State v. Coulter

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.

. 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 state, and as standing armies in time of peace 424] *are 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 an 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 everywhere ' 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 *from violence. It is declared a duty equally essential to lib- [425 erty 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 auy influence tending to their destruction. Hence the emphatic<anhunciation 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, of 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 goverflment, 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 our care: 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 deathblow, 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 426] *to disturb our proceedings — to interrupt the due course of law — 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 he found able to sustain itself • — stronger than any force that can he arrayed against it tinder the government — strong enough speedily to resume it's 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 he 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 to believe men of this description would engage m any act evincing intentional disrespect to the court.

*As a court, we can only sit in the place where under the [427 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, w'hen 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 suiqiassed anything 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 of 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 428] ^gentlemen forbid all suspicion that they have not uttered the truth. If otherwise the contempt is not 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.