Year: 1867

tion of the republican doctrine, that
the "Constitution is the supreme law
of the land, in peace and in war"
contained in the able opinion of the
Supreme Court in the Indiana con
spiracy case, cannot be too often or
too earnestly pressed upon the atten-
tion of the people. This is the first
decision touching the great funda-
mental principles of our government,
rendered by the Supreme Court of the
nation since the war, and it comes
like q burst of sunlight to scatter
the darkness which rested upon the
country. IL establishes the sacred.
ness Of the trial by jury, and declares
that upon this ark of constitutional
liberty, political frenzy and partisan
prejudice must not lay their unanOint-
ed and sacreligious hands. All men,
not in the military service Of the ma
ton, can claim to be tried before their
peers in the way pointed out by the
Constitution, and that claim or de-
mand must be allowed. Men "clothed
with little brief authority" can no
longer invade the dwellings of citizens
at midnight, drag them from their
families without process, warrant or
authority, and incarccrate them in a
dungeon. Judges will be safe on the
bench from the arms of military des-
potism. The private papers of bust
ness men will not be the property Of
spies or informers, nor will letters be
opened by those entrusted with the
postal service of the country. The
decision Of the Supreme Court estab-
fishes the rights Of American citizens
upon a basis which nothing but a
revolution can shake, and surrounds
them with the majesty of law, which
must be obeyed so long as there is
power to enforce t. If the Radical
party oppose the execution of laws
held to be constitutional by the tri-
bunal of last resort, in an open and
aggressive manner, they are as much
traitors to the true principles of the
government as if they took up arms
and fired upon the cold flag"


The infringement Of the Constitu-
ton in the case of Milligan was two
fold. First, he was brought for trial
before a tribunal not ordained and
established by Congrossj and second,
he was denied trial by jury These
are points resting upon plain provis-
ions of the Constitution, and the Court
affirms that not only was the commits
sion illegal, but that "no usage Of war
could sanction a military trial in In
diana for any oficnse whatever, Of a
citizen in civil life, in no wise con-
nected with the military service. "
This is a strong position. But the
Court goes further, and atfirms that
"Congress could grant no suchpower,"
and argues that there was no neccssi-
ty for the commission that tried Mil
ligan and others in Indiana, and tho
military courts are necesl ary for men
in the military or naval service, yet
TO all others the Constitution guaran-
tees q trial by jury. "This is vital
principle" says the Court at cannot
be trampled upon on the mere plea of
military necessity


The annexed portions of the opinion
of the Court, delivered by Justice
Davis, are of such commanding inn
portance, that we insert them, not
withstanding their length. The facts
and arguments are unanswerable
Justice Davis says:


"The controlling question in this
case is this-upon the facts stated in
Milligan's petition and the exhibits
filed, had the military commission
mentioned in it jurisdiction legally to
try and sentence thomg Milligan, not
a resident of one of the rebelious States
or a prisoner of war, but a citizen of
Indiana for twenty years past, and
never in the military or naval service,
is, while at his home, arrested by the
military power of the United States,
and on certain criminal charges pre-
ferred against him, tried and convict
cd, and sentenced TO be hanged by
military commission organized under
the direction of the Military Com
mander of the Military District of In
diana. Had this tribunal the legal
power and authority to try and punish
this many No graver question was
ever considered by this Court, nor one
which more nearly concerns the rights
of the whole people, for it is the birth
right of every American citizcn when
charged with crime TO be tried and
punished according to law.


"The power Of punishment is alone
through the means which the laws
) have provided for that purpose, and il
they are Intellectual there is an immu-
nifty from punishment, no matter how
great an offender the individual may
be or how much his crime may have
shocked the sense of justice Of the
: country or endangered its safety.


"By the protection Of the law, hu-
man rights are secured. Withdraw
that protection, and they are at the
mercy of wicked rulers or the clamors
of an excited people.


"lf there was law TO justify this
military trial, it is not our province to
. interfere; if there was not, it is our
duty to declare the nullity of the
whole proceeding. The decision Of
this question does not depend on ar.
gument, for judicial precedents, nu-
merous and highly illustrative as they
are these precedents inform us Of the
extent of the struggle to preserve the
liberty and to relieve those in civil
life from military trials. The found.
ers Of our government were familiar
with the history of that struggle and
: eooured in n written Consfifution