Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1867-01-15
j .ral .NUMBERTl6O.,nur
I T=TIIMT lTII1 lTTLHlnN1n

| the most execrable of all, systems, martial
lhw.", f.; ln some parts Of the, eoupirY,dnEng
| the war OF 1872 our officers made arbitrary
arrests, and BY niiltafy tflbtiIias tried cit
1 zens whoswefe not Ia the military service.
These arrests andTtrials,zwhen zbrought to
| the notice of theI,eourtsaw were zuniformly
condemned as illegal. The cases of Smith
| D. Shaw and Mcconnell ", Happtop (re-
ported in II Jofinson), are Illustrations
4 which we cite, ,ii0t only fur the principles
4 they determine, but on account Of the dis
| tinguished jurists, ,coucernedin the decis-
/ IONS opeOfrwhom .formapy years oc0upied
q seat on this bench,,v ,va- r,,os,-vaa
1 1t is eohtehded that luther 3, BpTdepw
decided BY this coiirt, is an authority FOR
4 the claim of'martial lawaadeanced in this
4 case. ,FThe decision Is appfeBeHiV5d.-
Thatcaee grew Out oftheatbempt.iWlilh Of lilhglW
Island e sEPeE;sas sAs CRIE GUlSRiaI Gov
Rhode Island, until that period, had no 9TH
er form OF focal government than the Ghat-
ter rgraBteaihYlKing Charles the tieeOnd10
| 1868, and as that limited the right of suf.
! frage and did not provide for IT'S own
4 ameIdmentI fhang ritizeiisiheOa hiSsat-
1 isfied because the Legislature w01lds DOt,l
afford the relief IN their power and IlS With,
| independent Constitution, and proeeededK
| to, assert its authority, by force Of arms;T
| Theold Government resisted this. ard as
| the rebellion WAS formidable, called aolits
the militia to subdueyit and passed an act
4 declaring martial law. Borden, IN, the,
military service of the 'oA Governmeht,9
broke open the house of Luther, who sup
] ported tie new, in order to arrest him.,
| Luther brought suit against Borden, and
| the question was, whether, under ithe
\ Constitution and laws otgtbey Stats Bprry
den was justified. The court held that
a State may use dhe military Ap0W-
] er to put down anarmed insufreetionotoOli
/ strong to be controlled by the civil authorr
| ity" aud ifthe Begislatureof Rhode Island
| thought the peril so great as to requiredhels
| use OF its military forces and the declara-
| ton of martial law, there was no ground
! on which this court could question its au-''
] thority and as Borden acted under miliRnyI3
| orders of the charter government, which
| had been recognized by the politicaf power.
Of the country, and was upheld by tIie!f
State judiciary, he was justified inbbreak-il
| ing into and entering Luther's house. This
| is the extent OF the decision Thereowas
no question in issue about the power Off
| declaring martial law under the Federal
! Constitution, and the court did notconsider
! it necessary even to inquire. "'1o What
| extent, nor under what circumstances that
] power may be exercised bya,Statep (pageII
1 NJ, we do not deem it important to examine
further the adjuged cases, and shall thefeL
| fore conclude withoutlany additiOnalG Geier-iq
| ence to authorities. .psE esf ea al ba,ruo,rs
| 10 the third question, then, on which the
Judges below were opposed in 0pinonyatf
4 answer in the negative must be retnRnedyst
1t is proper to say although Mill gan,s trial y
and conviction by a military commission
was illegal, yetif guilty ofitae crimes imC
puted to him. and his guilt had, been ascer4dt
! tanned by. an established court and impar-.,
tial jury, he deserved severe punishment.
Open resistance to the measures deemed
necessary TO subdue a. great rebellion by z
| those who enjoy the projection of GoVernr
ment, and lave not the excuse even OF
prejudice of section to pleadin their fayOn
is wicked Rrt that resistance ibsesenesg fa1l NJ
enormous crime when it assumes the form
4 Of secret political organization, armed to 81
1 oppose the laws, and dseek by steGlthy meaus
I to Introduce the enemies of the country in-
l to peaceful communities there to light the
1 torch of civil war and thus overthrow the ID
/ power of the United States iCpBspiraeies
I like these, at such, a jqncture, are extreme =
i ly perilous and those concerned in them .
1 are dangerous enemies to Their 66uhtFy NJ
and should receive the eheayiestpenalties0
4 the law as an example to deter Others from
| similar criminal conduct 1t is said the se-"'
verify OF the laws caused them ;abUb C6h- %
gress was obliged to enact severe lawsk
| to meet the crisis, and as our highest civil
duty is to serve our country when IN dan
L
laws, when necessary, willlbe cheerhIliyiQ
Obeyed by patriotic people, struggling too
preserve the rich blessings of. a free govern,
4 mentg .N@ OH 1u0i1SOIdj s3ofA8N anT
RThe two remaining questions hi this cassIs
| must be answered oin.tlIe alirmatiye,i The q
| suspension of the writ of hqbeds corpus does, =.
| not suspend the writ itself. The writ IS .
sues as a matberiOf course, andO0B tins rel
! turn made to it the court decides whether, q
Y tho nartv onn1vinU il dpnind tha ri0hf M
7 proceeding any further with it. Ifthe mi ~
I tary trial of Milligan was contrary 20 hlw,ns
Z ben he was entitled on the facts stated in
b, us petition to be discharged from custody, A..
Z W the terms ofthe act of Congress Of March W
2 }, 1S63.d The provisions of this law haVf0g nj
, ,een considered in previous part OF. .thisns
7 Ipinion, we will not restate the views there
u resented. Milligafi AYERS he wasA citizen
( Indiana, not in the military orsnaValeepS9a
II ice, and was detained inyclose confnenentow
" order of the President from the 65h day ~,
4 i October, 1861, until the 2l day Of JanG-
z lry 1865 when blie Circuit Court forr the
. District OF; i Indiana with a grand igrys cpnroh
ened in session at indianapolis, and afteE-r,o
wards, on the 9th day of the same month, -
Gdiournedalwithout 'yfihdihg aah Icfndictbd0
+, nent or 7presentment against, himrT
t,lf these averments were, true. aud IS
i their truth is conceded for the ptr- y y
Ilposes of this case, the court was feqtl irs'fi
Il ed to libeTateshim on taking9oertRin 0aths 10
Eprescribed by the law and entering int0nw
l,recognizance for his good behavior. But
lit isihsisted that's M illigan owase a iptls0heF
Iof war,iand therefore exelQjedq fFoml theliw
Ipriyleges of the statute, 1T u.s. not easy TO-
see how he can be treated as "a prisoner of :.
A war when he had lived In Indiana Tor the ?
past twenty years, was arrested th6fa; anden'
had not been, during the, late trQphles,l III
resident Of any Of the States In febellioh.
Il IL in Indiana he conspfed With bad men ~
/ I'd assiststhe enemy, ne fispuHisliablef f0r,ibol
A in the courts of, Indiana, but lWhepstried n,
for the ofense he cannot plead the Eig hts Of
war, for lie was not engag ged III iegaI acts OF
4 hostility against the Government andOniy1p'
ksuch persons, when captured, are ,pTisopersI
LOT war. IL he cannot enjoy the tfmmunl- ~,
4 ties attached to the character of prisoner
n LOT waf, sdIOD can heClje sdblcetsttn ithelf'li
Il pains aud penalties !? This cRseg aEwelhasuo
A the kindred cases of B0ylessa aud HoEseys n
were disposed Of at the last term, aud the
a proper orders were entered 0f record. ~ "
4 There is, herefOre9nOhd hdditiOnali ehtry fdaaA
4 qplredtal,..,a aat satlzM IzzgzQ4k4aaoa A
,t 81 5TTT7 70 .T7f5T IIg7f 'r7J757TeOl
n mAK'EK0UEt OwNlf.R@hkxe ss1h
h iads nl sy9in39aszslstf 9nsdosE ,ll9JT0a q
Al fftl,n.F oV9r.n.f flaHA IfftS1. 81.