« PreviousContinue »
still insists, the supervising power is in the people in the election of Senators and Representatives who will put a more correct construction on the Constitution.
It must be remembered that there is no line in the Constitution which gives the courts, instead of the people, supervision over Congress or the Legislature. There is no constitutional presumption that five judges will be infallible and that four will be fallible. If the Legislative and Executive departments of the government err, the people can correct it. But when the courts err, as they frequently do, for instance, as in Chisolm v. Georgia, or in the Dartmouth College case, or in the Income Tax case—not to mention others,—there is no remedy except by the long, slow process of a Constitutional Amendment or by a change in the personnel of the court, which is necessarily very slow when the Judges hold for life as they do in the Federal Courts.
No one has ever questioned the ability and integrity of Chief Justice Marshall. Like other men, he saw the world from his own standpoint and from his environment and with the prepossessions of his day. He had small faith in the capacity of the people for self-government. He believed in a strong central government and distrusted the States. He believed that the function of government was the protection of property rights which he thought jeopardized by the rule of the people who were mostly without property. At that time the experiment of popular government was untried and the people were uneducated. Moreover, he was a strong man, rugged and earnest, and, like most strong men, he annexed all the jurisdiction he could lay hands upon. While his course upon the Bench was in many respects of inestimable good, in such decisions as Marbury v. Madison, the Dartmouth College case, and others, he went beyond the necessities of the occasion and certainly beyond, far beyond, the authority conferred on the courts by the Constitution. Smaller men have extended his doctrines to their logical conclusion in more recent cases which have alarmed the public conscience, and a restoration of the jurisdiction of the court to its true limits is a necessity. As that jurisdiction has been defined in more recent cases, all legislation now depends for its validity, not upon the will of the people as expressed through Congress and State Legislatures, but upon the economic views of five lawyers to whom "due process of law" and "equal protection, of the laws" mean simply what they believe is for the real good of the people. In their hands the power of the courts over legislation is neither more nor less than an irreviewable veto upon any expression of the public will that does not meet their approval.
Let us go "back to the Constitution" as it is written. Let Congress and the Legislatures legislate; subject to the only restriction conferred by the Constitution—the suspensive veto of the Executive—and with further supervision in the people alone, who can be trusted with their own government—else republican form of government is a failure.
Under our plan of government, the people alone are sovereign. Judges, Governors, Presidents, members of Legislatures and members of Congress are all alike servants of the people. No place is given in any Constitution to either department tp supervise the action of the others. The sole supervisional authority is in the people. It has nowhere been given to the courts.
The love of us lawyers for precedent, and a feeling of professional pride that five lawyers on the Supreme Court can say to the other departments of the government, nay, to the people themselves, as has been asserted, "Thus far shalt thou go, and no farther," appeal to us. But this is the defiance of the servant to the master, the challenge of the creature to its creator.
There is no room in a republican form of government for "Judicial Hegemony."
Nov. 16, 1915.
A COURT MARTIAL FIFTY YEARS AGO.
In 1864, and for some time before, the United States had a prison camp on Johnson's Island in Lake Erie, near Sandusky, Ohio, in which were kept, prisoners of war, many Southern soldiers. The armed U. S. S. Michigan was kept in commission nearby. It seemed to the Confederate authorities to be a feasible scheme to capture the Michigan and set free the prisoners of war. Accordingly, the President, Jefferson Davis, gave orders and instructions to make the attempt.
Amongst those so commissioned were Bennett G. Burley, a Scotchman from Glasgow, who died but the other day, and John Yates Beall.1 Burley was the famous war correspondent—"Burleigh"—and the two had been comrades. Beall was a native of Virginia, born January 1, 1835, who was well brought up—a member of a most respectable family. He studied for three years without graduating at the University of Virginia, and was a devout member of his church and exemplary in his life. When the Civil War broke out he joined the forces of his native state and fought in her cause. He was seriously wounded
l Those interested in Beall will find a rather full account of his life, etc., in a work published in Montreal.
"Memoir of John Yates Beall. His Life; Trial; Correspondence; Diaries, and Private Manuscripts Found Among His Papers; Including His Own Account of the Raid on Lake Erie. Montreal: Printed by John Lovell, St. Nicholas Street. 1865.'"
A crown 8vo, written anonymously. The writer is known to have been Judge Daniel B. Lucas,
Beall's close personal friend and fellow-student.
An account from a somewhat different point of view is given in Appleton's Cyclopaedia of American Biography. See also The Americana. in these books he is called John Young Beall, but this is a clear mistake; his second name was Yates (his mother's family name).
(I am indebted to Mr. John S. Patton, Librarian of the University of Virginia, for some of the facts, and also for the information that the name was pronounced "Bell.") near Harper's Ferry in October, 1860, and went south. Returning the following spring, he made his way in 1860 to Cascade, near Dubuque, Iowa, where for a time he ran a mill. In September, coming under suspicion, he went to Upper Canada and lived at Dundas for some time. While there he conceived the bold scheme he afterwards attempted to carry out. On his return to Richmond his plan was approved; but the time was not thought favorable, and Beall for a time operated as a privateer upon the Chesapeake, etc. He was taken prisoner and for a time confined at Fort McHenry; but was afterwards released.
The Confederate Secretary of the Navy then determined to try Beall's suggested scheme on Lake Erie. In March, 1863, Beall was appointed an Acting Master in the Navy of the Confederate States, and what other rank he may have had in the enterprise in question, he gloried in the title of Captain. He made his way to Canada, where at that time there was an active Southern colony in Toronto, headed by Colonel Jacob Thompson. There the scheme was hatched which led to considerable international complication.
Burley (for thus is his name spelled throughout the legal proceedings, although he himself afterwards spelled it Burleigh) in the evening of Sunday, September 18, 1864, went on board the Philo Parsons, a steamship plying between Detroit and Sandusky, Ohio, touching at the Canadian ports, Amherstburgh (Maiden) and (occasionally) Sandwich, a few miles below Detroit. She was lying at Detroit in charge of Mr. Ashley, clerk and part owner, whom Burley addressed and told he intended to go down as a passenger next day. He said he had three friends at Sandwich who were to go with him, and arranged that the boat should call at Sandwich for them.
Next morning the Philo Parsons swung from her dock at Detroit with freight and passengers, and called at Sandwich. There Beall and two others boarded the boat—all without baggage; all "very gentlemanly in appearance; "they said they Avere taking a little pleasure trip—might stop, perhaps, at Kelly's Island, but did not know exactly where they would go—and paid their fares to Sandusky." The boat called at Maiden, where about twenty-five other men got on board; all the baggage they had was a very old trunk tied up with a rope. Then the boat proceeded on its way to Sandusky; she called at Kelly's Island (in Ohio) and was about two miles away from that island when the eclaircissement took place.
The trunk was opened, disclosing revolvers and hatchets; the men who had boarded the boat at the Canadian ports armed themselves and took forcible possession of the steamer. They smashed open the baggage room with an axe, threw overboard the freight, wire, tobacco, household goods, etc., then headed the boat down the lake for a time, and then up the lake to Middle Bass Island (Ohio) which is about ten miles from shore. She was laid up there when, after'a few minutes, the steamboat Island Queen came alongside and made fast. The armed party went aboard her and made prisoners of all on board (amongst them some twenty-five unarmed American soldiers going to Toledo to be mustered out of service), brought them to the Philo Parsons, and at length put all the prisoners from both boats ashore on the island. Then Beall and Burley forced Ashley to give them the money he had on board, some $100.00. The Island Queen was scuttled and set afloat; she drifted for two or three miles, struck a reef and sank.
During the time the Philo Parsons was sailing down and then up the lake, Beall said to more than one of the prisoners that he was an escaped Southern prisoner from .Johnson's Island and that he intended to capture the U. S. S. Michigan, and then, liberating the prisoners on Johnson's Island, destroy the commerce on the lakes. This was not attempted; the Philo Parsons was abandoned and the Southerners scattered. It seems that the spies who had been assigned to enter the prison failed to give the pre
VOL. L. 2