The evening Argus. [volume] (Rock Island, Ill.) 1861-1871, 1867-01-09

The alleged ground of aiding and abetting q
formidable rebellion in that colony. Those
eminent stasssmen, Lord Bronghan and Sir
James Macintosh, participated in that debate
and denounced the trial a. illegal, because
il aid not appear that the courts of Dem
Arara could not sty the offence, and that
'swhen the laws can act every other mode OF
supposed crimes is itself an enor'
nous crime"
So sensitive were our Evolutionary fathers
ON this subject, although Boston was almost
in state of siege when General Gage issaed
his proclamation of martial law, they spoke
of it a. an "sttempt to supercede the conrse
Of the common law, and instead thereof to
publish and order the use of martial law
The Virginia Assembly also denounced .
similar measure on the part OF Governor
DunmoreS' as IN assumed power, which the
king himself cannot exercise, because it an
nuls the law OF the land and introduces the
most execrable of all systems, martial law"
In some parts of the country, during the
waraof 1912, our officers made arbitrary ar
bitrary arrests, and by military tribunals
tried citizens who were not in the military
service. These arrests AMI trials, when
brought to the notice OF the courts, were uni
formly condemned as illegal. The cases OF
Smith vs. Shaw, and Mcconnell vs.. Hamp-
ton, reported in IL JohnsonI are iliustra-
tions which we cite, not only for the primer
pies they determine, but on account OF the
distinguished jurists concerned in the decls-
IONS one OF whom for many years occupied
seat on this bench:
1t is contsnded that Luther VS.. Borden de-
cided by this court, is an authority for the
claim of martial law advanced in this CASE
The decision is inexperienced. That case
grew out of the attempt in Rhode Island to
al hu a
revolutionary proceeding. Rhode Island,
until that period, had no other form of local
governments than the charter granted by
King Charles H.. in 1868, and as that limit
cd the right of suffrage, and did not provide
for its own amendment, many citizens be
came dissatisfied because the Legislature
would not afford the relief in their power,
and without the authority of law formed q
new and independent constitution, and pro-
oeeded to assert its authority by force OF
| arms. The old government resisted this, and
as the rebellion was formidable, CALLED out
the militia to subdne it, and passed an act
declaring martial law.
Borden, in the military service Of the old
government, broke open the houseof Lather,
who supported the new, in order 60 arrest
him. Luther brought suit against Borden,
| and the question was, whether, under the
constitution and laws of the state, Borden
| was justified.
| This court held that state "may use its
military power to put down an armed insur-
rection too strong to be controlled by the civ
ii authority" and it the legislature of Rhode
Island thought theperil go great as to require
the use Of it's military forces and the declar-
alton of martial law, there is no ground on
| which THIS court could question its author.
| isy, and IS Borden acted under militia
| ~ orders of the charter government, which
| had bsen recognized by the political power
| of the country, and was upheld by the state
judiciary, be was justified in breaking into
and entering Luther's house. This is the ex-
tent 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 ever &c
| inquire ito what extent nor under what cir
eumstsnoes that power be may exercised by a
| state"
We do not deem it important to examine
! further the sdj judged cases and shall, there
| fore conclude without sny additional refer
| snca to authorities To the third question,
| then, on which the judges below were oppoe-
ed in opinion, an answer in the negative must
| be returned.
1t is proper to say. although Miiiigan' 8 tri-
| al and conviction by military commission
was illegal, yet. if guilty of the crimes i'm
puted to him, and his guilt had been aseer
1 tanned by an ests blishsd court and impartial
/ jury, he deserved severe punishment. Open
1 r-si-aA~e~ e .i-~ ---~>--~~- A---~A -.s..s-sy
| o su bdue q great rebellion by those who en-
| JOY the protection of government, and have
/ not the excuse even of prejudice o. section
/ to plead in their favor, is wicked but that
| resistance beoones 81 enormous CRIME when
| it assumes the form Of secret political or
ganization armed II oppose the laws, and
/ seeks by steaiiny means TO Introduce the enc
mics OF the country into peaceful communi
| ties, there to light the torch of civil war, and
| th&S overthrow the power of the United
| States. Conspiraciss ike these, at such q
juncture. are extremely per;loes; and those
concerned in them are dangerous enemies of
[ their cJunery and should receive the heaviest
| penalties of the law, example TO deter
| others from similar conduct. Is is said the
| severity of the laws caassd them but een-
gress was obligsd to enact severe laws to
4 meet the crisis; and as our highest civil duty
/ ls TO serve our. country, when In danger, the
late war has proved that rigorous laws, when
necessary, will be ehserfuliy obeyed by a
| patriotic people, struggling to preserve the
rich blessings Of free government.
The two remaining questions IN this case
must be answered in the affirmative. The
| suspension ST the writ of habeas corpus does
| not suspend the writ itself. The writ issues
| as q matter of course; and on the return
| made to it,the court decides whether the par
ty applying Is denied the right of proceeding
any further with ID.
If the military trial of Milligan was con-
| trsry 30 law, then he wac entitled, on the
facts stated in his petition, to be discharged
from custody by the terms of the act of con
gress of March 5, 1863. The provisions of
| this law having been considered in previous
part of thas opinion, we will not rsstate the
views there presented, Milligan AYERS he
| was citizen of Indiana, not in the military
or naval service, and was detained in close
confnement, by order of the President, from
the 9Th day of October. 1864, until the Cd day
of January, 1865, when the circuit court for
the District Of Indiana. with grand jury,
convened in session ct Indianapolis, and af-
forwards, on the 9th day of the same month
adjourned without fading an indictment
or presentment against him. If these aver
mems were true, land their. truth is oonced-
ed for the purposes of this case, the ooufs
was required to hberate him on taking Ger
tain oaths prescribed by law, and entering
into recognizanee for his good behavior. But
it is insisted that Milligan was q prisoner of
war and, therefore, excluded from the privii-
eyes of the statute. Il is not easy to see how
he can be treated as o prisonsr of war. when
be lived in Indiana TOR the past twenty years.