Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1867-02-06
Dissenting opinion as 10 Pc
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+ TX partei In matter OF Lsmbdin =. Millg7n
# pelIioner On certificate or division OF
. oplnIon b. tween the judges OF tire Circuit
. ,oart Of the United states for the District OF
Indiana
/ Mr.. Chief Justice Chase delivered the
following opinion:
t Four mernb bers Of the court concurring
with their brethren in the order hereto
fore made in this cause, but unable q
concur In some important particular.
with the opinion which has just been
read, think it their duty to make . sepa'
tate statement OF their views Of the
whole case,
We do not doubt that the circuit court
fol the district of Indiana had iurisdic-
ton of the petition OF Mllllgan for the
writ of hsbeas corpus.
Whether this court has jurisdiction
ue0n the certificate of division admits OF
more question. The construction of the
act authorizing such certificates, which
has hitherto prevailed here, denies luris-
diction in cases where the certificate
brings up the whole cause before the
court. But nope Of tbs sdjgdicated
cases are exactly In point, aud We Rre
willing 10 resolve whatever doubt may
exist IN favor of the earliest possible an
swers to questions involving life and lib.
erty. We agree, therefore, that thi,
court Nmay properly answer questions
certified in such case as that before US
The crimes with which Mllligsn Wa.
charged were Of the grsvest character
aud the petition and exhibits In tn,
record, which must here be taken a
true, admit his guilt But whatever hi
desert Of punishment may be, it is NOR,
{ important 60 the country and TO ever
citizen that he should not fs punishel
under an Illegal sentence, sanctioned b!
this court OF lssL resort, than that b.
should be punished at all. The law
which protect the liberties Of the Who'll
people must not be violated or set a>id
in order 10 infict, even upon the guilty
. unauthorized, though meriJec justice.
The trial and sentence OF Milligal
: were by military commission cOuvene
, Ia Indiana during the fall Of 1854 Tn
, action OF the commission had b-en uu
der consideration by President Llncoll
; for some time, when he himself becam
the victim OF an abhorred conspiracy
. II was approved by his successor IN May
, 1855, and the seuteHce was ordered 10 b
carried into execution. The proceed
. ng3, therefore, hsd the fullest sanction
Of the executive department OF the gov
} ernment.
This sanction requires the most res
I psctfIl and the most careful cOnsidtra
tion OF this court. The sentence Whicl
il supports must not be set aside excep
upon the cleArest conviction that 1t Can
Z not be reconciled with the constitution
and the constitutional legislation c
: congress.
l We must inquire, then, what constitU
tioual or statutory provisions hav
relation 10 this military proceeding
The act OF Congress Of March 3, 1885,
comprises all the legislation which seem
! 10 REQUIRE confederation Ia this eOnnes
, tiop. The constitutlonality OF this aC
has not been questioned, aud is nc
T doubted.
! The first section authorized the gu;
nensIon during the rebellion OF the WI
af hsbeas corpus throughout the Unite
States by the president. The two nex
; sections limited this authority in impoi
. tant respects.
! The second section required that llsi
~ All persons, being citiBens Of statt
y IN which the administration OF the law
; had continued unimpaired in the fec
! srsI courts. who we're then held or migl
: thereafter be held as prisoners Of th
/ limited States, under the authority I
Z the pre-ident, otherwise than as prison
4 ers Of war, should be furnished 10 Il
/. Judges Of the circuit aud district court