Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1867-01-04
onion aud dispatch.
FRIDAY. JANUARY ., 1897.
ILLEGALITY OF MILITARY COM
MISSIONS TO TRY CIVILIANS.
Decision fn the Indiana Conspiracy
Sases-OHiciaI Hep0rt.
Supreme Court Of the United States,
n &C -Drl,FAIRt.R TERM 1863

5sfaioner. On a certificate Of dirision o
0pfgi0a 5efuseu he Judges Of The Grci1
Igp,f of .hs United States tor The District D
Indiana
Mr.. Justice Davis delivered the opinion
Of the court
On the 9th day Of May, 1865, Lambjin
2. Milligan presented 4 petition 10 the
Circuit Court Of the United States for the
District Of Indiana to be discharged from
an alleged unlawful imprisonment The
case made by the petition is this: Mill
gan is a citizen Of the United States has
lived for twenty years in Indiana, and at
the time Of the grievances complained Of
was not, and never had been, in the mill
tary OF naval service Of the United States.
On the 5th Of October, 1864, while at home,
he wa arrested by order Of General Alvin
T.. Hovey, commanding the military dis
trict Of Indiana, and has ever since been
kept in close confinement.
On the Dist day Of October, 1864 he was
brought before a military commission, con-
vened at indianapolis by order Of General
Hoyey, tried on certain charges and speci-
fcations, found guilty, and sentenced to be
hanged, and the Sentence ordered 10 be ex-
ecuted on Friday the 18th day Of May,
1865.
On the % 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 Indiana
polls and empannelled a grand jury, who
we're charged 10 inquire whether the laws
Of the United States had been violated, and
Il so. 30 make presentments. The court
adjourned on the 27th day Of January,
having prior thereto discharged from fur
Their service the grand jury, who did not
find any bill Of Indictment or make any
Iresentment against Milligan for any Of
fen Sc whatever, and in fact, since his i'm
prisonment no bill! Of indictment has been
| found or pre5entfnent made against him by
any grand jury Of the United States.
Milligan insists that said commission had
no jurisdiction to try him upon the charges
preferred, OF 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 we're arTayed against
! the government, and that the right of trial
| by Jury was guaranteed to him by the con,
| stitution Of the United States.
The prayer Of he petition was, that IN
der the act Of Congress, approved Marcel
! 3, 1853, entitled " An act relating to habea,
corpus and regulating judicial proceeding
in certain cases." hesnay be brought before
| the court, and either turned over to thu
! proper civil tribunal 10 be proceeded
against according to the law Of the land
| or discharged from custody altogether.
! With the petition we're filed the order
| for the commission the charges and specih
cations, the findings Of the court, with the
order Of the War Department, reciting tina
the sentence was approved blythe Presiden
! of the United States, and directing that i
be carried into execution without delay
| The petition was presented and filed II
| open court by the counsel for Milligan al
| the same time the District Attorney of III,
United States for Indiana appeared, and, by
| the agreement of counsel the application
was submitted TO the court. The opinion.
Of the Judges Of he Circuit Court wert
! opposed on three qusetions, which are certi-
fed to the Supreme Court:
| lst "On the facts stated in said petition
and exhibits, ought writ Of habeas corpu:
to be issuedY'
%. con the facts stated in said petition
and exhibits, ought the said Lambdin i
| Milligan 10 be discharged from custody, a
in said petition prayed Y'
| Sd. " Whether, upon the facts stated il
said petition and exhibits, the militar,
commission mentioned therein had iuris
diclion legally 60 try and sentence sai'
| Milligan, in manner and form as IN sal
petition ard exhibits is stated ?"
The importance Of the main question
presented by this record cannot be over
stated for il involves the very funda
mental principles Of American liberty.
During the late wicked rebellion tn
temper Of the times did not allow tina
calmness in deiIberation and discussion s
necessary TO q correct conclusion Of purel
judicial question. Then considerations {
safety were mingled with the exercise {
power, and feelings and interests prevaile
which are happily terminated. Noe tina
the public safety is assured, this question
as well as all Others can be discussed an
! decided without passion or the admiXtU
| Of any element not required TO form leg
b. Judgment. We approach the investigated
J | of this case, fully sensible of the magnitud
. | Of the inquiry and the necessity Of full an
% cautious deliberaton. But we are M
s | with preliminary objection. Ii is insiste
| that the Circuit Court of Indiana had 4
6 authority 10 certify these questions, an
y that we are without jurisdiction TO hes
z and determine them. The sixth section
g the "Act 10 amend the judicial system
o the United States" approved April ?
> ! 1902. declares chat whenever any que
70 ton shall occur before a circuit court upC
y which the opinions Of the judges shall
f opposed, the point upon which the dis
r. qreement shall happen shall, during IL
s same term, upon the request of eltherpar
n or their counsel, be stated under the dire
ton of the Judges and certified under Il
seal Of the court 10 the Supreme Court
their next session to be held thereafter, al
shall bv the said court be finally decided
and the decision of the Supreme Court al
o their order in the premises shall be remitt
70 the circuit court aud be there entered
r. record, and shall have effect according
J. the nature Of said Judgment and orde
# P-ouided, That nothing herein contain
10 shall prevent the cause from proceeding,
in the opinion of the court, further pr
ceedings can be he'd without prejudice
the merits
Il is under this provision Of law that
circuit count has authority 10 certify al
question 10 the Supreme Court for adiu'
he cation. The inquiry, therefore, is, wheth
" the case Of Milligan is brought within
ID terms. Il was admitted at the bar that
Of Circuit Court had jurisdiction 20 enterta
e. the application for the writ Of habeas c.
by nus and 10 hear and determine il; and
at could not be denied; for the power is {
al pressly given 10 the l4th section Of
IN judiciary act OF 1889, as well as in 3he In
act of 1868 Chief Justice Marshall,
Bollman's case, "A Cranch,) construed 6
branch Of the judiciary act to authorize
courts as well as the Judges to Issue
writ for the purpose of iuquiring into
e cause 2f the commitment and THIS C,
struction has never been departed fro
Bat IL is maintained with earnestness a
ability that a certificate of division
opinion can occur only in n cause; q
I that the proceeding by Il party moving
writ Of habeas corpus does not become
" cause until after the writ has been isst
and q return made.
INDEPENDENTLY of the provisions of
act of Congresa of March 3, 1868, reiat
"a habsas corpus. on which the petition
bases his claim for relief, and which
will presently consider can this po9it
~. be sustained
>. It's true thar il is usual for a Court, ON
pHcation fer a writ Of habeas corpus, 20
30. sue the writ, and on the return 20 disp
-, Of the case: but the Court can elect
NJ. waive the issuing ST the writ and oonsi
~. whether, upon the fac's presented in
Bi petition, the prisoner, if brought before
II, could be discharged One of the Y
10 Po'h'7 on "hivn lN' ''7e"' ! "'''' p" an ar,