The evening Argus. [volume] (Rock Island, Ill.) 1861-1871, 1867-01-07

zion Of the session Of the grand jury, he wss
equally entitled to his discharge a. if the list
were furnished and any credible person, on
petition verified by afidavis, could obtain the
Judges order for that purpose.
Milligan, in his application to be released
from imprisonment. averred the existence of
every fact necessary under the terms Of this
law to give the circuit court of Indiana jur-
isdiction. If he was detained In custody by
the order of the President, otherwise than a.
. prisoner of war; il he was citizen of In
diana, and had never been in the military or
naval service, and the grand jury of the dis
trict had met, after he had been arrested, for
q period of twenty days, and adjourned with
out taking any proceeding against bin, then
the court had q right to entertain his retlton
and determine the lawfulness Of his lmprls-
onment. Because the word 'scourt" is not
found in the body of the second section. it
was argued Ut the bar that the application
should have beeen made to q Judge of the
court, and not to the court itself but this 10
not SO for power is expressly conferred in
the last provisio of the section, on the court
equally with judge of it to discharge from
imprisonment. 1t was the manifest design Of
congress to secure a certain remedy by means
of which any one deprived of liberty could
obtain it, if there was . judicial failure to
find cause of offsnse against him. Courts are
not always in session, and can adjourn on the
discharge of the grand jury; and before
those in confinement could take proper steps
for their liberation. To provide for this CON
tingenoy, authority was given to the judges,
out of court. to grant relief to any party who
could show that, under the law, he should no
longer be restrained of his liberty. 1t was
insisted that Milligsn's case was defective,
because it did not state that the list was fur
nished to the judges, and, therefore, it was
impossible to say under which section OF the
act il was presented.
1t is not easy to see how this omission
could affect the question of jurisdiction. Mil
ligan could not know tina, the list was furn-
ished, unless the judges volunteered to tell
him for the law did not require that any
record should be made of it, or any body but
the judges informed of il. Why aver she fact
when the truth OF the matter was apparent
to the court without an sverment? How can
MiIllgan be harmed by the absense of the
averment when he states that he was under
arrest for more than sixty days before the
cours and grand jury, which should have
considered his case, met at Indianapolis? 1t
is apparent, therefore, that under the habeas
corpus act of 1868 the circuit court or lndi-
ana had complete jurisdiction to adjudicate
upon this case, and if the judges could not
agree upon questions vital to the progress OF
the cause they had the authority, as we have
shown in previous part OF this opinion and
it was their duty to certify those questions
eff disagreement TO this court for final decIs.
ion. Ii was argued that final decision on
the questions presented ought not to be made,
because the parties directly concerned in the
| arrest end detention of Milligsn were not be
| fore the court; and their rights might be
pre- udiced by the answer which should be
given to those questions. But this court Gan
not know what return Will be made to the
writ of habeas corpus when issued and IL Is
very clear that no one Is concluded upon any
question that may be raised to that return. In
| the sense of the law of 1902, which author
ICED certificate of division, final decision
means final upon the points certified final
upon she court below, 80 that 1t 10 stopped
from any adverse ruling In all the subsequent
proceedings of the cause. But il is said that
| this case is ended, ss the presumption is thai
Mlligan was hanged in pursuance of the or
| der ofthe President. Although we have nc
| judicial information on the subject /; ct the
| inference is that he is alive: tor otherwise
| learned counsel would not appear for him
and urge the court to decide his case.
Ii can neysr be, in this country of written
constitution and law, with q judicial depart
| ment to intsrpres them, that any chief magic
trate would be 30 far forgetful of his duty as
! to order the execution of man who denied
the jurisdiction that tried and convicted him,
after his case was before federal Judges, with
power to decide it, who. being unable te
agree upon the grave questions involved, had
according to known law. sent il to the su.
preme court of the United States fer decisioo.
out eVan the suggestion ia injurious to the
executive, and we dismiss IL from further
consideration. 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's position,
and the exhibits filed, had the military cor,-
mission mentioned in it jurisdiction legally to
try and sentence him Milligan, not q resi-
dent of one of the rebellious states, or q prls-
oner of war, bat citizen of Indiana tor TWEEN
~ years past, and never in the military or
| naval service, 10, while At his home, arrested
by the military power of the United States,
imprisoned, and, on certain criminal charges
preferred against HIM, tried convicted and
sentenced TO be hanged, by military com
mission organized under the direction of the
| military commander of the military district
of Indiana. Had this tribunal the legal pow
or and authority TO try and punish this manr
No grsver question was ever considered BY
this court, nor one which more nearly con
cerns the rights of the whole people for it IS
the tirthright 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 have provided for that pur.
pose, and ifthey ere Intellectual there is an
immunity from punishment, no matter how
great an offender the individual may be, or
how much his crimes may have shocked the
sense of Justice of the country or endangered
iss safety. By the protection of the law hu-
man rights are secured withdraw that pro-
lection, and they sre as the mercy of wicked
rulers. or the clamor of al excited people
If there was law to justify this military srisl
it is not our province TO interfere; If there
was nos, 1t is our duty to declare the nullisy
of the whole proceedings. The decision of
this question does not depend uron argumsn.
or Judicial presidents, numerous and highly
Illustrated rs they are. These precedents in.
form US of the struggle to preserve liberty
and to relieve those in civil life from military
triaie. The FOUNDERS of our government we're
familiar with the history of that struggle, and
secured IN written constitution every right
which the people had wrested from power
during contest of ages. By that oonstitu-
ton. and the laws authorized by it, this ques-