Year: 1867

the fin INST, 5hoBC SSAAAAhy - 30 ~
livered the following important decision in
the Milliken habeIs corpus case:


Two questions arise in this case as it now
stands. First Whether the particular acts
complained OF, and alleged to have been
committed by this petitioner were viola
tions of the petitioners parole given at the
city Of Greensboro, North Carolina, on or
about NAV Ist, 1865? Second Whether
even il is true that the petitioner has yio-
lated his parole, he is properly held by the
military authorities for trial or whether
it comes properly within the Jurisdiction
of the courts Of the State


The latter question would depend upon
the question as TO whether the parole is
still effective whether it is still operative
or not. This court had, some twelve months
ago, this very question presented in the case
of Gen. +. w Rucker, late of the Confede-
rate army, who was indicted in this court
for treason. 1t was perhaps just preceding
the last fall term of the court that he was
arrested by the United States Marshal and
brought into court, and there, through his
counsel, moved his discharge because, by
virtue of his parole, as he claimed, he was
entitled TO 90 at large, and was not TO be
disturbed by the United States authorities
as long as he observed the terms thereof.
The question then came up whether there
really was parole, and il was still in full
force, and whether he was still liable and
subject TO the jurisdiction of the military
authority. In other words whether the
war was still existing After deliberate
consideration of the terms of the parole,
and the matters presented, the court held
that the parole was operative only during
the existence of the war; that is, that the
parole terminated with the war itself But
if the war was still fragrant, and peace had
not beon restored to the country, that he
would be still responsible, and ifhe Violated
his parole he would come properly under
the jurisdiction of the military authorities.
But if peace had been restored, and the
parole terminated with the war, that then
he would be amenable TO the civil authori.
ties of the land for any act he might do in
violation of the laws, either Of the United
States or of the particular State in which
he resided.


Previously TO that time the President
had issued his proclamation, in May, 1866,
think, in which he declared publicly to
the world that the insurrection was sup
pressed, and there was no longer any re-
sistance TO the government, of the United
States, and, in effect, that peace was re-
stored to the country a fact of which it was
supposed the court would take judicial no
tice. And the courts of the country being
open, and in the exercise of their legal and
proper functions, the court held that the
parole had expired by limitation, and
thereupon overruled his motion to be dis
charged, and held him to answer the indict-
ment which was peDaing against him if
the United States Court


If the court had not believed, at the
time, that the country was again at peace
and that there was no war in existence, il
would not certainly have taken the respon
sibility Of declaring that the parole hac
terminated, but would have been bound tC
respect it, and to have complied with it!
terms, and discharged the prisoner. Blu
not entertaining that view, the court helC
him to trial, and compelled the defendan
to enter irto bonds for his appearance a
the next term of the court.


In the laborious and able arguments t
which the court has given attention in thi
case, il has not been able to see any reason
why il should change the opinion declaret
| in the case of General Rucker. In tina
view it is not easy TO perceive how thi
court, with another whole year of continues
peace, could reverse that decision, and a
this day declare that, from the time of tina
| decision up TO the present, we have bee
and still are at war, and that the parol
was still in full and active operation, so ia
"a this petitioner is concerned. There wa
a long and very able argument by the coun
eel in this case, as TO the right of the Presi
dent 10 issue proclamation of peace, an


its effect upon the country. The counse
for the government contended that Tia
power was in Congress, and not in tn
President, to declare peace; Congress haS
ing, by the constitution, the right
declare war, must possess the correlativ
right 10 declare peace Although the prop
osition appears very plausible, the latte
branch of it being apparently sequenC
from the former, vet this cour; cannC
assent TO it, in its application to the chal
acter of the war Just closed. In the tir'
place, there is no necessity for declars
iion of war when the citizens resist tn
authority of the government and oppos
the execution of the laws. The constitu
tion of the United States makes it impera
tive upon the President TO see that the law
are faithfully executed. And by the lay
of Congress, to enable him to comply wit


that provision of the constitution, tn


President is invested with the power to us


all the land and naval forces at his con
| mand, and TO call ont the militia, for th


purpose Of suppressing any insurrection {
/ rebellion against the authority and laws
the United States. The President, thei


under that provision of the constitution


ard by virtue OF the act referred TO, woul
| not be expected to await the action of Coz


gress for \ formal declaration Of mdr, TO el


able him TO determine whether there VI


an insurrection or rebellion against q


goyernment. But the President must a
upon the emergency, and having the a


thority under the constitution and the la


of Congress TO command the power Of q
government for that purpose, il is his da


10 suppress any such lnsurrecti'


and rebellion; and it thus being q


duty of the President to supprt


such intestine hostility TO the go
ernment il would seem that he, {


officer charged with the dut, would b'
| know when the necessity for the iurih


employment of any such force could
dispensed with and when the rebellion "
! suppressed. Whilst Congress has made
formal declaration of war against those
hahitants of the United States who We
in insurrection, it has certainly passed
: number of laws which acknowledged {


existence Of war, and has furnished eve


aid at Its command to enable the Preside


to crush. perhaps, the most formidable


bellion known in any civilized country
|, But il is assumed that the power in I
government having authority to decis
4 war is the only power, recognized by I
II constitution. which has the authority
o make declaration Of peace. 1 do !
Is think it follows, in caae Of such a war
8 the recent rebellion, where no declarati
J. Of war was necessary. There was no J
J. cessity for Congress TO declare war.
D. they had TO do was 10 furnish 10 the Pre-
q dent the means Of efiectually crushing


opposition 10 the enforcement Of the la


ID would be very different in that respe


in case OF a war with foreign and inC


pendent nation. Then the constitution


self provides, not only by whom the '


shall be declared, but also by what auth
~ iiy treaty Of peace may be made. IL
~ foreign war, under the counstitutior


treaty Of peace must be made by


President, BY and with the advice