Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1867-01-14
0blo Statesman.
MILITARY COMMISSIONS,

Decision of the Supreme Court in the
Indiana Conspiracy Cases-The Le-
gaIitY of military Commissions De-
| MED.
Supreme Court of the United States-
No. SOL, December Term, lS66-Er pdrte !.
| In the matter OF Lambden z. Milligan, pc
| tltioner. On certificate of div sion of
opinion between Judges of the Circuit Court
of the United States for the District of In
diana.
Mr.. Justice Davis delivered the opinion
of the court.
On the 10th day of May, 1865, Lambden
| p. Milligan presented petition to the Cir
cult Court for the District of Indiana, to be
discharged from an alleged unlawful i'm
prisonment. The case made by the petit
tion is this: Milligan is a citizen of the
United States. and has lived for twenty
years in Indiana, and at the time of the
grievances complained of was not and never
had been in the military or naval service of
| the United States. On the 9Th day of Octo-
ber, 1864, while at home, he was arrested
by order of Gen. Alvin P. Hovey, command
| ing the military district of Indiana, and
mas ever since been kept in close cOnfine-
ment. On the 2lst day of October, 1864, he
| was brought before military commission,
convened at indianapolis, by order of Gen.
| Hovey, tried on certain charges and speci-
fcations, found guilty, and sentenced to be
| hanged, and the sentence was ordered to be
executed Friday, tie 10Th day of May,
1865. On the 81 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 Indianap-
oils, and empanelled a grand jury, who were
charged to inquire whether the laws of the
| United States had been violated, and, If
so, to make presentment. The court ad-
journed on the 9th of January, hav-
ing prior thereto discharged from further
service the grand jury, who did not find
any bill of Indictment, nor make any pre-
sentiment against Milligan for any offensc
whatever, aud, in fact, since his imprison-
ment, no bill of indictment has been
| found, or presentment made against him
by any grand jury of the United States
| Milligan insists that said military commits
sion had no juri, diction to try him upon
| the charges preferred, or upon any charges
whatever, because he was citizen OF the
United States and the State OF Indiana,
| and had not been, since the commencement
Of the late rebellion, resident OF any OF
| the States whose citizens were arrayed
against the Government, and that the right
| of trial by jury was guaranteed to him by
| the Constitution of the United States. The
prayer of the petition was that, under the
| act of Congress, approved March 3, 1868,
entitled IAN act relating to hdbedS corpus,
| and regulating judicial proceedings in GER
| tain cases." he may be brought before the
court, and either turned over to the proper
civil tribunal to be proceeded against ac-
cording to the law of the land, or dis
charged from custody altogether. With
| the petition were filed the order for the
commission, the charges and specifications,
the findings of the court, with the order Of
the War Department, reciting that the SEN
tence was approved by the President OF the
United States and directing that it be car
ried into execution without delay. The
petition was presented and filed in open
court by the counsel Milligan. AT the
same time the District Attorney of the
United States for Indiana appeared, and by
the agreement OF counsel, the application
was submitted to the court. The opinions
of the Judges of the Circuit Court were OPP
posed on three questions, which are certi-
fled to the Supreme Court: FtrSt-On the
fact stated in said petition and exhibits,
ought writ of hdbeGS corpus to be
issued. Second-0n the facts stated In
said petition and exhibits ought the
said j.. p. Milligan to be discharged
from custody as in said petition prayed,
Ihird-Whether upon the facts stated In
said petition and exhibits, the military
commission mentioned therein had Juris-
diction legally to try and sentence said Mil
ligan in the manner and form as in said
petition and exhibits is stated. The i'm
portance OF the main question presented by
their record cannot be overstated, for it in
volved the very framework of the Gov
ernment and the fundamental principles of
American liberty. During the late wicked
rebellion the temper of the times did not
allow that calmness in deliberation AID dis
cussion so necessary to correct conclusion
of purely judicial question. Then con-
siderations of safety were mingled with
the exercise of power, and feelings and in
terests prevailed, which are now happily
terminated. Now that public safety is
assured, this question, as well as all others,
can be discussed and decided without pas
sion or the admiXture of any element not
required to form legal judgment. We
approach the investigation of this carefully,
sensible OF the magnitude of the inquiry
and the necessity of full and cautious de-
liberation. But we are met with prelim-
mary objection. 1t is insisted that the Cir
cult Court of Indiana had no authority to
certify these questions, and that we are
without jurisdiction to hear and determine
them. The sixth section of the act "to
amend the judicial system of the United
States, approved April 29th, 1902" declares
'that whenever any question shall occur
before a Circuit Court, upon which the
opinions Of the judges shall be opposed,
the point upon which the disagreement
shall happen shall, during the same term,
upon the request of either party or their
counsel, be stated under the direction
of the judges, and certified under the seal
of the court to the Supreme Court at their
next session, to be held thereafter, and
shall BY the said court be finally
decided, and the discussion of the
Supreme Court and their order
in the premises shall be remitted to the Cir
cult Court, and be there entered on the rec
ord, and shall have effect according to the
nature of the said judgment and order
provided, that nothing herein contained
shall prevent the cause from proceeding, II,
in the opinion of the court, further pro-
ceedings can be had without prejudice to
the merits" 1t is under this provision Of
law that Circuit Court has authority to
certify any question to the Supreme Court
for adjudication. The inquiry, therefore,
is whether the case of Milligan is brought
within its terms. IG was admitted at the
bar that the Circuit Court had jurisdiction
to entertain the application for the writ of
hdbeds corpus, and to hear ana determine It,
and it could not be denied, for the power is
expressly given in the fourteenth section of
the Judiciary act of 1889, as well as in the
latter act of 1868, Chief Justice Marshall,
in Bollman's case "A Cranch), construed this
branch of the Judiciary act to authorize the
courts as well as the judges to issue the
writ for the purpose of inquiring into the
cause of the commitment and this con-
struction has never been departed from.
PM AZ is maintained with earneStnass and