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Parker's Charge to the Grand Jury May Term 1875
Judge Parker was appointed to the bench of the Fort Smith court by President Grant in March of 1875. The judge presided over court beginning with the May term of court in 1875. The charge would have been delivered to the members of the grand jury at the beginning of the term, in one of the first official duties performed by the judge.
Gentlemen, you have been brought here by the process of the court to constitute for this term a part of the court; for the Grand Jurymen are officers of the Court under its protection, direction, and control, and subject to the contempt of court for improper things done in the Grand Jury room. Your foreman is your presiding officer. His duty it is to preside over your deliberations, to administer oaths; to put all questions to witnesses, unless by his consent or upon his request they are put to vote and to decide when a proposition is carried, or rejected by your body.
Your maximum number is twenty-three; less than sixteen members of your body cannot do business; and any bill of indictment, before it cannot be found and returned a true bill must secure the votes of at least twelve of your number: and every proposition to indict which does not receive the votes of twelve Jurymen is to be rejected as not being a true bill.
You will not examine any cases, unless they have been first examined by a Commissioner, and the parties charged have either been committed to jail or placed under recognizance for their appearance at court; unless it may be a case of a violation of law which may have occurred so recently before your session as to prevent the examination of the same by the Commissioner, or a case which may not have been discovered in time for the party charged to have been arrested and brought before a Commissioner, or a case which is brought before you the District Attorney.
In all cases you are to find indictments upon the testimony of witnesses who are sworn and examined in your presence and no subpoenas will be issued by the Clerk for witnesses to appear before you unless upon the order of the District Attorney; so, when you desire witnesses, you will inform him who they are and for what you desire them, and he, in his discretion will issue a subpoena for the same.
You may indict upon the testimony of any of your number but before doing so it is proper to inform the District Attorney of what knowledge is possessed by any man of your body, so that he may call him as a witness.
I will remark that it is not only proper, but the duty of a member of the Grand Jury, if he knows of any violations of law, which are indictable, to make known the facts to the District Attorney so that the parties violating the law may be proceeded against.
The District Attorney is your law officer. He will give you his opinion on all legal questions, upon which you may desire information. He will attend your sessions, and aid you in the examination of witnesses and give you such assistance and advice as may be necessary to aid you in the performance of your duties, when it is possible for him to do so. He will necessarily be employed much of his time in the court room and it may not be possible for him to be present at all times. He is the officer of the court, one of whose special duties it is to present cases to you for action.
No witnesses will be permitted to go before you to give testimony unless in a case which has been passed upon by the Commissioner, and the witnesses have been recognized to appear and testify in the case, unless with the consent of the District Attorney.
I give you in charge the whole criminal code of the Government of the United States. You have jurisdiction of all offenses against this code, which may have been committed in the district known as the Western District of Arkansas. I will not call your attention to these in detail, but will simply remind you that when you are in doubt about the law of any case all you have to do is to consult the District Attorney, or the court, and either will inform you as to the law.
I call your attention to all of the violations of the revenue law. Taxation, at best, is burdensome; but to relieve it as much as possible of its burdensome character, it is necessary that the laws providing for it should be uniform in their provisions and in their operation, and every evasion or violation of these laws destroys the uniformity of their operation. Whenever the dishonest man evades or disobeys the law, and does not pay his tax when he is liable to pay it, he does so at the expense of the honest man who obeys the law and pays his tax. Therefore in order that this burden may be made as light as possible on the citizen, it should be so distributed as that all who are subject to it should be made to pay their portion of it. This result can be secured by your prompt indictment of every one who may have violated the provisions of the law, and who are subject to indictment under it.
I ask you to specially bear in mind all violations of the laws regulating the Post office department and the carrying and delivering of mails. This is an agency of the government specially created for the convenience and comfort of the people, and if you would make it a safe means of accommodating them, you must make it so secure that all the letters and valuables of the people shall be transmitted in safety to their destination. No part of the Government exerts as much influence in the dissemination of knowledge and for the civilization of the people as the Post office department. Then still further extend this blessing to them by making the transmission of mail matter even more secure than now, by indicting all who may in any way, tamper with the mails.
Beside the ordinary jurisdiction of District Courts, this court has jurisdiction over the Indian Territory. This imposes upon you duties which are in their character the most delicate and responsible of any that are imposed upon any grand jury in the whole United States, duties the correct, fearless, and impartial performance of which, may go far toward determining the welfare and happiness of almost a hundred thousand people who live in that country. These people, as well as all others, if they would be prosperous; if they would enjoy the blessings of civilized life, must render a hearty obedience to that great protecting agent of society, the law; the mission of which is to make every man secure in life, liberty, and the pursuit of happiness.
If you would assist these people in the race of life, you must diligently inquire and true presentment make of all offenses of which you have jurisdiction, and in this way teach the bad and vicious among them, that as sure as they violate the law, so sure will punishment overtake them. Remember it is the certainty of punishment rather than its severity, which deters men from the commission of crime.
By your action upon cases coming before you, from the Indian Country, teach the good, law abiding and the peaceably disposed among the people who live there, that their only safety lies in seeking protection under that palladium of all: the law of the land and in their willing and ready assistance to the Marshal of this Court and his deputies, in the execution of its process.
Section 2145 of the revised statutes of the United States provides, "that as to crimes the punishment of which is expressly provided for in this title the general laws of the United States as to the punishment of crimes committed in any place within the sole and exclusive jurisdiction of the United States except the District of Columbia shall extend to the Indian country." This statute, gives to the court a jurisdiction which is possessed by none other. It therefore throws upon you, and upon me, and upon every officer of the court the responsibility of seeing to it, that all laws for the protection of that country and its people are so enforced, that the good shall be protected from the bad and that with the aid of Indians through their local laws and by their co-operation with and assistance of the officers of this court, life, liberty, and property shall be as safe as it is possible to make them under the circumstances surrounding them. While no one in that country should be harassed or oppressed, yet every one who had violated the law should be made to feel its power, and every law for the protection of the people there should be executed in good faith, having in view all the time the purpose of the law, to wit: to protect the people.
I trust the people of the Indian Territory will cheerfully and freely co-operate with, and aid the officers of this Court in arresting and bringing to punishment all offenders against the laws and treaties of the United States.
In this course only lies for them safety and security; outside of it, all is uncertainty, doubt, and what is worse yet, insecurity for all that is dear to the people, because no people can live in a state of society without law, and that law is useless unless enforced. The laws were enacted for the purpose of protection. They will be enforced by this court with that purpose alone in view, and with no desire to oppress any one.
The law does not give you the right to indict an Indian for an offense committed by him upon another Indian, nor to indict an Indian who has committed an offense in that country and has been punished for it by the local laws of the tribe; but you have jurisdiction of all offenses of Indians against a white man or a colored man and vice versa of offense committed by those persons against an Indian. Of course those colored men who, under the second article of the treaty with the Creeks approved the 19th of July 1866 have been adopted as citizens and members of said tribe are legally Indians.
I call your attention to all violations of what is known as the laws for the government of the Indian country, and especially to that part of such laws as regulate the introduction into the Indian country of ardent spirits, and the sale or giving away of the same to Indians in that country. While it may not be proper to burden the government with expense as to every trivial violation of this law, yet it is your sworn duty to so far check and restrain this demoralizing influence upon the Indians, as it is possible for you to do, and if the proof is sufficient to lead you to believe that the law has been violated, and that an indictment can be maintained against the party violating it, you duty is plain; you are to present indictments.
When you go to your room and organize, it will be proper for you to select one of your members who is a good penman, as clerk, whose duty it shall be to keep a correct minute of all your proceedings, and of the testimony in each case taken by you, for the use of the District Attorney. The clerk will furnish you a book for this purpose.
You will strictly keep the secrets of your room, and not disclose to any one, except an officer of this Court, who has a right to know, who has been indicted, what was the testimony of any witness, and who appeared as witnesses before you, and how many of your body may have voted on any proposition to indict. In short, whatever transpires in your room you are not to disclose.
You will of course regulate your own hours of meeting and adjournment. I would say in this connection, however, that it is highly important that you should proceed with your work as rapidly as possible, for while it is also your duty to remain in session sufficiently long to fully investigate every case which is brought before you, it is also your duty to do this with the utmost dispatch, that the great expense attendant upon a session of court should be as light as possible. You will meet as early as you can, and work as many hours as possible. The Court will proceed with the business with all due haste, and you should be through and ready to adjourn before the adjournment of the Court.
It will be useless for you to waste your time in investigating cases which have been barred by the statute of limitations, as indictments found by you when the offense is barred will have to be dismissed.
There is no bar to the crime of murder. That may be punished at any time, no matter how long since it may have been committed. Indictments against persons offending against the Revenue laws, must be found in five years after the commission of the offense.
In all other cases which are likely to come before you, the indictment must be found within two years after the offense was committed.
The statute of limitations in the cases I have named shall not extend to persons fleeing from justice, and they are known as fleeing from justice, when they have either secreted themselves or fled the country to avoid the process of the law.
In arranging your work you will take up first, those cases where parties have been committed, and are now in jail; and of these, first examining and passing upon those of a higher grade, then the lesser cases. You will then take up for action those cases where the parties have had an examination before the commissioner, and are under recognizance for their appearance here; passing in this case, as in the one I have referred to before, upon the offences of a higher nature first. Then you will take up, examine and pass upon, all cases which came properly before you where parties have been arrested.
In the discharge of the important trust this day confided in you, strict impartiality should characterize your every act. Friendship and affection, hatred and ill will, should find no place in your hearts; and whenever the evidence warrants it in your judgment you should indict either friend or foe. You are to know no man, yet you are to know every man; your line of demarcation is between the guilty and the innocent. You are the great inquest between the government and the citizen, commissioned on the one hand to see to it, that all the violators of the government shall be in a proper and legal way, presented to the court for punishment, that the dignity and supremacy of the laws of the United States may be upheld, that the good may be protected from the bad, that every person of every station in life shall be made secure in the enjoyment of his life, his liberty and his property. On the other hand you are charged that no innocent man be presented by indictment to this Court. The effect of indicting an innocent man may be of a very serious character. As a consequence of such action he may be restrained of his liberty; he may be put to great expense to defend himself; a stain may be cast upon his reputation, and, in short, he may be injured beyond reparation. You can therefore see, if you would protect all who are under the protection of the law, that you must exercise the same care to shield the innocent from being falsely accused as you would exercise to bring the guilty to justice.
You may as how far you are to go in the investigation of cases - whether you are to examine witnesses on both sides of a case. This is a question which has not been free from difficulty. The correct rule for your guidance on this point is, that while you are not expected to investigate both sides of a case, as fully as it is investigated before a Petit Jury, because your time would not permit you to do this, yet you should so far pursue the investigation of each case which comes before you, as to satisfy your minds beyond a reasonable doubt that the evidence is sufficient under the law to establish a prima facie case, or, in other words, you must be convinced that there is a reasonable probability of the government being able to convict the accused when he is tried by a Petit Jury of his country, and unless you are thus satisfied it is your duty to ignore the bill.
As soon as you have completed the examination of a case, if the party has been indicted, return the indictment to the Court, that steps may be taken to put the party on his trial, and if you fail to find a true bill, return that fact, so that if a party is under arrest he may be at once discharged.
Now, gentlemen, I will say in conclusion that I trust you may find pleasure in the performance of your duty; that you will efficiently render that aid to the regular officers of the Court which is necessary to rendered to them by you before they can enforce the law, that the results of those labors will be to cause bad men to fear the law and good men to respect it - you bearing in mind all the time that under our institutions and laws all the time that under our institutions and laws all men of every creed, color, nationality, or persuasion, are entitled to the full measure of its protection; that none are so high in station as to be above it, and none so low as to be beyond it; that its mailed hand is laid upon every offender for punishment and upon every innocent man for protection; that, as does the light of Heaven, it blesses rich and poor alike, and if enforced without fear, favor or affection, whole communities, no matter how turbulent the character of the same, will soon learn to obey and respect it, and when so obeyed and respected as to render every man secure, and to cause peace to shed the rich sunlight of her rays on every hand, so that every man can feel there is none to molest him, or make him afraid, then you have a government which is loved and revered by the citizen; then you have a government which answers the full purpose for which governments were created; then we can truly say, law has its seat in the breast of Divinity, and its mission in the harmony of society.
As reported in the Fort Smith New Era, May 12, 1875 and the Fort Smith Herald, May 15, 1875.
Did You Know?
The Choctaw, Chickasaw, Cherokee, (Muscogee) Creek and Seminole Indian tribes were forcibly moved to Indian Territory on what became known as the Trail of Tears. The Arkansas River served as a water route to Fort Smith where they received supplies before crossing the river into Indian Territory.