Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1867-01-10


of liberty regulated by law. Martial law,
established on such basis, destroys every
guarantee of the constitution, and effectu-
ally renders the ''military independent of
and superior to the civil power the at
tempt to do which by the King of Great
Britain was deemed by our fathers such an
offence that they assigned it to the world
as one of the causes which lmpelled them
to declare their independence. Civil liber-
ty and this kind Of martial law cannot en-
dure together; the antagonism is irrcconci-
liable, and in the conflict one or the other
must perish.
It is difficult to see how the safety of the
country required martial law in Indiana
If any of her citizens were plotting treason
the power of arrest could secure them until
the government was prepared for their tri-
al when the courts were open and ready to
try them. 1t was as easy to protect wit
nesses before civil as II military tribunal ;
and as there could be no wish to convict
except on sufficient legal evidence, surely
an ordained and established court was bet
ter able to judge of this than a military tri-
bunal composed of gentlemen not trained
to the profession of the law.
Chief Justice Chase, in delivering the
dissenting opinion, says that the third ques-
ton, namely: Had the military commits
sion IN Indiana, under the facts stated, jul
risdictiOn to try and sentence Milligan 2"
must be answered negatively, is an unavoid
able inference from affirmative answers to
the two others. The military commission
could not have jurisdiction to try and SEN
tence MilliSan, if he could not be detained
in prison under his original arrest OF SEN
tence, after the close of the session of the
grand jury without indictment OF other
proceeding against him.
10 olC 1hat lU ;,,1y
that Congress had power, though not ex-
ercised, to authorize the military commits
sion which was held in Indiana, but we do
not put our opinion, that Congress might
authorize such n military commission as
was held In Indiana, upon the power to
provide for the government of the nation
al forces. We by no means assert that
Congress can establish and apply the laws
II war where no war has been declared or
exists
Where peace exists, the laws of peace
must prevail. What we do maintain is,
that when the nation is involved in wal
and some portions of the country are in
vaded, and all are exposed to invasion, it
is within the power Of Congress to de ter
mine in what States or districts such great
and imminent public danger exists as JUS
titles the authorization of military tribu-
mails for the trial of crimes and offences
against the discipline or security of the
army, or against the public safety.
In Indiana. for example, at the time of
| the arrest of Miligan and his cO-conspira-
tors, it is established by the papers in the
| record that the State was military district,
was the theatre of military operations, had
been actually invaded, and was constantly
threatened with invasion. 1tapnears, also,
| that a powerful secret association, composed
of citizens and Others, existed within the
| State. under military organization, con-
spring against the draft and plotting in
surrection, the liberation of the prisoners
of war at various depots, the seizure of the
State and national arsenals, armed co-ope-
ration with the enemy, and war against the
national government.
| We cannot doubt that, in such time of
| pnbllc danger, Congress had power, under
the Constitution, to provide for the organ
! lzatlOn of a military commission, and for
trial by that commission of persons en-
gagged in this conspiracy. The fact that
| the Federal courts were open was regarded
| by Congress as Il sufficient reason for not
exercising the power; but that fact could
not deprive Congress of the right to exer-
else it. Those courts might be open and
undisJurbed IL the execution Of their func-
tions, and yet wholly incompetent to avert
threatened danger, or to punish, with ade-
quate prompti5ute and certainty the guilty
conspirators.
In Indiana the judges and officers of the
courts were loyal TO the Government But
it might have been otherwise. In times of
rebellion and civil war it may often happen,
! indeed, that judges and marshals will be in
active sympathy with the rebels, and courts
their most efficient allies.
We have confined ourselves to the ques-
ton of power 1t was for Congress to de-
termine the question of expediency, and
Congress did determine it. That body did
not see fit to authorize trials by military
est implication prohibited them. With
that prohibition we are satisfied, and
should have remained silent if the answers
to the question certified had been put on
that ground, without denial of the exis-
tence of power which we believe to be
constitutional and important to the public
safety-a denial which, as we have already
suggested, seems to draw in question the
power Of Congress to protect from prose-
cution the members of military commits
sions who acted in obedience to their su-
perior officers, and whose action, whether
warranted by law or not, was approved by
that upright and patriotic President under
whose administration the Republic was
|
We think that the power of Congress in
such times and in such localities, to author
ize trials for crimes against the security
and safety of the national forces, may be
derived from its constitutional authority to
raise and support armies and to declare
war, if not from its constitutional authori-
ty to provide for governing the national
| forces.
We have no apprehension that this pow
er, under our American system of govern
ment, in which all official authority is de-
rived from the people, and exercised un-
der direct responsibility to the people, is
more likely to be abused than the power to
regulate commerce or the power to borrow
money. And we are unwilling to give our
assent by silence to expressions of opinion
which seem to us calculated, though not in
tended, to cripple the constitutional powers
Of tie government, and to augment the
public dangers in times of invasion and re-
/ bellion.
| Mr. Justice Wayne, Mr.. Justice SHayne
and Mr.. Justice Miller concur with me i'll
these views.