The New York Herald Newspaper, January 1, 1867, Page 3

rrr Tho Trial and Conviction of Milligan by a Military Commission Declared Unconstitutional, @pinions of Chicf Justice Ohase, and Justice Davis, of Illinois. : Beparte in the matter of Lambiin P: Milligan, Pe- Stioncr.—On a certificate of division of. opinion between ‘the Judges of the Cireuls,Goartof the United States for | tee District of Indiana, Mr. Justice Davis deliveted the ‘epinion of the Court, On the:20th day of May, 1965, ‘Lambdin P. Milligan presented:a petition to the it Ovart of the United States for the district of rs @ay of May, 1865. On the 2d day of January, 1966, after ‘the proceedings of the military commission were at an end, the Cirouit Court of the United States for Indiana mact at Indianapolis and empanciied a Grand Jury, who ‘were to inquire whether the laws of the United Brates been. vi aad if so to make te ments, The court ed on the 27th day of Janu- ary, having fend ersto discharged from further wervice the tan AM itn reer ee ‘Dili of indictment or any presentment siocs his sat a0 bil of indlctmect any imprisonment no bill of tment against ae that it be carried Into execation without Ly petition was presented and filed in open court counsel for Milligan, At the eame time the District : Emerg dl of ‘United States for Indiana appeared and i a H i g 3 i E i : 7 iF 38 to the @ated in the said ti cnibite ought i F L gaid. petition and exhibits ought the said Lambden Milll- Gan to be discharged from ot 7» 26 im said petition Bx ‘third, the facts stated im said pe- ‘and exhibits the military eoumission mentioned said jigan im manner and as in pet ein et is stated? The. i 0 of main + eng presented by this cannot be @verstated, for it involves the very of the and the fundamental priucipies of American Daring the late rebellion the te of the These led with the exercise of power, and feel and ferests prevailed which aro happily terminated, Now fast the public safely is assui ‘this queation, as as all others, can discussed = end But we are met with a pre- rae eg eh} Circuit Court we are without Juredletion to hear daa deter. Beets The sixth section of the actto amend the tes, ap iy a edlares tbat whenever al Hy fit § Hi ‘ e i Hi 3 5 @aage until after writ nas been sued and the return Gongress of March 8, 1968, relating to habeas corpus on gress of March 8, 1868, to corpos on which the petitioner bases his claims for relief, and which PP aaa 0 She cation po cavinett ‘Tt im true that it if usual for a court, on application for e taste ite writ, aud on the return to dispose of the case; but the court can elect to waive the issuing of the writ, and consider whewer, upon the facts presented in the petition, the prisoner, if brought Before it, could be discharged One of the very of which the case of Tobias Watrins, in third Peters, turned, was - whetbor, ‘the writ was issued, the petitiover would be remandea the case which he bad made. The Chief Justice fa delivering the ion of the court, said the cause of imprisonment is wn as fuily by the petitiwner as it ould ay) on the returh of the writ, consequently the it to he awarded if the court i* sativdied that the would be remanded to pricou. The Judges: @&f the Circuit Court of Indiana were therefore warranted an express decision of this conrt in re(nsing the writ, satislied that the prisoner on bis ehowing was right. fully detained. But it 1s co hey differed about the lawfulness of tl could render no judgmer Femediloss and cannot Lave the disputed question vert» fled under tuo act of 1802. Hieremedy i6 complete by writ of error or appeal if the court renders a tinal judg t refusing to discharge him; but if he should be 20 ‘28 to be placed in the predicament of hav. fe coart divided on the question whether he xhould po die, he is hopeless and without remody +f: @oastitution, sad yet the privilege iv denied him heeaure the Cirouit vourt comsiats of two judgos instead of one, Buch a ren. |: wos notin the contempiation of the Legie- ature of 1802, sor the ianguage used by it construed to neem anyeuch thing. Gousideration was introduced to by obwoaing & speedy gettiement of an impor- ft question where the judgoe migh go's. ‘The act of 1802 so cl the Circuit Court,slastead @ wo judges, and without this & kindred one, if the judges difered, ferenco would remain, the question be unsettied, and justice denied. The decisions of this Court spon the provisions of this section Lave been namerovs, In ase of the United Statos vs. Daniel, (6 ), the Court, in holding that a division of tho judges ona Motion for a uew trial oduld not pe discredited, gays that “the question mast be one which arises in a canse de- fending before the court rolative to a proceeding belong- p bed the cause.” Testing Milligan’s case by this rui wr, jot apparent that it is rightfully hére, and What we are compelled to answer the questions @a which the judges below were tbe ae ane the rics for the writ corpus “cause” of the apply! i, then it i# evident in =! cour the sommes v it, de! 0 it, and wore matters of right, and Ot of discretion. But ft ned that the proveeding does no} ripen into « cause here are two partion to i. Thin we deny. It was the cause of Mil when ‘the peut! ‘Was presented to the Circuit rt, It would have beon the cause of the per had inened =the writ Move Wo held Milligan in custody before the Court. Webstc ‘_— the yo thus:—"A suit or ection I court; any “process which a in- @itaver to obtain his demand, or by which yet A hie poe supposed right." eax "This is a legal, ufol and popular wee coinciding nearly with cave, from code, wud wet! from ago, to urge and Eid ppodee he bean fight so Wigan supposed he & fight to “iy ot bie fan seatenre, and the pho. ‘he set io SS for that purpose was of ‘muit.” Tt was the only ope Dy whick the jndicial syst-m three, was composed wovision or Teer F é it a [ ay ; i 2" i é : of jurisdiction, but on in sense of the Awenty fifth ection “ak the aia rce ioe ing by habeas corpus was a position controverted by 8 thought that * and mean the same thing. retura must be made and entry. The case before making ication. suit under the sixth section of the act of 1802 Bu’ | is argued that there must be two fe she: salle Yen cause the point is to be stated u| the request of “either , or their counsel.”” Such @ literal and zs i 125 k tH Hi ; alee bell if if Hi ff FF H idles: B g g i ai I i fi i ti ture fn im; in es pened tine heritage of free government was ding a tre rbalign pga yoann! eather, igeater than aa i TI eH i ‘| ie BG ff 382 ste iit tii Eese i FSS L See i eet | iH i i iW i E &* al : E EH : of the United States a list of the names of all parties, not prisouers of war, resident in their dictions who them were or afterwards custody by the authority of the President, and who wore citizens of the Siates in which the admuinis- x : jon. If he was detained im c it otberwige than as a prisoner of war, if he-was a citizen of Indiana and hed rns itary or naval service, and the Grang Jury of the district bad met after he beeh arrested for @ period of twenty daye and adjourned without taking any egainst him. wen the Court had the right to entertain his petition and determine the lawful. ness of his imprisonment. Because the word “‘court'’ of the second section, it ber the application should s have eee Ee te ee ne court iteelt. But this Bes io oor power js expressly conferred in the tast proviso of the section on the court, equally with @ judge af it, to discharge from imprison- ment, It was the manifest design of C to secure a certain remedy by which any one deprived of liberty could obtain it against bim. arts ato wot always in g€asion, aod can adjourn on ihe discharge of the Grand Jury, and before those who are in confinement could take proper steps to procure their liberation. To pro- vide for (ur contingency anthority was given to the rae, outof court (» grant reliof to any party who could show thas vuder the jaw he should be no longer restrained of his liberty. It was insisted that Mti- ligan’s case was deigotive Decause it did not state twat the list was furnished to the judges, and thero- fore it was impossible to say which section ‘of the act it was presented. It is not eas! this omiasion could affect the question Milligan could nos know that the list was furnished, un- Teas tae judges voinuteered to tell bim, forthe law did not ~ ve that any record suould be made of it, or any bo wus the judges iaturmed of 1. Why aver the Inc#whem the truth of the measure Was apparent to the court without it? How can Milligan be harmed by une absouce of the averment when he states that he was under arr ‘of more than e'xty days before the Court aud Graod Jury whieh aboald have considered his case met at Indianapolis? It is appgront, therefore, that, 1963, the Clrouit Court of Indiana baa complete forediction to adjudicate upon (his case, aad If the Jadges could not agree on questions vitul to she progress of ihe cause, they had the autoority, as we dave Buown in a previous part of this opinion, and it Was therr duty, Wo cortily those questions of disagreement 10 this court for fimal decision, It was argued luat a dnal decision on the questions presented ought not to be made, becnuee the partios who were directly concerned in the arrest and detention of Milll- gan were not becore the court, aod thoir rights might be prejudiced by the auswer which should be given to those questions. But this court cannot know what roturp will be made to the writ of babeas corpus, it os very clear that no one is conclu. put vestion that may be raised to that return, In the senso of (he Jaw of 1802, which authorized a cortiticate of division, a final decision means final upon the polate certi/iod—tinal upon the court below, so that it is estopped trum any adverse ruling in all the subso- quent dings of the cause, Bot it is said that this case i# ended, as the presumption is thet Milligan was hanged in pat the order of u President. Although we have no judic information on the subject, yet the inference fs that ne is alive, for otherwise learned coanse! would not appear for hive and urge this Court to decide his vase, It can never be, in this country of written constitution ‘and laws, with @ judicial department to interpret them, that any Chief nsogistrate could be so far forgetful of his duty as to order the execution of a man who denied the jurisdiction (hat tried and convicted him, efter his cage waa before tho fedoral judges wita power to decide Lae bd to arguegon the grave questions hed, ing to Known law, sent it to the it tha the c. oon iajurio ‘a. the Exocu- ore onggomon is a8 00) ore, and we mi thor consid- ime it There ts nothi to an myyerignnen reray. controlling question facts stated in Milligan’ bed the military commission men- ly to try and sentence him ? Of the rebellious “tates of r9 past ser ‘al Ld ik yen or naval service, ‘hile at his boine, arrested by the vallitary paver of the United States, and on certain criminal charges him, tried, oon and sen by & military com organized under the direction of the militai commacder of the military district of Indiana Had this tribunal the logal power and authority to try and punish (bis man? No graver question was ever by thie Oyart, nor yee Which more newly a under 6 haiveas corpus act oF ie Hi : fl # ! i f Ny at ¢ Sege E : E : E Z iH 4 : it tl HT Hee | a i ul Ei seh ie e. i if ES. Ho i wits 5 i z a - 4 i A fl f ie fe i | 4 i H eeeueeel H fH feat! al ne ie Leas i i E j i B z 8& ze ij i li zg No doctrine | i i g E a 5 FE any of i i z a5 ment, ERE i : cf e* Ff RE a oe s Hi § i a) gf F3 H s ecessity My i elie Hie ee (iit CEH (pelt ull Hi ed Mi ut it fll i i i | gs 4 # E 5; = 4 : i : i; i : 5 SESEEBE ene : BEL Uta ile edith: anit: i te ? Lite HTH ct el eee i i rovisions wi ied by @ court not and not i i 1 BS it i | : i ii BEES | é i os i iF i ist journed. It needed no bayonets to quired no military aid to execute its j beld in a State eminently distis by judges commissioned during the were with juries u| fatelligent, lected by a Marshal sppointed the government bad ao tight to conclade that Mi guilty, would not receive in Punishment, for its records as stantly engaged in the trial of similar offences, and never interrapted in its administration of eriminal tice, If it was dangerous in the distracted condition affairs to leave Milgan unrestrained of bis liberty cause he faim ghee against the government, afforded ald and comfort to rebels and incited the people to tn- sorrection, the Inw said arrest him, confine him closely, provoot hls oun to ho Grand Jury of the disc, With cage to jury of istrict, proof of his guilt, and, if indicted, him asccord- ing te the course of common law. If this had been ‘done the constitution would have been vindicated, ibe law of 1863 enforced, and the secn- Titles for personal bberty preserved and defended. Another gunrantee of was broken when Milli- atrial by jury. The great minds of the iffered upon the correct interpretation to consuitw. : I tits i g i i] #2538 SF tion, and judi seule their true meaning, but until recently no one ever doubted thet the right of tai by jury was fortified in the inet the power of attack. It this has the most vaiuable In s free country—is of crimé Tanuago uy meaning, to every one accnsed who is not attacted to the army or navy or muitia in actual servi oa, The sixth amvodment affirms that in all criminal proge- | the ol cutions the accused shall enjoy the right to 2 speedy and public trial by an impartial jury. Language broad enough to embrace all persons and cases. But the tifth recoxnizes the necessity of nn indictment or presont- mont before any oue can be held to answer jor high | citizens Y4A0KAy YAGSBUP GIATIN AAV 2535 & i i % i Rip ii : u j i i i BE SE ely i a gee it i I | | i £ I HI ges ay ; | | i i Ppp Lf itt : syiyipteee Lill elle antl thal fi fe He it ii i i j ii i orgwized and established of this than a tril arenes eon ae iiale cas bo obey plied. If Fale can ia lnvasiom. of civil. wer, the courte, are sotaally and is is to admininter of stops rnd enaget Maar eh eta where war really prev af waar to furnish a substitute for the civil au- thority thus overttwown to preserve ‘the safety af ihe army and pn LY wer is left but the mili- tary: ‘he to govern by martin! rate until the laws can beve: free course, As necessity creates the oo it its durationg for if tins Po. ‘men; w continaéd after the courts are tise mie i Fe i g8 8 E 8 tl 5E i 4 se 5s ce i i i i iy i i g 3 i I ; rit tf A i u : E iP: colony. Those eminent and Sir James McIntosh, and denovpoed the tral as tl i H B; on i u E ah 3 E Fd Hy ze they iperrede the course of the common law, and thereof to publish and ordor the use of martial ‘Amombly denounced «similar wea- of Govercor Dinmoro as “an assured himself cannot oxercive, because jand and introducos the moat ayetems—rartial law.” In some paris I pp of tbe. uring the war of 1812 our officers made arrests, and by military tribu- pais tried who were not im the milli- tary tay These arrests and when brought to Rotice of tho courts, were uniformly z ‘a8 egal, The caser of Smith versus Shaw and Moconvell versus Hampton, reported in 12 Johnson, are ticstrations which wo cite, nut bee Aga the princ- pies they determine, but on account of the distinguished Jurista concerned in the decisions, one of whom for many seat on this bemcb. It is con- ‘that Luther versus Bordon, decided by this court, jg an authority for the claim of martial Jaw advanced in this cae. The decision ‘s misapprehonded. That case grew out of sho attempt in Rhode Island to supersede colonial goyorument by a revolutionary proceed. ode Isiand eed Period had no ott lox io. 9 charer yrante: Sian L., 1 1668, aad as that lim'ted the frage, and did not (49 for its oon amendment, masy nsfled because Legislature orimes, except in cases arising in the military or paval | would not afford the relief in their power, and without forces or in the-wilitia whea in actual service in time of war or pnbdilc danger. And the framers of the constitu. tion doubiless meant to limit the right wal by jury in the sixth amendinent to those persons who were subject tw indictment or presentment in the fifth, Tho discipline necessary the efficioncy of the army and navy required other and swifter modes of trial than ave furnished by the com- | new, in order to of | of arma. the autnority of law formed a and independent con- stitution, and proceeded to assert its authority by foree The olf governmont resisted this, aod, as the Pobellton was formidable, called out she railitia to subdue js and passed an act deciaring martial law. Borden, in iit service of the old government, broke open the yuse of Luther, who supported the arrest brw. Luther brought mon jaw couric, and in porsuence of the power con- | suit ayainst Borden, and the question waa whether, ferred by tho constitution Congress has declared the Kinds o( trial, aud the manner in which they shall be conducted, for oflences committed while the party is in the military or naval service, Bvery ono connected with these branches of the public service 18 cinenable to the jurisdiction which Congress has created for their government, and white thus serving surrenders his Tigut to be tried by the civil courts All othor persons, citizens of States where the courts areopon, if charged with crime, are guarantced the inesi privileze of rial by jury. This privilege ts a vi ciple underlying the whole administration of justice, It is not heid by suflorance, and cannot be Lored away on my ptoa of Bias or palltveal sensaaaa, prevails and the authority of Fondispated, there is ‘a0 ditic iy in wreeerving tho safeguards of livery, for tbe ordinary modes trial ace never neglected and no one wishes that power Bat if society # disturbed by bye pe ye 1€ tho | We do not deem it iny Passions of men are erou the restraints of Jaw weakened, if not disregarded, these safeguards — hould receive the watchful care of those on- stod with the guardianship of the constitution and laws, In no other way can we tranem!: 16 post unimpaired, the biessings of conse rated by sacrifices of the Revolution, Ttis claimed 10 marty Jaw covers with its broad mantle the procosdiugs of 1/1\5 proposition. is this:—Thas in ime of war the commander of an armed force, If in bis opinion the exigencies of the country demand it, and of which ho ia to judge, ere within tho limes of his military district to alt civil rights, and their remedies were sul citizens as well, ae diers, to tho role of his will and the exercise of his lawful authority cannot be restrained exoept by foreign or domestic, snd tho o ie subdivided inte miliary departments tor mere conte commander of one of them can, if he choores, jones, the with the limits, om the plea of necessity, with the approval of the Executive, faomitate rllitary foroe for aud to the exolnsion of the ae inal iceman ae no thinks right and proper, without fixed or certain rules The statement of this proposition shows its im- ‘we for, if true, republican ment js a failure and there is an iy Pom rol Sart Marval law, fuel ” 3 every guar effectually renders the military ti porior to onvid for whe the King of Great Britain sueh an offence that they of the causes rm ' pendboce. Civil li YeDUds ‘oaower, the aningoniam be Irreconeilan/e. 3 to igquire to whet extent or under what circu otherwise, tancet j i ‘wnder she conalitation and laws of the State, Borden was ‘usted. This court beld that a Stato “may use its military power to put down an armed insurrection too ‘to be controled by the civil authority,” and if ube of Rhode Isiand thought the peril so ese aire the use of ite military forces aud the martial law, thero was no ground on which this court could Question its authority, and as Borden acted under wilitary orders of the charter gov- which had been recognized by tho political the country and was upheld by the “tate judi- he was justified in breaking into and entoring housé, This is the extent of the dovision. Thoro was no question tn issue abont the power of deci: law ader the federal constitu- tion, the court did not consider it nocesea; bi. may be exercised by a State.’ nt to examine further the ad- cases, and ii therofore conclude without any Teferenco to authorities, To the third ques- on which the Judges bolow were opposed in #1) npewor in tho bir must be returned. It to say, althongh MUllignn’s trial and conviction cy ©mamigsion was illegal, z, if guilty of the tohim and his gull had beon aacer. osvebheted court and impartial jury, he de- "6 penishmont. Open resivtance to the ‘| wecessary to subdoe a great rebellion, bp Ad protection of the government ; the oven of prejudice of section to twit favor, is wicked ; but thet enormoun crime when it assames the form of armed to uverthrow the power of the Upited States. ke these at such a joncture,are extremely perilous, and ‘those eoneerned in (hem are encmies to their countty, and should receive the heaviest penalties of the Jaw, a8 an example to deter otters from similar criminal conduct. It is said the peveritiee of the laws caused ‘Dut Congress was obliged to soar **overe the crisis; and as our bighest civil daty is to verve our counwy when in danger, the jate wer bes scam Mg Li. yw inwe, When necossiry, cheer! 1 @ paLciotic poopte si ruggling to pre- gorve the Pay of a free soresneoe, The two Pormmining questions in this caro most be sartered in the afrpauive. The suspension of the privilege of the rit of habeas corpas docs not suspend the writ iteell, The writ issues as a matter of course, ard on the return mado to it the © deoitcs whether the gary epriing denied the ra of oj rt y cuit Court for the district of wae : en be im Indiana fc Pp, Jem, Seeale reatte. " Paied there and tad been ering 0 late, roubles a resident of the States in rebel If io Indiana for it ta the courte of Tadiane: bet when tried for the offéace he cannot plead the rights of war, are prisoners of war. ‘enjoy the immuniti y We the sharcler of priser of war how ean case, as well” as the ‘Kindred ome of Bowles and , ‘Was Gisposed of at the last term, and the ponders .were: entered of record. ‘There is, the no additional entry requi Opi: Chief Justice Chase. duty to make « separate views Or the whole case ‘We do not doubt that the Cir. Indians had jurisdiction of the petition of forthe writ of habeas corpus. Whether this Court Jurisdiction upon the certiticate of division admits of more question. The construction authorizing such certificates which bas hitherto prevailed here denies jurisdiction in cases where the certificate brings up whole cause 16 judicated 5 iF : Es 4 ; ity i Hiity ated 36 EEE i A | os i A i BF some time when — ‘became the victim of abhorred . It was approved by his successor jm May, 1865, and sentence was ordered to be carried imto execution. The proceédings, therefore, had the fullest sanction of the wzecutive Department of the gov- ernment. This sanetion requires the most respectful and the most carefal consideration of this sentence which it supports must not be set aside except «> of Congresg of March 8, 1863, comprises all ‘: » which seems to require consideration in cjon, The constitationality of this act bas tioned, and is not doubted. The first sec- suspension, during the rebellion, bens throughout the * the Preslient. The two noxt not been G¢ Hou author g ou required that liste y Devens, citigens of States in which the adiaini-ir.ion of the Jaws had continved unim- paired in th ere] conrta, who were then leld OF wight Uaeren’icr be held as prisoners of the United States under ¢ wothorit, tne President, other- ‘wiee than’ as mn war, should be furnished to the Judges of the Circuit and District Courte. Tho lists transmitted to the Ji were to the names of all persons residing within their res: ive juriedictious charged with violation of national law; and it was required im cases where the Grand Jury in attendance upon say of courts oe Soe sesaion ‘Without pro- ceeding by indictment or otherwise any prisoner mamed on the list, that the judge Pte court mould forthwith make an order that such im. or the court to i seribed in the second the District Attorney of the United States to atiend ex- amipations on petitions for dischar; It was under this act that Milligan petitioned the Oir- cuit Court for the district of Indiana for discharge from imprisonment, Thé holding of the Circuit and Dis rict Courts of the United States in Indiana bad been inter~ rupted. The administration of the laws in the Federal Courts had remained antm; j. Milligan was unpric- oned under the the President, aod was nol a prisoner of war, No list of prisoners had bees iur- nished to the Judges, either of the District or Circuit Courts, as required by law. A Grand Jury hud ast & Uircalt os of the iota | district illigan was there imprisoned, and hed closed its session without finding any indictment or prusenument or otherwise prococding against the pris- oner. His case was then brought within the precise letter and intent of the act of Congrose, unless it can be said that Milligan was not imprisoned by authority of the Present, and nothing of sort was claim d in argument oa the part of the government. It is clear apon this statement that the Circuit Court was bound to hear Milligan’s petition for the writ ‘of habeas corpes, cailed in the act an order to bring the prisoner betore the jude or the court, and to igsue the writ, or, in the language of the act wo make tho order. The frst question, therefore, “ Ought the writ to issue?" must be anew red ia the ailirmative; and i: {s eyually clear that be wus entiled to the dis charge prayed for. 1t must be borne in mind prayer of the petition wes not for an absolute dis 4 but to be delivered from military custody and imprison- munt, ant, if fonnd probably guilly of any offence, to be turned over to the tribunal ior inquiry and punish. ment, or, if not found thus probably guilty, to be dis- ch arged altogether and the express torms of (be act of Con- gress required tuls action of the Court. The prisoner must be discharged on giving each recognizance as the Court Foquire, not ouly for good beuavior bat for appearance, as direoted bs the Court, to angwer aud be iurther dealt with according to law, The Orst section Of the act autnorized the suspension of the writ of habeas corpus g-neraliy throughout the United States, The sevund aud third sections limited this suspension im certain cose within States where tho adtainistration of justice by the federal courts remaixed unimpared. In ‘these casos the writ was still to issue, and under it the risoner was entitied to his discharge by a Cirovit or District Judge or Court, anloes held to bail for appear apeo to anawer charges. No ocher Judge or Uourt could make an order of discharge under the writ. Excopt ‘under the circumstances pointed out by the act, newer Cireust nor District Judge or Court could make sue ao order, but under those circumstances the writ must be insued and tho selie! from imprisoament directed by.the act must be afforded. The commands of the act were positive and left no discretion to Court or Judge, An ‘aiirmative answer must therefore be given to the second question, namely, Ought Midigan to be discharged ac- cording to (he prayer of the petition? That the third question, namely, *had the Miliary Commission in Indiana, undor the facts stated, jurisuic- tion w try and sentence Milligan, must be answered negatively, is an unavoidable inference from the atirma- tive answers to the other two. The Military Commis- sion could not nave jurisdiction to try and sentenee Mil- ligan if he could noi be detatned in prison under his original arrest or under eentence, avter the close of @ sorion of the Grand Jury, without Indiccment proceedings against him. Indeed, the act seems to have been framed on pur- pore to'necuse tho trial of ali offences of citizens by civil tribunals in States where these tribonals were not interrapted in the regular exercise ot thelr funo- tions, Under it, in each States, the privilege of the writ might be suspended, any mn as dangrous to the public safety might be arresied ond dovained until after the seavion of the Grand Jury. Until a(ter such ression no person arrested could bave the benciit of the writ, aud even them po such person could be discharged, exeept on such terme as to future appearance as the Court might Impore, These provisions obviously vun- template no other trial or sentence than that of o civil court, and we could mot assert the iy of trial and sentence by @ military comtnission under the circum- stances fed in the net and described by the petiuon without pregereing, ‘the plain directions of Comgrem, u We fore, that tho two first quesi\ons cer- tifled must vo ailgnatve wnrwers and she lass HP itl goes farther, and, as we it, angerta that the mitftary commission held tn autvorized by Congress, but thas it wag wer of w authorize it; wok may = thonght to follow courte for neting as members of It, Wo cannot agree to thie, We agree in the proposition that no departmont of the government of thé United Sinter—neither the President, nor Cor Bor the courts—possem ony power fot given by (he constitution, We assent fuliy to all phat is eard in th orinice of the inestimabie valine of the trial by jury, tho other ooustituttonal rafe- hard of etv'l liverty We concur also in what is sald of the writ of habeas corpus and of ite » pension, with two reveryotions——Firat, that in our judgment, wien the writ is suspended, the Exocutive ie authorized to ar. vem ag We) as iy Wotan, mpd Recond, thas there are cages ige infamous crime unie@ on a learereetiy or Raseteerit es ones Jory; and itis admitted that the exception applies to other amendments as, well as to; the fifth. Now, we understand this exception to have the same iinport and effect as if the. powers of Congres#'in relation to the government of the army aud a aod u recited in the casen within those and had expreasiy excepled from its operation, TheStates most zealous of encroach- ments upon: Anberties of | the citi when additional safeguards the form ‘of ‘amendments, excluded ae y their ettect cases arising {a @. ent, of the land and naval forces. Thus proposed that “‘no person shall be tried for any crime by which he would incur an lane pve or loss of Tife until he be first indicted by a Jury, except in such cases pong eg inthe government and regulation of the land forces, The exception in similar amendments, joary) was wore put in form and Among those thus pi Tatified was that which now stands as the ment to the constitution. We ¢annot doubt that this hat government included protection and defence as well as the reguiation of in! nal administration; and is it impossible to ‘ameatuanaed tion or great injury of" the national fore, taay De mor jury of for ma} ef to mili trial iahmaens EE ze a] F Bae BF tists tue of the people, on their zeal for Hiberty, upon official responsibility secured by upon the Seqnened, of elections, rather than u; ful constructions of legislative power? i i EL 53 e 4 Se fy i ae sare raise and support and govern armies, It has therefore the power to provide by ing on war. This power nocessarily lation essential to the§ pl of war wi ergy and success, except such as interferes with the mand of the forces the conduct ef campaigns. power and duty belong to the President, as) Co! in. Chief. bh. theme on ment. Their extent mast be determined by by tho laws of nations and by the principles of tutions, The power to make the necessary laws is gress; the power to execute in po’ President. ere y any subordinate euxiliary Yocs rape ‘all authorities essential to ite due But royal can the Lenepa dor wet tae than intrude npon the proper authority ngress, DOT gress upon the Pauthority of the President. are servants the people, whese will is in the fundamental law. conduct of bey rei nor the it or any mander under , Without the sanction ef Cougre institute tribunals for the trial and offences, either of soldiers or civilians, case o @ controlling necossity, which justii ‘6 com: or, at least, insures’ ecte of from the justive of the Legislature. . We’ assert that Congress can establish and of war where no war has beon d ‘Where peace exists, the laws of peace mi ‘What we do inantain ts, that when the nation is im volved im war, and some fons of are invaded, and all are exposed to invasion, {| power of Con; to ine in what triots such great and public danger exista as justifies authorization of military tribunals for the trial of crimes, and offences against the discipline or security of thearmy or againat the public . Tm Indiana, for examp!+, at ‘the time of the arrest of Milligan and his co-conspira‘ore, it is established by the papers iu tho record thas the ‘was a military district, was the theatre of mil! = rations, had been actually invaded and was tareatened with smvasion, It aj alsa, that a pow- erful secret ee Re of citizens and othera, conser avegs nF 5 ‘ivatt and Fonig eee ring againet an ing the liberation of the prisoners of war at various the peizure of the State aud national arsenals, co-operation with the enemy, and war inat the national government, We cannot doubt in such @ poet ny © cone a wg bad once a the constitution to pre for tie organization of a m! commission, sud for trial by that commission of iss Son in the conaptacy, The aa ‘that the federal courts were open was regarded by Congrcss as suflient reason for mot exercising the that fact couid not deprive Com; ot exercise it Those courts might ‘undisturbed in the execution of their wholiy incompowent to avert punish with adequate promptitade and certainty the ruilty conspirators. In Indiana the judges and offcers of the courts were loyal te the government, Bat it might have been otherwise, In times of rebellion and civil war, it may often happen, indeed, that judges alncthe courte i eee é 3 ie sacteaee itil i i ras? one whet ity. mean the laws =f 28 will be in ective sympathy with the their most efficient allies, We have ourselves to) the question of power, Jt was for Congress to determine the question of expediency, and Congress did doverm! it. ‘That body did not ‘see fit to authorize trials by military commissions in Indiana, but by the strovgest ‘toplicavion prohibited them. With thas prohibition we are satisfied, and should have remained wilont if the ap- awers to the questions certitied bad been put on: thas ground, without the denial of the existence of a power, which we believe to be constitutional and important to the public salety; 9 dental, which, -as we bave already sniggested, seoms to draw in question tho power of to protect ‘rom prosecution the members 0 military commie gions, who acted in obedience to thelr superior officers, whose actiou, whether warranted by law oF not, was ap- proved by that upright and patriotic President under whose administration the eonntry was rescued from threatened destrnction, We have thus far said little of martial Iaw, nor do we propose to may much, Wha. we lave already sald sufficiently indicates an opinion that there is no law for the government, for the citizens, the armies, or the navy of the United states within American jurisdiction, whieh is not contained [a or derived from the constitution, and when- over oar army or navy go bepond our territorial linits, neither can go beyond the authority of the President ot the legistation of Theré are under the con- stitution three kinds of milltary jurisdiction. One to be exercised both in peace and war, another to be exercised im tune of foreign war, without the boundaries of the United States or in time of rebellion and civil war > States, or districts oc upied by rebeis treated as belliverents, and @ third to oe exercised in ume of invacion or Insurrection within tho limite of the United States, or during rebeilion within the mits mamtamning adhesion to the national government when the pavlic danger requires its exercise. The first of these way he called jurisdiction under military law, and is found im acts of Congress prescribing rules and articles. of war, otherwise providing for the soneceneat @f the national forces, Tbe second may be Aistingawhed as military government, supersedin:, as far as may be od x pedient, the focal law, and executed by the mull Commander uncer the «lirection of the wil the expressed or implied sanction of Congress; while the third may be denominated nrartial law proper, and is called into action by Congress, oF ( when the action of cannot be invited, and in the case of justifying of excusing in tme of peril, by the President, in times of insurrection oF Invasion, or civil of foreica wae—within districts oe. tecuiitee whore odin w no longer adequately secures public safer; and private rights, We think we the power of 4 grees in euch times and in such localities to authorize trials for crianes agatnst the security and safety of the national forces, may be derived from its constitu. tonal authoriy to d war, thority to provide for governt that We have no apprehension power under our American system Of government, ia @Bich All often authority is derived from the , exercised an irect responsibility to the peaplo, 18 "more likely to be Qbnsed than the power to regaiate ine Ppowor to bi trow money. e are unwilling to give our assent by stience to ex to as caloulated, hep = not intended, to oripple constitutional powers the ent and to sug! the public dangers | Bir. Fumio Wa justice Swayne and Mr, Justice Miter coneur with me in these views. ‘The United States steamer Vanderbilt wan to beve sailed from the port of Hono on the 22d of November, 1866. ‘The Caited Staves steamers Saranac and are daily expected at Sen Francisoo. On arrival, Abe Paola i probably have to undergo ‘and then will be eent Mo the sonst of Pe OY iaee eorbnmrti cs Teen eee” com c y The United States steamer Saginaw arrived at ven | ook, bean on dup wt te Catia wi Jace heard ‘Boe for a atoreshy pI the coast of! Moxico, She wilt also serve for a coal walk, 1@ order eupply the steamers of the squadron thet may be o@ thy ecnas of Mexieq q was intended to have the same force and — 4