Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1867-01-15

'l.' [coNCLUsIoE. ~" ,..I."N
| The controlling question in the case Is
this upon the face: "Iua.'5 7g" lg.f
Upon the facts stated in Milligan's petit
ton, and the exhibits filed, had the military
commission mentioned in It jurisdiction le-
gally to try and sentence him? Millgan,
| not resident of one of the rebellious
States or prisoner of war, but citizen Of
Indiana for twenty years past and never in
tile military or naval service, is, while at his
home, arrested by the military power of
the United States, imprisoned, and, on GER
| tain charges preferred against him, tried,
| convicted and seutencea to behanged by a
| military commission organized under the
| direction of the military commander of the
military district Of Indiana. Had this
| tribunal the legal power and authority to
try and punish this man?
! No graver question was ever considered
| by this court, nor one which more nearly
concerns the rights of the whole people !;
| for it is the birthright of every American
citizen when charged with crime, to be
| tried and punished according to law. The
power of punishment is alone through the
means which the laws have provided for
that purpose, and If they are Intellectual,
there is an immunity from punishment,
no matter how great an offender the indi-
vidual may be or how much his crimes may
| have shocked the sense of Justice OF the
country and endangered its safety. BY the
protection of the law, human rights are Sc
cured. Withdraw that protection, and they
are at the mercy of wicked rulers or the
clamor of an excited people. If there was
no law to justify this military trial, it is not
our province to interfere. If there was not,
it is our duty to declare the nullity of the
whole proceedings. The decision of this
| question does not depend Oh argument or
| judicial precedents, numerous and highly
| illustrated as they are. These precedents
| inform us Of the extent of the struggle to
preserve liberty, and to relieve those in
civil life from military trials. The founders
| of our Government were familiar with the
| history of that struggle and secure in a
written Constitution every right which the
people had wrested from power during a
contest of ages. BY that Constitution, and
the laws authorized by it, this question
must be determined. The provisions of this
| instrument to administration of criminal
| Justice are too plain and direct to leave
room for miscOnstruction or rOubt of their
true meaning. Those applicable to this
case are forms and that clause of the orig
| inal Constitution which says, "that tile
trial of all crimes except in case of i'm
parchment, shall be by jury" and in the
| fourth, fifth. and sixth articles of the
amendments; the fourth proclaims the
| right to be secure i'll person and effects
against unreasonable search and seiz-
ure, and directs that judicial warrant
shall not issue, without proof of probable
| cause, supported by oath or affirmation ;
the fifth declars that no person shall be
heTd to answer for capital or otherwise
infamous crime, unless on presentment by
a grand jury, except in cases arising in the
| land or naval forces, or in the militia when
| in actual service in time of war or public
7 danger, nor be deprived of life, liberty, or
property without due process of law; and
the sixth guarantees the right of trial by
| Jury in such manner, and with such regu-
lations that, with upright judges, impartial
| juries, and an able bar, the innocent will be
saved and the guilty punished. 1t is in
| these words in all criminal prosecutions,
the accused shall enjoy the right to . speedy
and public trial by an impartial jury of the
| State and district wherein the crime shall
| have been committed, which district shall
have been previously aseertained by law,
and to be informed of the nature and the
cause of the accusation, to be confronted
with the witnesses against him, to have
compulsory process for obtaining witnesses
| In his favor, and to have the assistance of
counsel for his defense, These securities
| for personal liberty thus embodied were
| such as wisdom and experience had de-
| mOnstrated to be necessary for the
| protection of those accused of crime
| andso strong was the sense of the country
| OF their Importance, and so jealous were the
| people that these rights, so highly priced,
might be denied them by implication, that
| when the original Constitution was pro-
posed for adoption, it encountered severe
| opposition, and but for the belief that it
would be so amended as to embrace chem,
| it could never have been ratified. Time
| has proven the disceFnment of our ances-
| tors, for even these provisions expressedin
! such plain English words that it would
seem the ingenuity of man could not evade
| them, are now, after the lapse of more,than
| sixty years, sought to be avoided Those
| great and good men fOresaw that troublods
times would arise, when rulers and people
would become restive under restraint, and
seek by sharp and decisive measures that
the principles of constitutional liberty to
| accomplish ends deemed just and proper,
and would be in peril unless established by
capable law. The history of theworld had
taught them that what was done in the
past might be attempted in the future. The
| Constitution of5the United States is law
for rulers and people equally in war and in
| peace, and covers with the shield of its
protection all classes of men at all times
and under all circumstances. No doctrine
involving more pernicious consequences
was ever invented by the wit of man THAI
that anyof its provisions can be suspended
during any of the great exigencies of Coy
ernments; such doctrine leads directly tC
anarchy or despotism. But the theory Of
/ q, ;e io0
for the Government within tho Constitu-
tion has the powers granted to it which are
necessary to preserve its existence, 1t has
been happily proved by the result of the
great effort to throw of its just authority
lave any of the rights guaranteed by the
Constitution been violated in the case Of
Milligan, and if SO what are they? Every
trial involves the exercise of Judi
cial power, and from what source
= did the military commission that
n tried him derive their authority? Ger.
tainlyno part of the judicial power of the
country was conferred on them, because
the Constitution expressly vests it in one
Supreme Court and such inferior courts as
Congress may from time to time ordair
and establish, and it is not pretended thai
the commission was a court-erdained anC
: established by Congress. They cannot jus.
n tify 1t on the -manuaCe OF Cne IresluenC, pc
cause he Is controlled by law, and has hi!
appropriate sphere Of duty, which is,to ex
ecllte, not to make the laws; and there i!
nounwritten criminal code to which resor
"A can be had as a. source Of Jurisdiction. But
4 itis said that the Jurisdiction is complet,
underthelaws and usages of war. 1t car
serve no useful purpose to inquire wha
these laws and usages are, whence they
oPluinatetl, where found, and upon wha