The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1867-01-01
UNIFIED STATES SUPREME COURT.
THE INDIANA CONSPIRACY CASE
Tho trial and Conviction Of Milligal BY
Military Commission Declared
Unconstitutional.

@f ID -~~-~>~~~>~,~-->~->~~~~~
Opinions Of Chief Justice Chase, and
Justice Davis, Of Illinois.
y. 20. 20. a q.
4 sy s2taas ate
WASHINGTON, D. q. Dec 81, 1855
Opinion Of Justice Davis. .sesss B
n - parts IN as mater e Lawbdfs r. ASussd", Pc
aoxer on certificate Of division % opinion oesween
The Judges Of The Circus. Cou Of the United stas for
~ District Of Indiana NJ Justice Davis delivered the
epsnion Of the Court ON the 10th day Of Nay 1895,
Inubd,u p. Miean presented position 10 the Circuit
Cart or the United States ths dsrict OF Indiana
- discharged from alleged unlawful inprisonment
NE case made BY the petitioner II ths:--Algan 10
osn or United Statss has lived for twenty years
= indiana and u the time Of the grievances complained
q was and never had bean In the military or naval
ssrvice Of the United States On the 5th day Of October
1884 while at home he arrested by order Of General
ALVIN p. Hovey, commanding the military district Of
indiana and has since been kept in close combine
nsnt On the 2lst Of October, 1884. he was brought
before military commission convened 1t Indianapolis
~ order Of General Hovey tried on certain charges and
Specifications found guilty and sentenced 70 be hanged
sAs sentence ordered 70 be executed Friday the 18th
ny OF May 1885, On the ID day Of January 1885, after
she proceedings Of the military commission at
end the Circuit Court Of the United States for Indiana
net at India napolb and smpanelled Grand Jury who
wsre charged to inquire whether the laws Of the United
States had been violated and II % TO mako present
ments The court adjourned the 9th day or Janu-
sry having prior thers.o discharged from further
c s Gaad Or u who s u ana
nnhgan for any offence whatever, and, In fact,
since his imprisonment bill Of indictment has been
found preeentment made against him BY any Grand
Jury Of the United States Miiligan insists that said
military commission had Jurisdiction to try MIN up on
Sssauss e was citizen q the Gnssd sss.s and The
otate OF Indiana and had mot been, since the com-
nsss. q : sss q the
Uent and that the rsht Of trial BY jury guaranteed
- him BY the constitution Of the United States The
prayer Of the petition tna under the act Of Con-
Bress approved March 1888 entitled oct relating 20
kabeas corpus and regulating judicial proceedings
and either turned the proper civil tribunal 70 Be
proceeded against according to the law Of the land or
we're ed the order for The commisson the charges ana
specification the findings Of the court with the order
81 the War Department recitng that the sentence Was
lScting that be carried into execution without delay
me petition was presented and filed In open court BY
Attorney Of the United States for Indiana appeared and
~ the agreement Of counsel the application sub
. sns court os opinions ' o. sns 3uasss o. ne
ars certified 70 the Supreme Court:-FEst on The facts
In the sad g. sooa san oabs sss os A.. n
rid petition and exhibits ought the said Lambden Mill
Gan 70 be discharged from custody g in said petition
yayedi Third whether upon the facts stated said Pc
Elton and exhibits the military commission mentioned
lAsrein had Jurisdiction legally TO try and sen.
IA petition and EXHIBIT is sssssai The importance Of
~ main question presented by this record b
sverstased Tor !. involves me very Msmswcrk o. the
liberty. During the late rebellion the temper Of the
shines did not allow that calmness IN debe ration and
discussion necessary to correct conclusion Of purely
judicial question. These combinations Of safety
mingled with the exercise Of power md feelings and
s pSss .ss ;s' Nov
yell ~ all others, can b. discussed and
lseidsd wlthou. passion the admixtne Of any
approach the Investigation Of this fully sensible Of
lie magnitude Of the inquiry and the necessity Of fall
hninay objection Il is insisted thai the Circuit Court
81 Indiana has no authority 70 ccrfy these questions
.s Nc A1s 81 n. . e M
judicial system Of the United States approved April 90
Sso2 declares that whenever any question shall occur
4 The judges shah Be opposed, the '' point
spon which the disagreement shall happen shall during
counsel b. stated under tbe direction Of the judges and
certified under the seal Of the court to the supreme
Coc.t = their next session 70 b held thereafter and
ssicn Of the Supreme Court and their order Ia the
premises shall be RENTED 70 tbs Circuit Court and Dc,
sordng 20 the nature Of the said Judgment and
seder, provided that nothing therein contained
a. opinion Of the court further can be- had
without prejudice 70 the merits Il 10 under this pro-
vision Of Law that circuit court has authority TO certify
eny question 70 the Supreme Court for adjudication
he inquiry, therefore, whether the Of Mliigan
= brought within It's ssrma Il admitted at the bar
ssssoaslon for sSs wit Of habsss corpus and to bear
md determine ~ and Il could not be denied. for the
powev expressly given In the fourteenth section OF the
judiciary act Of 1850 IS well Al In the late act
of 1863. Chief Justice Marshall, in Balnnan's case
q 70 authorize The court a. well as the judges 10 issue
Ne writ for the pnrpose Of nqnirng into the Of
me commitment and this construction has been
departed from But II Is manta ned with esrnestness
md ability, that certificate Of division Of opinion
only In cause and that the proceeding of party
cause Until after the wTt mas been issued and the return
made Independently Of the provisions Of the act Of
Of MsSn ss relating 70 n rs on
We will presently CONSIDER can the position De sustained
u true that IT IL usual for court, on application for
writ Of habeas corpus 20 issue M writ and on the return
% dispose Of the but the court elect waive
the issuing OF the writ and consider whether upon the
Sssors II could be escsarsed One 81 the very
POINTS OF which the case Of Tobias Watkins,
reported in third Peters turned. was whether
upon the case which he had made. The Chief Justice
n delivering the opinion OF The court said the Of
inprisonmcnt shown ms fully by the petitioner
could appear the return Of the writ consequently the
writ ought not he awarded the Il satisfied that
The prisoner would be- remandei to prison. The Judgos
q the Circuit Court Of Indiana therefore warranted
BY express decision OF this refusing wrii
satisfied that the prisoner on his showing was right
fully detained. But IL Is commended, n they differed
about the lawulness or the imprisonment, and
could render Judgment, the prisoner is
semedilcss and have the disputed question cer:-
Aed under tho act Of 1907 HIS remedy cpmplete by
viii OF error appeal II the renders lnal jndg.
Dent refusng TO discharge him; but " no should be
unfortunate to be placed In the predlcaent OF
Ing The court divided the question whether no should
live or die, he - hopeless and withou, remedy He
wishes the vital question settled, by single ndge
his chambers by the hic hest tribunal
Substitution andy yet the privilege " denied him because
The Circuit court consists Of judges instead one
Such res not In the contemplation Of the Legis-
hture Of 1907, and the language used by canuot oe
construed 10 mean any such thing. The cIause under
consideration introduced to further the ends OF
JUS Ice by ob.Ansng speedy settlement OF an impor.
saDt question where the judges might be opposed In
opinion The sct of 1902 80 changed the judicial syst
q Two judges, aud without this provision or
kindred one, IL the judges dlnercd tho diff
ference would remain, the question be unssttled.
and justice denied The decisions OF this Court mon
Abe provisions Of this section have been nnmerous In
case Of the tinted States vs. Daniel 70 wheaton, the