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Victor
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The
Pinkerton Labor Spy
by
Morris Friedman
CHAPTER XVII.
A REIGN OF TERROR—CONCLUDED.
THE MOYER DECISION.
It is perhaps somewhat unusual for one not a lawyer by profession to attempt to expound a great question of law, in a manner which is flatly in contradiction of a supreme court decision. Yet, our laws are written in plain English, so that anyone with even a common school education can read and understand them. The government of the United States recognizes the principle that the safety of a free government, to a large extent, depends on the knowledge of the fundamental laws of the land by all its citizens.
Let us analyze the famous as well as infamous Moyer decision, which is a vindication of Governor Peabody's maladministration, and a fitting climax to the persecutions of the workingmen of Colorado.
The militia arrested President Moyer on March 30th, 1904, and kept him imprisoned in the bull pen day after day, without in any way moving to prefer charges against him. From previous experience it was evident to the Western Federation of Miners that the military intended to hold Mr. Moyer a prisoner for an indefinite period. The officers of the Federation, with their usual promptitude, obtained a writ of habeas corpus from Judge Stevens, directing General Bell and Capt. Bulkley Wells to bring Mr. Moyer into court on April nth. These persons flatly refused to obey the writ, on the plea that military officers in field service are not subject to any civil process.
Judge Stevens held a different view on this question, for he adjudged both General Bell and Capt. Wells guilty of contempt, fined each of them $500, and ordered the release of Mr. Moyer. The military commanders neither paid the fine, nor did they liberate their prisoner. On the contrary, there was a persistent rumor that General Bell would arrest Judge Stevens.
When it became clear to the attorneys for the Federation that the military would not obey the District Court, they applied to the Supreme Court for relief, and that tribunal, on April 15th, issued a writ of habeas corpus, ordering the military commanders at Telluride to produce the body of Charles H. Moyer before it on April 21st, 1904.
The reader remembers the case of Victor Poole. The governor had, by formal executive proclamation, attempted to suspend the writ of habeas corpus in the case of Victor Poole. The Supreme Court, despite the governor's proclamation, issued a writ of habeas corpus for the prisoner. Governor Peabody practically admitted that he had acted, unlawfully by turning Poole over to the civil authorities, in order to evade an issue which he knew would result unfavorably to him.
The Victor Poole case taught His Excellency a valuable lesson, and that he profited by it is evidenced by the Moyer case.
The militia, which had had no scruple in disobeying the orders of District Judge Stevens, treated the Supreme Court with more consideration, and, while challenging the jurisdiction of that court in the Moyer case, they nevertheless brought Mr. Moyer before the court on the return day of the writ.
It now seemed that the headlong course of the governor and his soldiers would be checked. It was hard to assume any other outcome to this case than a victory for decency, law and order. It was impossible to conceive that the court of last resort of a great State had, like the executive and legislative departments, forsworn itself in obedience to the will of large moneyed interests.
Yet the unexpected happened. The Supreme Court, after hearing the arguments, took the case under advisement, and, pending decision, remanded Mr. Moyer to the custody of his military captors, who placed him again in the bull pen at Telluride. On June 6th, 1904, the court announced its decision, denying Mr. Moyer's petition for a writ of habeas corpus. Justice Robert W. Steele dissented.
This decision is very interesting, instructive, and would also be rather amusing, to quote Bishop Matz, "had it been rendered in the course of a spirited romance for the sake of forcibly pointing a moral"; but when a decision like this is rendered by a real court, to be binding upon real people, then, to again quote Bishop Matz, "it is high time for the people to wake up and protect themselves."
Chief Justice William H. Gabbert wrote the opinion for the court. This opinion harps on the fact that the Constitution of the State gives the governor power to suppress insurrection and rebellion by means of the National Guard, and that the governor is sole judge of conditions constituting an insurrection and rebellion.
The learned Chief Justice, with the magnificent ingenuity of a mediaeval logician, argues that if the military have the right to shoot and kill in order to suppress rebellion, how much greater is their privilege merely to seize and confine human beings in bull pens. Tis a kindness—"milder means"—if the soldiery pen up rather than slay.
"The power and authority of the militia in such circumstances are not unlike that of the police of a city, or the sheriff of a county. Certainly such officials would be justified in arresting the rioters and placing them in jail without warrant, and detaining them there until the riot was suppressed.
"Nor do these views conflict with Section 22, Article 2, of the Bill of Rights, which provides that the military shall always be in strict subordination to the civil power. The Governor, in employing the militia to suppress an insurrection, is merely acting in his capacity as the chief civil magistrate of the State. ......."
In a supplementary article replying to a dissenting opinion, Chief Justice Gabbert has this to say:
"The Constitution has clothed the Governor with the power to take the steps he did, and he cannot be called to account by the judicial department for his action, nor can the latter inquire into or determine whether or not the condition existed upon which he based his action."
A recent decision by the Supreme Court of the Philippine Islands is direct authority for supporting this conclusion. Section 5 of the act of Congress known as the "Philippine Bill" provides that the privileges of the writ of habeas corpus shall not be suspended unless when, in cases of rebellion, insurrection or invasion, the public safety may require it, in either of which events the same may be suspended by the President or by the Governor-General, with the approval of the Philippine Commission whenever, during such period, the necessity for such suspension shall exist.
Judge Gabbert then recites the following facts: That by virtue of this act of Congress, the authorities had suspended the writ of habeas corpus in the Province of Batangas, because of the existence of serious political conditions in that district. The military arrested one Feliz Barcelon, who attempted to gain his liberty by means of an application for a writ of habeas corpus. The writ was denied, because its privileges had been lawfully suspended.
Basing his opinion on the decision of the Supreme Court of the Philippine Islands, Justice Gabbert jumps to the following conclusion:
"While the question is not involved or touched upon in the Philippine case, it logically follows from the conclusion there announced, that with the privilege of the writ of habeas corpus suspended, the legality of the arrest and imprisonment of one taken into custody by the lawfully constituted authorities cannot be inquired into. It must also follow that, when the Governor has exercised the power vested in him to call out the military to suppress an insurrection, the arrest and detention by the military of one taken into custody as an insurrectionist by the particular force which the Governor is authorized to employ to suppress an insurrection cannot be inquired into by the courts."
We have hinted an apology for the liberty of assailing a Supreme Court decision. This apology was offered, let it be understood, not to the Supreme Court of Colorado, but rather to one of the justices of that court, an eminent jurist, a conscientious and fearless man. We refer to Justice Robert W. Steele.
Judge Steele's dissenting opinion is such an able, brilliant and truthful interpretation of the law, and so invaluable a historic document, that if space permitted, we would gladly quote it in full.
Judge Steele commences his opinion with the following remarks:
"No person who has the slightest claim to respectability should hesitate to approve the action of the Governor in enforcing the law, and I am willing to uphold him and to applaud him so long as he keeps within the lines of the Constitution. But I am not willing to uphold him when, in my opinion, he breaks down the barriers erected by the people for their protection, nor am I willing to accord to the Constitution elastic properties for the purpose of sustaining him, nor to join in the establishment of a precedent which will not apply to other classes or other conditions, when another Governor undertakes to exercise the same arbitrary power. I am not willing to concede the power claimed by the Governor and exercised by him, because, in my opinion, such power is not vested in him by the Constitution. The people could never have intended to erect such an engine of oppression. It follows, of course, that if the present executive is the sole judge of the conditions which can call into action the military power of the government, and can exercise all means necessary to effectually abate the conditions, and the judicial department cannot inquire into the legality of his acts, that the next Governor may by his edict exercise the same arbitrary power. If the military authority may deport the miners this year, it can deport the farmers next year. If a strike which is not a rebellion must be so regarded because the Governor says it is, any condition must be regarded as a rebellion which the Governor declares to be such; and if any condition must be regarded as a rebellion because the Governor says so, then any county in the State may be declared to be in a state of rebellion, whether a rebellion exists or not, and every citizen subjected to arbitrary arrest and detention at the will and pleasure of the head of the executive department."
Judge Steele then quotes the following from an opinion of Judge Davis of the United States Supreme Court:
"The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism. Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the places once occupied by Washington and Lincoln; and if this right (the right of the executive and his military subordinates in time of foreign or domestic war to substitute martial law for the civil law) be conceded, and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate."
Replying to the mediaeval logic of Justice Gabbert that if the military may slay, much more they are permitted to imprison, Judge Steele says:
"The power to take the life of an insurgent does not include the power to take the life of a person not an insurgent. And if that be true, then by the process of reasoning that the Court adopts, if the military authority may not take the life of one not an insurgent, they may not imprison a person who is not an insurgent. The question is: May the military authorities, when a county is declared to be in a state of insurrection, arrest any person, whether guilty or innocent, and detain him urftil the executive declares that order has been restored? The question can be answered in the affirmative in no other way than by declaring that the executive has the power to suspend the privilege of habeas corpus, or by declaring that martial law prevails whenever the executive so proclaims.
"Martial law exists or it does not exist. When it exists, there is no civil law. Martial law and civil law cannot exist together. If the civil law can enforce one guarantee, it can enforce all. If the civil law is overthrown, it is powerless to enforce any right.
"The Court has not construed the Constitution. It has ignored it; and the result is that it.has made greater inroads on the Constitution than it intended, and that not one of the guarantees of personal liberty can now be enforced.
"The Court would have sustained the Governor, under the authorities, if it were possible to do so, but, finding it impossible to sustain him under the authorities, it has sustained him in spite of them. All courts are in duty bound to sustain the co-ordinate departments of the Government, when they can be sustained, and I should sustain the executive department if any doubt lingered in my mind as to the right of the head of that department to exercise the great power that he asserts. But I believe that the Constitution has been "unnecessarily assailed and rudely violated" by the head of the executive department, and I further believe that this Court has removed the landmarks which our fathers have set; and my duty requires me to withhold my approval.
"Habeas corpus is the proper remedy to release from arbitrary arrest, and, unless its privileges have been suspended, one is not subject to arrest on suspicion merely, and detention beyond the time fixed by statute for return to the writ. As the privilege of the writ has not been suspended, as the courts are open, as martial law does not prevail, and as no charge has been preferred against the petitioner, he should be discharged. The greatness of this country consists in being able to protect, by the shield of its Constitution, the humble and the exalted, the pure snd the wicked. We gave the wretches Guiteau, Prendergast and Czolgosz trials by due forms of law, and by so doing we strengthened the nation at home and abroad. Had we departed from the principles declared by our fathers, we should have lessened the liberty of every citizen, and imperilled the title to all property. When we deny to one, however wicked, a right plainly guaranteed by the Constitution, we take that same right from everyone. When we say to Moyer, 'You must stay in prison, because if we discharge you, you may commit a crime,' we say that to every other citizen. When we say to one Governor, 'You have unlimited and arbitrary power,' we clothe future Governors with that same power. We cannot change the Constitution to meet conditions. We cannot deny liberty to-day, and grant it to-morrow. We cannot grant it to those theretofore above suspicion, and deny it to those suspected of crime; for the Constitution is for all men—'for the favorite at court; for the countryman at the plow'—at all times, and under all circumstances. We cannot sow the dragon's teeth, and harvest peace and repose. We cannot sow the wind, and gather the restful calm.
"Our fathers came here as exiles from a tyrant king. Their birthright of liberty was denied them. Arbitrary arrests were made, and judges, aspiring to the smile of the prince, refused by 'pitiful evasion' the writ of habeas corpus. Our people were banished; they were denied trial by jury; they were deported for trial for pretended offenses; and they finally resolved to suffer wrong no more But, if the law is as this Court has declared, then our vaunted priceless heritage is a sham, and our fathers stood 'between their loved homes and the war's desolation in vain.'"
Thus dissented Judge Steele.
Let us make a brief analysis of the court's decision, as our doing so may possibly shed more light on the question in controversy. Judge Gabbert bases his opinion, he tells us, on the fundamental laws of the State of Colorado, which say that,
"The supreme executive power of the State shall be vested in the Governor, who shall take care that the laws be faithfully executed."
and that to this end,
"He is made commander-in-chief of the military forces of the State, and vested with authority to call out the militia to execute the laws, and suppress insurrection."
This authority is supplemented by an additional law, whereby it is provided that when an insurrection in the State exists or is threatened, the governor shall order out the National Guard to suppress it.
Judge Gabbert says these are wise provisions, and we agree with him. But, in good plain, every day English, here is the way Judge Gabbert interprets them:
It is the duty of the Governor to suppress insurrection by calling out the National Guard. This duty implies that the Governor is the sole judge of conditions which constitute insurrection. That the Governor's proclamation declaring an insurrection to exist is law, binding on all other departments of the government. That the military, under his command, may go to any extreme they see fit, killing and imprisoning citizens at pleasure, regardless of their guilt or innocence; and that neither the soldiery nor the Governor are responsible for their actions to anyone; not even Almighty God, according to General Bell, having authority to interfere; no earthly tribunal can halt them, nor demand an explanation from them, nor punish them. The practice of this despotism withal does not deprive any citizen of any constitutional rights or immunities.
In a nutshell, this is the gist of the Colorado Supreme Court's gross and wilful misconstruction of the law, the decision of those learned judges, who sold the liberty of the people for a mess of pottage, or possibly a pot of something else.
By the Constitution "The supreme executive power of the State is vested in the Governor, who is required to take care that the laws be faithfully executed." To this end he is made "commander-in-chief of the military forces of the State, and vested with authority to call out the militia to execute the laws, and suppress insurrection."
The reader will note that the law, as above quoted, is very definite. It says in plain English that the governor is required to take care that the laws be faithfully executed. This is the only reason why he is clothed with supreme executive power. No other logical reason could be adduced. However, the patriots who drew up the Constitution realized that occasions might arise when armed rebellion might prevent the due execution of the law, or else threaten to overwhelm the State. To the end that such a calamity might not befall, the governor has been vested with the power to call out the militia to suppress insurrection or repel invasion, in order that the laws may be executed.
Judge Gabbert keeps on bewailing with crocodile's tears that it is the sacred duty of the governor to suppress insurrection and rebellion, and endeavors to prove that the only reason we have a governor or need a governor in Colorado is that he may keep on proclaiming and suppressing imaginary insurrections.
The decision of the Colorado Supreme Court practically means that the governor of the State is identical with the State, according to the celebrated statement of King Louis XIV. of France, who arrogantly used to say of himself, "The State? I am the State!" This being so, the governor and the State being one and the same thing, his actions in proclaiming and suppressing insurrections may not be inquired into by any earthly tribunal. He is supreme.
However, regardless of the decision of the Supreme Court, we know that the governor is only the chief executive officer of the State; in other words, he is only the chief executive servant of the Commonwealth, and in that capacity he owes the same allegiance to the law as does the humblest citizen. In fact, he should show even a greater respect for the law than the average citizen, so as to set a good example for the latter. Therefore, if the governor, forgetful of his solemn oath of office, and the sacredness of the trust reposed in him by his fellow citizens, attempts with the aid of the National Guard to prevent citizens from resorting to courts of law, or to bring courts of law into contempt by causing their decisions to be ridiculed, disobeyed and ignored, he and all those acting under him are as guilty of insurrection and rebellion against the State, and even more so, than ordinary persons doing the same things.
This is exactly what Governor Peabody did.
He declared the strike of the miners and smeltermen to be a rebellion against the State!
He farmed out the State militia to the mine owners and smelter trust!
He caused the militia to hound and persecute mercilessly the striking miners in order to force them to give up their struggle; meanwhile telling the outside world that he was suppressing a rebellion!
He caused his soldiers to invade the District Court of Teller County, in an effort to intimidate that court into denying justice to innocent men; while posing before the world as a champion and protector of the courts!
He attempted to suspend the writ of habeas corpus, though there was not even the shadow of danger threatening the public safety; vide the case of Victor Poole!
He denied citizens the right to keep arms, prohibited freedom of speech, and placed a censor over the press, in the name of Law and Order!
He declared martial law in San Miguel County for no other purpose than to give sanction to mob law, and to prevent an honorable District Court from rendering justice to one hundred men deported from their homes in Telluride by a mob of mine magnates and sypmathizers! The governor sealed his infamy in this case by appointing Manager Bulkley Wells, the leader of the mob, as commander of the military forces!
George the Third affected to render the military independent of and superior to the civil power.
Governor Peabody went a step further, and affected to destroy the civil power altogether.
King George deported our fathers beyond seas for trial for pretended offenses.
Governor Peabody deported striking miners from Colorado for no offenses whatever, and would not even allow generous friends to give food to the wives and children of the deported men.
King George attempted to protect his soldiers by mock trial from punishment for any murders they should commit.
Governor Peabody attempted to protect himself and his military subordinates from damage suits; and also attempted to legalize his persecution of thousands of workingmen, his cowardly crusade against women and children, and his ruthless treatment of our civil courts, by proclamations falsely declaring several counties of Colorado to be in a state of rebellion.
Our fathers would not tolerate the tyrannical sway of a crowned head. The Supreme Court of Colorado declares a worse tyranny, an even more hateful despotism, and a much more pernicious and dangerous assault on human liberty, to be in conformity with the Constitution of the United States and the State of Colorado, and advises the people to accept THIS DECISION in place of the liberty our fathers established for us!
The Moyer decision is a striking sign of the change of the times, and illustrates how the nation has drifted from the teachings of our fathers.
During the Revolutionary War, there were men in our country who held that the King of England was justified in his acts against the thirteen colonies. Those men were called Tories, and were cordially hated by the patriots.
Nowadays, the roles are inverted. Newspapers which champion the cause of liberty and the interests of the people are called "yellow journals" by our statesmen and wealthy citizens, and those who wish to follow in the footsteps of our liberty-loving sires are denounced as "anarchists," and persecuted. The Tory of the Revolution to-day controls the destiny of America.
At the present time, in the whole civilized world, only three great countries are governed by absolute monarchs, namely, Russia, Turkey and China. In each of these countries the ruler can, at his pleasure, imprison, deport or kill as many of his subjects as he may desire. The rulers of these countries owe the Supreme Court of the State of Colorado, and the Federal Circuit Court for the District of Colorado, a heartfelt vote of thanks; for they can now refer their disaffected and liberty-loving subjects to the decisions of these courts as an illustration that under a republic a common, ordinary person has no more protection than under a despotism. Let the autocrats of Russia, Turkey and China henceforth, before arbitrarily imprisoning, deporting or killing, proclaim an insurrection in their respective lands! If an ordinary proclamation of this kind permits a mere governor to commit such outrages on citizens of the United States, then surely a royal proclamation ought to confer at least a similar privilege upon an emperor or a sultan!
In 1862, Abraham Lincoln issued his world-famous proclamation, declaring that slavery should no longer exist in the United States. In our day, any person who desires to better the industrial and social condition of workingmen—white slaves—is denounced by our conservative press as an "agitator," as an "anarchist," and is imprisoned for months in a filthy bull pen, on the charge that he is a rebel against the State!
Before the great corporations and trusts had corrupted the land, it was common belief that the National Constitution was an irrevocable guarantee of the right of each citizen of this country to life, liberty and the pursuit of happiness, in any State he chose as a residence. In our day we are told, in so many words, by a State Supreme Court and a Federal Circuit Court, that neither the Constitution nor the Flag follow a citizen of the United States into Colorado, and that if he wishes to reside in this State he must know that he holds his rights to life, liberty and happiness at the sole discretion of the governor and his military underlings, and that the latter may cancel these privileges at any moment.
This, in all its repulsive deformity and ghastly nakedness, is the infamous Moyer decision, as we understand it, and as we believe every intelligent and patriotic American citizen understands it.