The Lancaster gazette. [volume] (Lancaster, Ohio) 1863-1886, 1867-01-03
Ths DIiilisan Case Before the Suprenl, Q
Court qgc
,aa WAstitN6roN, Dec 81.

IN" opinion 0f the supreme Court
in the matter of H. P. Miligan, petit
toner on certificate of division Of
opinion between The Judges Of the Dis
trlct Court Of tie United States for
tho District Of lndiapa, has been pub.
lished. Milligau, it will be recollected,
was tried and convicted by military
commission. The opinions Of the
Judges Of tho Circuit opposed on three
questions, as follows
l On the fact stated in the petition
and exhibits, ought q writ OF hdbeaS
corpus to be issued2
=. On the facts stated, ought Lam
den p. Miligan be discharged from
custody as in said petition prayed2
3 Whether upon facts stated in said
petition and exhibits the military CON.
mission therein. had Jurisdiction legal
y to try and sentence said MilIigan in
manner and form as in said petition
and exhibits stated.
Judge Davis delivered the opinion
of thc Conrt, in which he said one Of
the plainest constitutional provisions
was intringed when MiIligan was tried
by n court not ordained or established
by C-ngrcss, No reason OF necessity
could be urged why he was not deliv.
cred to the Circuit Court Of Indiana to
be proceeded against according to law;
and another guarantee Of freedom was
broken when he was denied trial by
Jury. a,sr
To the first two questions the court
gave an Affirmative answer, and the
majority gave negative to the last
one. Chief Justice Chase and Justices
Wayne, Swayne and Miller, being un,
able to ccncur in some important par
ticulars with the opinion which bad
been read, made separate statement
of their views Of the whole case lie
said lho trial and sentence OF Mlligan,
were by military commission. con.
vencd in Indiana during tho fall Of
1864, the action of the commission had
been under consideration by President
Lincoln for some time, when he him
sell became The victim OF an abhorred
conspiracy; it was approved by his
successor in May, 1865, and sentence
ordered to be. carried into execution
The roceedings therefore had the full
est sanction of the Executive Depart
ment OF the Government.
1t was clear the writ ought to issue,
and that Milligan was entitled to the
discharge prayed for. The third ques
ton must be answered. negatively, as
an unavoidable Inference from affirma
tive answers TO the other two, We dc
not, he said, doubt that the positive
provisions of tho act of Congress re
lquire such answers. We do not think
lii necessary TO loAk beyond these pro
visions. In thcmewe find sufficient
aud controlling reasons for Onr conclu
sions; but they could not agree TO tl,C
opinion OF the majority that not onl j.
was Il military commission not author
lied by Congress, but that d was not
in tho power Of Congress to authorize
ii.
The dissenting Judges maintain tha
where peace exists the laws of peac,
must prevail. What We do maintain
liz, that when the nation is involved il
war, ind some portions ot the country
apo invaded, and all are exposed to in
vasi6n, III is within the power of Con
gross to determine in what States O
/ Districts such great and imminent pub
lie danger. exists as jnstifies the author
ization Of military tribunals for til
/ irial Of crimes and dffensps against th
discipline or security OF thearmy o
/ against the public safety, they canno
> doubt that in suclia time Of public dan
, ger, whom conspirauies existed inI In
diana, Congress had power under tn
| Constitution toprovide for tho organi
{ zalion OF II military commission an
for the trial by that commission {
+ persons engaged in this conspiracy.