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and effective. In the Case of Neagle, Justice Lamar and Chief Justice Fuller use this language in their dissenting opinion,-language which indicates that these eminent jurists do not dissent from any question which affects the rights of these prisoners at the bar:
“Many of the propositions advanced on the behalf of the appellee, and urged with impressive force, we do not challenge. We do not question, for instance, the soundness of the elaborate discussion of the history of the offices and functions of the writ of habeas corpus, and its operation under section 753 of the Revised Statutes (which I have just read), or the propriety of its use in the manner and for the purposes for which it has been used in any case where the prisoner is under arrest for an act done in pursuance of the laws of the United States."
Can it be denied that, prima facie, these relators have acted in pursuance of a law of the United States? Here are accusations for murder, presented before a commissioner, and for other crimes against national authority. Here is an indictment of the grand jury of this court charging the same offenses. The warrants were intrusted to these relators. They are officers of the executive department of the government. Not only do the constituted authorities of the land charge that the laws of the United States have been violated by the men whom these deputies were trying to arrest, but the laws of the United States directed the deputies to make the arrest, and therefore they acted in “pursuance of the laws of the United States."
"Nor do we contend," continues Justice Lamar, "that any objection arises to such use of the writ, and based merely on that fact, in cases where no provision is made by the federal law for the trial and conviction of the accused."
And that is the refutation of the proposition, pressed by counsel for the state here, that there is now no opportunity for trial by jury of the accused, that this proceeding is subversive of the rights of the state. The law is that the right of trial by jury is not the right of the government, but is the right of the accused.
The constitution of the United States declares that “the accused shall enjoy the right to a speedy and public trial by an impartial jury." Amendment 6. It, then, is not the right of the government, either of the state or of the United States, to insist that in all criminal cases there shall be a trial by jury. It is the right of the accused, and they have not demanded it. This precise question, also, was passed on by the supreme court of the United States in the case I hold in my hand (In re Neagle), approving the language of Judge Kane (in Ex parte Jenkins, 2 Wall. Jr. 543, Fed. Cas. No. 7,259):
“It has been urged," said that judge, "that my order, if it shall withdraw the relators from the prosecution pending against them in the state court, will prevent their trial by jury at all. It will not be an anomaly, however, if the action of this court shall interfere with the trial of these prisoners by a jury. Our constitution secures that mode of trial as a right to the accused, but they nowhere recognize it as a right of the government, either state or federal."
The relators, then, were acting in pursuance of a law of the United States when they went to execute the warrants of arrest on Lucius Williams and his sons. They were, moreover, acting in obedience to the order of this court, issued appropriately, and expressed by its warrants. They claim that, in obedience to law and the order of this court, they were forced to kill this man, who was charged with the highest crime known to the law. Will the country permit the doors of its courts to be shut in their faces when they say that they properly acted in obedience to its laws and the order of its court? Are they not entitled to a hearing here? If they are so entitled, the court has jurisdiction to hear and to proceed, in obedience to the law as expressed in section 761 of the Revised Statutes, to do with these men as “law and justice require.” Now, what do law and justice require?
This case is the culmination of a tremendous litigation, imposing for more than ten years tremendous responsibility and tremendous anxiety upon
this court, resulting from the fact that years ago the late William E. Dodge bought large bodies of land in this state, about which his children have been compelled to appeal to the courts for protection. These lands were conveyed by him to his son, George E. Dodge, and by George E. Dodge to Norman W. Dodge. All of this appears from the record before the court. These were residents of the state of New York. A number of persons, residents of the state of Georgia, were charged with numerous acts of fraud and forgery and violence, with the purpose to deprive these nonresidents of the benefits of their investments in this state. The case had been brought before I had the honor of presiding in this court, and was pending when I entered upon the performance of my judicial duties. It was tried. The trial lasted through many days. It was thoroughly and ably argued and fully considered. A final decree was rendered sustaining the title of Mr. Dodge to every foot of this land. Dodge v. Briggs, 27 Fed. 160. No appeal was taken from the decision of the court. It was, therefore, final. The decree itself, in the further progress of litigation with other parties, was carried before the supreme court of the state of Georgia, and that court added its high sanction to the decision of this court, and held that the decree perfected the title of Norman W. Dodge in the land described in the decree and order of the court and in his evidence of title. The decree itself enjoined the defendants to that bill from interfering with the lands of Mr. Dodge. For a time the decree was obeyed. But finally a gigantic system of forgery of deeds, and a fraudulent seizure of the land with the attempt to establish prescriptive titles, was begun. This was done at the instigation of and by Luther A. Hall, a party to the original case before this court, and who had been expressly enjoined. The matter was brought to the attention of the court, and, in a trial lasting many days, the character of this man's conduct was investigated. The court found him guilty and sentenced him, for contempt of the decree, to five months' imprisonment in Chatham county jail. While in that jail, as it appeared from the evidence in the trial which ensued, he concocted a conspiracy for the murder of a most amiable, excellent, and valuable citizen, John C. Forsyth, the agent of Norman W. Dodge, who had been conducting the litigation. The conspiraoy, as the bill of indictment charged and the jury found, was to prevent and hinder Mr. Dodge from exercising the right to pursue his remedies in the United States courts. The case is fully reported in U. S. v. Lancaster (two reports), 44 Fed. 885–932. A number of persons took part in that conspiracy. Forsyth was murdered under circumstances of the most heinous, pathetic, and pitiable character. At his quiet, happy home, in the bosom of his devoted family, with his wife and children around him, after the evening meal, his brains were blown out by the hand of a hired assassin, who fired through the window, and it appears in the testimony in this case at bar that the man Lucius Williams contributed $200 to the payment of the assassins. A number of conspirators were brought before the court. They were convicted and sentenced to various terms of imprisonment in the Ohio state penitentiary, most of them for life. One of these men was Luther A. Hall. who, in success at the bar, and ability, and learning, particularly on the subject of ejectment, was somewhat notable. Another was Wright Lancaster, the sheriff of the very county in which this homicide was committed about which this inquiry is pending. Lucius Williams was not charged in that indictment with connection with the conspiracy, but it appeared on the trial of that case that he had forged a number of the deeds which were used for the purpose of attacking the title of Mr. Dodge, in violation of the injunction of the court, and the court, in its summation of the evidence to the jury, referred to that fact, and some of the forged deeds taken from the record of that trial were introduced here.
Several years elapsed. The title of Mr. Dodge in the same lands was, it is alleged, assailed by other parties. He filed a bill of
peace against some three or four hundred defendants, alleging circumstances of trespass and wrong which he now insists claim the attention of the court for his relief. In that case not one single contested question has yet been decided. It is pending before the court. Lucius Williams was a party defendant to that bill, and, when the officers went to serve him with the original writ of subpoena, he refused to accept service and informed the officer, in violent and truculent language, that he had no respect for the court and did not intend to accept service or obey its orders. Rule day came,—the day on which he should have filed his answer. He made no appearance. In the orderly progress of the case, judgment pro confesso, that is to say, judgment by default, was taken against him. No injunction had been granted when the bill was originally filed. After service of subpoena upon him, he then proceeded, as the court was advised by the sworn petition of the plaintiff, ran off his hands, cut trees across his tramway, and otherwise threatened violence to his agents and employés. But, even then, so careful was the court to give him every right to which he was entitled that only a rule nisi was issued against him to appear and show cause why he should not be enjoined from committing acts of violence or trespass pending the final determination of the suit. When the young deputy went to serve the rule he was met with a string of profanity which the court will not repeat in this presence. The deputy was told, if he ever attempted to serve any papers from this court upon him, his life would be taken, and that if any officer of the court came there to arrest him or his sons it would be a question of who could shoot
first as to who should live. Acts of violence were again committed,
Williams finally got out his knife, and although the officer held his pistol to his breast and told him he would kill him if he attempted to cut, the prisoner did not cease for one moment in his efforts to stab the officer, who finally by a quick blow of the pistol struck the knife from Williams' hands. The officer was John A. Kelly, one of the relators. But runners had been sent out by Williams' friends. They gathered in sympathy with this desperate man. The brave and considerate officers proceeded a short distance with their prisoners, when they were surrounded by an armed mob, with Winchesters, double-barreled shotguns, and pistols leveled at them from every side; they were compelled to surrender their prisoners or lose their own lives.
The officers, then, by cool and brave discretion, and by a stratagem, evaded the mob, and reported the facts to the court. The attorney general sent a large force to arrest the parties who had rescued Williams, but after the most strenuous efforts, owing to the remote and difficult country, and the impossibility of identification, the attempt failed. Only one man, a son-in-law of Lucius Williams, was identified and convicted. The injunction was yet of force with regard to this land. A short time thereafter, Mr. Dodge employed laborers to proceed with cutting his timber. Two or three men came to the land where the hands were at work, and one of them shot a poor, innocent negro to death,-a negro whose only offense was that he was standing on a log cutting, at the obedience of a man who had employed him. He was shot through the body and died next day. Lucius Williams, in cruel and merciless language, boasted of the deed as his. The grand jury of this court, composed of men of high character, returned an indictment against Lucius Williams and his two sons for that offense. So notable had be. come this case that the attorney general—the head of the law department of the government-issued a reward for the arrest of these parties, and other rewards were added by parties to the case. The officers, however, in the absence of such reward, had not ceased their efforts to accomplish the arrest. But finally one of the prisoners at the bar, John A. Kelly, went to the neighborhood and remained there a long time,-26 days, with but a short intermission. Lucius Williams and his sons were lurking in the woods. They were frequently seen armed to the teeth with shotguns, Winchester rifles, and a large revolver. They had their retreat in the depths of Ocmul.
gee swamp. Lucius Williams made open declaration that if the officers attempted to arrest him, he would kill them.
This was brought to the attention of Kelly, in command of the deputies, three in all, but that officer did not cease in his effort to perform his duty. On the day of the homicide he was, with three deputies, watching the house of one of the defendants in the murder case, a son of Lucius Williams, and he saw the three men, armed as usual, approach the house. He determined to make the arrest, and in the effort the life of Lucius Williams was taken, and upon that act the issue now before the court is formed.
The court need say no more with regard to the criminal and lawless character of Lucius Williams, except that it appeared from the records in his own county that, in 1889, he was indicted by a grand jury thereof for the offense of forgery of a deed or deeds relating to the title of these lands, or some of them; that the case has not been tried to the present time. A copy of the indictment is before the court. A witness testified that he was an habitual forger,that he had known him to be engaged in forging for 18 years. His method was to send off for suitable paper, write the spurious deeds himself, usually have them attested by a witness and then by one of his sons-in-law, two of whom had successively been justice of the peace, and then by tobacco, coffee, and other appliances to "age” them, and give them a color which would indicate that they were ancient documents. One of these deeds was offered in evidence. It was attested by the witness who testified to the facts, and officially attested by the son-in-law of Lucius Williams, a magistrate, and is now in evidence before the court, with other deeds of a similar character.
Previously, in the same expedition, a special effort was made to arrest this man. The same officers made their way in the night through miles of the dense and overflowed Ocmulgee swamp. They found his camp on an island, his tent, blankets, and canoe. He was absent. They crossed to the forest and watched his trail, on which he must return. He came, discovered them, ran, was pursued, and fired on. He returned the fire, and made his escape. These officers of the court then knew it was a life and death matter to arrest this desperado. Deputy Kelly testified that they carefully approached the house from the position of concealment in which they had been, and, sending around two of his assistants to the left of the house, he took his position near a small cotton or buggy house, as it is indifferently called, on the other side of the road, and in a diagonal direction, about 40 yards from the house in which Lucius Williams was. I may say in passing that the two men who volunteered to go as deputies to arrest this man were his nephews, and it appears otherwise in the evidence that, because one of them had sworn to an affidavit intended to support the title of Mr. Dodge, and to assist him in the litigation in this case, Lucius Williams, on two occasions, with great difficulty, was prevented from taking the life of one or both of them. On one occasion he had left the house of witness Wells at daybreak, and, when discovered, had concealed himself in a corner of the worm fence, had drawn the grass over him, and, armed with a Winches