The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1869-10-20
THE YERaER CASE.
Tho Principles Involvcd-Tho Court
Thrcatcncd-Svhnt President Grant ia
Told will bo his Duty in "a Certain
Contingency.
IrRoM AN OCCASIONAL coRnEsroNpKSr.l j

uo" is tuc case &c pare ferger, which has just
been argued before the Supreme Court-a case
famiiiar to the people Of the South, and to tile
whole country, inasmuch rs It involves the power
OF the Federal Government to authorize, even bv
'd,o, the trial OF civilian by military commits
sion in time OF peace, and in State and district
where civil courts are open. ,.t,,
IT is unnecessary to go into tho details OF the
case. Suffice II to say that Mr.. Yerger was tried
by military commission ut Jackson, Mississippi,
FOR an offence against The id,cs Of that State,
found guilty, and sentenced to suffer death. His
counsel, however, brought the case before the
Chief Justice OF the United States, on motion for
hdOedS corpus, several months ago, when, by
stipulation between them and the Attorney. Gene
raj OF the United States, 1t war agreed that the
motion should be argued at the present term OF
the court, and in tho meantime the sentence I'M
posed by the military commission should be sas-
pended. Mr.. Yergcr, however, is still In prison,
and Ills case is upon the docket OF the highest Iu.
dlcial tribunal In tho country, where the power OF
the law-making department Of the government
to authorize tile trial Of civilians In any other way
than that pointed out by tile constitution is to be
finally. and hope. forever determined.
It will be remembered that the power claimed
In this instance Is found In one or more OF tho
numerous "Reccustruction" acts, so-called,
which have been passed by Congress since the
close OF the war, and as those acts rest upon on
assumed authority on the part OF the Federal
government, to render the civil power In the
South subordinate and inferior to the military,
the opinion ofthc court I'm this case Will be OF the
most rftal Importance I'm judicidHv determining
30 great question. .
II 1t shall be adjudged tint Congress has no
power to establish military government and MILL
tary Inv, In any State or States OF thr Union, in
time OF peace, the bottom will be knocked out or
the reconstruction" tib; und sooner or later,
every act OF that body, relating to tle govern
mcnt OF the Southern States, will share the same
fate, and the country Wil again be restored to
It's former system OF free govcrrfthcnt sustained
and strengthened by constitutional recognition
OF the reserved rights OF the several States.
1t requires no argument to show the nlegality
and unconsttutIonality Of the trial OF civilians
by military tribunals in places where civil courts
are open. The Constitution OF the United States
is SO clear and explicit this subject that he who
would attempt to controvert It must either he set
down as n knaye or O fool tr
It may, however, be interesting to your readers
In forming an opinion as to the probable result Of
the case referred to above, to mention a similar
and very celebrated case which Is still fresh in
the minds OF the people, and which, on account
OF the great principle involved, may with truth
be styled the most important case ever deter
mined by the Supreme Court OF the United States
Lambdin u. MillIgan, citizen OF the United
States, and resident and citizen of the State OF
Indiana 'was arrested on the Sd day OF October
1851 at his home in said State, by order Of Brevet
Major General lIovey. military commander Of tho
District of Indiana and 5by tho same authority,
confined nilitary'prison at OF near Indiana y
polls, the capital OF the State. On the 2lst day
OF the same month, he was placed on trial before
military commission" convened at IndIanapo
lis, by order OF the said general, upon the follow
ing charges preferred by Major Burnett, Judge
Advocate OF the Northwestern Military DEPART
mcnt, namely:
!, Conspiracy against the Government OF the
>. Anording aid and comfort to the rebels
against the authority OF the United Suites.
:. Inclting lnsurrectiOn
.. Disoynl practices; and, q
8. Violation OF the laws Of war.
Without reciting the details OF this trial, 1t Is
Sufficient to say that Milligan was found guilty
on all the charges, and sentenced to suffer death
by hanging, and this sentence having been ap.
proved, he was ordered to be executed on Friday,
the 10th OF May, 1866.
On the 1eth Of that same May, 1896, MillIgan
flied his petition for habeas corpus In the Cir
cult Court OF tile United States for the District
OF Indiana. After setting forth the facts con-
nected With his arrest and trial by "milltary
commlssion," the findings sentence, approval
thereof, &c, he then set forth the additional fact
that while he was held and detained, as already
mentioned, In military custody, tand more than
twenty days after his arrest,) grand Jury for
the Circuit Court of the United States for the
District OF Indiana, was convened at Indianapo.
lis, his said place OF confinement, and duly EN-.
paneled, charged and sworn for said district,
held its sittngs, and finally adjourned without
having found any bill OF Indictment, or made any
presentment whatever against him; that at no !
time had he been in the military service of the
United States, or in any way connected with the
land, or naval force, the militia In actual ser
vice, &C. i
At the hearing Of The petition in the Circuit
Court the opinions OF The Judges were diydedon
the following questions, humely:
l. " On the facts stated In the petition and ex.
sued according TO the prayer OF said petitioDerfn III
u; "On the facts stated In tho petition ana ex.
from custody, as .in said petltien prayedfn sea
III. "Whethernpon the facts stated in the ne.
Jurisdiction, Legally, to try ana sentence saia Nil
llgan In manner and form as In said petition ana
exhibit Is stateaT' -
On The divlsin OF opinion mentioned above.
these questions were certified to the Supreme
Court Of the limited States and argued at the De-
cember term, 1885. The opinion OF the Court
thereon was delivered the following term. ana
may be found In 4th Wallace, commencing at
page LOT. T1l-7
The optIIionis very elaborate and exhaustive
one, reviewing the whole case, and emphaticaIly
declaring that Congress.llas no power to,autbor.
ize the trial OF civilians by military COMMISSIONS
In places where civil tribunals are open. and
where they might be regularly and fairy tried
according to the constitution ana lawsof the
United states and Of the State wherein she al.
legged offence WAS committed.
In proceeding, the court said: j,yl
every trial involves the exercise OF ,Ir1rcia, |
power; and from what source did the miatsrv
e, commission mn that tried him (Millgan) .asrive
their anthoriegs Certainly no part off, the
judicial power OF the country was conferred
on them, because the constitution expYessly
vests 1t 1in cnc Supreme Court and a1cR
courts ~ Congress may from time TO |
time oraairand esfablishS and Il Is not pretend.
ssta1lished Z, by Congress They cannot Justify sn |
trolled by law, ana has his appropriate spherecf
iuty, which Is to execute, not to make the laws.
n I.A~A L. ~-lA