Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1867-01-15
I, JANUARY Is, 1867.

always unopp0sed and ltS courts always
open to criminal accusations and redress OF
grievances; and no usages OF war could
sanction a military trial here Tor any OF
fense whatever of q citizen IN private lile,
in no wise connected with the military SER
vice. Congress could grant no such pow
er, and to the honor Of our National Leg
isIature be it said it has never been pro-
voked. by the state of the country, even TO
attempt its exercise. One of the plainest
constitutional provisions was therefore re-
fused when Miiligan was tried by a court
not ordered and established by Congress,
and not composed of judges appointed
during good behavior. Why was he not
delivered to their Circuit Court of In
diana, to be proceeded against accord
ing to law? No reason, of necessity
could be argued !; because Congress had
declared penalties against the offenses
charged, and provided tor their. punish
ment, and directed that court to heal. and
determine them, and soon after the militia
ry tribunal was ended the. Circuit Court
met peacefully, transacted It's business ana
adjourned. 1t needed no bayonets to pro-
tect it. and desired no military aid to exc
cute its judgments. 1t was held in a state
eminently distinguished for patriotism, by
| judges commissioned during the rebellion,
who were provided by a marshal appointed
| by the President. The Government had no
right to conclude that Milligan, If guilty,
would not receive in that. court merited
punishment; for its records disclose that it
was constantly engaged in the trial OF SIM
| liar ofIenses and was never interrupted In
its administration of justice. IL 1t was
dangerous, in that distracted condition of
affairs, to leave Milligan unrestrained of
! his liberty, because he conspired against
the Government, afforded aid and comfort
| to rebels, and melted the people to insur-
rection, the law said, arrest him, confine
him closely, render him powerless to DO
further mischief. and then present his case
to the grand Jury of the district, with
proofs of his guilt; and, if indicted, try
| him according 20 the course of the com
mon law. If this had been done the Con-
sttution would have been vindicated, the
> law of 1863 enforced, and the securities OF
personal liberty preserved and defended.-
Another guarantee of freedom was broken
when Milligan was denied trial by jury.
The great minds of the country have dtfer-
ed Oh the correct Interpretation to be given
to various provisions of the Federal Cons l.
! tuition, and judicial decision has been often
! invoked to settle their meaning; but until
recently, no one ever doubted that the right
of trial by jury was fortified in the or
! ganic laws against the power OF attack,
1 1t is now assailed; ifideas can be expressed
| in words, and language has any meaning
! this right-one of the most valuable IN
| free country-is preserved to every one ac-
| cused of crime who is not attached to the
army or navy, or militia in actual service.
! The sixth amendment aflirIils that, lin all
criminal prosecutions the accused shall en-
Joy the right to a speedy and public trial
! by a special jury" language broad enough
| to embrace all persons and cases. But the
] fifth recognizes the necessity of an indict-
ment or punishment, before any person can
| be held to answer for high crimes, except
cases arising in the land or naval forces, or
| in the militia when in actual service in time
| of war OF public danger. The trainers of
the Constitution doubtless meant to limit
the right of trial by jury in the sixth
| amendment to those persons who were sub
! iect to Indictment or presentment in the
fifth. The discipline necessary TO the etli-
cheney of the army and navy required other
and swifter modes of trial than are furnish
ed by the common law courts, and in pur-
suancc of the power conferred by the Con-
stitution Congress has declared the kinds
of trial and the manner in which they shall
| be conducted for offenses committed while
the party is in the military or navel service.
Every one connected with these branches
of the public service is answerable to the
| jurisdiction which Congress has created for
their government; and while thus serving,
surrenders his right to be tried by the civil
| courts. All other persons, citizens of
| States where the courts are open, il
! charged with crime, are guaranteed
| the inestimable privilege of trial by
Jury. This privilegeis is a vital principle,
Underlying the whole administration of
| criminal Justice. 1t is not held by sut-
france, and cannot be trittered awayon any
plea of State or political necessity. When
1 peace prevails, and the authority of the
government Is uudisputed, there is DO diff
Guilty of preserving the safeguards of lib
erty; for the ordinary modes of trial are
never neglected, and no one wishes it 9TH
erwise. But if society is disturbed by
civil, commotion, the passions OF men are
aroused, al d the restraints of law weak
i ened,C If not disregarded, the safeguard
needs and should receive the watchful care
/ of those entrusted with the guardianship
| of the Constitution and laws, and in no
/ other way can we transmit to posterity un-
i impaired, the blessings of liberty conse-
/ Grated by the sacrifices OF the Revolution.
| 1t is claimed that martial law covers with
| its broad mantle the proceedings of this
| military commission. The proposition is,
i that in time of war the commander of an
armed force, if in his opiriion the exigen-
cies of the country demand it, and otwhich
he is to Judge. has the power within the
i lines of his military district to suspend, all
/ diyfl rights and their remedies, and subject
! citizens as we'll as soldiers to the rule OIL
i his will and the exercise of his lawful
1 authority, and cannot be restrained except
j by his superior officer or the President OIL
4 the United Statess rIfsthis proposition is
sound,to the extent claimed, then, when
war exists, either foreign or domestic
When the country is subdivided into mill.
tary departments for mere convenience, the
commander OF one OF them, If he chooses
within his limits, on the plea of necessity
1 with the approval of the Executive, may
substitute military force for and to the ex.
clusion of the laws, and punish allfsucf
persons as he tbinksright and proper with,
out fixed or certain rules. The statement
of this proposition shows its ignorance
for if true, Republican government is {
failure, and there is an end of liberty bJ
law. Martial law established on such {
basis destroys every guarantee OF the Con.
stitution, and etfectnally renders the mill!
tary independent OF, and superior to, the
civil poweT--the attempt,t to do which by
the King of Great Britain, was deemed BY
our fathers such an offense that they us.
signed it to the world as one of the cause.
which impelled them Co declare their inde-
i pendenee.g Civil liberty and this Kind o.
4 martial law cannot endure together. The
antaSonism is irreconcilable, and in tht
conflict one or the other must perish Thi,
nation, as experience has proved, cannN
II always remain at peace, and has no riglf
i to expect that 1t will always have wise anC