Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1867-01-04
NO. 81.

Nv. III.
prisoner of war, how can he be subject to
their pains and penalties.
This case, as well as the kindred cases of
Bowles and Horsey, were disposed ofat thc
last term. and the proper orders were en-
tered Of record. There Is. therefore no adj
ditionai entry required
Dissenting Opinion ~ 60 Power of
Congress co Authorize Military Conn
missions 60 try Civilians.
Er pdrt-. IN Btaii,r Of Lrmb9in p HT1igla. pc
iai0Her. OaG cesfu1edis Of q irisipH af apifIisfl
6sfireen thr Judges II fLc Cjrruu C,uJ - f5e
United States }or he District Of fadi1,g.
Mr. Chief Justice Chase delivered the follow
| ing opinion:
| Four members of the court eancurring with
| their brethren IN the order heretofore made IN
| this cause, but unable TO concur in some import
! ant particulars with the opinion which has Just
been read. think it their duty 90 make q separate
| statement of their views Of the whole ease.
! We do not doubt that the Circuit Court Cor the
District Of Indiana had jurisdiction Of the petit
l ton OF Alilliyan for the writ Of habeas corpus.
Whether this court has jurisdiction upOn the
i Sertlhcate OF division admits of more question.
Inc construction Of The act authorizing such Ger
| uhcates, which has hitherto prevailed here. de-
mes jurisdiction in cases where the certificate
/ brings up the whole cause before the court But
| none OF the adJudicated cases are exactly in
point. and we are willing TO resolve whatever
doubt may exist in favor of the earliest possible
answers TO questions involving life and liberty
| We agree, therefore. that this court may prop
/ that before us
The crimes with which MiIJisan was charged
were OF the graYest character. and the petition
| and exhibits in the record, which must here be
I taken as true, admit bis guilt But whatever
| his desert Of punishment may be. it is more i'm
Portant TO the country and 20 every citizen that
| ne should not be punished under an Illegal SEN
1 tence. sanctioned BY this court OF last resort
/ than shat he should be punished NJ all. The laws
which protect the liberties Of the whole must NOT
De violated OF set aside IN order % intict even
upon the guilty, unauthorized, though merit
justice
The trial and sentence Of MiIigan were by
/ military commission convened in Indiana dur
/ ing The fall Of 1865 The action Of the commits
/ sion had been under consideration by President
| Lincoln for some time when no himself became
| the victim of an abhOred conspiracy. 10 was
| approved By his successor in MAY, 1865. and the
| sentence was ordered to be carried into eXecu-
| ton. The proceedings, therefore. had the full
cts sanction OF the Executive Department Of the
government
This sanction requires the most respectful and
the most careful consideration OF this court. The
| sentence which It supports must not be set aside
except upon the clearest conviction that IL can
| not be res0nciled with the constitution and the
| constitutional legislation of Congress.
We must inquire, then, what constitutional or
statutory provisions have relation 10 this military
proceeding
Tho act Of Congress Of March Sd. 1863. COM
pTises all the legislation which seems to require
consideration in this connection. The c0nstitu-
tionality otthis act hasnOt been questioned snd
| Is not doubted.
The first section authorized the suspension
during the rebellion of the writ of habeas corpus
throughout the United States by che President.
The Two next sections limited the authority in
important respects.
The second section required that lists Of all per
sons, being citizens Of States in which the ad-
| ministration Of the laws had continued unimPar-
| ed in the Federal courts, who were then held OF
| might thereafter be held as prisoners OF the
United States. under the authority Of the Presi-
dent, otherwise than "a prisoners Of war. should
be furnished to the Judges OF the circuit and dis
trict courts. The list transmitted to the Judges
we're to contain the names of all persons, resid-
ing within their respective jurisdictions, charged
/ with violation ofnatiOnal law. And twas re-
quired, in cases where the grand Jury IN alien
dance upon any Of these courts should terminate
its session without proceeding by Indictment or
otherwise against any prisoner named IN the list.
| that the Judge Ofthe court should forthwith
| make an order that said prisoner desiring dis
charge should be brought before him OF the court
/ to be discharged. on entering into recOgnizance,
/ if required, TO keep the peace and Tor good be
| haviOr or to appear. as the court might direct,
to be further dealt with according 10 law. Every
/ officer of the United States, having custody Of
such prisoners, was required 20 obey and execute
the Judges order. under penalty, for refusal OF
4 delay of line and imprisonment.
/ The third section provided in case lists otper-
sons other than prisoners of war then held IN
i confinement or thereafter arrested should not
/ be furnished within twenty days after the pas
sage Ofthe act, or, in case Of subsequent arrest,
1 within twenty days after the time Of arrest, that
any citizen, after the termination Of session OF
the grand jury without indictment or present
| ment might. by petition, alleging the facts, and
verified by oath, obtain the Judges order Of DIS
| charge in favor ofany pers N 50 imprisoned ON
the terms and conditions prescribed IN the second
section. r
| of the United States to attend examinations on
| petitions for discharge.
It was under this act that Milligan, petitioned
the Circuit Court far the District Of Indiana for
| DISCHARGE from Imprisonment.
| The holding of the Circuit and District courts
| of the United States in Indian. had been unin
| terruDted. The administration Of the laws in
| the Federal courts had remained unlmpalTed.
| MiIliRan was imprisoned under the authority Of
| the President and was not prisoner Of war.
| No list of prisoners had been furnished % the
Tudges either Of the District or Circuit courts, a.
! required by the law. A grand Jury had attended
| the Circuit Courts Of the Indiana District while
! Millignn was there imprisoned, and had closed
| its session without finding any Indictment OF
pre5entment, or otherwise proceeding against
| the prisoner.
| His case was thus brought within the precise
| letter and intent Of the act Of Congress, unless
| il can be said that Milligau was not Imprisoned
| by authority ct the President aud nothing Of
this sort was clalneu IN argument on lae part vi
lbs clear upon this statement that the Circuit
/ Court was bound to hear Milllgan's petition for
| the writ of habeas corpus, called m the act an
! order TO bring the prisoner before the Judge OF
| the court aud TO issue the writ, or, m the Ian
| guage Of the act. 20 make the order.
= | The first question, thcTetOre-Ought the wrll
| to issue Y-must be answered in the Affirmative
1 And il Is equally clear that he was entitled %
| discharge prayed for
In must be borne in mind that the prayer o.
the petition was not for an absolute discharge
| but 10 be delivered from military custody anC
Imprisonment, and if found probably guilty d
| any 0ffense. to be turned over to the proper tn
| bunaI for inquiry end punishment; or If no
! found thus probably guilty to be dlschnfBe'
And me express terms of the act Of Congress
| required this action Of the court. The prisone
| must be discharged on giving such reeOgnlEanc
| as the court should require not only LOT goG'
= behavior, but for appearance, az directed ~ th
= | court TO answer and be further dealt with &C
= eording 10 law.
pension Of the writ Of habeas corpus general
r l throughout the United States. The second an
: third sections limited this suspension In ceTta
- l cases within States where the administration Q
!. justice by the Federal courts remained qnlni
paired In these cases the writ was still to issue
i and under 10 the prisoner was entitled 70 ms dis
Il charge by circuit or district judge or court u
I, less held TO bail for bis appearance to a1swe
1 charges Ne other judge or court could make D
i 1 order of discharge under the writ. Except undo
\ the circumstances pointed out BY the act nethe
!, | circuit nor district judge or court could max
u such an order. But under these ctrcumstance
o 1 the writ must be issted, and the relief from IN
v | orisoument directed by the act must be adoTde'
(, The commands Of the act we're positive and ie
4
o / An Affirmative answer mast, therefore,
r | given 10 the second question, namely: Ougt
Miligan TO be discharged according to the pray
Of the petitionr NJ a
e That the third question, namely. Had q
N military commission in Indiana under the the
state. Jurisdiction to try and sentence ming =
D r,ust he answered negatively Is an unhyoidho
l. ;-ference from affirmative answers % the oth'
n two. ,.-.tl .. ~. -,
IL d;srion to try and sentence Millgan n he coid
n; moi he detained in prison under his original q
pa | Test or under sentence after the close Of so
SION OF the grand jury. without Indictment
81 other proceeding against him.
in Tndssd. me act seems 20 have been framed I
p prTnoss 10 secure the trial Of all citizens ~ cav
! trihnnaIs ia States where these tribunals We
" NOT INTERRUPTED in the regular exercise OF the
>. Wndsr Il. "a such States. the privilege Of Z
y ,yrit rnfebt be suspended. Any person regards
=" JorgsTous 10 the public safety might be q
M -sstsj ana Detained until after the session OF
DC sran5 iury. Until after such session no persl
ne srTssfed could have the benefit Of the writ, al
Of sven Then no such person could be dischargi
- evcspt on such terms as % future appearance
- ne court might impose. These provisions oby
Of 0usIv emplate no other trial or senten
,e than that OF civil court, and we could not g