Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1867-10-30
The Indemnity Act of Cd OF
March, 1867, Declared
Unconstitutional.

guilty, ana Seubenceu 70 3 eSfNltuu6 IL
p the Missouri Penitentiary Of ten years
> Of the third be was acquitted.
This class OF questions has lately beer
thoroughly discussed by that court, to the
decisions of which this court, whatever
, be the individual opinions OF its men,
bers, will ever pay the greatest respect
In the case decided last winter of the
habess corpus for Milligan and others,
the principles Of the law relative to the
trial OF the citizen by a military tribunal
were elabOrately examined.
The present case, however, differs from
that, because the Offenses for which
Milligan and his companions were tried
had been committed in Indiana, where
martial law had never prevailed, and
where the courts were always open for
the trial Of offenders.
Here this is not the fact. The record
shows that the Offenses for which Mur.
bhy was tried were committed (amOng
tother places) at EObile, where the Fed
eral courts were then imperative. At
the time, however, they were open in
New Orleans, where he was arrested,
and at Memphis, where another ofense
for which he is charged was alleged to
have been committed.
But in our view of the matter this is
unimportant. For at the time of his
trial, this court must take notice Of the
fact that in all Of these places the Fed
eral courts had resumed their functions,
and in many Of them the petitioner
could have been tried for any OF the
! offenses Of which the Federal courts had
! jurisdiction.
The question then to be decided is
! whether the case comes within the pro-
visions OF the act Of the Sd OF March,
| 1858 The Supreme Court Of the United
| States unanimously concurred in the
! opinion that by proclamation to that
| effect, the act of 1868 authorized the
President of the United States to suspend
duringthe then existing rebellion the
writ Of habeas corpus in any part Of the
United States.
Previously the President had exercised
| this power, and the contest had arisen
/ whether Congress or the President had
this right. By this act Congress in
tended to assert its own right, and passed
| this act to authorize the President to ex-
| ereise power which they thought he
did not possess. But the second section
of this very act limits this power and
imposes conditions. 1t provided that
while the President, in Difference to the
public safety, could arrest q person and
not be required by writ of hsbeas cor
pus 70 give the reason Of the detentiOni
vet such person was not to be detained
In custody beyond fixed period unless
proceedings were instituted against him.
The Secretaries OF State and War were
required to furnish to the Judges Of the
Courts of the United States list OF the
names Of all parties not prisoners of war,
resident in their respective jurisdictions,
who then were or afterwards should be
held in custody by the authority OF the
President, and who were citizens OF
States where the courts were open. At
tar this list was fuFnished, il the next
grand Jury failed to find bill, it was
the duty Of the court to order his dis
charge.
In the construction Of this act majority
and minority opinions were given by the
Supreme Court OF the United States in
the Mtligsn case. quote from the
opinion Of the minority rendered by
Chief Justice Chase:
"Indeed the act seems to have been
framed on purpose to secure the trial Of
all offanses Of citizens by civil tribunals
in States where these tribunals were not
interrupted ia the regular exercise of
their functions"
The opinion OF s majority Of the court
goes still further, and must be binding
on every member Of the court, whatever
be his individual opinion.
1t says the discipline necessary to
the efficiency Of the army and navy re-
uuired other and sWifter modes OF trial
than are furnished by the common law
courts. And in pursuance of the power
conferred by the Constitution, Congress
has declared the periods Of trial and the
manner in which they shall be conducted
for Offenses committed while the party is
IN abe military or naval service. Every
one connected with these branches Of
the public service is smensble to the iu-
risdiction which Congress hss created for
their government, and while thus serv-
ing, surrenders his right to be tried by
our civil courts "dRd all other persons" "
and these words are in the decision em-
phasiZed, "citizens Of States where the
courts are open, il charged with crimes,
are guaranteed the inestimable privilege
Of trial by jury"
Under this construction OF the act of Sd
March, 1858, if il were 10 force at the |
time Of the arrest and trial Of the petit |
toner, as undoubtedly it was, then his |
discharge must he accorded him, for be !
was arrested in New Orleans in 1865, |
charged with offenses committed 10 |
Memphis in 1884, in which places the |
courts OF the United States were open
and perfectly competent for the trial of |
any Offenses within their Jurisdiction, |
and tried at St. Louis in a State where |
the process Of the courts Of the United |
States had never been interrupted.
His discharge must be granted, unless !
the point made by the District Attorney, |
under the act Of Congress Of I'd March, |
1867, be valid.
h.k all
clsmatiOns and orders of the President |
of the United States, or acts done by bis |
authority or approval, between 4th /
March, A. D., 1861, and lst July, 1866, |
respecting martial law, military trials |
ty court martials or military commits |
sions, or the arrest, imprisonment and |
trial Of persons charged with partieipa- |
tion in the late rebellion against the |
United States, or as Riders and abettors l
thereof, or as guilty OF any dislOyal prac- /
tice 10 aid thereof, or Of any violation of |
the laws or usages Of war, or OF offering
aid and comfort to rebels against the au-
thOrity Of the United States, and ali pro-
ceedings and acts done or had by courts /
martial or military commissions, or ar
rests or imprisOnments made in the
premises by any authority, orders or
proelamations Of the President, made as
aforesaid, or in aid thereof, are hereby
approved in all respects, legslized and
made valid, to the same extent and with
the same effect as il said prOclamatiops
bad been issued and made, and said ar
rests, imprisonments, proceedings and
acts had been done under the previous
express authority and direction OF the
Congress Of the United States, and in
pursuance Of law previously enacted
and expressly authorizing and directing
the same to be done and no civil writ
OF the United States, or OF any State, etc,
shall have or take Jurisdiction of or in
any manner reverse any Of the proceed
ings had or acts done as aforesaid; nor
shall any person be held to answer in
any Of said cOnrts for any sct done or
omitted to be done, in pursuance Of or
in aid OF any of said prOclamatiGns or
orders, or by authority, or with the ap
proval Of the President, within the period
hfoFesaid, and respecting any of the mat
ters aforesaid; and all officers and other
persons in the serFiee of the United
States, or who In aid JhefeOf acting in
the premises, shall be held Orind faeic
TO have been authorized by the Presi-
dent"
II this act be valid, the prisoner must
be detained. II evidently intended TO
make two provisions, 70 validate the
punishments OF offenders, Yhioh other
wise would be illegal, and next to protect
from civil process the officers and Others
who as subordinates Of the President
have striven to put down the rebellion,
but whose acts have rendered them
Rmensble to legal proceedings.
80 fsr as the first point is involved, the
law is unconstitutional, undoubtedly so.
No clearer case OF an 6x post fdcto law
could De framed-its effect is 70 hold In
men for OffeHses not pun
ishahla hV any law at thu time Of fhoir |