Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1867-02-06

Johnson,) are illustrations which w
cite, not only for the principles they de
termine, but on account Of the distin
guished iurists concerned in the deei
sions, one Of whom for many years occu
pied a seat on this bench.
Il il contended that Luther vs. Border
decided by this court is an authority 70
the claim of martial law advanced II
this case. The decision is rnisappre
hended. That Gaze gre out OF the at
tempt In Rhode Island to supersede TN
old colonial government by revoiu
tionary proceeding. Rhode Island, unit
that period, had no other form OF loeH
government than the charter granted by
King Charles II, in 1863, and as tbs
3 limited the right Of suffrage, and did nu
provide for It's own amendment, many
Z citizens became dissatisfied because the
/ legislature would not afford the relief N
Z their power, aud without the authority
Of law formed a new and independent
/ constitution, and proceeded [ assert ia
I authority by force Of arms. The old gov
{ ernmeut r sisted this, and as the rebel
{ lion was formidable, called out the militia
to subdup IL, aud passed An act declaring
m4rtial law.
Bnrd-n, I'm the military service Of the
old government, brnke open the house OF
Luther, who supported the nei0- in order
10 arrest him. Luther brought suit
against Borden, and the question was,
whether, under the constitution ane
laws Of the state, Borden was Justified.
This court held that state msy Use
It's military power to put down an armed
iusurreciiun too strong TO be controlled
by the civil authority" and il the legis-
lsture Of Rhode Island thought that the
70, ha ne Of =
military forces and the declaration Of
martial law, there Was no ground on
whi..h this court could question It's su-
thority, and a. Borden acted under mill
tarv orders of the charter government,
which had been recognized by the po-
liti,.al pawer of the country, and was up
held by the state Judiciary he WAS Ju7ti
fed in breaking into and entering Lu-
theirs house. This is the extent Of the
decision. There was no question in issue
about the power of declaring martial law
under the federal constitution, and the
court did not consider it necessary even
10 inquire to what extent nor under
Whist circumstances that power may be
exercised by a state
We do not deem il important to exam
inc further the sdjudg.d cases; and shall,
therefore, conclude without any add
tionai reference to authorities. To the
third question, then, on which the Judges
below were opposed In opinion, an an
swer in the negative must be returned.
L il proper to say, although Milligan's
trial and conviction 10y military com
II nission was Illegal, yet, it guilty Of the
crimes imputed to him, and his guilt
had been ascertained by an established
court and impartial jury, he deserved
a
the measures deemed necessary to sub
due "a great rebellion by those VINO enjoy
the protection Of government, aud have
not the excuse even of prejudice OF sec
ton to plead in their favor is wicked;
but that resistance becomes an enormous
crime when il assumes the form OF Sc
cret political organization armed 10 op-
pose the laws, and seeks by stealthy
means 70 introduce the enemies OF the
country into peaceful communities,
there to light the torch Of civil war, and
thus overthrow the power Of the United
States. COnspirscies like these, at such
8 iuucture, are extremely perilous; and
those concerned in them sre dangerous
enemies to their country, and should Te-
ceive the heaviest penalties OF the law,
as an example 10 deter others from sim
liar criminal conduct. 1t is said the
severity Of the laws caused them but
congress wss obliged 10 enact severe
laws to meet the crisis and as our
highest civil duty is TO serve our country
when in danger, the late war has proved
that rigorous laws, when necessary, VIII
be cheerfully obeyed by patriotic peo-
pie, struggling to preserve the rich bless
ings of z free gOvernme
The two remaining questions 10 this
H.. 4 in p ma
tive The sus.ension Of the privilege OF
the writ Of habeas corpus does not sus
pend the writ itself The writ issues as
a matter of course; and on the return
made TO it. the court decides whether the
party applying is denied the right Of
proceeding any further with it.
Il the military trial of Milligan was
contrary to law, then he wss emitted, on
the faCIs stated In the petition, 10 be
discharged from custody by the terms OF
the act of congress Of March 3, 1853
Tae provisions Of this law having bsrli
considered in q previous part Of this
opinion, we will bot reState the views
there presented. MHigaB AYERS be wa
a citizen Of Indiana not Ia the military
or naval service, aud was detained II
close confinement, by order Of the Pres
ident, from the 9Th tisTu October. 1854
until the 23 day oi J.-AUSry, lSo5, wite'
the circuit court for the district Of ludi
a,o, with a grand Jury, convened in
session a. indianapolis, and Afterwards,
on the oTlh day Of the same month, ad-
! Urued without finding any iudiHm eut
or presrutmeDt against nm. II these
ayerments were true, (aud their truth T.
conceded for the pErpC-es OF this cssesl
the cuurt was required to liberate him ~,
taking certain oaths prescribed BY the
law. and entering into recognizance for
his good behavior. But Il is insisted thal
Mliligan was a prisoner Of war, and,
therefore, excluded from the privileges
Of the statute. Ii IS not easy to see how
he eau be treated IS prisoner OF wsr.
when he lived in Indiana for the past
twenty years, was arrested there, and
had uot been, during the late troubles
resident Of any Of the states in rebellion.
r. in Indiana, he eonspireu with bad
men 20 assist the enemy, he Is punish
able Tor it in the courts of Indiana; bn;,
when tried for the off.nse, be cannot
plead the rights Of war, for he was not
engaged Ia legal acts of hostility sgaiusJ
the government, and only such persons,
wh-n captured, are prisoners Of war. II
he cannot enjoy the immuuities attach
ing 10 the character Of & prisoner Of war
how eau he be subject 70 their pains snd
penalties7
This case, rs well as the kindred cases
OF Rowles and II rsey, were disposed Of
at the last term, and the proper orders
were entered OF record. There Is, there
fore, no additional entry required.