Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1867-01-04
OF MILITARY COMMIS-
SIONS TO TRY CIVILIANS.
DECISION IN TIE INDIANA CONSPi-
RACI CASES.
OFFICIAL REPORT.

OFFICIAL REPORT.
Our readers are Slniliar with the leading
facts in the case Of Milligan lately decided in
the United States Supreme Court, as also
with the main points of the Judges decision.
But the extreme Importance Of the question,
renders it of much interest TO understand the
arguments Of the judges, and the grounds on
which the decision rests. Without these We
may not know its full bearing and operation.
|, The opinion of the majority, delivered by
Justice Davis, commences with a rehearsal o!
e facts OF the case se;-the arrest Of l.. j.
MNgan, citizen, at his home in Indiana. by
ordSof Gen. Hovcy, on the 9Th Of October,
1861 ills prompt arraisnnnent before mil
itary cQmission, by which he was sentenced
to be hut Subsequently, the United States
District cdrt met, and found no indictment
against MilSan. Application was male by
the latter iohhe benefit of the writ Of hnbeas
corpus. On tls the p:sirict Court divided,
and rsrSrrel thedollowfig qutstio,is to the
United States Suremc Court forts decision ::
lst. Con the facts <Ned in said petition and ex-
hlbits ought writ OF ybeas e0puS IN bc issued =
hibits ought the said Lnibdin r MiIgan to be-
discharged from custodylus in su.d petition
prayed q
3D. "Whcthcr, upon tho Its slated in said pc,i-
ton and exhibits tho miliiay commission Tlen-
toned therein had jurisdic,io,!le.a!Iy to try and
=.
sentence said Mll!'s;i, IN n'afit Hnd form rs in
said petition and exhibits is s.atcp''
A considerable portion of JAticc Dayis's
opinion is devoted to an examination Of the
competency OF the Supreme Cout. to hear
and determine tho questions thus sLmi,tcd
to it. That competency is claboratclya
and fully asserted;-after which an cxanina-
tion Of the questiors themselves is cnarcd
upon,- the Sd question being treated lirst.4s
being the contr@iling one. Wc hcgin Ole
quotation at this point;
The controlling question in the cnse IS tIis: Upon
the facts stated in Milgans petition, and The cX-
hibits filed. had tho military commission mentioned
in it Jurisdiction legally 10 Try and sentence him
Millican, not resident of ymc Of the rcbcllinus
States, or . prisoner Of war, In. ciliEn OF In
diana for twenty years ras:, GI nrrcr in the mill
tary or naval service is while "a: MS holnc arrest
ed by the military power nf the United States n-
prisoned and on certain criminal cL!crs pref rred
against him, tried, convicted and sentenced TO b.
hanged by military commission organized under
the direction Of tho military commander Of the
military district Of Indiana. Had This tribunal the
lPgal power and authority TO Try and punish this
man No Sraver question was ever considered by
Z ~ VII III or nn
rights Of the whole people; ia: it is tho birthrish
Of every American citizen, when charged with
crime, to be tried and punished according to law.
The power of punishment is alone through the
means which The laws nave provided for that pur-
pose, and if they Intellectual there i. an a:au
nifty from punishment, no matter hos great M Of
fender the individual NAV be, or how much his
crimes may have shocked the srnsn Of justice of the
country or endangered its safely. by the protection
o. the law human rights arr secured withdraw
I hat projection, and they are at The mercy Gf wick
ed rulers or the clainor uf an excited people,
If there was Law to Justify this military trial, it
is not our province to Interfere; il there was not
it is our duty to declare tho nui!y Of the whole
proceedings. Tho decision Of this question does
not depend on argument or Judicial prcccdc1ts,
numerous and highly illustrative itS they are
These prcccicn.s inform y. Of 'he cr."pt nf the
struggle prrsurro llbct? nn 10 relieve those III
civil life from military trials The founders OF our
struggle, AMI secured IN u written constitution
every right which the people Lad wrested from
mower during contest Of ngcs. By that CoiIs!tu-
lion, and tho laws authorized BY it, this question
must be determined. Tho provisions nf that in
s;rument on the administration of criminal Justice
are too plain aud direct 10 lea"c room for miScon
s,ruction or doubt of their true meaning. Those
applicable 10 this case nrc found in that clause of
Tho original Constitution which says, "that the
trial of all crimes, except in Of impeachment,
shull be by Jury :" and in the fourth, fifth, and
sixth articles of the amendment. The fourth pro-
claims tho right to he secure in person and ELECTS
against unreasonable search and seizure; ard
directs that judicial warrant shall no: issue
s,wthout proof Of probable cause supported by oath
or affirmation" Tho fifth declares ''that no person
shal! bo held to answer for capital or otherwise
infamous crime unless on preaen!ment by grand
Jury. except in cases arising IL the Ind naval
forces, or in the militia, when in actual ser
vice in time OF war or public danger, nor be de-
prived of life, liberty or property without due pro-
cess of law" And the sixth guarantees the right
of trial by Jury in such manner and with such reg
ulations that with upright judges impartial jurics,
and an able bnr, the innocent will be saved and tho
ruilty punished. 1t is these words: " In all rrimi
nal prosecutions tho accused shall enjoy the right
TO n speedy and public trial by an impartial jury OF
the State and district wherein the crime shall have
b.on committed which district shall have been pre-
the nature and cause of the accusation TO be CON-
fronted with the Witnesses against them, 10 have
process for obtaining witnesses in his
favor and to have the assistance of counsel for his
dcfence These securities for personal liberty thus
embodied, were such wisdom and experience had
to be necessary for the protection Of
those accused of crime. And so strong WAS the
sense of the country Of their Importance, and SO
Jealous were the people that these rights highly
nrizcd. might be denied them by implication, that
when tho original Constitution was proposed for
adop,ion it encountered severe opposition, and, but
for tho belief that it would BE- so amended rs 10 en-
brace them, it would never have been ratified.
Time hns proven the disrcrnrnent Of our anccs-
TORS: for even these provisions expressed in such
Main English words that it would seem the inSc-
unity of man could not evadc them, nre now, after
the iapae Of more than seventy years, sought to be
avoided. Those great and good men tOrcsaw that
Ironhlous times would utse, when rulers and rco-
ple would become retive under restraint and seek,
by sharp and decisive measures, to accomplish ends
deemed just and proper, and that the principles Of
constitutional liberty would &c in peril ulcssesta
lished bv irrerealable law. The history of the
world had taught them that what done in the
mast might DO attempted In the futurc. Tho Can
st;tution Of the United States ;sG law for rulers
and people, equally in war md in peace, and covers
with the shield of its protection oil classes OF men,
at all times and under oil circumstances. No doc
trlnc lny0IVlDR Illu[c pcIHitio"o ""'
ever invented by the wit of man than that any o
lis provisions can be suspended during any, of Tho
great exigencics of Government. Such doctrin:
leads directly to anarchy dcspotism, but the the
ory of necessity on which it il based is false: fol
the Government, within the Constitution, has nj
the powcrs granted to it which arc necessary Il
nreserye its existence rs has been happily provci
by tho result of the great effort TO throw off jus
authority.
Have any of the rights guaranteed by The Con
stitution been violated il the case Of Milligan
, and if 80, what arc they? ETcry trial involve
the exercise of judicial power; and from wha
source did the military commission that tried bin
derive their authority Certainly no part Of tn
judicial power of the country was conferred o.
tbom, because the Constitution expressly vests
lin one Supreme Court and such inferior courts a
the Congress may from time to time ordain and es
SION was a court ordained and established By Con
grcss. They cannot justify on the mandate Of t th
President, because he is controlled by law, and ha
his appropriate sphere of duty, which is TO execute
not to make the l.ws; md there is ',no unwritte
criminal code to which resort can be had as sourc
| De- - ,o:I th,,t. rts5 Il