Daily State sentinel. [volume] (Indianapolis, Ind.) 1861-1865, 1865-06-23

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and livas ouf ancestors thought could not only
b safely vested, bat could be safe nowhere else
III Il be suggested that secret trial. in whole or
in part a. the Executive might deem eIpeden.,
could sot be had before any other than military
tribunal. the answer 10 that the Constitution, In
ell criminal prosecutions, gives The accused the
right " to public trial" SO Abhorrent were
private trials TO cur ancestors. 80 fatal did they
deem them t0fndyidual security, that they were
denounced. and a. they no doubt thought. 80
guarded against as in all future time 70 be i'm.
possible IL It be suggested that witnesses may
De unwilling to testify. the answer Il that theJ
may be compelled 70 appear and made to testify
Bat the suggestion upon another ground 10
equally -ithogt force IL rests on the idea that
the guilty only are ever brought 10 trial. that The
only object Of the Constitution and laws 10 Tins
regard i to Afford the means 20 establish the
alleged guilt. That accusation, however made,
IL to be esteemed prima face presumption oil
guilt and that the Executive should be armed
without other restriction than bis own discretion,
With all the appliances deemed by him necessary
to make the presumption conclusive. Never was
there a more dangerous theory. The peril to-
The citizen from q prosecution 90 conducted,
as illustrated IA all history. the very elemen
tary principles Of constitutional libsrty-tbe
spirit and letter Of the Constitution itself-re.
pudistei a.
Innocent parties. sometimes by private malice.
sometimes for q mere partisan purpose. some
times from supposed public policy, have been
made the subjects Of criminal accusation. HIS
tory IL full of such instances. How are such par
aes 10 be protected, II public trial, AZ the op
ton Of the Executive. can be denied them, and a
secret one. in whole or in part, substituted IL
the names Of the witnesses aud their evidence are
not published, What obstacle does IL not inter
pose 70 establish their innocence.
Il. Il - II.
NAV be all important TO that end. Kept in prison,
with no means Of consulting the outer world.
hos can they make the necessary inquiriesl How
can those Who may know the witnesses be able
10 communicate with them on the subjectI A
trial 80 conducted, though il may not, as no
doubt is the case with the present. be intended
20 procure the punishment Of any but the guilty
il IL obvious subjects the innocent TO great dan
ger IL partakes more Of the character OF the
Inquisiton, which the enlightened civilization OF
the age has driven almost wholly out OF exist
epce. than Of tribunal suited TO free people.
10 the palmiest DAYS Of that tribunal kings, as
well as people. stood abashed in It's presence and
dreaded its power The accused was never in
formed of the names Of his sccusors Heresy
suspected was ample ground for arrest; accom-
pces and criminals were received as witnesses.
and the whole trial was secret and conducted in
q chamber almost as silent ss the grave
IL Was long since denounced by the civilized
world, not because il might not at all times pun
ish the hereto, then, IN violation of all rightful
human power. deemed a criminal, but because
IL was likely TO punish the innocent a. the guilty.
public trial. therefor, by which the names of
Witnesses aud the testimony are given, even in
monarchical and despotic govern ments.is now es-
tsemed amply adequate to the punishment OF
guilt, and essential TO the protection of Juno
cence. Can IL be that this is not true of us2 Can
il be that's secret trial. wholly or partially, it
the Executive so decides, 10 all that al Amerl-
can citizen IL entitled TOT Such a doctrine If
maintained by an English monarch, would shake
his government 10 It's very centre. and il per
severed in would lose him his crown. liz will be
no answer TO these observations TO say that this
particular trial has been only in part a secret one
and that secrecy viii never be resorted TO except
for purposes OF Justice. The reply is that the prn-
ciple itself 10 Inconsistent with American liberty "a
recognized aud secured by constitutional guaran-
tees. IL slpposes that whether these guarantees
are TO be enjoyed In the particular case, and to
what extent, is dependent on Executive will. The
Constitution in this regard il designed to secure
them 10 spite of such will
It's patriotic authors intended to place the cti
zen, in this particular. wholly beyond the power.
not only OF the Executive, but of every depart
ment of the Government. They deemed the
right TO public trial vital TO the security OF the
citizen. and especially and absolutely necessary
20 his protection against Executive power. A
public trial OF oil criminal prosecutions they
therefore secured in general aud unqualified
terms. What would these great men have said
bad they been asked so TO qualify the terms as TO
warrant its refusal under any circu instances. and
make 10 dependent upon Executive discretion
The member who made the inquiry would have
been deemed by them traitor TO liberty. or in
sane What would they have said if told that
without such qualification the Executive could
be able legally to impose il a. Incidental to the
Executive powerr IL not received with derision
IL would have been Indignantly rejected as an
imputaton upon those who at any time thereafter
should legally nil the office.
III. Let present the question in another
view. Ii such commission as this, tor the
trial Of cases like the present can be legally con
sfituted. can IL be done by Executive
authority I
1. You are court and il legally existing,
endowed with momentous power. the highest
known to man, that of passing upon the life or
liberty of the citizen. BY the express words of
the Constitution. an army eau only be raised. and
governed, and regulated by laws passed by Con
gress In the exercise OF the power TO rule and
govern il, the act before referred TO. of the 10Th
OF April. 1905. establishing the articles Of war,
Was passed. The act provides only for courts
martial and courts of inquiry. and designstes the
cases 10 be tried before each, aud ths laws that
arc 10 govern tue ttlai- COMMISSIONS
are not mentioned, and, of course. the act con
tains no provision for their government Nov.
IL IL submitted perfectly clear. that the cres-
ton OF a court, whether civil or military, is an
exclusive legislative function. belonging to the
department upon which the legislative power is
conferred. The jurisdiction OF such a court, and
the laws and regulations 20 guide and govern il,
10 also exclusively legislative What cases are
20 be tried by IT, how the Judges are to be selected
and how qualified what are the rules of evidence
and what punishment are to be inflicted, all solely
belong TO the same department The very ele
ment Of constitutional liberty recognized by all
modern writer's on government. as essential To
its security. and carefully incorporated into our
Constitution, "a = separation OF the legislative
Judicial. and executive powers. That this
separation IL made by our Constitution,
no one will deny Article First de
elarss that all legislative powers herein
granted shall be vested in . Congress Article
"a vests =. the executive power in a President.
and article I'd, I" the judicial power in certain
designated courts. and in courts TO be thereafter
constituted by Congress" There could not be
. more careful segregation OF the three powers
II. then, courts. their laws. modes Of proceeding
and judgments, belong 10 legislation and this,
suppose. will not be Questioncd) IN the absence
Of legislation in regard TO this court. and its u
rsdiction to try the present cases II has for that
purpose no legal existence or authority The
Executive. whose functions are aliogeth exc
cutive, cannot confer il. The ofenses TO be