Year: 1867

L MlliiSdL, decldflnS Cno llleSa1Iy OF ms
trial, for alleged conspiracy, before mill
tary commission in Indiana, and, in effect
ordering bis discharge from prison, he hav-
ing been convicted and condemned to
death. have been printed and published
The case, it will be remeI bered, was
brought before the United States Supreme
Court on certificate of division of opin
ion Of the two Judges of the United States
Circuit Court of Indiana.


There are two opinions of the court
The one read by associate Justice Davis is
elaborate in it's defence of the constitution
and the rights of citizens, and their pro-
lection in person and property. As has
been stated, all the members of the Sll-
preme Court agree upon the point relating
to habeas corpus, and to the question,
"Ought the court to issue a writ of habea5
corpus and order his release ?" On these
two questions there was no difference OF
opinion The third question, Had the
military commission the II ght to try Mill
gan ?" produced the dissenting opinion,
which was read by Chief Justice Chase for
himself, and Associates Wayne, Swayne
and Miller. a minority of the court. In ad-
dition to the points already given of MIR.
Justice Davis opinion, the following ex-
tracts are made touching the controlling
question in the case, of the jurisdiction OF
y
gally punish him, he being a citizen of In
diana and never soldier or sailor. Judge
Davis says:


No graver question was ever considered
by this court, nor one which more nearly
concerns the rights of the whole people lit
is the birthright of every American citizen,
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 pur
pose, and If they are Intellectual, there is
an immunity from punishment, no matter
how great an offender the Individual may
be, or how much his crimes may have shock
ed the sense of justice of the country, or
endangered it's safety. BY the protection
of the law human rig ghts are secured with
draw that protection, and they are at the
mercy of wicked rulers, or the ciamor OF
an excited people. II there was law to JUS
tify this military trial, it is not our pro
vince to interfere If there was not, 1t IS
our duty to declare the nullity OF the whole
proceedings. The decision of this Ques-
ton does not depend on argument or judi
cial precedents, numerous and highly illus
trative us they are.


These precedents inform us of the extent
of the struggle TO preserve liberty and to
relieve those in civil life from military
trials. The founders of our government
were familiar with the history Of that strug
gle, and secured in q written constitution
every right which the people had wrested
from power during {, contest OF ages. BY
that constitution and the laws authorized
by it, this question must be determined
The provisions of that instrument on the
administration of criminal justice are too
plain and direct to leave room for miscOn-
struction or doubt Of their meaning. Those
applicable to this case are found IN that
clause Of the original constitution which
says '' that the trial of all crimes, except IN
cases of impeachment, shall be by jury -
and in the 4th 9TH and 9th articles of the
amendments. The fourth proclaims 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 of probable cause,
supported by oath or affirmation" The
fifth declares 6 that no person shall be held
to answer for a capital or otherwise infa-
nous crime unless on presentment by q
grand jury, except III cases arising In the
land or naval forces. or In the militia,
when in actual service IN time OF War or
public danger, nor be deprived OF lite, lib
erty, or property without due process OF
law" And the sixth guarantees the right
of trial by jury in such manner and with
such regulations that with upright Judges,
impartial iurieS, and an able bar. tiie iunO-
cent will be saved and guilty punished. 1t
is in these words L" IN all climina. prose
cutions the accused shall enjoy the right to
Il speedy and public trial by an impartial
Jury of the State and district wherein the
crime shall have been committed, which
district shall have been previously ascer-
tanned 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
witnesses in his favor, and to have the as
sistance OF counsel for his Defense"


The constitution of the United States is
law for rulers and people, equally in war
and in peace, and covers with the shield of
its protection all classes of men at all times
and under all circumstances No doctrine
involving more pernlcIous consequences,
was ever invented by the wit of man that
any of its provisions can be suspended du-
ring any of the great exigences of govern
ment. Such a doctrine leads directly to
anarchy or despotism, but the theory of ne
cessity on which it is based is false, for the
Government, within the Constitution, has
all the powers granted to it, which are ne
cessary to preserve its existence, as has
been happily proved by the result Of the
great effort to throw off its just authority.


A guarantee of freedom was broken when
Milligan was denied trial by jury. The
great minds of the country have differed on
the correct Interpretation to be given to
various provisions of the Federal Constitu-
ton; and judicial decision has been often
invoked to settle their true meaning; but
until recently no one ever doubted that the
right of trial by jury was fortified in the or
ganic law against the power OF attack. 1t
is now assailed; but if ideas can be express
ed in words, and language has any mean
ing, this right--one Of the most valuable in
a free country-is preserved to every one
accused Of crime who is not attached to the
army or navy or military in actual service.


1t is claimed that martial law covers with
its broad mantle the proceedings of this
military commission. The proposition is
this: That in time of war the commander
of an armed force (if in his opini ON the ex-
igencies of the country demand it, and of
which he is to judge,) has the power, with
in the lines of his military district, to sus-
pend all civil rights and their remedies,
and subject citizens, as well as soldiers, to
the rule of his aciH, and, in the exercise of
his lawful authOrity cannot be restrained.