may this right of trial by jury
be regarded as affirmativey asserted, and Sc
cured to the citizen. by the provisions of the
Consultation, but any and every other mode OF
trial must be taken to be excluded and prohibited
Thus: mo person shall be held To answer for
. any capital or otherwise infamous crime unless
In case Of presentment and indictment by grand
| &c
other torn of trial.
= The old common law, and great statutes of
England, brought over with them by the found
ers of the English colonies. and in force at the
f time OF the adoption of the Constitution of the
= United States, excluded all other modes of trial
of any citizen, not in the military service and
! expressly that by military commission. Mr..
Justice Story as already cited, expressly appeals
to and quotes Magma Charta upon this point, and
in support of this position. The 39th chapter of
that great act is "a follows:
"No freeman shall be taken or imprisoned. or
dissezed. on outlawed. or banished, or in any
way destroyed nor will We pass upon him, IN
less by the lawful judgment of his peers, or BY
I the law OF the land.
a 1.-The judgment of his PEERS" here alluded to.
saws Story, "s the trial by jury, who are called
the peers OF the party accused, being of ike con-
:. diton aud equal" He also expressly says:
"When our more immediate ancestors removed
to America they brought this great privilege with
them, a. their birth right aud inheritance, as a
part of that admirable common law. which had
, fenced round and interpo~ei barriers every
side against the approaches of arbitrary power
: PIP 1873.
= But this denial Of any other form of trial. and
: especially that BY military commission. was "a
serted in the petition of Right. passed in the
81 year of Charles the First Ii Is therein en-
acted and established THAT no of what
II state or condition should be put out of his land
y or tenements, nor taken. imprisoned. nor
dsinherted. nor put to death without due pro
g cess of law
il And IN speaking of the commissions aforesaid
the act useth the following terms:
Which commissions. and all Others OF like
n nature are wholly aud directly contrary to the
said laws and statutes OF the realm y
, Similar language employed in the Bill OF
: Rights passed at the time OF the Revolution of
r loss
And it NAV safely be stated that since that
time no proceeding of this nature has taken place
: in England against any person not a member of
: the army or navy, or in the militia in actual ser
vice Indeed. distinguished English Judge has
said: Martial law. OF old. does not exist in
b England ct all, aud is contrary to the Consti-
z tuition, and has been for a century totally ex
II ploded - Grant Gould. Hume. Bl. 81.
Hale. 2. c 346; Hale Com Law c. :. 50.