Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1867-01-04

Those applicable TO this case are found in
that clause of the original constitution
ghich SAYS, that the trial for all crimes,
except in eases Of Impeachment. shall be
by Jury = and in the fourth, bfth, and
sixth articles of the amendments. The
fourth proclaims the right To he secure in
person and effects against unreasonable
search and seizure and directs that iu-
diCial warrant shall issue without proof
of probable cause supported by oath or at
firmaiion.' The fifth declares shat no per
son shall be held to answer for 4 capital or
otherwise infamous crime unless on pre-
sentiment hy 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 danger, nor be deprived Of
life, liberty, or property without due pro-
cess Of law" And the sixth guarantees
tAe right of trial by jury in such manner
and with such regulations that, with up
right judges, impartial juries, and an able
bar. the innocent Will be saved and the
guilty punished 1t IS these words: In
all criminal prosecutions the accused shall
enjoy the right to a speedy and public trial
by an impartial jury Of the State and dis
trict wherein the crime shall have been
committed, which district shall have been
previously ascertained by law, and to be
informed of the nature and cause of the
accusation, 10 be confronted with the wit
nesses against them, 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 demonstrated to be
necessary for the protection Ofthose accused
Of crime. And 50 -irong was the sense Of
the country Of their Importance, and so
Jealous were the people that these rights,
highly priced, might be denied them by
implication, that when the original Consti-
tuition was proposed for adoption, it en-
countered severe opposition, and, but for
the belief that il would be so amended as
to embrace them, it would never have been
ratified.
Time has proven the discernment of our
ancestors; for even these provisions, ex-
pressed in such plain English words that it
would seem the ingenuity Of man could
not eyade them, are nor, after the lapse of
more than seventy years, sought to be
avoided. Those great and good men fore
saw that troublous times would arise, when
rulers and people would become FESTIVE
under restraint, and seek by sharp and de-
cisive measures, to accomplish ends deemed
Just and proper, and that the principles of
constitutional liberty would be in peril un
less established by irrepealable law. The
history of the world had taught them that
what was done in the past might be attempt
ed in the future. The constitution of the
United States is a 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 circum-
stances. No doctrine involving more per
nicious consequences was ever invented by
the wit Of man than that any Of its prOyi-
sions can be suspended during any of the
great exigencies of the government. Such
a doctrine leads directly to anarchy or des-
potism, but theory of necessity, on which
il is based, is false; for the government
within the constitution, has all the powers
granted to it which are necessary to pre-
serve its existence, as has been happily
proved by the result of the great effort to
throw off its Just authority.
Have any of the rights guaranteed by the
constitution been violated in the case of
Milligan2 and if so, what are they ? Every
trial involves the exercise of judicial power;
and from what source did the military com
mission that tried him derive their authori-
ty? Certainly no part of judicial power of
the country was conferred on them, because
the constitution expressly vests it "in one
Supreme Court and such inferior courts as
the Congress may from time to time Ordain
and establish and ii is not pretended that
the commission was a court ordained and
established by Congress. The cannot JUS
tify on the mandate of the President, be
cause he is controlled by law, and has his
appropriate sphere of duty, which is to
execute, not to make the laws; and there
is "no unwritted criminal code TO which
resort can be had as q source Of iurisdic-
ton" But ii is said that the jurisdiction
is complete under the laws and usages oil
war" 1t can serve no useful purpose tC
inquire what those laws and usages are
whence they originated, where found, and
on whom they operate; they can never be
applied to citizens in States which have mp
held the authority of the government, and
where the courts are open and their process:
unobstructed. This court has judicia
knowledge that in Indiana the Federal au
thority was always unoppOsed, and its courts
| always open to hear criminal accusations
and redress grievances and no use of wal
could sanction a military trial there for any
| offense whatever of a citizen in civil life
in no wise connected with the military ser
vice. Congress could grant no such power
| and, to the honor of our national legisla
| ture be it said it has never been provoked
! by the state Of the country even to attemp
its exercise One of the plainest cOnstitu
| tional provisions was, therefore, infringe,
| when Milligan was tried by court not OF
dained and established by Congress, and no
composed of Judges appointed during goo,
behavior Why was he not delivered t
| the Circuit Court of Indiana, to be proceed
ed against according to law e?
No reason of necessity could he urge,
against it, because Congress had declare
penalties against the ofenses charged, pro
vided for their punishment, and directe
that court to hear and determine then
And soon after this military tribunal wa
ended the Circuit Court met, peaceful
transacted its business, and adjourned. !
needed no bsyonets to protect it, and re
auired no military aid to execute its judg
ments. 1t was held in State eminent
distinguished for patriotism by judges con
missioned during the rebellion, who wer
provided with juries, upright, intelligen
and selected by marshal appointed by th
President. The government had no RICH
to conclude that Milligan, if guilty, woul
not receive in that court merited punisi
meut for its records disclose that il wa
constantly engaged in the trial of simila
offeuses. and was never interrupted in j
administration of criminal Justice. If
was dangerous in the distracted eonditio
| of affairs to leave MIligan unrestrained {
his liberty because he conspired again
the government, afforded aid and comfo
TO Rebels, and melted the people to insu
rection," the iqw said arrest him, conGr
him closely, render him powerless to d
further mischief and then present his ca
TO the grand jury of the district, wit
prcofs Of his guilt, and, if indicted, try hi
according to the course Of the common lay
Iftbis had beend done the constitution wou
have been vidicated, the law Of 1863 Ell
forced and the securities for persont
liberty preserved and defended.
Another guaranty Of freedom was broke
! when Milligan was denied a trial by jur
The great minds Of the country have di
tered on the correct Interpretation TO
given 10 various provisions Of the FEEDER
constitution and judicial decisions b
been often invoked to5ettle their true mea
ing; but until recently no oneever doubt'
that the right Of trial by jury was fortifi,
in the organic law against the power Of &
! | tack. 1t is nom assailed but, if ideas Ct
be expressed in words, and language b
any meaning, this right-one Of the M
valuable in free country-is preserved
! every one accused Of crime who is not I
: taehed to the army or navy, or militia
actual service. The sixth amendme
] e. that q" IN all criminal prOseCutiO