Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1867-02-06


law. Aud it was required, in cases
where the grand jury in attendance
upon any of these courts should tsrmi
nate its session without proceeding by
indictment or otherwise against any
prisoner named in the list, that the
Judge Of the court should forthwith
make an order that such prisoner, de
string discharge, should be brought ne
fore him or the courts to br d ischaTged
on entering into recngn'zance, Z re-
quired, to keep the peace and { r good
'l.hAvior, or to appear, As the c"urI
might direct, to be further deal 18th ac
c,rding to law Every ofii er i,f the
United States, having custody Of such
prisune +, was required 70 obey aud ex
ecute the judges order, under pen
atty, for refusal or delay, OF fine ard i'm
pri~nnment.
The third section provided IN case lsis
OF persons other than prisoners of war
then held in confinement, or thereafter
arrested, shoulA not he furr she'd 'Riihiu
twenty days after the pAssag- Of the art,
I rir, ia eases OF Subsequent arrest, With
( twenty days after the time OF arrest, that
/ any citizen, after the termination Of q
session OF the grand jury without lndict-
ment or presentnlent, might, by petition
( alleging the facts, and verified bJ oath,
%ohtaiu the Judges order Of discharge In
! favor OF any person so i'm Drisonsd, on the
terms and conditions prescribed in the
I second section.
[ II vas made the duty of the district
/ attorney of the United States 70 attend
examinations OF prtit'ons for dist,harg@.
( Il was unGer this act thsJ Milligan
I petitionrd the circuit court for The dis
/ trict Of Indiana FOR discharge from i'm
/ prisOnment.
/ The holding Of the circuit and district
/ courts OF the L aited States iu Indiana
[ had been uninterrupted. The s'lmn mis-
| tration Of the laws in the federal cIurts
( had remained impslred. NlillIgan
/ wss i'm mprisoned under the authority Of
/ the president, ard was not prisoner Of
war. NJ list .ot prisoners bad been fur
nished 10 the judges either Of the district
/ or circuit opurjs. as required by the law.
/ A grand jury had attended the circuit
( cnurtG of the Indiana district while Mil
! ligan was there imprisoned, aud had
I clo~ed Its session without finding any
/ Indictment or Presentment, or otherwise
/ preceding against the prisoner.
/ His case was uhus brought within the
| precise letter and intent of the act Of
/ congress, unless it can be said that Milli
gan was not imprisoned by authority OF
I the president, aud nothing of this SORT
I vas claimed in argument on the part Of
/ the government.
I II is c;esr upon this statement that the
/ circuit curt was bound to hear Milii-
gau's petition for tne writ of hRbeas cor
uus, called in the act an order to bring
( the prisoner before the Judge or the
court. and to issuy the writ, or, in the
i language OF the act, to make the order
The first question, thsrefOre-Ought
/ the writ to issue ?-Inust be answered In
/ the affirmative.
! And it is equally clear that he was en-
titled to the discharge prayed for.
Itmust be borne in mind that the prayer
of the petition was not for an absolute
discharge, but to be delivered from mill
I tary custody and imprisonment, and II
found probably guilty Of an Ofense, to
( be turned over to the proper tribunal for
/ inquiry and punishment; or, If not
found thus probably guilty, to be dis
charged altogether.
And the express terms of the act Of
/ congress required this action Of the court.
The prisoner must be discharged on CIV
ing such recOgnizsnces as the court
should require, not only for good be-
havior, but for appearance, as directed
by the court, to answer and be further
.
The first section of the act authorized
the suspension of the writ Of habeas cor
pus generally throughout the United
States The second and third sections
limited this suspension ia certain cases
within Ststes where the administration
of Justice by the federal courts remained
uuimpaired. In these cases the writ WAS
still tu issue, snd under it the prisoner
was entitled tI his discharge by 9 ciruif
OF district Judge or court, unless ne!d To
bail for appearance to answer charges.
No other Judge or court could make an
order of discharge under the writ EX
capt under the circums' sncea poiute'i
nut by the act neither rircuiJ GAT district
Judge or court could make sucI an order.
But under ihese circumstance, tGe writ
must he isSuet, and the relief from im-
prisnnmeut directed By the art must be
afforded. The cCmmauds Of the sct
were positive, and let no discretion To
court or judge
An affirmative answer must, therefore
hp given g the sscuBd question, namely:
Ought Miiligan to be discharged accord
ing To the prayer of the petition
That The third question, uaulely, Had
the military commission ia IL iiana, un-
der the fact stated, jurisdiction 10 try
aud sentence Ailligan? must be an
sweTed NEGATIVELY j. Al unavoidable iD
ference from affirmative answers TO he
other two 4.
The miLatrv commission could not
have urig'U.inn 20 try and sentence
Nilligansf he could not be detained IN
prison under Ms original arrest or under
sentence, after the close Of q session Of
the grand jury, without indictment or
other proceeding again-t him.
Indeed, the act seems 10 have been
framed on purpose To secure the trial o
all offences o. citizens by civil tribunals
in states where these tribunals were not
interrupted IN the regular exercise OF
their functions,
Under it, in such states, the privi!eE-
OF The wTft might be suspended. ANY
perenn regarded as dangerous to the
pub ic safety might be arrested aud de-
tsiued until after the session Of a grand
Jury Uutil Affer such session. uO person
arrested could have the benefit Of the
writ, and eveA then no sucn person could
be discharged except on such terms as
to future appearance as the court might
impose. Th5sa provisions obviously
contemplate nc other Trial CT sentence
than that OF a civil cnurt, aud we could
not assert the legality Of a trial ana sen
tence by military commission GGder
the circumstances specified In the act
aud described in the petition, without
disregsrding the plain directions Of con-
gress.
We agree, therefore, that the two flrst
questions certified must receive athrma-
i've answers, and the last negative
We do not doubt that the positive proVl-
sious OF the act Of congress require such
answers. We DO not think ii necessary
to look beyond these provisions. In
them We fnd sufficient and controlling
reasons for our conclusions.
But the opinion which has just been
read goes further, and, as we understand
it, asserts not only that the military
commission held IN Indiana was not au-
I thorfzed by congress, but that it WAS not
in the power of congress to suthOriZe H.
( from which it may be thought to follow
that congress has no power TO lndemnl y
I the ofileers who composed the commits
sion against liability in civil courts for
acting as members of it.
We cannot agree to this.
We agree in the proposition that no
( department Of the govern ment OF the
( United States-neither president nor
( congress nor the courts--pOSsess any
power not given by the constitution,
We assent fully 20 all thss IS said 10 the
opiniOn OF the inestimsble value OF the
/ trial by jury and Of the other constitu-
/ tiousl safeguards of civil liberty; and we
concur also in what is said Of the writ OF
( habeas corpus and Of its su5pensioni with
/ two reservptions3 a. That IN our Jddg-
ment, when the writ Is suspended tne
executive is authorized to arrest as well
ss Cietain and, @ that there are cases
in which the privilege Of rhs wit being
Suspended, trial and punishment oy mil
/ itarv combustion, in states where civil
courts are open. may be authorised by
I congress, ss |eii as arrest 3nd detention.
, we thiuk that congress had power
though not exercised, to authoTize the
military commission which was held IN
Indiana
We do not think It necessary TO dis
cuss at large the grounds OF our con
ciusious. We will briefly Indicate some
Of them,
The constitution itself provides ioI
military government IS well IS for clvl
government; and we do not unoer'tauc
It To be claimed that the civil ssiegHar, Z
of the constitution have application II
cases within the proper sphere OF th'
former.
What, then, is that proper sphere
Congress has power TO raise sud support
armies: to provide and maintain 4
navy; To make rules for the govern
ment and regulations of the land anc
naval forces, and to provide for govern
lug such part of the militia as may b'
IL