Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1867-02-05

q the meaning OF the congress cannot
e mistaken. The public safety demanded
' if the president saw proper to arrest
E suspected person, that he should not b
e required to give the cause OF lis deten
I ton ON return to a writ Of habeas corpus
z But it was not contemplated that suel
person should be detained in custody be
: yond a certain fixed period, unless Ger
/. tain judicial proceedings known to tb
, common law were commenced agains
i him. The secretaries of state and wa
were directed to furnish to the judges o
the courts of the United States n list o
the names of all parties, not pr soners o
war. resident in their respective Juris
dictiOns, who then were or afterwardi
should be held in custody by the author
ity Of the president, and who were citi
zens of states in which the administra.
ton of the laws in the federal tribunals
was unimpaired. After the list was
furnished, If the grand jury of the dis.
trict convened and adjourned, and did
not indict or present one of the persons
thus named, he was entitled &c his dis
| charge; and it was the duty Of the Judge
Of the court 10 order him brought before
him to be discharged, if he desired it.
The refusal or omission to furnish the
list could not operate to the injury OF
II
hI4nted by the grand jury; for if twenty
days had elapsed from the time of his
arrest and the termination of the session
of the grand jury, he was equally enti-
| tied to his discharge as if the list were
! furnished and any credible person, on
petition verified by affidavit, could OBJ
| tain the judges order for that purpose.
! Milligan, in his application to be re-
| leased from imprisonment, averred the
| existence OF every fact necessary under
| the terms Of this law to give the circuit
court of Indiana jurisdiction. il he was
detained in custody by the order of the
president, otherwise than as prisoner OF
| war if he was citizen of Indiana, and
! had never been in the military or naval
service, and the grand jury of the district
had met, after he had been arrested, for
period of twenty days, and then adj
/ iourued without taxing any proceedings
againsbhim, then the court had the right
| TO entertain his petition and determine
the lawfulness of his Imprisonment Be
cause the word court" Is not found in
the body of the second section it was ar
gued at the bar that the application
should have been made to a judge of the
court, and not to the court itself; but this
is not so for power is expressly conferred
in the last provisO of the section on the
court equally with q judge Of it, to dis
charge from imprisonment. Il was the
manifest design of congress to secure
certain remedy by which any one de-
prived of liberty could obtain it, il there
was a judicial failure to fnd cause of
offense against him. Courts are not al
wavs in session, and can adjourn on the
discharge of the grand jury; and before
those who are in confinement could take
proper steps to procure their liberation.
TO provide for this contingency, author
ity was given to the judges out of court
to grant relief to any party who could
show that, under the law, he should be
no longer restrained of his liberty. 1t
was insisted that Alilligan's case was de-
fective, because it did not state that the
list was furnished to the judges, and,
therefore, it was impossible to say under
which section of the act it was presented.
1t is not easy to see how this omission
could affect the question of jurisdiction.
Milligan could not know that the list
was furnished, unless the judges vOlun-
teered to tell him; for the law did not
require that any record should be made
of it, or anybody but the judges informed
of it. Why aver the fact when the
truth of the matter was apparent to the
court without an averment? ? How can
Milligan be harmed by the absence Of
the averment when he states that he
was under arrest for more than sixty
DAYS before the court and grand jury,
which should have considered his case,
met at Indianapolis 1t il apparent,
therefore, that under the habeas corpus
act Of 1858 the circuit court Of Indiana
had complete jurisdiction to adjudicate
upon this case, and if the judges could
not agree on questions vital t. the pro-
gress of the cause they had the authority,
las we have shown in pTevions part Of
this opinion, and it was their duty to
certify those questions of disagreement
to this court for final decision. 1t was
argued that final decision on the ques-
tions presented ought not TO be made,
because the parties who were di-
rectly concerned in the arrest and deten-
ton of Milligan were not before the
court, and their rights might be preludieed
bv the answer which should be given to
those questions. But this court cannot
know what return will be made to the
writ of habeas corpus when issued; ana It
is very clear that no one is included upon
any question that may be raised to that
return. In the sense of the law Of 1902,
which authorized a certificate of divi-
sion, a final decision means final upon
the points certified final upon the court
below, 50 that il is estopped from any
adverse rulingGn all the Subsequent pro
ceedinEs Of cause. But it is said
that this c9.,.T is ended, as the presump-
ton is thatMilligan was hanged in pur-
suance of the order Of the president.
Although we have no judicial inlorina-
ton on the suit jsctr yet the inference is
that he is alive; for otherwise learned
4 for h a
urge the court to decide his case.
1t can never be in this country Cf
written constitution and laws, with a
judicial department to interpret them,
that any chief magistrate would be so
far forgetful Of his duty as to order the
execution Of q man who denied the jul
riSdic!iou that tried and convicted him,
after his case was before federal judges,
with power 20 decide it, who, being ul-
able to agree on the grave questions in
volved, had, according to known law,
sent il to the supreme court of the Uni
| ted States for decision. But even the
suggestion is injurious to the executive,
and we dismiss it froM further consider
alton. There is, therefore, nothing to
| hinder this court from an investigation
of the merits Of this controversy.
The controlling question in the case IS
| this: Upon the facts stated in Milligan' 5
petition, and the exhibits filed, had the
military commission mentioned in 1t
! jurisdiction legally to try and sentence
him? Milligan, not resident OF one OF
| the rebelliOus states, or s. prisoner OF war,
| but citizen of Indiana for twenty years
mast. and never in the military or naval
4 service, is, while at his home, arrested
| by the military power of the United
/
| criminal charges preferred against him,
4 tried. convicted, and sentenced TO be
| hanged by military commission organ
! lied under the direction Of the military
| commander Of the military district of In
| diana. Had this tribunal the legal power
and authority to try and punish this
man? No graVer question was eyercon-
sidered by this court, nor one which
more nearly concerns the rights OF the
whole people; for il is the birthfight OF
every American citizen, when charged
with crime, to be tried and punished ac-
cordipg to law. The power Of punish
ment is alone through the means which
the laws have, provided for thai
| purpose, aud if they are inetfeCtpa
there is au immunity from pun.
isbment, no matter how great al of
| fender the individual may be, or how
much his crimes may have shocked the
sense of Justice of the country or endan'
rered its safety. By the protection o.
the law human rights are secured with
draw that protection, and they are at the
mercy of tie wicked rulers or the clamOl
of an excited people. If there was Law
TO Justify this military trial, it is not oul
province ta interfere il there was not
il is our duty to declare the nullity ct th'
whole proceedings. The decision OF thii
question does not depend on argumen
or judicial precedents, numerous anG
highly illustrative Ss tney are ines
precedeuts inform us of the extent o
the struggle to preserve liberty and 4
| relieve those in civil life from militar!
trials. The founders Of ouf government
were familiar with the history CT tha
struggle, and secured in written consti
. tuition every right which the people ha'
wrested from power during a contest o
ages. By that constitution, alld tn
laws authorized by it, this cues
, ton must De determined. The pro
, visions of that instrument on the ad
. ministration of criminal justice are to-
plain and direct to leave room for mis-
| construction or doubt of their true mean
inc. Those applicable TO this case ar
/ found in that clause of the original con
; stitution which says, " that the trial 0
J all crimes, except in case Of iulpeSeh
5 ment. shall be by jury" and In tn
! fourth, NTH, and sixth articles of tn
/ amendments. The fourth proclalms tn
9TH -