The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1871-05-30
THE "soNs OF LIBERTY."
The Milligan--HOVey Damage Suit.
Charge Of Judge DTummOnd.
INDIANAPOLIS, IND, May 80. =.

| ANblANAEOLAs, lAn', may ~.
THIS morning the argument in the Mi
llgan case was concluded by Gen. Harr
son for the defense, who occupied all {
the morning session. In the aiternoo
Mr.. Hendricks closed the argument In
speech Of three hours length. Judg
Drummond then charged tue Jury i
follows:
"Lambdin Milligan rs. Alvan Hovey
al. in Circuit Court, May term, 1871
This IS an action Of trespass brought b
plaintiff against defendants for allerel
wrongful arrest and imprisonment q
The OH OF October, 1864. During III
rebellion the plaintiff was a citizen Of In
diana, not engaged in the military o
naval service OF the United States. Ger
HoVey, one Ol the defendants, was Mill
tary Commander Of the District Of In
diana, duly appointed by the President
and as such commander ordered the ar
rest OF plaintiff, He was accord
ingly arrested ut his house Their
and brought To Indianapolis ant
conhued In prison. lie was shortly
after tried before q military commission
on certain charges brought against hin
for conspiracy against the Government
atOrding aid and comfort to the enemy
melting insurrectiOn by dislOyal practice
and violation Of the usages Of war, COn
yicted and sentenced 10 be hanged. Hi
Imprisonment was continued under thi
sentence at indianapolis until the Cd day
OF June, 1865, when u commutaliOnha
been made In tho sentence by the PrGsi
dent, Gen. H0Vey ordered the plaintiff 4
be removed to tho Penitehliary OF Ohio
at Columbus, in compliance with instruu,
lions from the War Department, where he
remained until the 10Th of April, 1866
when he was liberated.
"In the meantime the plaintiffs hOd
made application To this court for writ OI
hdbeds cOrprs. The case was taken tn the
Supreme Court Of the United States
where his trial was declared to be without
authority OF law. 1t Is for these acts thus
done by Gen. Hovey as Military Com.
mander and by other defendants as mem.
bers Of the Commission and by others as
having the same agency In his arrest,
trial and imprisonment; that the action
is brought although the plaintiff simply
sets them out as wrongful arrest and I'M.
prisOnment without stating the reasons
which influence, The defendants rely
upon several defences, They declare.
lsL That they are not guilty OF
the acts complained OF. end, That the
arrest and imprisonment grew out OF the
PLAINTIFF 8 participation In offences charged
against him before the military commits.
sioni that he was guilty thereof, and that
the defendants were acting as officers In
the army Of the U. s., under the authority
OF the President, without malice and
with no more force than necessary. 3D.,
That for MI acts done prior to the 18th OF
March, 1860, the Limitation Of two years
prescribed by the 9TH section Of the
tdbeds corpus act Of Congress Of March
I'd, 1868, applies to this suit, having been
brought on 18th Of March, 1858; and the
defendants say as 10 the Imprisonment
after March 10, 1896, they arc not guilty.
II Is upon these issues that the evidence
has been presented, and upon which
you are to find q verdict. The agency Of
most OF the defendants with the arrest
md imprisonment of the plaintiff, Is not
seriously contrOverted. We now proceed
o consider the defense. -. 'W
"However II may have been before the
lrrest and trial, there Is no doubt that the
lcts Of Gen. HoVey and his brother off.
:ers In the seizure, trial and sentence of
he plaintiff, were ratified and approved
~ the Executive Department Of the Gov.
eminent. The legislation of Congress
las also been to the same effect, as well as
hat Of the State Of Indiana. The first
question therefore is, whether this cOnsti.
utes good defence. The Supreme Court
u the United States decided upon the
acts then before II, that the action of the
military commission In that trial, and the
entence OF the plaintiff, was null and
'oid. The court also decides that In the
rial and sentence, the constitutional rights
u the plaintiff were involved; that is, the
'ot done was prohibited by Constitution
u the United States, o majority OF the
ourt and that even Congress could not
authorize the net. II an act Is prohibited
y the Constitution, and II Is beyond the
'ower Of Congress 10 authorize Il, then II
nay he said the wrong done by the act Is
lot subject TO complete indemnity by
congress, because then tho prohibition Of
he Constitution to protect private rights
would be without effect. This question
s undoubtedly ofgreat Importance. 1t
Tor this reason that the second defence |
placed upon the ground that there was
martial law, suspension OF the privilege |
I the writ OfhdJe1S corpus, and war and |
military operating in Indiana at the time
I the arrest Under the present ruling
{ the Court, prOofo this last IL essential
the success Of tho defense In the case
resented 10 the Supreme Court II was
that there was martial law. at
he time in Indiana, and II was declared
lat no usage OF war could sanction n
Hillary trial there for any OiTense Ol a
itiZen not connected with the military
1rvlce. But in this case the defendants
ave been permitted TO aver and give
touching state Of war before,
I, and after the arrest Of the plaintiff
'nder what condition Of affairs would the
Iw have given validity to the
commission that tried the plain.
az This question Is answered
the Supreme Court Of the United
lates In the case so often referred TO-
hese are some Of the principles stated
that court martial Law cannot arise
ON threatened invasion; tho necessity
ust be actual and present, and the inva-
on real, such as efFectually closes the
ourts and doposes the civil administra.
on. We know judicially, and therefore
Is proved that the Federal Courts OF
diana were open luring the time the
fences occurred which have given rise !
the controversy. Gases, both civil and ,
iminal, were tried and the rights Of
lwer and property determined. A part
the State had been invaded in July,
IG3, but that had passed away; there
ere occasional disturbances, the drail
as sometimes opposed, and the arrest Of
RnptaNas1 rnvJnrt,,r, al. .