National Republican., 1880-07-16
CIVIL AND MILITARY AUTHORITY.

CIVIL AND MILITARY AUTHORITY.
An attempt is being made to secure a
copyright for General HANCOCK rs the au-
thor of the great principle of subordinating
the military to the civil authority as it was
enuncated by him during his military rule
in the south in 1867, after the war had
closed. This seems to be the strongest
point yet urged in his favor as statesman.
Some doubt has been raised ms to the Justice
of comforting upon General HANCOCK the
full honor of this discovery, as the principle
of law involved in this question seems to
have been established long before the gen..
eral had the honor of being born. The rec
ord shows that General GARFIELD, his
competitor for the presidency, had some
thing to do with this question in 1866 in
the supreme court of the United States In
the months of Septemberand October, 1854,
LAMBDIN P. MILLIGAN WILLIAM A.
BowLEs and STEPHEN HoRsEY, natives of
the United States and citizens of the state
of Indiana, were arrested by order of ALVIN
p. HovEY, major-general commanding the
military district of Indiana, and on the 21st
day of the latter month were placed on trial
before military commission" " convened
at Indianapolis by order of General HovEY,
on the following charges preferred by Major
HENRY L. BURNETT judge-advocate of the
northwestern military department, viz:
l.. Conspiracy against the government
"of the United States"
2 "Affording aid and comfort to rebels
against the government of the United
"States."
g. Inciting insurrection."
A. Disloyal practices"
s. Violations against the laws of war"
The commission, overruling the objec-
tion Of the accused against its au-
thority to try them, proceeded with
the trial, pronounced them guilty and SEN
fenced them to death by hanging The
sentence was approved on the I'd day of
May, 1865, but before the day fixed for its
execution the president of the United States
commuted it to i'm prisonment for life and
the prisoners were confined in the peniten-
tiary Of Ohio.
On the 10th day Of the same month Gen
eral j. a. GARFIELD. as of counsel for the
accused, filed their petition setting forth the
above facts in the United States circuit
court Of Indiana, as also the further fact
that their case had been brought to the
knowledge of the grand jury, which found
no bill against the accused and hence de-
manded their discharge from custody for
the reason that the military court had no
jurisdiction of the case. The case was sub
sequently carried 10 tho supreme court of
the United States.
There General GARFIELD held that by no
loose and general construction of the law
can citizens be held amenable to military
tribunals whose jurisdiction extends only
TO persons mustered into military service
and such other classes as are, by express
provisions of law, made subject to the
rules and articles of war, and he presented
m abundance Of high authorities to sustain
his view of the case. And he contended
that even within their proper jurisdiction
military courts are in many important
particulars subordinate to tho civil courts
as is acknowledged by the leading au.
"thorties on this subject"
In view Of q vast array of authorities on
the subject, General GARFIELD held it as
established that the supreme court of the
United States may inquire into the ques-
tiOn ofjurisdction Of military court, may
take cognizance of extraordinary punish
ment inflicted by such court not war
ranted by law, and may issue wrts of
prohibition or give such other redress us
the case may require. II is also clear that
the constitution aud laws OF the United
States have carefully provided for the pro-
lection of individual liberty and the right
of accused persons to q speedy trial before n
tribunal established and regulated by law.
The supreme court of the United States,
after n patient and careful hearing of this
case, announced its decision by Chief Jus.
tice CHASE, fully sustaining the arguments
and points presented by General GARFIELD,
and ordered in effect that these defendants
should be rescued by writ of habeas cor.
pus and be set at liberty--thus recognizing
and acting upon the principle that the
civil in all such cases rises superior to the
military authority. SO ii appears that Gen
eral GARFIELD takes priority Of rank over
General HANCOCK on this question Of the
superiority of civil over military law.
When he was appealed to to argue this case
in the supreme court his reply was that If
the case depended ON the justice of the men
being punished, he would not defend them
in any way whatever, but so important and
sacred did he regard the principle Of the
rightof every citizen in n civil community
where the war was not raging to be tried by
eiyilcourts, that in that exciting time, when
the feelings and prejudices Of his constitu-
snts we're decidedly adverse to his connec-