Year: 1867

parchment, shall be by jury" And
in the fourth, fifth and sixth articles
of tho amendments, the fourth pro-
claims the right to be secure in person


and effects against unreasonable search


and seizure, and directs that a judicial


warrant shall not issue "without proof
Improbable cause, supported by oath or
affirmation" The fifth declares that
no person shall be held to answer for
a capital or otherwise infamous crime
unless on presentment by a grand
jury, except in cases arising in the
land or naval forces, or in the militia
when in actual service, ia time Of war
or public danger, nor be deprived of
life, liberty, or property, without due
process Of law; and the sixth guaran-
tees the right of trial by jury in
such manner and with such regula-
tions that, with upright judges, i'm
partial juries, and an able bar, the
innocent will be saved and the guilty
punished. 1t is in these words ain
all criminal prosecutions the accused
shall enjoy the right to a speedy and
public trial, by an impartia, jury OF
the State and district wherein the
crime shall have been committed,
which district shall have been previ-
ously ascertained by law; and TO be
informed of the nature and cause OF
the accusation, to be confronted with
the witnesses against him, to have
compulsory process for obtaining wit
nesses in his favor, and TO have the
assistance of counsel for his defense" +"
These securities for personal liber-
ty thus embodied were such as wis
dom and experience had demonstrated
to be necessary for the protection OF
those accused ofcrime. And SO strong
was the sense Of the country Of their
Importance, and so jealous were the
people that these rights, highly priced,
might be denied them by Implication,
that when the original Constitution
was proposed for adoption, it encoun-
tered severe opposition and but for
the belief that il would be so amended
as to embrace them, would never have
been ratified. Time has proven the
discernment of our ancestors, for even
the provisions expressed in such plain
English language that it would seem
the ingenuity of man could not evade
them, are now, after the lapse Of more
than seventy five years, sought TO be
evaded. Those great and good men
forcsaw that troublesome times would
arise, when ruler and people would
become restive under restraint, and
seek by sharp and decisive measures
10 accomplish ends deemed Just and
proper, and that the principles Of con-
stitutional liberty would be in peril
unless established by irrepealable law.
The history of the world had taught
them that what was done in the past
might be attempted in the future.
The Constitution of the United States
is law for rulers and people, equally
in war and peace, and covers with the
shield of its protection all classes Of
men at all times, and under all cir.
cumstances. No doctrine involving
more pernicious consequences was ev-
er invented by the wit OF man than
that any of its provisions can be sus-
pended during any Of the great emer.
gencies of the government. Such a
doctrine leads directly to anarchy and
despotism; but the theory of necessi-
ty on which it is based is false, for the
government, within the Constitution,
has all the powers granted to il which
arc necessary opreserve its existence,
as has been happily proved by the re
suit Of the great effort to throw off its
just authority. Have any of the rights
guaranteed by the Constitution been


violated in the case of Milligan, and il
so, what are theyy Every trial in
wolves tho exercise of judicial power,
and from what source did the military
commission that tried him derive it's
authority Certainly no part of the
judicial power of the country was con-
ferrcd on them, because the Constitu-
tion expressly vests it in one Supreme
Court, and such inferior courts as the
Congress may from time to time ordain
and establish, and it is not pretended
that the commission was n court or
dained and established by Congress.
They cannot justify on the mandate
of the President, because he is con
trollcd by law and has his appropriate
sphere of duty, which is to execute
and not make the laws; and there is
no unwritten criminal code TO which


resort can be had as source Of juris-


dictiOn. But it is said that the iuris.


diction is complete under the laws


and usages of war. 1t can serve no


useful purpose to inquire what those


laws and usages are, whence they


originated, where found, and on whom


they operate. They can never be ap


piled TO citizens of States which have


upheld the authority Of The govern


ment, and whore the courts are open


and their processes unobstructod


This Court has Judicial knowledge


that in Indiana the Federal authority


was always unopposed, and its court:


always open to hear criminal accusa


tious and redress grievances, and nc


usage of war could sanction a military


trial there for any offense whatever


Of citizen in civil life in no wise con


nected with the military service. Con


gress could grant no such power, and


TO the honor Of our National Legisla


ture be II said, it has never been pro


voked by the state Of the country


even TO attempt its exercise. One o


the plainest constitutional provisions


was therefore infringed when Milligar


was tried by a court not ordained anC


established hv COnprpss and not com