Evening star. [volume] (Washington, D.C.) 1854-1972, 1867-01-01
MILITARY COMMISSION.
Decision of the Supreme Court in the Mil.
ligau Case

hgan Ease.
The decision of the Supreme Court in the
case OF Milligan has just been published.
Mr.. Justice Davis delivered the opinion Of
the court.
On the 10Th day OF May, 1866, Lambdin p.
Miligan presented petition 20 the Circuit
Indiana, 10 be discharged from an alleged
unlawful imprisonment. The case m ade by
the petition is this: Millgan is a citizen of the
United States; has lived for twenty years In
Indiana; and at the time of the grievances
complained OF wcs not, and never has been in
the military or naval service of the United
States. On the 5th day of October, 1864. while
at home, he was arrested by order of General
ALVIN II. Hovey, commanding the military
district Of Indiana, and has ever since been
kept in close confinement.
On the 2Ist day of October, 1854, he was
brought before military commission, con-
yened at Indianapolis by order of Gen. Hovey:
found guilty and sentenced 10 be hanged; and
the sentence ordered 10 be executed on Friday
the 18th day of May, 1866
On the 2d day OF January, 1865, after the
proceedings OF the military commission were
at an end, the Circuit Court Of the United
States for Indiana met at Indianapolis and
empaneied grand jury. who were charged to
inquire whether the laws Of the United States
had been violated and II so, to make present
ments. The court ad journsd on the 27th day
on January, having, prior thereto, discharged
from further service the grand Jury, who did
not hnd any bill of indictment or make any
preseniment against Milligan for any offence
whatever; and. in fact, since his imprisonment
no bill of Indictment has been found, or pre-
sentiment made against him by any grand Jury
OF the United States.
MilIigan insists that said military commits
sion had no jurisdiction to try him upon the
charges preferred, or upon any charges what
ever; because he was a cItizen Of the United
States and the State of Indiana, and had not
beeb, since the commencement of the late re-
bellon, resident OF any of the States whose
citizens Were arrayed against the Government
and that the right OF tIial by jury was guaran-
q a fn hirnh hx-f fh.
States.
The prayer of the petition was, tha, under
the act OF Congress, approved March Sd. 1863,
entitled "An act relating TO habeds CORPUS and
regulating Judicial proceedings in certain
cases" he may be brought before the cosrt.
and either turned over TO the proper civil tri-
law OF the land, or discharged from custody al
together.
As to the disposal of the special case before
the court, the Judges unanimously agreed. On
the facts presented. which are briefly re hearsed
in the opinion of Justice Davis, il was agreed
first, that Mullgan was enutled 10 the writ of
habeas corpus; second, that be ought TO be dis
charged from custody: third that the military
commission which tried him had no iurisdic-
lon. But four of the Justices, Chief Justice
Chase and Justices Wayne, Swayne, and Mil
Ter. dissented from the majority by denving
their construction that 1t is not in the power OF
Congress TO authorize military commissions to
try civilians.
The opinion begins with a clear brief state
ment Of the facts involved, and the three points
certified 10 the Supreme Court from the Circuit
Court of Indiana. 1t isposes of the objections
raised 10 the jurisdiction of the court. There
is no question about the duty of the Circuit
Court 10 entertain the application for the writ
The objection thata certificate Of division be-
tween the judges can only occur in a cause.
and that this is not cause until after issue of
the writ and return Is conclusiyely set one
side. Any prosecution of a remedy which
the law allows is a cause, and Milligan pur-
sued the only remedy which the law afforded.
The act of March 3, 1868. under which Mil
lisan claimed his discharge, is shown TO be
applicable.
| The controlling question is stated TO be:
Upon the facts stated in Milligans petition.
and the exhibits filed, sshad the military COM
mission mentioned in it Jurisdiction legally TO
try and sentence him ~ Naturally II enlarges
on the importance ofsuch an inquiry, and
recalls tbe history Of the struggle TO preserve
the liberty OF the citizen. The prov sions OF the
Constitution are claimed To be too plain for
doubt. jury trial is guaranteed expressly in
the original Instrument except IN cases oflm-
peachment, while the amendments secure ex-
emption from unreasonable search and seiz-
ure, presentment by grand jury, and Jury
trial under conditions most likely 10 sscure
| justice and prevent oppression. The Consti-
tuition Is designed for both peace and war, and
no more pernicious dogma was ever started
than "that any Of its provisions can be sus-
pended during any of the great exigencies of
the Government" In the case of MiIligap
the Consultation was infringed. /. BY trial
by tribunal not ordained and established by
Congress. q By denying him a trial by Jury
The decision adirms that not only was the COM
mission illegal, but that sno usage of war could
sanction military trial there lin Indiana) for
any offence whatever of a citizen in civil life
In no wise connected with the military SER
vice.; and IL goes so far as to affirm that "Coa-
gresS could grant no such poHer.' There was no
necessity for the commission, as the courts
were open in Indiana, and though military
courts are necessary for men in the military
or naval service, yet TO all others the Constr.
tuition guaran tees trial by iury. ssThis is a
vital principle" alt is not held by suffer-
snce, and cannot be frittered away on any of
State or political necessity"
The plea of martial law is untenable 1t
would substitute the Will OF a soldier for the
authority OF law, and IL accepted, would make
republican government a failure. The writ of
habeas corpus may be suspended. but the Con-
interference with the right Of Jury trial. The
safety of the country cannot be pleaded in be-
half OF such suspension, tor a country pre-
served at the sacrifice of the cardinal principles
OF liberty is not worth the sacrifice. But no
plea of safety can be raised in this case, for tie
courts were unobstructed; and though neces-
sity. as in case OF foreign invasion, may compel
the substitution of the military for the civil
arm, vet martial government, after the courts
are reinstated, is usurpation. IL is equally
nsurpation il the courts have never been OBJ
structed, and NJ must be confined TO the locality
OF actual war. The opinion cites several pre-
cedents both from English and American his
tory in suppart of these views.
The Chief Justice and the three who agree
with him say, Congress Is but the agent of the
nation; and does not the security of indiyidu-
ais against the abuse Of this, as Of every other
power, depend on the intelligence and virtue
OF the people, on their zeal for publ and pri-
vate liberty, upon official responsibility Sc.
cured by law, and upon the frequency of cleo
tions, rather than upon doubtful constructions
Of legislative powersr' .....'.
DThey have skatorial queen in Wheel