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CONSTITUTIONALIST.
axjghjsta, ga.
SUNDAY MORNING, JAN. 6, 1867.
Reading Matter on Every Page.
ILLEGALITY OF MILLITARY COM
MISSIONS TO TRY CIVILIANS.
DECISIONS IN THE INDIANA CONSPIRACY
CASES.
OFFICIAL KBPORT.
Supreme Court of tire United States.
No. 350.—December Term, 1865.
Ex parte in matter of Lambden P. Milligan,
petitioner. On a certificate of division of
opinion between the judges of the Circuit
Court of the United States for the District o f
Indiana.
Mr. Justice Davis delivered the opinion of Use
court.
Oq the 10th day of May, 1865, Lambdin P.
Milligan presented a petition to the Circuit
Court of the United States for the District of
Indiana, to be discharged from an alleged un
lawful imprisonment. The ease made by the
petition is this: Milligan is a citizen of the
United States; hits lived for twenty years in
Indiana, and at the time of the grievances com
plained of was not, and never had been, in the
military or naval service of the United States.
On the sth day of October, 1864, while at home,
he was arrested by order of General Alvin I’-
ll ovey, commanding the military district o!
Indiana, and has ever since been kept in close
confinement.
On the 31st of Oe ober, 1864, he was brought
before a military commission, convened at In
dianapolis by order of General Hovcy, tried on
certain charges and specifications, found guilty,
and sentenced to be hanged, and the sentence
ordered to be executed on Friday, the ltttli day
of May, 1865.
On the 3d day of January, 1865, after the
proceedings of the military commission wcr<
at an end, the Circuit Court of ttie Uniieit
States for Indiana met at Indianapolis and em
panneled a grand jury, who were charged to
inquire whether the laws of the United States
had been violated, and if so, to make present
ments. The court adjourned on the 37i.h day
of January, having prior thereto discharged
from further service the grand jury, who did
not find any bill of indictment or make any
presentment against Milligan for any offense
whatever, and, in fact, since his imprisonment
no bill of indictment has been found or pre
sentment made against him by any grand jury
of the United States.
Milligan insists that said military commission
had no jurisdiction to try him upon the charge
p eferred, or noon any charges whatever ; lie
cause he was a citizen of the United Stales and
the State of Indiana, and "had not been, since
the commencement.of the late rebellion, a resi
dent of any of the States whose citizens were
arrayed against the Government, and that the
right of trial by jury was gcaran'eed to him by
the Constitution of the United States.
The prayer of the petition was, that under
the act of Congress, approved March, 1863, en
titled “ An act relating to habeas corpus and
regulating judicial proceedings in certain
cases,” he may be brought before the court, and
either turned over to the proper civil tribunal
to be proceeded against according to the law
of tlie land, or discharged front custody alto
gether.
With tlie petition were filed the order lor (lie
commission, the charges and specifications, the
findings of tlie court, with tlie order of tin!
War Department, reciting that the sentence
was approved by the President of the United
States, and directing that it lie carried into ex
ecution without delay. Tlie petition was pre
sented and filed in open court by the counsel
for Milligan ; at the same time the-District At
torney of the United States for Indiana ap
peared, and, by the agreement of counsel, the
application was submitted to the court. The
opinions of the judges of the Circuit Court
were opposed on three questions, which are
certified to the Supreme Court :
Ist. “ On tlie facts stated in said petition and
exhibits, ought a writ of habeas corpus to be
issued ?”
2d. On the facts stated in said petition and
exhibits, ought the said I.ambdin P. Milligan to
be discharged from custody, as in said petition
prayed V”
3d. “Whether, upon the facts stated in said
petition and exhibits, the military commission
mentioned therein had jurisdiction legally to
try and sentence said Milligan, in manner and
form as in said petition and exhibits is stated ?”
The importance of the main question pre
sented by this record cannot be overstated ; for
it involves the very frapjeworU of the Govern
ment and fundamental principles of American
liberty.
During tlie late wicked rebellion tlie temper
of the times did not allow that calmness in de
liberation and discussion so necessary to a cor
rect conclusion of a purely judicial question.—
Then eonfdddiMtiohs of safety avere -mingled
with the exercise of power, and feelings and
Muterests prevailed which are happily termina
ted. Now that the public safety Is assured, this
question, as well all others, can bo discussed
and decided without passion or the admixture
of any element not required to form a legal
judgment. We approach the investigation of
this case, fully sensi de of tlie of the magnitude
of the inquiry and the necessity ol full and
cautious deliberation. But. we are met with a
preliminary objection. It is insisted that the
Circuit Court of Indiana had no authority to
certify these questions, and that we are without
jurisdiction to hear and determine them. The
sixth section of the “Act to amend tlie judicial
system of the United States,” approved April
29, 1802, declares “ that whenever any question
shall occur before a circuit court upon which
the opinions ol the judges shall be opposed,
the point upon which the disagreement shall
happen shall, during the same term, upon the
request of either party or their counsel, be sta
ted uuder tiro direction of the judges and certi
fied under the seal of the Court to the Supreme
Court at their next session to he held thereaf
ter, and shall by the said court be finally de
cided ; and tlie decision of the Supreme Court
and their order in the premises shall be remit
ted to the circuit court and be there entered of
record, and shall have effect according to the
nature of tlie said judgment and order ; Pro
vided That nothing herein contained shall pre
vent the cause from proceeding, if, in the opin
ion of the court, further proceedings can be
had without prejudice to the merits-”
******
It is under this provision of law that a circuit
court has authority to certify any question to
the Supreme Court for adjudication. The
inquiry, therefore, is, whether tlie case of Milli
gan is brought within its terms. It was admit
ted at tlie bar that tlie Circuit Court had juris
diction to en tort tin the application for the writ
of habeas corpus and to hear and determine it;
and it could not be denied ; for the power is
expressly given in the 14th section of the judi
ciary act of 1789, as well as in the late act of
1863. Chief Justice Marshall, in Bollman’s
case, (4 Crahch,) construed this branch ol tlie
judiciary act to authorize the courts as well as
the judge to issue the writ lor. the purpose of
inquiring into tlie cause of the commitment ;
and this construction lias never been departed
from. But it is maintained with earnestness
and ability that a certificate of division of opin
ion can occur only in a cause ; and that the
preceeding by a party moving for writ of habeas
corpus does not become a cause until after the
writ has been issued and a return made.
Independently of the provisions of the act of
Congress of March 3, 1803, relating to habeas
corpus, on which the petitioner bases bis claim
for relief, and winch we will presently con
sider, can this position be sustained ¥
It is true that it is usual for a court, on appli
cation for a writ of habeas corpus. t.o the
writ, and on the return td dispose of the case ;
but tile court can elect to waive the issuing of
the writ and consider whether, upon the facts
presented in the petition, the prisoner, if
brought before it, could be discharged. One
of the very points on which the ease of Tobias
Watkins, reported in 3 Peters, turned was,
whether, if the writ was issued, the petitioner
would be remanded upon the ease which he had
made.
The Chief Justice, in delivering' the opinion
of the court., said ; “ The cause ofimprisonmenf
is shown as fully by the petitioner as it could
nppear on the. return of the writ; consequently
the writ ought not to be awarded if the court is
satisfied that the prisoner would be remanded
to prison.”
The judges of (lie Circuit Court of Indiana
were therefore warranted by an express deci
sion of this court, lu refusing the writ, is satis
fied, that the prisoner on his own showing was
rightfully detained ; but, it is contended, if they
differed about the lawfulness of the imprison
ment, and could render no judgment, the
prisoner is remediless, and cannot have the dis
puted question certified under the act of 1802.
His remedy is complete by writ of error or ap
peal, if the court renders a final judgment re
fusing to discharge him : but if be should be so
unfortunate as to be placed in the predicament
of having the court divided on the question
whether he should live or die, he is hopeless
and without remedy. He wishes the vital ques
tion settled, not by a single judfte at his cham
bers, but by the highest tribunal known to the
Constitution; and ye: the privilege is denied
him because the Circuit Court consists of two
judges instead of one. Such a result was not
in the contemplation of the Legislature of 1802,
and the language used by it cannot be constru
ed to mean any such thing. The clause under
consideration was introduced to further the
ends of justice by obtaining a speedy settle
ment of important questions where the judges
might be opposed in opinion.
The act of 1802 so changed the judicial sys
tem that the Circuit Court, instead of three, was
composed of two judges ; and without this pro
vision, ora kindred one, if the judges differed,
the difference would remain, the question be
unsettled, and justice denied. The decisions of
this court upon the provisions of this section
liave been numerous. In United States vs.
Daniel (6 .Wheaton) the court, in holding that a
division of the judges on a motion for a new
trial could not be certified, say: “That the
question must be one which arises in a cause
depending before the court relative to a pro
ceeding belonging to the cause.” Testing
Milligan’s case by this rule of law, is it not ap
parent that it is rightfully here, and that we arc
compelled to answer the questions on winch
the judges below were opposed in opinion?
If, in the cense of the law, the proceeding for
the writ of habeas corpus was the "c4we” of
the party applying for it, then it is evident that
the “cause” was pending befpre the court, and
that the questions certified arose out of it, be
longed to it, and were matters of right and not
of discretion.
But it is argued that the proceeding does not
ripen into a cause until there are two parties to
it. This we deny. It was the cause of Milli
gan when the petition was presented to the Cir
cuit Court. It would fiave been the cause of
both parties, if the court had issued the writ
and brought those who held Milligan in custo
dy before it. Webster defines the word “cause”
thus: “ A suit or action in court; any legal
process which a party institutes to obtain his
demand, or by which he seeks his right, or sup
posed right”—and he says: “this is a legal,
scriptural, and popular use of the word, coin
ciding nearly with case from cado , and action
from”ogo, to urge and drive.”
In any legal sense, action, suit, and cause arc
convertible terms. Milligan supposed he had
a right to test the validity of his trial and sen
tence ; and the proceeding which he set in op
eration for that purpose was his “ cause” or
“ suit.” It was the only one by which he could
recover his liberty. He was powerless to do
more; he could neither instruct the judges nor
control their action, and should not suffer, be
cause, without fault of his, tney were unable to
render a judgment. But the true meaning to
the term “ suit has been given by this court
One of the questions in Western vs. City Coun
cil of Charleston (3 Peters) was, whether a
writ of prohibition was a suit; ant Chief Jus
tice Marshall says The term is certainly a
comprehensive one, and is understood to apply
to any proceediu# in’a court of justice by
which an individual pursues that remedy which
the law affords him.” Certainly Milligan pur
sued the only remedy which the law afforded
Again, in Cohens vs. Virginia, (6 Wheaton,)
he says: “In law ’anguage a suit is the prose
cution of some demand in a court of justice.”
Also, “to commence a suit is to demand some
thing by the instlsution of process in a court of
justice ; and to prosecute the suit is to continue
that demand.” When Milligan demanded his
release by the proceeding relating to habeas
corpus he commenced a suit, and he has sin< e
prosecuted it in all the ways known to the
law. One of the questions in Holmes vs. Jon
nison (14 Peters) was, whether under the 25th
section of'yie Judiciary act a proceeding for a
writ of habeas corpus was a “suit." Chief
Justice Taney held that “if a party is unlawful
ly imprisoned, the writ of habeas corpus is ids
appropriate legal . remedy. It is his suit in
court to recover his liberty.” There was more
diversity of opinion on another ground of ju
risdiction, but on this, that in the sense of the
25th section of the judicary act, the proceeding
by habeas corpus was a suit, was not contro
verted by any except Baldwin, Justice, and he
thought that “suit” and “cause,” as used in the
section, mean the same thing.
The court do not say that a return must be
made, and the parties appear and begin to try
the case before it is a suit. When the petition
is filed and the writ prayed for, it is a suit—(ln
suit of the party making the application. If it
is a suit under the 35th section of the judiciary
act, when the proceedings are begun, it is, by
all tlie analogies of the law, equaljy a suit un
der the 6th section of the act of 1803.
But it is argued that there must be two par
ties to the suit, because the point is to be stated
upon the request of “either party or their coun
sel.” Such a literal and technical construction
would defeat tlie very purpose the Legislature
had in view, which was to enable any party to
bring tlie case here, when the point in contro
versy was a matter of right and not of discre
tion ; and the words “eith r party,” in order
to prevent a failure of justice, must be construed
as words of enlargement , and not of restriction.
Although this case is here ex parte , it was not
considered by the court below without notice
having been given to the party supposed to
have an interest in tlie detention of tlie prison
er. The statements of the record show that
this is not only a fair, but conclusive inference.
When the counsel for Mulligan presented to
the court the petition for the writ of habeas cor
pus, Mr. Hanna, the district attorney for Indi
ana, also appeared ; and, by agreement, the ap
plication was submitted to the court, who took
the case under advisement, and on the next day
announced their inability to agree, and made
the certificate. It is clear that Mr. Hanna did
not. represent the petitioner, anffwby is bis an
pearance entered ? It admits of no oilier solu
tion than this—that he was informed of the ap
plication, and appeared on behalf of the Gov
ernment to contest it. The Government was
the prosecutor of Milligan, who claimed that
his imprisonment was illegal, and sought, in the
only way lie could, to recover liis liberty. The
case was a grave one; the court, unquestioia
bly, directed that tlie law officer of the Govern
ment should be ipformed of it. He very prop
erly appeared, and as the facts were uncontro
verted and the difficulty was in tlie application
of the law, there was no useful purpose to be
obtained in issuing the writ. The cause was,
therefore, submitted to thecourt for their( onshl
erationand determination. Bpt Milligan claimed
his discharge from custody by virtue of the act
of Congress “relating to habeas corpus, and reg
ulating judicial proceedings in certain eases,”
approved March 3, 1863. Did that act confer
jurisdiction gn tlie Circuit Court of Indiana to
hear this case? In interpreting tlie law the
motives which must have operated with the
Legislature in passing it are proper to be con
sidered. This law was passed in a time of great
national peril, when our heritage of tree gov
ernment. was in danger. An armed rebellion
against the national authority, of greater pt-o
pprtious than history affords an example, was
raging; and tlie public safety required that the
privilege Os tlie writ of habeas corpus should
be suspended. The President had practically
suspended it, and detained suspected persons
in custody without trial; lint ills authority to
do this was questioned. It was claimed that
Congress alone could exercise this power, and
that the legislature, and not the President,
should judge of the political considerations on
which the right to suspend it rested. The pri
vilege of this great writ had never before been
withheld from the citizen; and, as tire exigence
of tlie times demanded immediate action, it was
of the highest importance that the lawfulness
of the suspension should, he fully established.
It was under these circumstances, which were
such as to arrest the attention of the country,
that this law was passed. The President was
authorized by it to suspend the privilege of tlie
writ of habeas corpus whenever, in his judg
ment, the public safety required; and he did,
by proclamation, bearing date the 15th Septem
ber, 1863, reciting among other things tlie au
thority of this statute, suspend it. The suspen
sion of tlie writ does not authorize tlie arrest
of any one, but simply denies to o.ie arrested
tlie privilege ol this writ in order to obtain his
liberty.
It is proper, therefore, to inquire under what
circumstances the courts could rightfully re
fuse to grant this writ, and when tlie citizui
was at liberty to invoke its aid.
The second and third sections of the law are
explicit on these points. The language used is
plain and direct, and the meaning of the Con
gress cannot, be mistaken. The public safety
demanded, if the President thought proner to
arrest a suspected person, that lie should noT
be required to give the cause of his detention
on return to a writ of habeas corpus. But ii
was not contemplated that such person should
be detained in custody beyond a certain fixed
period, unless certain judicial proceedings
known to the common law were commenced
against him. The Secretaries of State and War
were directed to furnish to the judges of the
courts of the United States a list of the names
o! all parties, not. prisoners of war, resident in
their respective jurisdictions, who then were
or afterwards should be held in custody by the
authority of tlie President, and who were citi
zens of States in which the administration of
the laws in the Federal tribunals was unimpair
ed. After the list was furnished, if a gran
jury of the district convened and adjourned,
aud did not indict or present ono of the per
»one tims named, lie was entitled to his dis
charge; and it was the duty of the judge of
the court to order him brought before him to
be discharged, if he desired it. The refusal or
omission to furnish the list could not operate
to the injury of auy one who was not indicted
or presented by the grand jury; for if twenty
days had elapsed from the time of his arrest
and the termination of the. session of the ses
sion of the grand jury, lie was equally entitled
to his discharge as if the list were furnished ;
and any credible person, on petition verified by
affidavit, could obtain the judge’s order for that
purpose.
Milligan, in his application to be released
from imprisonment, averred the existence of
every fact necessary under the terms of this
law to give the Circuit Court of Indiana juris
diction. If he was detained in custody by the
order of the President, otherwise than as a
prisoner of war ; if he was a citizen of Indiana,
and had never been in the military or naval ser
vice, and the grand jury of the district had met,
after lie had been arrested, fora period of twen
ty days, and adjourned without taking any pro
ceedings against him, then the court had the
right to entertain his petition and determine
the lawfulness of his imprisonment. Because
the word “ court ” is not founded in the body
of /lie second section, it was argued at the bar
that the application should have been made to
a judge of the court, and not to the court it
self; but this is not so ; for power is expressly
conferred in the last proviso of the section on
the court equally with a judge of it to discharge
from imprisonment. It was the manifest de
sign of Congress to secure a certain remedy by
which any one deprived of liberty could obtain
it, if there was a judicial failure to find cause ol
1 offence against him. Courts are not always in
session, and can adjourn on the discharge of
the grand jury; and before those who are in
confinement could take proper steps to pro
cure their liberation. To provide for this con
tingency, authority was given to the judges out
of court to grant relief to any party who could
show that, under the law, lie should be no
longer restrained of his liberty. It was insist
ed that Milligan’s case was defective, because it
did not state that the list was furnished to the
judges, and, therefore, it was impossible to say
under which section of the act it was presented.
It is not easy to see how this omission could
affect the question of jurisdiction. Milligan
could not know that the list was furnished,
unless the judges volunteered to tell him ; for
the law did not require that any record should
be made ot it, or anybody but the judges in
formed of it. Why aver the fact, when the
truth of the matter was apparent to the. r.ot”M
without an averment ? How can Milligan be
harmed by the absence of the averment when
lie states that he was under arrest for more than
sixty days before the court and grand jury,
which should have considered his ease, met at
Indianapolis ? It is apparent, therefore, that
under the habeas corpus act of 1863 the Circuit
Court of Indiana had complete jurisdiction to
adjudicate upou this case, and if the judges
could not agree on questions vital to the pro
gress of the cause they had the authority, (as
we have shown in a previous part ol this'' opin
ion,) and it was their duty to certify those
questions of disagreement to this court for
final decision. It was argued that a final deci
sion on the questions presented ought not to
be made, because the parties who were directly
concerned in the arrest and detention of Milli
gan were not before the court; and their rights
might be prejudiced by the answer which should
be given to those questions. But this court
cannot know what return will be made to the
writ of habeas corpus when issued ; and it is
very clear that no one is concluded upon any
question that may be raised to that return. In
the seuse of the law of 1803, which authorized
a certificate of division, a final decision means
final upon the points certified ? final upon the
court below, so that it is estopped from any
adverse ruling in all the subsequent proceed
ings of the cause. But it is said that this case
is ended, as the presumption is that Milligan
was hanged in pursuance of the order of the
President. Although we have no judicial infor
mation ou the subject; yet the inference is that
he is alive ; for otherwise learned counsel would
not appear for him and urge the court to decide
his case.
It can never be in this country of written
constitution and. laws, with a judicial depart
ment to interpret them, that any Chief Magis
trate would be so far forgetful of his duty as to
order the execution of a man who denied the
jurisdiction that tried and convicted him, after
his case was before Federal judges, with power
to decide it, who, being unable to agree on the
grave questions involved, had, according to
known law, sent it to the Supreme Court of
the United States for decision. But even the
suggestion is injurious to the Executive, and
we dismiss it from further consideration. There
is, therefore, nothing to hinder this court from
an investigation of the merits of this contro
versy.
The controlling question in the case is this:
Upon the facts stated in Milligan’s petition,
and the exhibits filed, bad the military com
mission mentioned in it jurisdiction legally to
try and sentence him ? Milligan, not a resi
dent ot one of the rebellious States, or a pris
oner 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, imprison
ed, mid ou certain criminal charges preferred
against him, tried, convicted, and sentenced to
he hanged by a military commission organized
under the direction of the military commander
of tlie military district of Indiana. Had this
tribunal the legal power and authority to try
and punish this man ? 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 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 the
purpose, and if they are ineffectual there is an
immunity from punishment, no matter liovv
great an offender the individual may be, or how
much his crimes may have shocked the sense
of justice of the country or endangered its
safety. By the protection of the law human
rights are secured; withdraw that protection
and they are at the mercy of wicked rulers, or
the clamor of an excited people. If there was
law to justify tins military trial, it is not our
- province to interfere ; if there was not, it is our
duty to declare the nullity of the whole pro
*ceefliiigs. The decision ol this question does
not depend on argument or judicial precedents,
numerous and highly illustrative as 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
ihe history of that struggle, and secured in a
written constitution every right which the peo
ple had wrested from power during a contest of
ages. By that constitution and the laws author
ized by it this question must be determined. The
provisions of that instrument on the adminis
tration of criminal justice are too plain and di
rect to leave i-Qom for misconstruction or doubt
of their true meaning. Those applicable to this
case are found in that clause of the original
Constitution which says, “ that the trial ol all
crimes, except in ease of impeachment, shall he
by jury;” and in the fourth, fifth and sixth arti
cles ol tlie ameudutents. The fourth proclaims
the right to lie secure in person and effects
I against unreasonable search and seizure ; and
i directs Unit, a judicial warrant shall not issue
“without, proof of probable cause supported by
! oath or affirmation.” Tlie fifth declares “ that
no person shall be held to answer lor a capital
or otherwise infamous crime unless on present
ment by a grand jury, exeept-in cases arising in
the land or naval forces, or in the militia, when
in actual service in time of war or public danger,
nor lie deprived of life, liberty or property with
out due process of law.” And tlie sixth guaran
tees the right of trial by jury in such manner
and with such regulations ilint with upright
judges, impartial juries, and an able bar, the in
nocent will be saved and the guilty punished.
It is these words: .“In all criminal prosecu
tions the accused shall enjoy tlie right to a
speedy and public trial by an impartial'jury of
the State and district wherein tlie crime shall
have been committed, which district shall have
been previously ascertained by law,,and to be
informed of the nature and cause of the accusa
tion, to be confronted with tlie witnesses against,
them, to have compulsory prffeess for obtaining
witnesses in his favor, am! to have the assist
ance of counsel for his defense.” These securi
ties for personal liberty thus embodied, were
| such as wisdom and experience hah demonstra
j t»‘d to be necessary for tlie protection of those
i accused of crime. And so strong was tlie sense
j of the country of their importance, and so jegl
jous were the people that these rights, highly
j prized, might be denied them by implication,
j that when the original Constitution was pro
: posed for adoption, it encountered severe oppo
• sition, and, but for the belief that it would be
! s ° amended as to embrace them, it would never
: have been ratified.
Time has proven (lie discernment of our uu
• cestors ; for even these provisions, expressed
j in such plain English words that it would seem
| the ingenuity of man could not evade them, are
| now, after the lapse of more than seventy years,
sought to be avoided. Those great and good
men foresaw that troublous times would arise,
when rulers and people would become restive
under restraint, and seek, by sharp and decisive
measures, to accomplish ends deemed just and
proper, and that the principles of constitutional
liberty would lie in peril, unless established by
irrepealable law. The history o! the world had
taught them that what was done m the past
might be attempted in the future. The Consti
tution of the United States is a 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 cir
cumstances. No doctrine involving more per
nicious consequences was ever invented by tlie
wit of man than that any of its provisions can
be suspended during any ot the great exigen
cies of Government. Such a doctrine leads
directly to anarchy or despotism, but the
theory of necessilyon which it is based is false;
for the Government, within the Constitution’,
has all the power granted to it which are nec
essary to preserve its existence, as has been
happily proved by the result of the great effort
to throw off its just authority.
Have any of the rights guaranteed by the
Constitution been violated in tlie case of Milli
gan V and if so, what are they ? Every trial
involves tlie exercise of judicial power; and
from what source did the military commission
that tried him derive their authority ? Cer
tainly lfo part of the judicial power of the
country was conferred on them, because the
Constitution expressly vests it. “in one Su
preme Court and such inferior cmu-io ns tITe
Congress may from time to time ordain and
establish,” and it is not pretended that the com
mission was a court ordained and established
by Congress. They cannot justify on the man
date of the President, because be'is controlled
by law, and has his appropriate sphere of duty,
which is to execute, uot to make the laws; and
there is “no unwritten criminal code to which
resort can he had as a source of jurisdiction.”
But it is said that the jurisdiction is complete
under the “ laws and usages of war-” It can
serve no useful purpose to inquire what those
laws and usages are, wheuce they originated I
where found, and on whom they operate; they
can never be applied to citizens in States which
have upheld the authority of the Government,
and where the courts are open and their pro
cess unobstructed. This court has judicial
knowledge that in Indiana the Federal authori
ty was always unopposed, and its courts always
open to hear criminal accusations ana redre -s
grievances ; and no usage of war could sanc
tion a military trial there for any offence what
ever of a citizen in civil life, in no wise con
nected with the military service. Congress
could grant no sucli power; and, to the honor
of our national legislature be it said, it has
never been provoked by the state of the coun
try even to attempt its exercise. One ol the
plainest constitutional provisions was, there
fore, infringed when Milligan was tried by a
court not ordained and establish! d by Congress,
and not composed of judges appointed during
good behavior. Why was he not delivered to
the Circuit Court of Indiana, to lie proceeded
against according to law ?
No reason of necessity could be urged against
it, because Congress had declared penalties
against the offences charged, provided for their
punishment, and directed that court to hear
and determine them. And soon after this mili
tary tribunal was ended the Circuit Court met,
peacefully transacted its business, and adjourn
ed. It needed no bayonets to protect it, and re
quired uo military aid to execute its judgments.
It was held in a State eminently distinguished
for patriotism by judges commissioned during
the rebellion, who were provided with juries,
upright, intelligent, and selected by a marshal
appointed by the President. The Government
had no right to conclude that Milligan, it guilty,
would not receive in that court merited punish
ment, for its records disclose that it was con
stantly engaged in the trial of similar offenses,
and was never interrupted in its administration I
of criminal justice. If it was dangerous in the
distracted condition of allairs to leave Milligan,
unrestrained of his liberty because he “ con
spired against the Government, afforded aid
and comfort to rebels, and incited the people to
insurrection,” the law said arrest him, confine*
': s :n closely, render him powerless to do fur
ther mischief, and then present his case to the
grand jury of the district, with proof of hisi
guilt, and, if indicted, try him according to the*
course of the common law. If this hadbtam!
done the Coustitiuioa woe'd have been vinah
cated, the law of 1853 enforced, and the secu
rities for personal liberty preserved and de-t
fended.
•Another guaranty of freedom was broken'*
when Milligan was denied a trial by jury. Thu,
great minds of the country have differed <off
the correct interpretation to be given to v;v>
rious provisions of the Federal Constitution •
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 organic law agaiust that
power of attack. It is' now assailed ; but if
ideas can be expressed in words, and language
has any meaning, 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 militia in actual service.
The sixth ameudmeut affirms that “in all crim
inal prosecutions the accused shall enjoy the
right to a speedy and public trial by an impar
tial juiy,” language broad enough to etnbraci
all persons and cases ; but the fifth, recognizing
the necessity of an indictment, or presentment;
before any ope can bo held to answer for high
crime, “ except cases arising in the laud or naval
forces, or in the militia, when in actual Servici,
in time of war or public danger and the
framers of the Constitution doubtless meant t,Y)
limit the right of trial by jury, in the sixth
amendment, to those persons who were sub
ject to indictment or presentment in the fifth.
This deciplme necessary to the efficiency of
the army and navy require other and swifter
modes of trial than are furnished by the com
mon law courts ; and, in pursuance of the pow
er conferred by the Constitution, Congress has
declared the kinds of trial, and the "manner in
which they shall be conducted, for offences
committed while the party is in the military or
naval service. Every one connected with these
branches of the public service is amenable to
the jurisdiction which Congress lias created for
their government, and, while thus serving, sur
renders his right to be-tried by the civil courts.
All other persons, citizens of States where tne
courts are open, if charged with crime, are
guaranteed the inestimable privilege of trial bv
jury. This privilege is a vital principle, under
lying the whole administration of criminal jus
tice ; it is not held by sufferance, and cannot be
frittered away on any plea of State or political
necessity. When peace prevails, and the au
thority of the Government is undisputed, there
is no difficulty of preserving the safeguards of
liberty; for the ordinary inodes of trial arc
never neglected, and tie one wishes it other
wise. But if society is disturbed by civil com
motion—if the passions of men are aroused ami
the restraints of law weakened, if not disre
garded— these safeguards need, and should re
ceive, the watchful cate of those entrusted with
the guardianship of the Constitution and laws.
In no other way can we iraitsmit the posterity
unimpaired the blessings of liberty, consecra
ted by the sacrifices of the revolution.
It is claimed that martial law covers with its
broad mantle the proceedings of this military
commission. The proposition is this : That in
a time of war the comm.iuder of an armed
force (if in his opinion the exigencies of the
country demand it, and of which he is to judg.-)
has the power, within the lines of his military
district, to suspend all civil rights and theiV
remedies, and subject citizens as well as sol
diers to the rule of his will ; aud in the exer
cise of his lawful authority canuot be restrain
ed, except by his superior officer or tbe Presi
dent of the United States. If his position is
sound to the extent claimed, then when war ex
ists, foreign or domestic, and the country is
subdivided into military departments for more
convenience, the commander of one of them
can, if lie chooses, within his limits, on the plea
of necessity, with the approval of the Execu
tive, substitute military force for and to the
exclusion of the laws, and punish all persons
as he thinks rigid and proper without fixed or
certain rules.
The statement of this proposition shows its
importance; for, if true, republican {govern
ment is a failure, and there is an end of liberty
regulated by law. Martial law, established on
suth a basis, destroys every {ruaranty of the
Constitution, and effectually renders the “inili
tary Independent of and superior to the civil
power”—the attempt to do which by the King
of Great Britain was deemed by onr fathers
such an offense that they assigned it to the
world as one of the causes which impelled
them to declare their independence. Civil lib
erty and this kind of martial law cannot en
dure to;;e|her; the antagonism is irrcconcile
able, and in the conflict one or the other must
perish.
This nation, as experience lias proved, cannot
always remain at peace, and has no rigid to ex
poet that, it will always have wise and humane
rulers, sincerely attached to the principles of
the Constitution. Wicked men. ambitious of
power, with hatred of liberty, and contempt of
law, may fill tiie place once occupied by Wash
ington and Lincoln ; and, if this right is con
ceded, and the calamities of war again bofali us,
the dangers to human liberty'are frightful to
contemplate. If our fathers had failed to pro
vide for pud such a contingency, they would
have been false to the trdst reposed in them.
They knew—the history of the world told them
—the nation they were founding,'be
ence : liort or long, would.bu iij
sight could not tell—and the
wherever lodged at such a time, was ally
hazardous to freemen. Fqr this and* other
equally weiglitv reasons, fVy secured .the in
heritance they had fought to maintain, by in
corporating in a written constitution the safe
guards which time had proved essential to its
preservation. Not one of these safeguards can
the President, or Congress, or tiie judiciary
disturb, except tiie one concerning the writ of
habeas corpus.
It is essential to the safety of every govern
ment that, in a great crisis like tiie one We have
just passed through, there should’ be a power
somewTfere of suspending the" writ of habeas
j corpus. In every war there are men of pre
; vioasly good character wicked enough tocoun
! sol their fellow-citizens to resist the measures
j deemed necessary by a good government to
; sustain its just .authority and overthrow its
! enemies, and their influence may lead to dan
: gerous combinations. In the emergency of the
| limes an immediate public, investigation, nc
j cording to law, may-not be possible; and yet
| tiie peril to the country may "be too imminent
to sutler such persons to go at large. Unques
tionablj’, there is then an exigency which de
mands that the Government, if it should see fit,
in the exercise of a proper discretion, to make
arrests, should hot be required to produce the
persons arrested in answer to a writ of habeas
corpus. The Constitution goes no further. It
does not say after a writ of habeas corpus is
denied a citizen, that be shall be tried otherwise
than by the course of the common law ; if it
had intended this result, it was easy by the use
of direct words to have accomplished it. The
illustrious men who lramed that instrument
were guarding the foundations of civil liberty
against the abuses of unlimited power; they
Were lull of wisdom, and the lessons of history
informed them that a trial by an established
court, assisted by an impartial jury, was the
only sure way of protecting the citizens against
c ppression and wrong. Knowing this, they
limited the suspension to one great right, and
left the rest to remain forever inviolable. But
it is insisted that the safety of the country in
time of war demands that tiiis broad claim for
martial law shall be sustained. If this were
tine, it could be well said that a country pre
served at the sacrifice of all the cardinal princi
ples of liberty is not wortli the cost of preser
vation. Happily, it is not so.
It will be borne in mind that this is not a
question of the power to proclaim martial law,
when war exists in a community and the courts i
and civil authorities are overthrown. Nor is it :
a question what rule a military commander, at
the head of his army, can impose on States in
rebellion to cripple their resources and quell
the insurrection. The jurisdiction claimed is
muoh more extensive. Tiie necessities of tin*
service, during the late rebellion, required that
the loyal States should be placed within the
limits of certain military districts, and com
manders appointed in them; and it is ur«-ed
that this, in a military sense, constituted them
the theatre of military operations, and as in
tiiis case, Indiana had been and was ’ again I
threatened with invasion by tin- enemy tiie !
occasion was furnished to' establish martial !
law. The conclusion does not, follow from the I
premises. If armies were collected in Indiana
they were to lie employed in another locality
where laws were obstructed and the national
authority dispnted. On her soil there was no
hostile foot; if once invaded, that invasion was
at an end; and with it all pretext for martial
law. Martial law cannot arise from a threaten
ed invasion. The necessity must be actual and
present ; the invasion real, such as effectually
closes the courts arid deposes the civil adminis
tration.
It is difficult to see how the sn feh/ of the
country required martial law in Indiana If
any of her citizens were plotting treason the
power of arrest could secure them until’ the
Government was prepared for their trial when
the courts were open and ready to try them
It was as easy to protect witnesses before a
civil as military tribunal; and as there could be
no wish to convict, except on sufficient leo-al
evidence, surely an ordained and established
court was better able to judge of this than a
military tribunal, composed of gentlemen not
trained to the profession of the law.
It follows, from what has been said on this
subject, that there are occasions when martial
rule can be properly applied. If in foremi in
vasion or civil war the courts are actually closed
'mcl it is impossible to administer criminal him’
tice according to law, then on the theatre of ac
tive military operations, where war really pro
vails, there is a necessity to furnish a substitute
for the civil authority thus overthrown to pre
serve the safety of the army and society • a n( t
as no power is left but the military, it is allow
ed to govern by martial rule until'the laws can
have their free course. As necessity creates the
rule, so it limits its duration ; for if this Govern
ment is continued after the courts are reinstated
it is a gross usurpation of power. Martial rule
can never exist where the courts are open, and
in the pioper and unobstructed exercise of their
jurisdiction. It is also confined to the locality
of actual war. Because during the late rebel
lion it could have been enforced in Virginia
| where the national authority was overturned
and the courts driven out, it does not follow
that it should obtain in Indiana, where that au
thority was never disputed, and justice was al
ways- administered. And so in the case of a
foreign invasion, martial rule may become a
necessity in one State, when iu another it would
be “'mere lawless v'olence.” We are not with
out precedents in English and American histo
ry illustrating our views of tbis question; but
it is.hardly necessary to make particular rcter
ence to them.
From the first year of the reign of Edward
tbe Third, when the Parliament of England re
versed the attainder of the Earl of Lancaster,
because he could have been tried by the courts
of the realm, and declared “that in time of
peace no man ought to be adjudged to death
for treason or any other offeuse without being
arraingod aud held to answer, and that regular
ly when the King’s courts are open it is a time
of peace in judgment of law,” down td the pre
sent day, martial law, as claimed iu this case,
has been condemned by all respectable English
jurists as contrary to the. fundamental laws of
tbe land, and subversive of the liberty of the
subject.
During the present century an instructive de
bate on this question occurred in Parliament,
occasioned by the trial and conviction by court
martial, at Demarara, qt the Rev. Johu Smith,
a missionary to the negroes, on the alleged
ground of aiding and abetting a formidable re
bellion in that colony. Those eminent states
men, Lord Brougham and Sir James Macin
tosh, participated iu that debate, and denounced
the trial as illegal, because it did not appear that
the courts of law in Demarara could not try
offenses, and that “ when the laws can act every
other mode of punishing supposed crimes is
itself an enormous crime.”
So sensitive were our Revolutionary fathers'
on this subject, although Boston was almost in
a shite of siege when General Gage issued his
proclamation of martial law, they spoke of it
as an “attempt to supercede the course of the
common law, and instead thereof to publish
and order the use of martial law.” The Vir
ginia Assembly also denounced a similar mea
sure on the part of Governor Dunmore “ as an
assumed power, which the king himself cannot
exercise, because it annuls the law of the land
and introduces the most execrable of all sys
tems, martial law.”
In some parts of the country, during the war
of 1813, our officers ma.de arbitrary arrests, and
by military tribunals tried citizens who were
not iu the military service. These arrests and
trials, when brought to the notice es the courts,
were uniformly condemned as illegal. The cases
of Smith rs. Shaw, and McConnhlt vs. Hamp
ton, (reported in 13 Johnson,) are illustrations
which we cite, not only lor the principles they
determine, but on account of the distinguished
jurists concerned in the decisiou, one of whom
for many years occupied a seat on this bench.
It is contended tiiat Luther vs. Borden deci
ded by this court is an authority for the claim
of martial law advanced in this case. The de
cision is misapprehended. That case grew out
of the attempt iu Rhode Island to supersede the
old colonial government by a revolutionary
proceeding. Rhode Island, until that period,
had no other form of local government titan the
charter granted by King Charles 11. in 10(58, and
as that limited the right of suffrage, and did not
provide for Us own amendment, many citizens
became dissatisfied because the Legislature
would not afford the relief in their power, and
without the authority of law formed a new and
independent constitution, and proceeded to as
sert its authority by force of arms. The old
governmS'nt resisted this, and as the rebellion
was formidable,called out the militia to subdue
it, and passed an act declaring martial law.
Borden, in the military service of the old
Government, broke open the house of Luther,
who supported the new, in order to arrest him.
Luther brought suit agaiust Borden, and the
question was, whether, under the constitution
and laws of the State, Borden was justified.—
The court held that a Btate “may use its mili
tary power to put down an armed insurrection
too strong to be controlled by the civil authori
ty,” and if the Legislature of Rhode Island
thought the peril so great as to require the use
of its military forces and the declaration of
martial law, there was no ground on which this
court could question its authority, and as Bor
den acted under military orders of the charter
government, which had been recodnized by the
principal power of the country, and was upheld
by the State judiciary, he was justified in break
ing into and entering Luther’s house. This is
the extent of ttie decision. There was no ques
tion in issue about the power of declaring mar
tial law under tlie Federal Constitution, an.l
tlie court did not consider it necessary even to
inquire “to what extent nor under what cir
cumstances that power may be exercised by a
State.”
We do not deem it important to examine
further the adjudged cases ; and shall, there
fore, conclude without any additional reference
jto authorities. To the third question, then, on
j which the judges below were opposed in opin
ion, an answer in the negative must lie return
ed.
It is proper to say, although Milligan’s trial
and conviction by a military commission was
illegal, yet, if guilty ot the crimes imputed to
him, and his guilt had been ascertained by an
established court and impartial jury, lie’ de
serves severe punishment. Open resistance to
llie measures deemed necessary to subdue a
great rebellion by those who enjoy the protec
tion of Government, and have not the excuse
even ol prejudice of section to plead in their
favor, is wicked ; but that resistance becomes
an enormous crime when it assumes fho form of
a secret political organization armed to oppose
the laws, and seeks by stealthy means to intro
ditee the enemies of the country into peaceful
communities, there to light the torch of civil
BpW, and thus overthrow the power of the
United States. Conspiracies like these, at such
a juncture, are extremely perilous ; and those
concerned in them arc dangerous enemies to
their country, and should receive the heaviest
penalties of (he law, as an example to deter
others from similar criminal conduct. It is
said tlie severity of the laws caused them ; hut
Congress was obliged to enact severe laws to
meet the crisis ; and as our highest civil duty
js to serve our country, when in danger, the
late war has proved that rigorous laws, when
necessary, will be cheerfully obeyed by a pa
triotic people, struggling to preserve the rich
blessings of a free Government.
The two remaining questions in this ease
must be answered in the affirmative. The sus
pension of the privilege of (fie writ ot habeas
corpus does not suspend the writ itself. Tlie
writ issues as a matter of course ; and on the
return made to it, tlie court decides whether
the party applying is denied the right of pro
ceeding any further with it.
If the military trial of Milligan was contrary
to law, then lie was entitled, on the facts stated
iu his petition, to be discharged from custody
by tlie terms of the act of Congress of March
o, 1803. Tlie provisions*of this law having
been considered in a previous part of this opin
ion, we will not restate the views there present
ed. Milligan avers he was a citizen of Indiana,
not iu tlie military or naval service, and was
detained in close confinement, by order of the
President, front the sth day of October, 1804,
until flic 3d day of January, 1805, when the
Circuit Court for the District of Indiana, with
a grand jury, convened in session at Indianap
olis, and afterwards, on tlie 37th day of tlie
same month, adjourned without finding an in
dictment or presentment against him. If these
averments are true, (and their truth is conced
ecH'or the purposes of this ease,) the court was
required to liberate him on taking certain oaths
prescribed by tlie law, and entering into recog
nizance for liis good behavior. But it is insist
ed that Milligan was a prisoner of war, and,
therefore, excluded from the privileges of the
statute. It is not easy to see how "he can be
treated ns a prisoner of war, when lie lived in
Indiana for tlie past twenty years, was arrested
there, and had not been, during the late trou
bles, a resident of any of the States in rebel
lion. If, in Indiana, he conspired with bad
men to assist, tlie enemy, he is punisha* lo for it
iu tli<* courts of Indiana ; but, when tried for
the offense, he ?annot plead the rights es war
for he was not engaged in legal acts of hostili
ty against tlie Government, and only such per
sons, when captured, are prisoners of war. It
lie cannot enjoy the immunities attaching to
tiie character of a prisoner ol war, how can lie
be subject to their pains and penalties ?
This ease, as well as the kindred cases of
Bowles and Horsey, were disposed of at the
last term, aud the proper orders were, entered
of record. There is, therefore, no additional
entry required.
Dissenting Opinion as to Power of Congress
to Authorize Military Commissions to try
Civilians.
' Ex parte : In matter of Lambdin P. Milligan ,
petitioner. On a certificate of division of
opinion between the judges of the Circuit
Court of the United States for the District ot
Indiana.
Mr. Chief Justice Chase delivered the follow
ing opinion :
Four members of the court concurring with
their brethren in tiie order heretofore made in
this cause, blit unable to concur in some im
portant particulars with the opinion which has
just been read, think it their duty Io make a
separate statement of their views of the whole
ease.
We do not doubt that the Circuit Court for
the District of Indiana had jurisdiction of the
petition of Milligan for the writ of habeas cor
pus.
Whether this court has jurisdiction upon the
certificate of division admits of more question.
The construction of the act authorizing such
certificates, which lias hitherto prevailed here,
denies jurisdiction in eases where the certificate
brings up the whole cause before the court.
Hat. none of the adjudicated cases are exactly in
point, and we are willing to resolve whatever
doubt may exist in favor ol tiie earliest possi
ble answers to questions involving life and
liberty. We agree, therefore, that this court
may properly answer questions certified in shell
a case as that before us.
The crimes with which Milligan was charged
weiv of the gravest character, and the petition
and exhibits in the record, which must here be
taken as true, admit his guilt. But whatever
his desert of punishment may he, it is more im
portant to the country and to every citizen that
lie si on Id not be punished under an illegal sen
tence, sanctioned by this court of last resort,
than that he should he punished at all. The
laws which protect tiie liberties of the whole
people must not be violated or set aside in
order’to inflict, even upon the guilty, {unau
thorized, though merited justice.
Th«' trial and sentence of Milligan were by
military commission oouvcr.ed in Indiana dur
ing the fall of 18(14. The action of the commis
sion* bad been under consideration by President
Lincoln for some time, when he himself became
the victim of an abhorred conspiracy. It was
approved by his successor in May, 1865, and the
sentence was ordered to be carried into execu
tion.. The proceedings, had the full
est sanction ot the Executive Department of the
Government.
This sanction requires the most respectful
and the most careful consideration of this court.
The sentence which it supports must not be
set aside except upon the clearest conviction
that it cannot be reconciled with the Constitu
tion and the constitutional legislation of Con
gress. .
We must inquire, then, what constitutional or
statutory provisions have relation to this mili
tary proceeding.
The act of Congress of March 3d, 1863, com
prises all the legislation which seems to require
consideration in this connection. The consti
tutionality of tbis act has not been questioned,
and is not doubted.
Tbe first section authorized the suspension
during the rebellion of tbe writ of habeas cor
pus throughout the United States by the Presi
dent. The two next sections limited this au
thority in important respects.
The second section required that lists of all
persons, being citizens of States in which the
administration of the laws had continued unim
paired in the Federal courts, who were then
held or might thereafter be held as prisoners
of the United States, under the authority of the
President, otherwise than'as prisoners of war,
should be furnished to the judges of the circuit
and district courts. The lists transmitted to
tlie judges were to eoutain the names of all
persons, residing within their respective juris
dictions, charged with violation of national
law. And it was required, in cases where the
grand jury in attendance upon any of these
courts should terminate its session without
proceeding by indictment or otherwise against
any prisoner named in tlie list, that the judge
of tlie court should forthwith make an order
that such prisoner, desiring a discharge, should
be brought before him or the court to be dis
charged, on entering into recognizance, if re
quired, to keep the peace and for good beha
viour, or to appear, as the court might direct, to
be further dealt with according to law. Every
officer of tlie United States, having custody of
such prisoners, was required to obey and exe
cute the judge’s order, unde: - penalty, for refu
sal or delay, of fine and imprisonment.
Tlie third section provided, iu case lists of
persons other than prisoners of war then held
in confinement, or thereafter arrested, should
not lie furnished within twenty days after the
passage of the act or, in cases of subsequent
arrest, within twenty days after the time of ar
rest, that any citizen, after tlie termination of
a session of the grand jury without indictment
or presentment, might, by petition alleging the
facts, and verified by oath, obtain tbe judge’s
order of discharge in favor of any person so
imprisoned, on tlie terms and conditions pre
scribed iu the second section.
It was made the duty of the District Attor
ney of tlie United States to attend examinations
on petitions for discharge.
It was under this act that Milligan petition
ed tlie Circuit Court for the District of Indiana
for discharge from imprisonment.
The holding of the Circuit and District
courts of the United States in Indiana had been
uninterrupted. The administration of the laws
in the Federal courts had remained unimpaired.
Milligan was imprisoned under tlie authority
of the President, and was not a prisoner ot war.
No list of prisoners had been furnished to the
judges either of the district or circuit courts,
as required by the law. A grand jury attended
the circuit courts of the Indiana District while
Milligan was there imprisoned, and had closed
its session without finding any indictment or
presentment, or otherwise proceeding against
the prisoner.
His ease was tints brought within the precise
letter and intent of the act of Congress, unless
it can he said that Miiligati was not imprisoned
by authority of the President, and nothing of
this sort was claimed in argument on tlie part
of tlie Government.
It is clear upon this statement that the Cir
cuit Court was hound to hear Milligan’s peti
tion for the writ of habeas corpus, called in the
act an order to bring the prisoner before tlie
judge or the court, and to issue tlie writ, or, in
tlie language of the act, to make the order.
The first question, therefore—Ought the writ
to issue?—must ba answered in the affirmative.
And it is equally clear that he was entitled to
the discharge prayed for.
It must be borne in mind that the prayer of
the petition was not far an absolute discharge,
hut to he delivered from military custody and
imprisonment, and if found probably guilty of
any offence, to tie. turned over to the proper
tribunal for inquiry and punishment; or, if
not found thus probably guilty, to tie discharged
altogether.
And tlie express terms of tlie act of Congress
required this action of the court. The prison
er must fie discharged on giving such recogni
zance as tlie court should require, not only' for
good behavior, but for appearance, as directed
by the court, to answer and he further dealt
with according to law.
The first section or the act authorized tlie
suspension of tin* writ of habeas corpus gen
erally throughout the United States. The sec
ond and third sections limited tills suspension
in certain eases within States whore the admin
istration of justice by .Federal courts remained
unimpaired. In these eases the writ was still
to issue, and tinder it the prisoner was entitled
to his discharge by a circuit or district judge or
court, unless held to bail for appearance to an
swer charges. No other judge or court could
make an order of discharge under the writ.—
Except under the circumstances pointed out
by the art, neither circuit nor district judge or
court could make - such an order. But under
these circumstances the writ an list lie issued,
and the relief from imprisonment directed by
tlie act must* lie afforded. The commands of
the act were positive, and left no discretion to
court or judge.
An affirmative answer must., therefore, lie
given to the second question, namely : Ought
Milligan to lie discharged according to the
prayer of the petition ?
That tlie third question, namely, Jlad die
military commission iu Indiana, under die facts
stated, jurisdiction to try and sentence Milli
gan? must be answered negatively is an un
avoidable inference from affirmative answers to
the other two.
The military commission could not have ju
risdiction to try and sentence Milligan if he
could not he detained in prison under his origi
nal arrest or under sentence after the close of a
session of the grand jury, without indictment
or other proceeding against him.
Indeed, the act seems to have been framed
on purpose to secure the trial of all offenses of
citizens by civil tribunals in States where these
tribunals were not interrupted in die regular
existence of their functions.
Under it, in such States, the privilege of the
writ might be suspended. Any person regard
ed as dangerous to the public safety might be
arrested arid detained until alter the session of
a grand jury. Until alter such session no per
son arrested could have the benefit of the writ,
and even then no such person could be dis
charged except on such terms as to future ap
pearance as the court may impose. These pro
visions obviously contemplate no other trial or
seutence than that of a civil court, and we could
'not assert the legality of a trial and sentence by
a military commission, under the circum
stances specified in the act and described in the
petition, without disregarding the plain direc
tions of Congress.
We agree, therefore, that tiie two first ques
tions certified must receive affirmative an
swers, and the last a negative. We do not
doubt that the positive provisions of the act of
Congress require such answers. We do not
think it necessary to look beyond these provis
ions. In them we find sufficient and controll
ing reasons for our conclusions.
But the opinion which has just been read
goes further; and, as we understand it, asserts
not only that the military commission held in
Indiana was not authorized by Congress, but
that it was not in tiie power of Congress to
authorize it, from which it- may be thought to
follow that Congress has no power to indemnify
the officers who composed the commission
against liability in civil courts for acting as
members of it.
We cannot agree fl> this.
Wo agree in tiie proposition that no depart
ment of the Government of the United States—
neither President, nor Congress, nor the courts
—possess any power not given by the Constitu
tion.
We assent fully to all that is said in the opin
ion of the inestimable value of the trial by jury
and of the other Constitutional safeguards of
civil liberty; and we concur also in what is said
of the writ of habeas corpus and of its suspen
sion, with two reservations: (l,) That, in our
judgment, when the writ is suspended, the
Executive is authorized to arrest as well as to
detain; and, (2,) that there are cases in which,
the privilege of the writ being suspended, trial
and punishment by military commission, in
States where civil courts are open, may be au
thorized by Congress, as well as arrest and
detention. We think that Congress had power,
though not exercised, to authorize the military
commission which was held in Indiana.
We do not think it necessary to discuss at
large the grounds of our conclusions. We will
briefly indicate some of them.
The Constitution itsejf provides for military
government as well as for civil government ;
and we do not understand it to be claimed that
the civil safeguards of the Constitution have ap
plication in cases within the proper sphere of
the former.
What, then, is that proper sphere ? Con
gress has power to raise and support armies ;
to provide and maintain a navy ; to make rules
for the government and regulation of the land
and naval forces, and to provide for governing
such part of tiie militia as may be in the service
of the United States.
It. is not denied that the power to make rules
for the government of the army and navy is a
power to provide for trial and punishment by
military courts without a jury. It has been so
understood and exercised from the adoption of
the Constitution to the present time.
Nor, in our judgment, does the fifth or any
other amendment abridge that power. “ Cases
arising in the land and naval forces, or in the
militia in actual service in time of war or pub
lic; danger,” are expressly excepted from the
fifth amendment, “ that no person shall be held
to answer for a capital or otherwise infamous
crime unless on a presentment Or indictment of
a grand jury," and it is admitted that the ex
ception applies to the other amendments as
well as to the fifth.
Now, we understand this exception to have
the same import and effect as if the powers of
Congress in relation to the government of the
army and navy and the militia had been recited
in the iunoudment, au<i cases within-these pow
ers had been expressly excepted from its opera
tion. The States, most jealous of encroach
ments upon the liberties of the citizen, when
proposing additional safeguards in the form of
amendments, excluded specifically from their
effect cases arising in the government of the
land and naval forces. Thus Massachusetts pro
posed that “no person shall be tried for any
crime by which he would incur an infamous
punishment or loss of life until he be first in
dicted by a grand jury, except in such cases as
may arise In the government and regulation of
the land forces.” The exception in similar
amendments proposed by New York, Maryland
and Virginia, was in the same or equivalent
terms. The amendments proposed by the
States were considered by the first Congress,
and such as were approved in substance were
put in form and proposed by that body to the
States. Among those thus proposed, and sub
sequently ratified, was that which now stands
as the fifth amendment ot the Constitution. We
cannot doubt that this amendment was intend
ed to have the same force and effect as the
amendment proposed by the States. We can
not agree to a construction which will impose
on the exception in the fifth amendment a sense
other than that obviously indicated by action of
the State conventions.
Wo think, therefore that the power of Con
gress, in the government of the land and naval
forces and of the milUia is not at all affected by
the fifth or any other amendment. It is not
necessary to attempt auy preci e definition of
the boundaries of this power. But may it not
be said that government includes protection
and defense as well as the regulation of inter
nal administration ? And it is impossible to
imagine cases in which citizens conspiring or
attempting the destruction or great injury of
the national forces may be subjected by Con
gress to military trial and punishment in the
just exereisc of this undoubted constitutional
power ? Congress is but the agent of the
nation, and does not the security of individuals
against ihe abuse of this, as of every other
power, depend on the intelligence and virtue
of the people, on their zeal for public and pri
vate liberty, upon official responsibility secured
by law, and upon the frequency of elections,
rather tliau upon Moubtful constructions of
legislative powers ?
But we do not put our opinion, that Congress
might authorize such a military commission as
was held in Indiana, upon the power to provide
for the government of the national forces.
Congress has the power not only to raise and
support and govern armies, but to declare war.
It has, therefore, the power to provide ■•by law
for carrying on war. This power necessarily
extends to all legislation essential to the prose
cution of war with vigor and success, except
such as interferes with the command of the
forces and the conduct of campaigns. That
power and duty belongs to the President as
Commnnder-in-Chief. Both these powers arc
derived from the Constitution, but neither is
defined by that instrument. Their extent must
be determined by their nature, by the Jaws of
nations, and by the principles of our institu
tions.
The power to make the necessary laws is in
Congress ; the power to execute in the Presi
dent. Both powers imply many subordinate j
and auxiliary powers. Each includes all au- I
thoritics essential to its due exercise. But. j
neither can the President, in war more than in
peace, intrude upon the proper authority ot
Congress, nor Congress upon the proper au
thority of the President. Both are servants of
the people, whose will is expressed in the fun
damental law. Congress cannot direct the con
duct of campaigns, nor can the President, or
any commander under him, without the sanc
tion of Congress, institute tribunals for the
trial and punishment of offenses, cither of sol
diers or civilians, unless in cases of a control*
ing necessity, which justifies what it compels,
or at least ensures acts of indemnity from the
justice of the legislature.
We by no means assert that Congress can es
tablish and apply the laws of war where no
war has been declared or exists.
Where peace exists the laws of peace must
prevail. What we do maintain is, that when
the nation is involved in war, and some por
tions of the country are invaded, and all are ex
posed to invasion, it is within the power of
Congress to determine in what States or dis
tricts such great and imminent public danger
exists as justifies the authorization of military
tribunals for the trial of crirnes and offenses
against the discipline or security of the army
or against the public safety.
In Indiana, for example, at the time of the
arrest of Milligan and his conspirators, it is
established by the papers in the record, that the
State was a military district, was the theatre of
military operations, had been actually invaded,
and was constantly threatened with invasion.
It appears, also, that, a powerful secret associa
tion, composed of citizens and others, existed
within the State, under military organization,
conspiring against the draft, and plotting in
surrection, the liberation of the prisoners of
war at various depots, the seizure of the State
and national arsenals, armed co-operation with
the enemy, and war against the National Gov
ernment.
We cannot doubt that, in such a time of pub
lic danger, Congress had power,’ under the
Constitution, to provide for the organization of
a military commission, and for trial by that
commission of persons engaged in this eonspi
raey. The fact that the Federal courts were
open was regarded by Congress as a sufficient
reason for not exercising the, power; but that
fact, could not deprive Congress of the right to
exercise it Those courts might be open and
undisturbed in the execution of their functions,
and yet wholly incompetent toavert threatened
danger, or to punish, with adequate prompti
tude and certainty, the guilty conspirators.
In Indiana the, judges and officers ot tlie,
courts were loyal to tlic Government. But it
might have been otherwise. In times oi re
bellion and civil war it may often happen, in
deed, that judges and marshals will he in active
sympathy with the rebels, and courts their most
efficient allies.
We have confined ourselves to the question
of power. It was for Cougress to determine
tlie question of expediency. And Congress did
determine it. That body did not see lit to au
thorize trials by military commission in Indi
ana, but by the strongest implication prohibit
ed them. With that prohibition we are satis
fied, and should have remained silent if the
answers to the questions certified had been put
on that ground, without denial of tlie existence
of a power which we believe tohe constitution
al and important to the public safety—a denial
which, as we have already suggested, seems to
draw in question tlie power of Congress to pro
tect. from prosecution the members of military
commissions who acted in obedience to their
superior officers, and whose action, whether
warranted by law or not, was approved bj' that
upright and patriotic President under whose
administration the public was rescued from
threatened destruction.
We have tlius far said little of martial law, urn
do we do propose to say much. What we have
already said sufficiently indicates our opinion
that there is no law for flic government of the
citizens, the armies, or the navy of the United
States, within American jurisdiction, which is
not contained in or derived from the Constitu
tion. And wherever our army or navy may go,
beyond our territorial limits, neither can go be
yond the authority of the President or the le
gislation of Congress.
There are under the Constitution three kinds
of nliiitary jurisdiction—one to be exercised
both in peace and war; another to be exercised
iuptime of 'foreign war without the boundaries
of the United States, or in time of rebellion
and civil war within States or districts occupied
by rebels treated as belligerents; and a third,
to bo exercised in time of invasion or insurrec
tion within the limits of the United States, or
during rebellion within the limits of States
maintaining adhesion to the National Govern
ment, when the public danger requires his ex
ercise. The tirst of these may be called juris
diction under military law, and is found in
acts of Congress prescribing rulss and articles
of war, or otherwise providing for the govern
ment of the national forces ; the second may be
distinguished as military government, super
seding, as far as may lie deemed expedient, the,
local law, and exercised by the military com
mander under the direction of the President,
with the express or implied sanction of Con
gress ; while the third may be denominated
martial law proper, ap'd is ctiled ini o ac
tion by Congress, or temporarily, when the
action of Congress cannot be invited, and in
the ease of justifying or excusing peril, by the
President, in times of insurrection or invasion,
or of civil or foreign war, within districts or
localities where ordinary law no langer ade
quately secures public safety and private
rights.
We think that the power of Congress, in
such times and in such localities, to authorize
trials for crimes against the security and safety
of the national forces, may be derived from its
Constitutional authority to raise and support
armies and to declare war, if not from its Con
stitutional authority to provide for governing
the national forces.
We, have no apprehension that this power,
under our American system of government, in
which all official authority is derived from the
people,and exercised under direct responsbility
to the people, is more likely to be abused than
the power to regulate commerce or the power
to borrow money. -And we arc unwilling to
give our assent by silence to expressions ol
opinion which seem to us calculated, though
not intended, to cripple the Constitutional
powers of the Government, and to argument
the public dangers in times of invasion and
rebellion.
Mr. Justice Wayne, Mr. Justice Swavne, and
Sir. Justice Miller coucur with me in these
views.
Gr.osn op tub Southern Orphans’ Fair.
On Saturday everting the fair lor the relief of
the orphans throughout the Southern States,
which has been in successful operation during
the past ten d ys at M usic Hall, on I toward
street, near Centre, closed with very gratifying
results, both to the lady managers and to the
charitable who aided in the benevolent enter
prise. Almost all the articles on exhibition
were disposed of either by raffle or sale, and at
8 o’clock, Mr. Samuel H. Cover auctioned the
remainder, with the exception of some articles
which had been on ratlin, and in which the
chances had not been fully taken at remunera
tive prices. Such articles as were not disposed
of were turned over to Mr. Samuel C. Miles,
subject to the f'turc determination of the asso
ciation. To-morrow evening the grand calico
ball in connection with the fair will take place
at Music Hall, and is expected to be a very
pleasant attain. On Wednesday morning at 10
o’clock, all articles of food remaining over will
be gratuitously distributed to the poor, who
apply at the Hall.
THE SUPREME COURT DECISION.
We present our readers this morning with 'a
full report of the recent decision of the Su
preme Court in the case of. Milligan. Ap
pended to the decision of Mr. Justice Davis
will be found the dissenting opinion delivered
by Chief Justice Chase, in which concurred
Mr. Justice Wayne, Mr. Justice S wayne and
Justice Milleu. We regret to see in such com
pany the name of a once honored Georgian, the
purity of whose fame is sadly damaged by this
final assault upon his native South. That the
oldest surviving Judge who sat beside tlie au
gust Rogek B. Taney, the last of the Chief
Justices, should be found in the category of
oppression, is at once humiliating and omin
ous.
I’hc Radicals, as a matter of course, are ter
ribly disgruutled at the Court’s interpretation
of the organic law, and have commenced their
war upon it, as we felt assured they would.
liy reference to the telegrams of yesterday
morning it wiil be seen that Mr. Stevens has
already lead off in the battle, and heaven and
earth will be moved to paralyze the action of
the great tribunal. There is a moral force in
the decision of the Supreme Court which may
appeal forcibly to what is left of justice at the
North, and an effort to overthrow it may not
only prove abortive but precipitate wholesome
reaction. Everything depends upon the vitality
of that sense of right; and if, as we sometimes
fear, it has suffered eclipse, nothing remains for
the whole country but a reign of terror or the
Thirty Tyrants. Nations frequently remain in
a crouching altitude for years, but the spring is«
inevitable at last.
As many of our readers have not tlie time or
patience to plod through so lengthened a docu
ment as this decision wo subjoin for their
benefit a masterly abstract from the National
Intelligencer. This able journal says :
It establishes the rights of Ihe citizen on an
impregnable basis. *lt comes clothed- with the
majesty of law. It authoritatively announces
that under the Constitution no citizen, not in
the military service, can he tried and sentenced
by any tribunal which denies to him the privi
lege of a jury of his countrymen. No graver
question was ever raised before that august tri
bunal, created for tlie authoritative interpreta
tion of the organic law, and the enactments that
may spring up under.it. No more important
decision has ever been enrolled amorg the re
cords of the Supreme Court of the United
States.
As to the disposal of the special case before
the court, the judges unanimously agreed. On
the facts presented, which are briefly rehearsed
in the opinion of Justice Davis, it was agreed,
first, that Mulligan was entitled to the writ of
habeas corpus ; second, that lie ought to be dis
charged from custody; third, that the military
commission which tried him had no jurisdic
tion. But four of the justices, Chief Justice
Chase and Justices Wayne, Swayne end Miller
dissented from tlie majority by denying their
construction that it is not in tlie power of Con
gress to authorize military commissions to try
civilians. We sluiil recur to this dissenting
opinion hereafter. For the present, we propose
merely to recapitulate the points of the decision
of the Court.
Tlie opinion begins with a clear, brief state
ment, of tlie facts involved, and the three jioiuts
certified to the Supreme Court from the Circuit
Court of Indiana. It disposes of the objec
tions raised to the jurisdiction of the court.—
There is no question about tlie duly of the
Circuit Court to entertain the application for
the writ. The objection that a certificate of
division between the judges can only occur in a
cause, and that, this is not. a cause until after
issue of the writ and a return is 'conclusively
set one side. Any prosecution of a remedy
which the law allows is a cause, and Milligan
pursued the only remedy which the law afford
ed. The objection that two parties are neces
sary is pronounced technical, though in this
ease the record was made up with the assent of
the, District Attorney, Mr. Ilanna.
The act ot March 3, 18(13, under which Milli
gan claimed his discharge, is shown to be ar>-
plicable. Under it the President was authoriz
ed to arrest without being required to assign
the cause of detention on tlie return to the writ.
But it directed tlie Secretaries of State and o(
War to furnish lists, to the judges, of persona
not prisoners of war arrested within their ju
risdiction; and if, affer the list was furnished,
the grand jury did not iiuliel the parlies they
were entitled to their discharge. “It was uot
contemplated that such person should he held
in custody beyond a e< rtain fixed period unless
certain judicial proceedings known to the com
mon law were commenced against him.” The
refusal or neglect to furnish the list eoulil not
operate against an indicted person, and by the
lapse of twenty days after tlie session of tlie
jury the petition of any credible person, verified
by affidavit, would secure the discharge of the
arrested party. No record was required of the
list, and tlie court shows that the neglect to
furnish it did not affect (lie jurisdiction, and
sweeps one side tlie objection that the parties
concerned in his arrest were not before the
court, and the absurd suggestion that the pre
sumption is that Milligan has been executed.
The controlling question is stated to be:
Upon the facts stated in Milligan’s petition, and
the exhibits filed, “had the military commis
sion mentioned in it jurisdiction legally to try
and sentence him ?” Naturally it enlarges <>u
the importance of such an inquiry, and recalls
the history of tlie struggle to jrreserve the lib
erty ol the citizen. The provisions of the Con
stitution are claimed to bo too plain for doubt.
Jury trial is guaraiteed expressly in the origi
nal instrument, except in eases of impeach
ment, while the amendments secure exemption
from unreasonable search and seizure, present -
ment by a grand jury, and jury trial under con
ditions most, likely to secure justice and pre
vent oppression. The Constitution is designed
for both peace and war, and no more pernicious
dogma was ever started than “ that any of its
provisions can lie suspended during any of the
great exigencies of tlie Government. In tlie
case of Milligan the Constitution was infringed.
1. By a trial by a tribunal not ordained and es
tablished by Congress. 3. By denying him a
trial by jury. The decision affirms that not
only was the commission illegal, but that “ no
usage of war could sanction a military trial
there (in Indiana) for any offense whatever of a
citizen in civil file in no wise, connected with
the military service; and it goes so far as to
affirm that "Conoress conhl grant no such pow
er." There was no necessity for the commis
sion, as the courts were open In Indiana, and
though military courts are necessary for men in
the military or naval service, yet to all others
the Constitution guarantees a trial by jury.
“Tliis is a vital principle.” “It is not held by
sufferance, and cannot be frittered away on any
of State or political necessity.”
The plea of martial law is untenable. It
would substitute the will of a soldier for the
authority of law, and if accepted would make
republican government a failure. The writ of
habeas corpus may he suspended, hut the Con
stitution goes no further. It does not permit
interference with the right of jury trial. The
safety of the count r} cannot he pleaded in be
half of such a suspension, lor a country pre
served at the sacrifice of the cardinal principles
of liberty is not worth the sacrifice. But no
pica of safety can he raised in this ease, for the
courts were unobstructed ; ami though neces
sity, as in case of foreign invasion, may com
pel the substitution ot the military for tlie civil
arm, yet martial government, after the courts
are reinstated, is usurpation. It is equally
usurpation if the courts have never been ob
structed, and it must be confined to the locality
of actual war. The opinion cites several pre
cedents both from Euglish and American his
tory in support of these views.
Os the crimes with which Milligan stands
charged it speaks in terms of the strongest
reprobation. Tlie atrocious slander that trea
son his found a shelter in the bosom of the
Supreme Court is therefore shown to be a ma
lignant calumny. It is not „Milligan, the al
leged conspirator, who is set free, butrMilligan,
citizen, tried by an illegal tribunal and in defi
ance of a right of a jury trial, secured to all
not in the military service. It is not tlie crime
of treason which is shielded by tins memorable
decision, but the sacred rights of the citizen
that are vindicated against Ihe arbitrary de
cisions of military authority. Above the might
of tlie sword the majesty of law is thus raised
supreme.
The Human Bite Poisonous. —A singular
occurrence has just hnppcucd at Arth, in
France. A Lieutenant Folchin was sometime
back bitten in the thumb by a man named Mul
ler, but he thought nothing of the wound, and
went next day a journey on his private affairs.
On reaching Balse he found his hand and arm
begin to swell, and a medical man declared #
that the case was one of poisoning from a
human bite. He at once returned home in
baste; but he refused to have the arm amputa
ted. The consequence was that the inllamnia
lion increased frightfully, and lie died some
days alter in horrible suffering.
Arsenical Poultry.—Ohicken-stealiug has
become quite common in the northwest part ot
the city. A friend ot ours, who rejoices iu the
ownership of a small hut select llock, has been
preparing a pleasant surprise for the thieves.—
For the past two weeks he has been feeding his
fowls on arsenic, gradually increasing the dose,
until now they are thoroughly saturated with
tin: poison. In order to note progress he kill
ed one the other day, cooked it, and fed a por
tion to a young kitten, which immediately died
in strong convulsions. He rather fancies that,
if the thieves steal Ids lieus, the sow ls will
make them sick at their stomachs.
Cottage Pudding.— Take 1 quart flour, 2
cups sugar, tl tablespoonfuls melted butter, SI
cups sweet milk, 2 beaten eggs, 2 teaspoonfuls
cream of tartar, 1% tcaspooufuls soda. Mix
well and bake or steam in a mold or large tin
basin. Serve with beaten butter and sugar, or
wiue sauce. What is left from dinner is good
lor tea- cake.