Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1873-06-13

this point. as laid down IN
the celebrated Milligan Case, leaves
nothing to be said.
In that case the Court, speaking OF
military commissions, declares
Every trial involves the exercise of
judicial power, and from what source
did the military commission that tried
him (Milligan) derive their authority :?
Certainly no part of the judicial power
of the country was conferred on them
because the Constitution expressly
vests it Gin one Supreme Court and
such inferior courts as Congress may
from time 10 time ordain and estab-
lish," and it is not pretended that the
commission was Court ordained and
established by Congress. They can
not justify on the mandate Of the
President, because he is contracted by
lar and has his appropriate sphere
of duty, aOhich is to execute, not to
make, the lars, and there is no an
| zOrittc7a criminal code to aohich resort
can be had as q source Of Jurisdiction.
X x X
If, in foreign invasion or civil war,
the courts are actually closed and it is
impossible to administer criminal
Justice according to law, then, on the
theatre of active military opera
lions where war really prevails. there
is a necessity to furnish a substitute
| for the civil authority, thus overthrow,
to preserve the safety of the army and
| society, and as no power is left but
the military, it is allowed to govern by
| martial rule until the laws can have their
| free course. as necessity creates the
retlc, so it limits its duration for II
| this government is continued after the
| Courts are reconstructed, 1t is a gross
usau7oation Of 21Oacer. Martial rule
| can 2aeyeT exist aChere the Courts are
| open and in the proper amo6structed
exercise Of their j'oTsdictiom.
| But it is insisted that Milligan was
a prisoner of war and therefore exclu-
dcd from the privileges of the statute.
| It is not easy to see how he can be
| treated as prisoner of war, when he
lived III Indiana for the past twenty
years, was arrested there, and had not
been during the late troubles a resi-
| dent of any of the States in rebellion.
If in Indiana he conspired with bad
men to assist the enemy, he is punish
able for it in the Courts of Indiana
bit aohca tried for the offence he can
not plead the rights Of soar ]; for ht
acas not c3agaged ia legal acts Of hostH
ity 0yainst tie gouez7a11ae,at, and only
| such persons ache3e captured are 21ris
oncfs Of qcor. II he cannot enjoy The
5n,n1unitjes attaching to the character
of q prisoner Of acGr, hOao can he b.
/ subject to Mci1' pains and penalties
When it is remembered that the war
if war it was, is ended, and that thu
Civil Courts in OREGON and Californi;
arc open, and indeed, eager to try The
Modocs, and that the Governors o
those States are demanding the Modcc
for trial, the principles laid dow
by the Supreme Court of the United
States, the highest Judicial tribunal il
the land, leave President Grant no op
ton but to turn his prisoners over t.
the civil authorities Of the States who's
laws they have violated.
, We trust this will be done and W
are encouraged to hope it will be don
! for the reason that such strong Radi
, cal papers as the Baltimore 4merica,1
| the New York TIMES, the Boston Globe
and the New York Evening Post, advo
cate this course. On the other hand
| however, President Grant is not til
man to neglect an opportunity t
stretch his prerogatiye.