The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1871-05-22

December term OF 1866 of the case Of Milli- |
gan, who was arrested in 1864 in the State of |
Indiana by Maior-General Hovey, brought |
before military commission, tried, found |
guilty, sentenced to be hanged, and ordered |
to be executed May 10, 1865. On the second |
day of the next January the Circuit Court for |
Indiana met at Indianapolis. The Grand |
Jury thereof was discharged without finding |
any indictment against Milligan. .Thereupon |
the accused, under the act of 1868, Just cited, |
petitioned the court to be released The |
Federal judges were divided in opinion on |
the three following questions: Whether |
a writ of habeas corpus ought to be issued;
CD whether sMilligan ought to ,be discharged |
from custody; and (3) whether the military
commission had jurisdiction legally to try
and sentence Milligan. The division was
certified to tae Supreme Court, there argued,
and the first two questions were decided in
the affirmative and the last in the negative.
The decision called forth almost as much hos
tile criticism on the part of Republicans as
did that of Chief Justice Taney in the Dred
Scott case. The majority of that tribunal
was assailed with all manner of abuse. All of
the nine judges we're agreed that President
Lincoln had no power to establish a military
commission to try civilian in part of the
countrynot invaded by hostile armies nor in a
state of insurrection, but in which the courts
of law were in full and unimpeded operation
The court ran full in the face of executive
Authority and the current of partisan Repub-
ican feeling. 1t cut up by the roots the doc
trines of martial law for which radicals had so
zealously contended The court admitted
that Congress had authorized the President,
if he thought the public safety demanded, to
arrest a suspected person and deprive him of
the privilege of habeas corpus; that is, deprive
him of the right to require the person hold
ing him in custody to give the cause of his de-
tention on return to writ But the court
added that it was not contemplated that such
person should be detained in custody beyond
a certain fixed period, unless certain judicial
proceedings known to the common law were
commenced against him.
The next event in this history is an act of
Congress of February 3, 1867. Previous to
this time the machinery necessary to carry
decision from an inferior Judge on habeas
corpus case up to the appellate tribunal at
Washington was complicated ard inconve-
nient. This act of the latter year was intended
to provide a remedy for an appeal to the cir
cult court from any inferior judge, and from
the circuit court to the Supreme Court. The
legislation was of a most comprehensive
character. After this law was passed one
McArdle was arrested by military COM
mander in Mississippi for political offense
The accused was brought up on writ of
habeas corpus and reordered into custody
From this order an appeal was taken to the
Supreme Court. 1t was argued by Senator
Trumbull against McArdle that the act of
1867 was only intended to protect loyal men
in the Rebel States from a deprivation of
their liberty under State laws administered
by Rebel officers. In other words, it was
only to shield freed negroes. The whole Su-
preme Court to this argument said mo"
The law was as applicable to white men as to
black or red men, and the jurisdiction of the
Supreme Court was sustained. This opinion
was given early in 1868.
Watch the sequel! March 27, 1868, law
was passed repeating so much of the previous
| act of 1867 as authorized an appeal in habeas
corpus cases from the Circuit Court to the
Supreme Court of the United States. The
| bill was vetoed by President johnson, but
| passed over his head. In December, 1868,
when the Supreme Court met, its attention
was directed to this statute, argument was
! heard upon the effect of the repeal of tho
act, and the court decided that Congress by
the repeal had deprived the court of giving
remedy in the case of McArdle In other
words, the court having asserted its jurisdic-
diction to examine the facts upon which
| McArdle was arrested, and to determine
whether or not he was legally in custody,
Congress intervened to deprive the prisoner
of such inquiry.
The next and last stage in this disgraceful
history is the passage of the recent Ku-Klux
| Dill, WueT6lu IIeSluenU Is duGGurlZ6Q
suspend the writ of habeas corpus, ubect to
the provisions of the second section of the
act of March 3, 1868, to which we have al
ready referred, and shall refer again at
another time. By reference to the constitu-
tional provision in respect to suspension of
the writ, already cited, it will be seen that it
assumes authority somewhere in the Govern
ment to issue the writ as of right. This
power inheres in the judiciary, and the
clause in question not only requires
that Congress, and not the President shall
make the suspension, but prohibits Congress
from so doing unless-frst, rebellion or in
vasion actually exists as a public fact and,
secondly, that the public safety requires the
suspension. No power in this Government,
whether legislative or executive, can suspend
this writ in anticipation of rebellion or inva-
sion. One or the other must be actually and
palpably going on. Everybody knows that
no invasion existed in the Southern States at
the time of the Ku-klux law. Neither was
there nor is there a rebellion within the
meaning of the Constitution. So much,
therefore, of the Ku-klux legislation as au-
thorizes the President to suspend the priyi-
lege of. the writ of habeas corpus is mere
usurpation, unauthorized, unwarranted, null
and void.
The object of giving this tremendous
power to President Grant is, however, OBJ
vious. 1t was to enable him to strike terror
into tine Southern communities by arrests
from which there was no power in the judi
cial tribunals to relieve. 1t was to enable
him to carry ON bayonet elections in theil
nakedest shamelessness. The military pie
biscites of Louis Napoleon were ''meloV
music, matched" with the Ku-klux powers o.
General Grant The power was given to b'