Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1867-02-05

: our ancestors Tor even tnese pFoVisiOHs
e expressed in such plain English word
I that 1t would ses m the ingenuity Of mar
r could not evade them, are now, after th'
( Ial)se Of more than seventy years, sough
{ to be avoided. Those great and gOOC
( men foresaw that troublOus times would
= arise, when rulers and people would be-
; come restive under restraint, and seek
= by sharp and decisive measures, 20 ac
eonplish ends deemed just and proper,
and that the principles of constitutional
. liberty would be ia peril, unless estab-
, lished by irrepealable law. The history
of the world had ,aught them thar what
| was done 10 the past might be attempted
In the future. The constitution of the
United States is 8 law for rulers and peo-
Die, equally in war and in peace, and
covers with the shield Of its protection
aIt classes Of men at all times, and under
all circumstances No doctrine inyolv-
ing more pernicious consequences was
ever invented by the wit of man than
thft any OF its provisions can be sIs-
pended during any Of the great exigen-
cies of government. Such a doctrine
leads directly to anarchy or despotism,
but the theory Of necessity on which it
is based is false; for the government,
within the constitution, has all the pow
ers granted to it which are necessary TO
preserve its existence, as has been hap
pily proved by the result Of the great
effort to throw off its just authority.
Have any of the rights guaranteed by
the constitution been violated in the case
of Milligan? and if so, what are they ?
Every trial involves the exercise of judi
cisl power aud from What source did
the military eoplmission that tried him
deti9e Their authority? Certainly no
part of the. .jtsdieial power of the country
was conferred on them, because the can
stitution expressly vests IL in one su-
( prgme court and such inferior courts as
congress may from time to time ordain
ard establish" and it is not pretended
that the commission was court ordained
ard established by congress. They can
not Justify on the mandate of the presi-
/ dent, because ne is controlled by law,
and has his appropriate sphere of duty,
which is to execute, not 10 make the
laws and there is "no unwritten crimi-
nal code to which resort can be had as q
source of jurisdiction" But il is said
that the jurisdiction is complete under
the laws and usages of war" 1t can
serve no useful purpose to inquire what
those laws and usages are, whence they
originated, where found, and on whom
they operate; they can never be applied
b citizens In states which have upheld
the authority of the government, and
where the courts are open and their pro
cess unObstructed. This court has judi
cial knowledge that in Indiana the fede-
raj authority was always unOpposed, and
/ its courts always open to hear criminal
accusations and redress grievances; and
no usage Of war could sanction military
trial there for any Offense whatever Of g
citizen in civil life, in no wise connected
with the military service. Congress
could grant no such power, and to the
yonor OF our national legislature be it
said, it has never been provoked by the
state of the country even to attempt its
exercise. Oue of the plsinest constitu-
tionaI provisions was therefore infringed
when Milligan was tried by court not
ordained and established by congress,
aud not composed of judges appointed
during good behavior. Why was he not
delivered to the circuit court of Indiana,
to be proceeded against according to law
No reason Of necessity could be urged
against it, because congress had declared
penalties against the offenses charged,
provided for their punishment, and df-
/ rected that court to hear and determine
! them. And soon after this military tri-
! bunal was ended the circuit court met,
/ peacefully transacted its business, and
adjourned. 1t needed no bayOnets to
protect it, and required no military aid
to execute its judgments. 1t was held in
4 state eminently distinguished for pa
triOtism by judges commissioned during
| the rebellion, who were provided with
| iuries, upright, intelligent, and selected
/ by a marshal appointed by the president.
/ The government had no right to con-
clude that Milligan, if guilty, would not
1 receive in that court merited punish
ment, for its records disclose that it was
1 constantly engaged in the trial of similar
I offenses, and was never Interrupted in
I its administration of criminal justice. IL
/ it was dangerous in the distracted con-
/ ditiun Of affairs to leave Milligan unre-
| strained Of his liberty because be con-
spired against the government, afforded
aid and comfort TO rebels, and melted
/ the people to insurrectiun,u the lar said
arrest him, confne him closely, render
! him powerless to do further mischief,
and then present Is case to the grand
Jury Of the distriAs, with proofs of his
guilt, and, if indicted, try him according
/ to the course of the common. law. If
this had been done the constitution
would nave been vindicated, the law of
/ 1868 enforced, and the securities for per-
sonaI liberty preserved and defended.
Another guaranty of freedom was
broken when Milligan was denied trial
/ by jury, The great minds Of the country
have differed eu the correct interpreta-
ton to be given to various provisions Of
4 the federal constitution aud Judicial de-
eision has 6een often invoked to settle
/ their true Seeaning but until recently
no one ever doubted that the right Of
trial by Jury Was fortified il the organic
law against the power of attack. 1t is
nor assailed but, if ideas can be ex-
pressed in words, and language has any
meaning, this right-one of the most
valuable in a free country-is preserved
to every one accused of crime who is not
attached TO the army or navy. or militia
in actual service. The sixth amend
ment affirms that " in all criminal prose-
cutions the accused shall enjoy the right
to a speedy and pahlic trial by an i'm
partial iury,n language broad enough to
embrace all persons and cases. but the
fifth, recognizing the necessity OF an in
dictmeut, or presentment, before any
one can be held to answer for high
crime, "erceptS cases arising in the land
or naval forces, or in the militia, when
in actual service, in time Of var or pub
lie danger :" and the trainers of the
constitution doubtless meant to limit the
ElklN OL AIldl BA Jul Y III ttlc 6iAlA aLlAGhh-
ment, ta those persons who were subject
to indictment or preseDtment in the
fifth.
The discipline necessary to the eff
cheney of the army and navy required
other and sWifter modes of trial than are
furnished by the common law courts
aud, in pursuance OF the power conferred
hy the constitution, congress has declared
the kinds of trial, and. the manner in
which they shall be conducted, for often
es committed while the party is in mill
tary or naval service. Every one con
uected with these branches of the public
service is amenable to the Jurisdiction
which congress has created for their gov
ernment, aud while thus serving, surren
ders his right TO be tried by the civi
E courts. AL other persons, citizens o
: states where the courts are open, i
charged with crime, are guaranteed th'
inestimable privilege OF trial by jury
: This privilege is a vital principle, under
living the whole administration of erimi
: nal Justice it is not held by sufferance
and cannet be frittered away on any
plea of state or political necessity
When peace prevails, and the authority
OF the government is undisputed, ther'
, 1 is no difficulty Of preserving the gste
2 guards Of liberty; for the ordinary
s modes of trial are never neglected, and NJ
I one wishes II otherwise. But If society
! is disturbed by civil cOmmOtien-if tn
c passions of men are aroused and the re
1 straints or law weakened, If not disre
D garded-these safeguards need, ant
y I should receive, the watch3ul care Of thos
I entrusted with the guardianship of tn
I constitution and laws. In no other way
: can we transmit TO posterity unimpsirei
! the blessings of liberty, eonseersted b.
# the sacrifices of the revolution.
e 1t is elaiIaed that martial law cover
= with its broad mantle the proceedings O
= this military commission. The PROPOSE
: ton is this: That 10 time of war tn
o commander OF an armed force fif in hi
+ opinion the exigencies of the eOuntr.
: demand it, and of which he is to Judge,
e has the, ,power, within the lines Of hi
: military district, to suspend all eivi
4 rights aud their remedies, and subieC
: citizens as web as soldiers to the rule c
e his toM q; and in the exercise of his law
e ful authority cannot be restrained, ez
e cent by his superior officer OF the presi
s dent Of the United states. II his posi
; ton is sound 10 the extent claimed, the
Il when war exists, foreign or domestic
e and the country is subdivided into mill
y tary departments for mere convenience
L the commander of one of them can,
: he chooses, within his limits, on the pie
= I 80 raoassifv with the apprOVal of tn