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(thvouide & f cntincl. !
WKBNESIHY'hok.MXK. JANUARY j
TSSbiS Among tin? Leading Business I
Houses of the lit).
» usta ha- always occupied a high
position in comuiercial circle.-, on account)
oft ! fir; character of her businessmen, i
]I r i reliant- for more than half a j
cc-nturv. have been noted for their enter
i i-iz ami fair dealing, and have cstab
a character for promptness and
reliability, in the ] rforuiancc of all their j
(.Mirations, which has carnetyur them the
confidence and respect of the commercial ;
world, to an extent which is hardly ex
pcrienc-i and by any other city in the Fouth.
This class of our citizens embraces men of
Vunrough education, enlarged view.-, and
extensive experience in the various circle 8
of commerce and trade. It has been j
fortunate for our city and state, in a com- |
moreial point of view, that our trade was
not of mushroom growth, springing up j
under the sudden impulse of excitement
and -p u’ution. which has characterized, |
to a con sideral do extent, other large cities
of the Mouth and Southwest. <Par trade
] i;l , bec-n the result of patient, honest, and
persistent toil, directed by wise and com- j
j.rcdif jisive intellects, arid rests to-day upon
tie solid foundations of stem integrity and
expandvo liberality, laid by the founders of
i:i the begin
ning of the present century.
Augusta merchants hare always boenes- I
jr cially noted for their affable and polite de- |
portment toward their customers, and par
ticularly so as to strangers and persons from
among the leading Dry Goods merchants
of the city, is the house of
11. r. RUSSELL k CO.,
>;d, 173 BROAD STREET,
Whole ale and retail dealers in For
eign and dona .- tic dry goods. The senior
m, mbertif thi.-, Jinn, 11. F. Russell, Esq.,
i one of our oldest and most responsible
businoas men. He has been connected
with the trade of Augusta for more than
thirty-three year.., and has by his industry
anl indomitable energy succeeded in
, .inf a large fortune, and stands to-day
in ilic front rank of our leading capitalists.
Iri previous years he lias been an active
prominent dealer in tl»e cotton broker
• ami eommi.-.flon business, and is
i ,:,-id< red as, one of the most sagacious and
cno rj lining of that class of our merchants.
Fli■ bu-ine -s of the house is conducted
principally by .Tames J. Russell, son of the
senior partner, and Capt. \\ ilberforcc
Daniel, both gentlemen of'acknowledged
worth and probity of character. Oapt.
Daniel's. we believe, is ft native of Lincoln
county, Ga., but ho lias been connected
with the dry goods business of this city for
the paA lift uor sixteen years, with the
e.r--•••ptiou of that terrible period, so long to
be remembered by all the people of this
sunny land, in which the Southern States
made their grand, glorious, but unfortunate
struggle for a : parate nationality. During
the war and from its commencement to its
do ,y Capt. Daniel’s was t > bo found in
the front rank of those who abandoned
private bu inc tied the comforts of home
to secure a nations rights. #
The younger Russell is treading closely
in tic footsteps of his father, and by his
quiet, gentle manner and strict attention to
business is earning for himself and for the
house of which he is an efficient and valu
able member, a reputation of which lie
may justly feel proud.
These gentlemen keep a large and well
selected stock of dry goods, gentlemens’
furnishing goodsj house-keeping articles,
blankets, sheetings, coverlets, table and
bed linens, damasks, ; towelling, and all
e ■] , -- p.-.t —i
muncratiro prices, in order to make room
for their new stock. Country merchants
and families needing such supplies
will do visit this sterling house
before making their purchases. There
is no reason why country merchants
should pass Augusta to lay in their stocks
at the North when 11. F. Russell & Cos.,
•and other loading merchants in this city
will sell them goods quite'us cheap as they
can buy in New York, with freight and
expenses added, and in many eases cheaper
than they can buy the same goods at the
North. We know from practical experi
ence and observation that small stocks,
suitable for the.country trade can be pur
chased here at lower rates than the same
stocks emld be bought from leading North
ern houses. And when to the Northern
cost is added the expenses of a trip to and
from New York and the freights and
charges for the shipment of the goods, the
difference in favor of Augusta is palpable
and striking.
If any of our country friends are dis
posed to be incredulous on this point, we
wish them to give the above house-a cal*
and if they are not convinced as to the
correctness of our position we will cheer
fully make the correction publicly through
our columns.
GRAY, Ml i,LARKY & CO.,
228 iiIIOAD StRECT.
Persons visiting Augusta, within tlic
past two years, must have had their atten
tion arrested by the beautiful iron front
store 228, on Broad street, three doors
below the old United States Hotel. This
is one of the handsomest of our business
houses, and with its large plate glass and
iron front, gives to this portion of our
beautiful promenade an air of elegance and
splendor which is rarely seen in the interior :
towns of the South.
But if attention is attracted by the out- !
side view of this establishment, the inner
decorations and furnishing of the large
and commodious sales room are such as to
produce the liveliest toolings of gratifica
tion and pleasure. Every department of
this large and extensive establishment is j
thoroughly organized, and the various ;
styles of goods arranged and classified
with the strictest regard to convenience
and display. Each department is under j
the pceial charge of a particular attendant,
ami the different grades and styles of goods
are.kept separate and distinct. In one part
of the room is offered the fine dress and i
fancy goods, which are so much sought af- !
ter now by the (Southern fair. In another
section can be found all the leading
fabrics which are used in housekeeping,
and in another will bo found an extensive
and complete line of domestics, such as
sheetings, shirtings, flannels, osnaburgs
and all such goods as are used generally by
people in the country. Here, too, iu their ;
appropriate place, can be found a general .
assortment of such goods as are known in ;
the trade as notions, and which embraces 1
that endless variety of small things which
our housewives find so indispensable in the
conduct and management of their house- ,
holds. A leading feature in this house is j
the superior and extensive stocks always 1
on hand of the richer and better class of
ladies’ dress goods, and the complete and
extensive line of the plain and more sub
stantial fabrics.
Every portion of this largo establish
ment bears evidence of the continual pres
ence of those minds which give form and
system to the business transacted here;.
The proprietors are, all of them, thorough
and experienced business men. They have
been connected with the dry goods busi
ik ss in this city for several years, and have
built up a character and reputation for the
house of
GRAY, MUi.LARKY & CO.
which places them in the front rank
of our leading business houses.
The seuior partner of this concern,
James A. Gray, Esu., hasboeniu the dry
goods business in this city for more than
twenty years. Coming here a stranger,
and, while yet a mere youth, he has by
energy and industry in business, and a
courteous and polite attention to bis pat
rons and customers, succeeded in building
up a splendid trade, and in establishing a
handsome fortune.
The other members of the firm are Aus
tin Mullarky, formerly well known through
out the Mouth as the affable Proprietor of
the Clone Hotel, and James 11. Mullarky,
an experienced and thoroughly educated
merchant, lor several years past connected
with the dry goods business of the city.
These gentlemen are, all of them, we
believe, natives of the “Emerald Isle,
but tame to the South during their early
youth, where they have ever since re-sided.
They are thoroughly identified with the
people of the South, and have invested
all their property here. One of then; we
know to have bec-n a gallaDt soldier in the
Confederate army, and all, we believe, con
tributed freely of their means in the at
tempt to establish the Confederate Gov
ernment.
This house buys largely from the direct
importers, and in this way saves the profit
which the jobbers would exact were their
purchases made through them. This ena
bles them to sell goods quite as low here
as they can be purchased from the New
York jobbing houses. One of the mem
bers of the firm has just returned from the
North where he has laid in many additions
to their always extensive stocks, and are
now offering their goods at greatly reduced
rates. Country merchants should give
these gentlemen a call before purchasing
elsewhere. Nothing is charged for ex
hibiting their goods; on the contrary, a
rigid inspection and comparison of prices
j elsewhere is, warmly solicited.
President Johnson.
; Despite the storm of abuse and <U 4 "
ie'ii which has been showered ui
mi the threats of violence and pei
■ tiikel upon the Constitution df the
States. He has not halted or wavered tor
a moment in his firm determination to
stand by the Constitution of the fathers of
the Republic and the Union of the States
under that charter.
Civil rights bills, impeachment articles,
negro suffrage in the District of Colum
bia, the repeal of the amnesty section in
the confiscation law, the proposed territo
rializing of the Southern States, have each
and all failed to produce upon this great
man the slightest effect other than to
strengthen him in the determination to
stand firmly by tbe rights of all the States
of the Federal Union. We must confess
that wo entertained some misgivings as to
his course upon the great question of recon
struction .just after the results of the fall
elections were made known. Since that
time wo have watched him closely, and
have been gratified to find him every day
exhibiting more strongly those great traits
of character which have so conspicuously
marked his past life—firmness, indomita
ble perseverance and unflagging devotion
to principle. Unmoved by the fierce
threats and malignant fury of the Radi
cals, he stands to-day the only bulwark be
tween the revolutionary designs of the
Rump Congress and the liberties of the
American people.
We arc rejoiced to find that ho has at
last received the support of the Supreme
Court, the moral effect of whoso decision
in the case of Milligan will be to strengthen
the President’s hands, and check the Rad
icals in their mad and furious programme.
Let the Southern people stand firmly by
the President, obey the law, observe all
their obligations, and particularly those
which give full protection of person and
property to the freedmen, and we indulge
1 the hope that the Roman firmness and pa
-1 trfotismof Andrew Johnson will yet save
and preserve the whole Union.
The Croat Yacht Race.
The Northern journals and particularly
those of New York are tilled with detailed
account sos the late, race across the Atlan
tic lu'tween the vaclits Henrietta , Vesta
I:- u yacht, the
‘ Hairu! . ■ U property of J Gordon
U L. devoted a huge niioU cf its
u ’ ; ruuuocd L. this
ho!*! ;v. «tur« oi> the mblit mind of
Europe. .One would be fed to suppose
from a perusal of the Ilerald for the last
six or eight days, that the contest between
these miniature vessels has produced as
great a sensation in England and France
as the war between Prussia and Austria
produced a few months ago.
We can hardly believe that an affair so
unimportant in itself or in any good or
great results, should have excited one
half the in terest across the Water as
the Herald would have us believe. Rut,
however that may be, there is no doubt
that in Now York, at least, the excitement
has been deep and wide-spread. Large
amounts of money have been bet and lost
on the race. One man alone is said to •
have won over forty thousand dollars. |
The feeling has even extended to the pul- |
pit; and on last Sabbath, the day after the
telegraphic reports of the result were re
ceived, Henry I\ ard Beecher introduced
the subject into his discourse. This is
only another evidence of the great demor
alization of the Northern pulpit, and
affords a striking commentary upon the
real Christianity of the Northern people.
We venture to say that such a subject
could at no time incur past history have
elicited the slightest allusion from the
Southern pulpit.
Breatl vs. Cotton.
Wo suppose it will be conceded on all
sides that food is more necessary than
either raiment or shelter. _ If this proposi
tion be denied we can point to men who
have lived to a very old age without any
1 other shelter than the canopy of Heaven.
[And we can also instance whole tribes of
savages, to prove that men can do without
j clothes. But can it bo shown that any
one has ever long existed without food ?
Hardly. It is the first great necessity of.
man for food, which is now driving the j
people of the South to abandon the pre- j
carious effort to raise cotton by the “free” 1
labor f “freedmen.” and to devote their ;
lands to grain culture and stock raising.
\\ believer („->ad becomes a problem with ■
a people, this problem will he first solved j
to the exclusion of every other, and the j
people of the South are but obeying an |
instinct of self-preservation when they
neglect cotton ibr the cereals. IVhen the 1
pine logs of a Southern forest have furnish- j
ed a cabin to the man whom Sherman’s
torches rendered homeless ; when a tew
sheep and a small cotton patch have given 1
him clothing; when a cornfield has given
him read and a brace of hogs has sup- ;
plied him with meat, he is prepared to
laugh to - mi the calamities of that storm
which sooner or later will sweep the finan
cial and commercial world.
But how is it with the laboring manat
tiie .North, who formerly clothed himself
viieaj ’ . with Southern cotton ? The high
price of the staple has now almost forbid
bun the use of it, and his wages, paid iu a 1
depreciated currency, will scarce suffice to
iee.t a-.!1. 'v.se him. Nor is the future of
the Northern capitalist any brigther than j
that ot the laborer ; for without cotton,
the baseless paper currency and bonds of
the U nited States will rush to au inevitable
doom.
The high price of cotton, if the people
of the cotton States were secure from
famine, and had reliable labor, would be a ,
sufficient stimulus for its cultivation. But .
until the people of those States feel safe on
the bread question, they are not going to
ccssities : and they are right. Let those
who brought wreck and ruin upon the
country save themselves if they can . and
if they roly upon the South to help them
out of their troubles with cotton, they
“reckon without their host.” There is no
power on earth that can compel the South
c rn people to raise cotton rather than bread,
and tin v would be very stupid indeed if they
: arm-bed the world with cheap clothing at
the rist of starvation.
Let us grm and endure this matter to its
conelud 10 ® jwe are in such a desperate
condition tLA* nothing can worst us new.
—Richmond l ud a -
Captain Charles A. Boutt-fte, of Augus
ta. Me., recovered a watch recency, which
was stolen from him six years' ago, iu
Liverpool, England. He was in a concert
room at the time it was stolen, and imme
diately made the fact known to the detec
tives there, who. after six years, succeeded
in fiudiug iu
The First Sxow. —The first snow in
this latitude commenced yesterday after
noon about four o’clock. At a late hour,
the flakes were thickly falling, with a pro
mise of a thorough and genuine snow.
Both young and full-grown children had a
merry time last night, exchanging scow
i balls. — 00l Phoenix*
ILLEGALITY OF MILITARY COM MIS- j
SIGNS TO TRY CIVILIANS.
DECISION IN THE INDIANA CON
SPIRACY CASES.
OFFICIAL REPORT.
Supreme Court of the United States.
No. 350.—December Term, 1866.
Ex parte in Matter of Lambdin P. Milli
gan, petitioner. On a Certificate of ;
Damon of Opinion Between the Judges j
of the Circuit Court of the United States I
)or the District of Indiana.
Mr, Justice Davis delivered the opinion
of the Court.
On the 10th day of May, 1865, Lambdin i
P. Milligan presented a petition to the j
Circuit Court of the United States for the j
District of Indiana, to be discharged from ;
an alleged unlawful imprisonment. The
case made by the petition is this : Milli- i
van is a citizen of the United States; has
lived for twenty years in Indiana, and at ,
the time of the grievances complained of, j
was not, and never had been, in the niili- 1
tary 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 P. Hovey. commanding the military
dixtrict of Indiana, and has ever since !
been kept in close confinement.
On the 21st day of October, 1864, he ;
was brought before a military commission,
convened at Indianapolis by order of Gen.
Ilovey. tried on certain charges and sped- !
fications, found guilty, and sentenced to be I
hanged, and the sentence ordered to be ex- j
ecuted on Friday, the 19th day of May,' 1
1865.
On the 2d day of Jauuvry, 1865, after the t
proceedings of the military commission |
were at an end, the Circuit Court of the j
United States lor Indiana met at Indian- ;
apolis, and empaneled a grand jury, who i
I were charged to inquire whether the laws >
i of the United States had been violated, 1
! and if so, to make presentments. The j
1 - art adjourned on 4 he 27th lay of Ja'n
ry, having prior thereto di ci urged from
•ther service the grand jury who did not
ary bill of it. lictment make any
••niment against Miligan to: sin .hence ,
i V •'va'kamd I
—vutment made again.- 4 him by any
and jury of the Unit- f '
'lihigan insists tnat saiu military com
mission had no jurisdiction to try him upon
the charges preferred, or upon any charges
| whatever; because he was a citizen of the
i United States and the State of Indiana,
1 and had not been, since the commencement
j of the late rebellion, a resident of any of
the States whose citizens were arrayed
I against the Government, and that the
j right of trial by jury was guaran
i teed to him by the Constitution of the
! United States.
The prayer of the petition was. that
I under the act of Congress, approved March
3, 1863, entitled “An act relating to
habeas corpus, and regulating judicial pro
ceedings in certain cases,” he maybe
brought before the court, and either
turned over to the proper civil tribunal to
be proceeded against according to the law
of the land, or discharged from custody
i altogether.
With the petition were filed the order
for the commission, the charges and spe
cifications, the findings of the court, with
the order of the War Department, reciting
that the sentence was approved by the
President of the United States, and direct
ing that it be carried into execution with
out delay. The petition was presented
and filed in open court by the counsel for
Milligan ; at the same time the District
Attorney of the United States for Indiana
appeared, and, by the agreement of coun
sel, the application was submitted to the
court. The opinions of the judges of the
Circuit Court were opposed on three ques
tions, which are certified to the Supreme
Court:
Ist. “On the 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 Lambdin P.
Milligan to be discharged from custody,
as in said petition prayed ?
3d. “Whether* upon the facts stated in
said petition and exhibits, the military
commission mentioned therein had juris
diction 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
presented by this record cannot be over
stated ; lor it involves the very framework
of the government and fundamental prin
ciples of American liberty.
During the late wicked rebellion the
temper of the times did not allow that
calmness in deliberation and discussion so
necessary to a correct conclusion of a pure
ly judicial question. Then considerations
nf safety were mingled with the exercise
vailed'v'Y'-h I '-oP terminated." W;
; that the public i:* a ill' 1. tin * ques
id *■:!. !. ih,
uagnitudeof and
sity of full and cautious deliberation. Rut
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 juris
diction to hear and determine them. The
sixth section of the “Act to amend the
judicial system of the United States,” ap
proved April 29, 1862, declares “that
whenever any question shall occur. before
a circuit court upon which the opinions of
the judges shall be opposed, the point up
on which the disagreement shall happen,
shall, during the same term, upon the re
quest of' either party or their counsel, be
stated under the direction of the judges
and certified under the seal of the court to
the Supreme Court at their next session to
be held thereafter, and shall by the said
court be finally decided; and the decision
of the Supreme Court and their order in
the premises shall be remitted to the cir
cuit court and be there entered of record,
and shall have effect according to the
nature of the said judgment and order :
Provided, That nothing herein contained
shall prevent the cause from proceeding, if,
*in the opinion of the court, fun her pro
ceedings can be had without prejudice to
the merits. ’ ’
*******
It is under this provision of law that a cir
cuit court hasauthority to certify any ques
tion to the Supreme Court for adjudication.
The inquiry, therefore, is, whether ths
case of Milligan is brought withiu its
terms. It was admitted at the bar that
the Circuit Court had jurisdiction to en
tertain the application for the writ of ha
beas corpus and to hear and to determine it ;
and it could not be denied ; lor the power
is expressly given in the 14tli section of the
judiciary actof 1789, as well as thelateract
of 1863. Chief Justice Marshal, in Boll
man’s case. (4 Cranch) construed this
branch of the judiciary act to authorize
tlie courts as well as the judges to issue
the writ for the purpose of inquiring into
the cause of the commitment; and this
construction has never been departed from.
But it is maintained with earnestness and
ability that a certificate of division of
opinion can occur only in a cause ; and that
the proceeding by a party moving for a
writ of habeas corpus does not become a
cause until alter the writ has been issued
and a return made.
Independently of the provisions of the
actof Congress of March 3, 1863, relating
to habeas corpus on which the petitioner
bases his claim for relief, and which we
will presently consider, caa this position
be sustained ?
It is true that it is usual for a court, on
application for a writ of habeas eorpus, to
issue the writ, and on the return to dis
pose of the case ; but the court can elect
to waive the issue of the writ and consid
er whether, upon the facts presented in
the petition, the prisoner, if brought) be
fore it, could be discharged. One of the
very points on which the ease of Tobias
Watkins, reported, in 3 Petars, turned
was. whether, if the writ was isctied, the
petitioner would be remanded upon the
case which he had made.
The Chief Justice, in delivering the
opinion of the. court, said : “The cause
of imprisonment is shown as fully by the
petitioner as it could appear on the return
of the writ: consequently the writ ought
not to be aw arded if the court is satisfied
that the) prisoner wouid be remanded to
prison.”
The judges of the Circuit Court of Indi
ana were, therefore, warranted by an ex
press decision of this court in refusing the
writ, if sustained, that the prisoner on his
own showing was rightfully detained ; but,
it is contended, if they differed about the
lawfulness of the imprisonment, and eould
render no judgment, the prisoner is rem
ediless, and cannot have disputed question
certified under the act of lsoO. His reme
dy is complete by writ of error or appeal,
it the [court renders a final judgment, re
fusing to discharge him ; but if he should
be so fortunate as to be placed in the pre
dicament of having the court divided on
the. question whether he should live or die,
he is hopeless and without remedy. He
wishes the vital question settled, not by
a single judge at his chambers, but of the
highest tribunal known to the Constitu
tion ■ and yet the privilege is denied him
because the Circuit court consists of two
judges instead of one. Such a result was
pot in the contemplation of the Legisla
ture of. 1 SO2. and the language used by it
cannot be eon~ fru od to mesa any such
thing, the clause unud F c<*ustderation
v ' ; s introduced to further the of
! imnort-mi a settlement of
, important questions where the j U( w,
might be opposed in opinion.
The act of lSo2so changed the judicial
! system that the Circuit Court, instead of
three, was comjwsed of two judges: and
without this provision, or a kindred one if
the judges differed, the difference would
remain, the question be unsettled, and jus
tice denied. The decisions of this court
upon the provisions of this section have
been numerous. In United States vs. i
Daniel, (6 Wheaton) the cturt, in holding
that a division of the judges on a motion
for anew trial could not 14 certified, say:
“That the question must be one which
arises in a cause depending before the
court relative to a proceeding belonging to
the cause.” Testing Milligan's case, by
this rule of law, is it not apparent that it is
rightfully here, and that we are compelled
to answer the questions on which the
judges below were opposed in opinion ? It,
in the sense of the law, the proceedings for
the writ of habeas orpus was the 'f cause
of the party applying for it. then it is evi
dent that the “cause' was pending before
the court, and that the questions'certified
arose out of it. belonged to it, and were
matters of right and not of discretion.
But it is argued that that the proceed
ing does not ripen into a cause until there
are two parties to it This we deny. It
was the cause of Milligan when the peti
tion was presented to the Circuit Court.
It would have been the cause of both par
ties, 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 supposed right —and he says
“this is a legal, scriptural, and popular
use of the word, coinciding nearly with
case from cado, and action from ago, to
urge and drive. ”
In any legal sense, action, suit and cause
are convertible terms. Milligan supposed j
he had a right to test the validity of his !
trial and sentence; and the proceeding j
which he set in operation for that purpose j
was bis “cause” or “suit. It was the j
only one by which he could recover his lib- I
erty. He was powerless to do more; he
coaid neither instruct the judges nor con
trol their action, and should not buffer, be
cause, without, fault of his. they were
unable to render judgment. But the i
true meaning to the term “suit” has ;
been given by this court. One of the j
questions in Western vs. City Coun- j
cil of Charleston (2 Peters) was whether a !
writot’ prohil .on was a suit; and Chief;
Justice Marshal', says; 'The term is oer
iiviidy ..-ampi. hensiv one, and is un- j
dersiood to aup'-y to any proceeding in a i
court, of justice by which an individual
• pursues that re; ..2y win.l the law attends
him." Orta! irs J he
1 only remedy which th* law 'afforded him.
Again, .ii Cohens . ... \ irgtma, (<’> « her.
ton,) he says : “In law language a suit is
the prosecution of some demand in a court
of justice.” Also, “to connneuce a suit
is to demand something by the institution
of process in a court of justice; and to
* prosecute the suit is to continue that de
mand.” When Milligan demanded his
release by the proceeding relating to habeas
corpus, he commenced a suit, and he has
since prosecuted it in all the ways known
to the laws. One of the questions in
Holmes vs. Jennison (14 Peters) was,
. whether under the 25th section of the Ju
diciary act a proceeding for a writ ofliabeas
corpus was a “suit.” Chief Justice Taney
held that, ‘ ‘if a party is unlawfully im
prisoned, the writ habeas corpus is his ap
propriate legal remedy. It is his suit in court
to recover his liberty. There was much
diversity of opinion on another ground of
jurisdiction, but on this, that in the sense
of the 25rh section of the judiciary act,
| the proceeding by liabeas corpus was a
i suit, was not controverted by any except
Baldwin, Justice, and he thought that
“suit” and “cause,” as used in the action,
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 —the suit of the party mak
ing the application. If it is a suit under the
25th section of the judiciary act, when the
proceedings are begun, it is, by all the an
alogies of the law, equally a suit under
the 6th section of the act of 1802.
But it is argued that there must be two
parties to the suit, because tbe point is to
be stated upon tlie request of “either
party or their counsel.” Such a literal
and technical construction would defeat the
very purpose the Legislature had in view,
which was to enable any party to bring the
case here, when the point in controversy
was a matter of right and not of discretion;
and the words “either party,” in order to
prevent a failure of justice, must be con
strued as words of enlargement, and not
of restriction. Although this case is here
cx parte , it was uot considered by the court
below without notice having been given
to the party supposed to have, an interest
in the detention of the prisoner. The
statements of the record show that this is
not only a fair, but conclusive inference.
When the counsel for Milligan presented
to the court the petition for the writ of
habeas corpus, Mr. Hanna, the district at
torney for Indiana, also appeared; and,
by agreement, the application was submit
ted to the court, who took tlie case under
'
„V . . ; . .-|" i'”''
; was iiifbr. '-.d of file upplieafi": -in.’ ap
peared on behalf of the Government to
. > r ~ ,■; ... , . ~ . 1 ,
cutor of Milligan, who claimed that his
imprisonment was illegal, and sought, in
the only way he could, to recover his liber
ty. The case was a grave one ; the court,
unquestionably, directed that the law offi
cer of the Government should be informed
of it. He very properly appeared, and as
the facts were uucorttroverted and the diffi
culty was in the application of the law
there was no useful purpose to be obtained
in issuing the writ. The cause was, there
fore, submitted to the court lor their con
sideration andjdetermination. But Milligan
claimed his discharge from custody by vir
tue of tlie act of Congress “relating to
habeas corpus, and regulating judicial pro
ceedings in certain eases,” approved March
3, 1863. Did that act confer jurisdiction
on the Circuit Court of Indiana to hear
this case ? In interesting the law the mo
tives which must have operated with the
Legislature in passing it are proper to be
considered. This law was passed in a time
of great national peril, when our heritage
of free government was in danger. An
armed rebellion against the national
I authority, of greater proportions than his
i tory affords an example, was raging ; and
i tlie publie safety required that the privilege
| of the writ of habeas corpus should be
| suspended. The President had practically
1 suspended it, and detained suspected per
sons in custody without trial; but his
authority to do this was questioned. It
was claimed that Congress alone could ex
j eroise this power, and that the legislature
and not tlie President, should judge of the
political considerations on which the right
to suspend it rested. The privilege.of this
great writ had never before been withheld
from the citizen ; and, as the exigence of
the times demanded immediate action, it
wasot the highest importance that the
lawfulness of the suspension should be
fully established. It was under these cir- j
cunistances, which were such as to arrest
the attention of the country, that this law
was passed. The President was authoriz
ed oy it to suspend the privilege of the !
writ of habeas corpus whenever, in his )
judgment, the public safety required; and |
he did. by proclamation, bearing date the ;
15th of September, 1863, reciting among
other things the authority of this statute, j
suspend it. The suspension of the writ
does not authorize the arrest of any one,
but simply denies to one arrested the priv- j
ilege of this writ in order to obtain his
libertv.
It is proper, therefore, to inquire under
what circumstances the court* could right
fully refuse to grant this writ, and when
the citizen 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 Congress cannot be mistaken. The
public- safety demanded, if the President
thought proper to arrest a suspected per
son, that he should r.ot tie required to give
the cause of his detention on return to a
writ of habeas corpus. But it was not con
templated that such person should he de
tained in eusiody beyond a certain fixed
period, unless certain judicial proceedings
Laown to the common law were commenced
against- hist. The Secretaries of State
and \Yar were directed' to furnish to the
judges of the courts of the United States a
list of the names of all parties, not prison
ers of war, resident in their respective
jurisdictions, who then were or afterwards
should beheld in cu.-tody by the authority
of the President, and who were citizens of
States in which the administration of the
laws in the Federal tribunals was unimpair
ed. Aider the list was furnished, if a
grind jury of the district convened and
adjourned, and did ne t indict or present
one of the persons thus named, he was
entitled to his discharge ; 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 fur
nish the list could not operate to the injury
of any one who was not indicted or pre
sented bv the grand jury ; for if twenty
days had elapsed from the time of his ar
rest and the termination of the session of
the grand jury, he was equally entitled to
his discharge as if the list were furnished :
and any credible person, on petition veri
fied by affidavit, could obtain the judge's
order for that purpose.
Ytilligan. 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 In
diana jurisdiction. If he was detaine jin
custody by the order of the President,
Otherwise than a prisoner of war; if ho
was a citizen of Indiana, anu I la( l never
Ljp- 'n the mun'ATy or naval service, ah ’
the grand jZJ 2 f tbe dl f’!, ct had met, af- j
ter he had been arrested, for. a period of
twenty days, and adjourned without taking j
anv proceedings against him, then the j
court had the right to emofmm his peti
tion and determine the of his
imprisonment. Because tword court
is not found in the Ely of second sec
tion. it was argued at the bar that the appli
cation should have been made to adjudge
of the court, and not to the court itself; j
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 10
discharge from imprisonment, it was the .
manifest design 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 of offence
against him. Courts are not always in i
session; and caa adjourn on the discharge j
ot the grand jury; and before those who j
are in confinement could take proper steps ;
to procure their liberation. To provide ;
for this contingency, authority was given I
to the judges out of court to grant relief ,
to any party who could show that, under
the law, he should be no longer restrained
of his liberty. It was insisted that Milli
gan’s ease was defective, because it did not
state that the list was furnished to the
judges, and, therefore, it was impossible to
: say under whii section of the act it was
presented.
; It is not easy to see how this omission
! could affect tie question of jurisdiction.
Milligan could aot know tlxat the list was
furnished, unless the judges volunteered
to tell him ; for the law did not require
that any record should be made of it, or
anybody but the judges informed of it.
Why aver the fact,”when the truth of the
I matter was apparent to the court, without
an averment H How can Milligan be harrn
; ed by the absence of the averment when he
; states that he was under arrest for more
than sixty days before the court and grand
j jury, which should have considered his
case, met at Imtianapolis? It is apparent,
therefore, that under the habeas corpus act
of 1863, the Circuit Court of Indiana had
complete jurisdiction to adjudicate upon
this case, and if the judges could not agree
on questions vital to the progress of the
cause they h»d the authority, (as we have
shown in a previous part of this opinion,)
and it was their duty to certify those ques
tions of disagreement to this court ior 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 deten
and their .ghts ukht he prejudiced by the j
answer which should be given to those, pies :
tions. But ties < art anno; know what
return w.. he ma * to .La writ of habeas
con ; - id:k vk ua and It is very dear
I tW im sSr. iS , i • w e 2 upor say question
th it may t ra* 5 -" « that return,' In the
a certificate ui’ division, a final decision
j means final upon tlie points certified.;
j final upon the corn" below, so that it is
j stopped from any adrerse ruling in all the
subsequent proceedings, of the cause. But
it is said that this ca;e is ended, as the pre,
sumption is that Milligan was hanged in
pursuance of the order of the President.
Although we have no judicial information
on 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 hs case.
In can never be in this country of writ
ten constitution and laws, with a judicial
department to Interpret them, that any
Chief Magistrate would be so far forgetful
of his duty as t i> order the execution of a
man who denied the jurisdiction that tried
and convicted kirn, after his case was before
Federal judges, with power to decide it,
who, being unable to agree upon the grave
questions involved,had, according to known
law, sent it to the Supreme Court of the
United States fur decision. But even the
suggestion is bjurious to the Executive,
and we dismiss it from further considera
tion. There is, therefore, nothing to hin
der this court from an investigation of the
merits of this controversy.
The controlling question in the case is
this: Upon :he facts stated in Milligan’s
petition, and the exhibits filed, had the
military commission mentioned in it juris
diction legal’y to try and sentence him'?
Milligan, net a resident of one of the re
bellious States, or a prisoner of war, but a
citizen of Indiana for twenty years past,
and never in the military or naval service,
is, while at his,home, arrested by. the mili
tary power of the United States, imprison
ed, and, on certain criminal charges pre
ferred against him, tried, convicted, and
sentenced to be hanged by a military com
mission 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 pun
ish 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 ac
cording to law. The power of punishment
is alone through the means which the
laws have provided for that purpose, and
if they are ineffectual there is an immuni
ty from punishment, no matter how great
an offender the individual may he, or how
much his crimes may have shocked the
sense of justice of tlie country or endanger-
I 1 By the protection of tbe
ui iai r an ■ cut - \ thdqsrt
■hat protect.* . and they are at iho mercy
.4 wicked ru. !'?., or the clamor f an ex
qted i-uupii if ili re was law to justify
; this OfAbtarytrr:' -Lwi •• ;; r...>r,, to
' int feio :b. •• ■> > tu.. it i. ■■ ’•»
to dec'a;., Die nullity ol the wtioie pro
, ccedings, The. decision of this question
dues not depend on argument or judicial
precedents, numerous and highly illustra
tive 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 Gov
ernment were familiar with the history of
that struggle, and secured in a written
constitution everyriglit which the people
had wrested from power during a contest
of ages. By that constitution, and the
laws authorized by it, this question must
;be determined. The provisions of that in
| strument on the administration of criminal
justice arc too plain and direct to leave
room for misconstruction or doubt of their
true meaning.. Those applicable to this
case are found in that clause of the origin
al Constitution which says, “that the trial
of all crimes, except in ease of impeachment,
shall be by jury;” and in the fourth, fifth
and sixth articles of the amendments. The
j fourth proclaims the right to be secure in
! person and effects against unreasonable
search and seizure ; and directs that a ju
dicial warrant shall not issue “without
I proof of probable cause supported by oath
;or affirmation.” The fifth declares “that
no person shall be held to answer for a
I capital or otherwise infamous crime unless
> on presentment by a grand jury, except in
j cases arising in the land or naval forces, or
in the militia, when in actual service in
! time of war or public danger, nor be de
; prived of'life, liberty, or property without
1 due process of law.” And the sixth guar
! antees the right of trial by jury in such
| manner and with such regulations that
with upright judges, impartial juries, and
an able bar, the innocent will be saved and
the guilty punished. It is these words :
“In all criminal prosecutions the accused
shall. enjoy the right to a speedy and pub
lic trial by an impartial jury of the State
and district, wherein the crime shall have
been committed, which district shall have
been previously ascertained by law, and to
be informed ol' the nature and cause of the
accusation, to be confronted with the wit
nesses against them, to have compulsory
process for obtaining witnesses in his favor,
and to have the assistance of counsel for
his defence. These securities for person
al liberty thus embodied, were such as
wisdom and experience had demonstrated
to be necessary lor the protection of those
accused of crime. And so strong was the
sense ofthe country of their importance,
and so jealous were the people that these
rights, highly prrized, might be denied ■
them by implication, that when the origi
nal Constitution was proposed for adop
tion, it encountered severe opposition, and,
but for the belief that it would be so
amended as to embrace them, it would
never have been ratified.
Time has proven the discernment of our
ancestors; for even these provisions, ex
; pressed in such plain English words that it
! would seem the ingenuity of men could not
j evade them, are now. after the lapse of
: piore than seventy years, sought to be
■ avoided. Those great and good men fore
saw that troublous times wouid 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 be
in peril, unless established by irrepealable
law. The history of the world had taught
them that what was. done in the past
might be attempted in the future. The
: Constitution of the United States is a law
j for rulers and people, equally in war and
: in peace, and covers with the shield of its
protection ail classes of men, at all times, 1
and under ali circumstances. No doctrine
involving more pernicious consequences
was ever invented by the wit of man than
that any of its provisions can be suspended
during any of the great exigencies of Gov
' eminent. ‘ Such a doctrine leads directly |
to anarchy or dc.-p-rism, but the theory of
necessity on which it is based is false ; for ■
the Government, within the Constitution,
has all the powers granted to it which are
necessary to preserve its existence, as has
: been happily proved by tbe result of the
! great effort to throw off its just authority.
: " Have aDy of the rights guaranteed by j
the Constitution been violated in the case ,
j of Milligan ? and if so, what . are they ? J
j Every trial involves the exercise of judl- ’
; cial power; and from what source did the i
i military- commission that tried him derive ;
their authority'.'’ Certainly no part of the j
j judicial power of the country was conferred
on them, because the Constitution ex
p*es_-]y vests it “in one Supreme Court '
and such intern,, courts as the Congress
may from time to time ordain and estab- ,
! fish.”, and it is not pretended that the j
mmn ,; "on was a court ordained and es
tablishedby Congre-A- They cannot jus- !
tify on the mandate of the president, b®"
cause he is controlled by law, and has ins
appropriate sphere of duty, which is to ex
ecute. not to make the laws; and there is
“no unwritten criminal code to which re
sort can be had as a source of jurisdie- ;
tion.” But it is said that the jurisdiction
is complete under the “laws and usages oi j
war. ’ ’ It can serve no useful purpose to i
inquire what those Jaws and usages are, I
whence they originated, 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 aud their
process unobstructed. This court has
judicial knowledge that in Indiana the
Federal authority was always unopposed,
aud its courts always open to hear criminal
accusation aud redress grievances; and no
usage of war could sanction a military
trial there for any offence whatever of a
citizen in civil life, in no wise connected
with the military service. Congress could
grant no such power ; and, to the honor of
our national legislature he it said, it has
never been provoked by the state of the
coutry even to attempt its exercise. One
of the plainest constitutional provisions
was, therefore, infringed when Milligan
was tried by a court not ordained and es
tablished by Congress, and not composed
of judges appointed during good behavior.
Why was not delivered to the Circuit
Court of Indiana, to be proceeded against
according to law ?
2S o reason of necessity could be Urged
against it, because Congress has declared
penalties against the offences charged,
provided for their punishment, and direct
ed that court to hear and determine them.
And soon after this military tribunal was
ended the Circuit Court met, peacefully
transacted its business, and adjourned. It j
needed no bayonets to protect it, and re- |
quired no military aid to execute its judg- j
ments. It was held in a State eminently i
distinguished for patriotism by judges
commissioned during the rebellion, who
were provided with juries, upright, in
telligent, and selected by a marshal ap
pointed by the President. The Govern
ment had no right to conclude, that Milli
gan, if guilty, would not receive in that j
court merited punishment for its records
disclose that it was constantly engaged is
the trial of similar offences, and was never
interrupted in its administration of crimi
nal justice. If it was dangerous in the
distracted condition of affairs to leave
V :,,: unresti-aineu ;f liberty L !
j cans, he “conspired against the Govern- j
' ment. afforded aid and comfort to rebels. .
• oid Incited the people to insurrection.” i
the hi. said arrest him confine him closely, J
■ (.aider biu\ p- cries - to do further m; -- j
i grand i icy of the district, with proof, ,-f *
mg to tlie course 01 the common law. 1.
this had been done the Constitution would
have been vindicated, the law of 1861 en
forced, aud the securities for personal
liberty preserved and defended.
Another guaranty of freedom was broken
when Milligan was denied a trial by jury.
The grands minds of the country h ave differ
ed on the correct interpretation to be given to
various provisions of the Federal Constitu
tion ; 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 against the power of at
tack. 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 pre
served to every one accused of crime who
is not attached to the army or navy, or
militia in actual service. The sixth
amendment affirms that “in all criminal
prosecutions the accused shall enjoy the
right to a speedy and public trial by an
impartial jury,” language broad enough to
embrace all persons and cases ; but the
fifth, recognizing the necessity of an in
dictment, or presentment, before any one
can be held to answer for high crime,
“excepts cases arising in the land or naval
forces, or in the militia, when in actual
service, in time of war or public danger
and the framers of the Constitution doubt
less meant to limit the right of trial by
jury in the sixth amendment, to those per
sons who were subject to indictment or
presentment in the filth.
The discipline necessary to the efficiency
of the army and navy require other and
swifter modes of trial than are fur
nished by the common law courts; and, in
pursuance of the power conferred by the
Constitution, Congress has declared the
kinds of trial, and the manner in which
they shall be conducted, for offences com
mitted 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
has created for their government, and,
while thus serving, surrenders his right to
he tried by the civil courts. All other
persons, citizens ts States whore the courts
are open, if charged with crime, are guar
anteed the inestimable privilege of trial by
jury. This privilege is a vital principle,
underlying the whole administration of
criminal justice ; it is not held by suilrance,
and cannot be frittered away on any plea of
State or political necessity. When peace
prevails, and the authority of the Govern
ment is undisputed, there is no difficulty of
■ : i . ' U,- sal, .. . ;■ .a Lbcrty; for
the ordinary modes of trial are never
neglected, and no one wished it otherwise.
But if society is disturbed 1 civil coimuo
.... ; r-- -.f > • v ‘ilfVl'-i if . •
should receive, the watchful care oi those ;
entrusted with the guardianship of the |
Constitution and laws, In no other way j
can we transmit to posterity unimpaired’
the blessings of liberty, consecrated by the j
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 tho commander
of an armed force (if in his opinion the exi-.
gencies of the time demand it, and of
which he is to judge) has the power, within
the lines of his military district, to suspend
all civil rights and their remedies, and sub
ject citizens as well as soldiers to the rule
of his will; and in the exercise of his law
ful authority cannot he restrained, except
by his superior officer or the President of
the United States. _ If his position is sound
to the extent claimed, then when war
exists, foreign or domestic, and the coun
try is sub-divided into military departments
for mere convenience, the commander of
one of them can, if lie chooses, within his
limits, on the pica of necessity, with the
approval of the Executive, substitute mili
tary force for and to the exclusion of
the laws, and punish all persons as he
thinks right and proper without fixed or
certain rules.
The statement of this proposition shows
its importance; for, if true, republican
government is a failure, and there is an
end of liberty regulated by' law. Martial
law, established on such a basis, destroys
every guaranty of the Constitution, and
effectually renders the “military independ
ent of and superior to the civil power”—
the attempt to do which by the King of
Great Britain was deemed by our fathers
such an offence that they assigned it to the
world as one of the causes which impelled
them to declare their independence. Civil
liberty and this kind of martial law cannot
endure together; the antagonism is irre
conc-ible, and in the conflict one or the oth
er must perish.
This nation, as experience has proved,
cannot always remain at peace, and has no
right to expect that it will alwaj's have
wise and humane rulers, sincerely attached
to the principles of the Constitution.
Wicked nien, ambitious of power, with ha
j tred of liberty, and contempt of law, may
I fill the place once occupied by Washington
and Lincoln; and, if this right is conceded,
! and the calamities of war again befall us.
: the dangers to human liberty are frightful
i to contemplate. If cur fathers had tailed
I to provide forjustsueha contingency, they
j would have been false to the trust reposed
iin them. They knew —the history of the
world told them—the nation the/ were
founding, be its existence short or long,
would be involved in war —how often or
how long continued, human loresight could
not tell —and that unlimited power, wher
ever lodged at such a time, was especially
hazardous to freemen. For this and other
equally weighty reasons, they secured the
inheritance they had fought to maintain, ]
by incorporating in a written constitution ,
the safeguards which time had proved es- j
sential to its preservation. Not one of j
these safeguards can the President, or !
Congress, or the judiciary disturb, except!
the one concerning the writ of habeas eor
pus. _
It is essential to the safety of every gov
ernment that, in a great cricis like the one
we have just passed through there should be
a power somewhere of suspending the writ
of habeas corpus. In every war there are
men of previously good character, wicked
enough to counsel their fellow citizens to
resist the measures deemed necessary by a
good government to sustain its just
authority and overthrow its enemies, and
their influence may lead to dangerous com
binations. In the emergency of the times
an immediate public investigation, accord
ing to law, may not be possible; and yet
j the peril to the country may be too immi
nent to suffer such persons to go at large.
Unquestionably, there is then an exigency
which demands that the Government, if it
should see fit, in the exercise of a proper
discretion, to make arrests, should not bo
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 he shall be tried otherwise
than by tjie course of the common law;
. if it had intended this result, .it was easy,
by the use of direct words, to have accom
plished it. The illustrious men who
framed that, instrument were guarding the
foundations of civil liberty against toe
obuses of unlimited power; they were
: full of wLuCT, the lessons of history
, informed them that a triai uy • j
lisbed court, assisted by an impartial jury,
was the only sure way of protecting tne j
citizen against oppression and wrong.
Knowing this, they limited toe suspension
to one great right, and left tne rest to re
main forever inviolable. Put it is insisted j
that the safety qf the country in timeof;
war demands that this broad claim lor
martial law shall be sustained, it tins
were true, it would be weii said tnat a
country preserved at the sacrifice of ai! the j
cardinal principles of liberty is not worth ;
the cost of preservation. 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 and civil authorities are over
thrown. 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 insur
rection. The jurisdiction claimed is much
more extensive. The necessities of the
service, during the late rebellion, required
that the loyal States should be placed with
in the limits of certain military districts,
and commanders appointed in them ; and
it is urged that this, in a military sense,
constituted them the threatre of military
| operations, and, as in this case, Indiana
had been and was again threatened with
invasion by the enemy, tlic occasion was
i furnished to establish martial law. • The
i conclusion does not follow from the pre
mises. If armies were collected in Indiana,
they were to be employed in another locali
ty, where laws were obstructed and the
national authority disputed. Ou 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 threatened invasion.
The necessity must be actual and present;
the invasion real, such as effectually closes
the courts aud deposes the civil administra
tion.
It is difficult to see how the safety of the
country required martial law in indiana.
If any of her citizens were plotting treason,
the power of arrest should secure them
until the Government was prepared for
their trial, when the courts were open and
ready to try them. It was easy co protect
witnesses before a civil as a military tri
bunal; and as there could be no wish to
convict, except on sufficient legal 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, front what has been said on
this subject, that there are occasions
it in foreign invasion or civil war the
courts are actually closed, and it is iuipos
ing to law, til' n on the theatre of c
military operations where war really
vails, there if a necessity L > furnish a sub
thrown- to preset-;, the tcly of the army
utlu eociCty , UiiU iib ixO l it
the military, it is allowed 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 o/tcr s the courts are rein
stated, it is a gross usurpation of power.
Martial rule can never exist, where the
courts are open, and in the proper and un
obstructed exercise of their jurisdiction.
It is also confined to the locality of actual
war. Because during the late rebellion 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 authority was never disputed, and
justice was always administered. And so
in the case of a foreign invasion, martial
rule may beome.a necessity in one State,
when in another it would be “more law
less violence.” YVe are not without pre
cedents in English and. American history,
illustrating our views of this question ; but
it is hardly necessary jto make particular
reference to them.
From the first year of the reign of Ed
ward the Third, when the Parliament of
England reversed the attainer of the Earl
of Lancaster, because he could have been
tried by the courts of the realm, and de
clared “that in time of peace no man
ought to be adjudged to death for treason
or any offence without being arraigned and
held to answer, and that regularly when
the King’s courts are open it is a time of
peace in judgment of law,” down to the
present day, martial law, as claimed in this
ease, has been condemned by all respecta
ble English jurists as contrary to the fun
damental laws of the land, and subversive
of the liberty of the subject.
During the present century an instruc-.
tive debate on this question occurred in
Parliament, occasioned by the trial and
conviction by court martial, at Demarara,
of the Rev: John Smith, a missionary to
the negroes, on the alleged ground of a
aiding and abetting a formidable rebellion
in that colony. These eminent statesmen,
Lord Brougham and Sir James Macintosh,
participated in that debate, and denounced
the trial as illegal, because it did not appear
that the courts of law in Demarara could
not try offences, 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 state of siege when Gen.
Gage issued his proclamation of martial
law, they spoke of it as an “attempt to
supersede the c. urse
and instead thereof to publish and ardor
the use of .marital law Tin V irginia
' Tv ' low° \ • Whidb the ' line " himself
lof the land and introduces in most us."
| crable of all systems, waau: .a a.
i In some parts of the country, during the
war of 1812, our officers made arbitrary ar
rests, and by military tribunals tried citi
zens who tvere not in the military service.
These arrests and trials, when brought to
the notice of the courts, were uniformly
condemned as illegal. The cases of Smith
vs. Shaw, and McConnell vs. Hampton ,
(reported in 12 Johnson,) are illustrations
which we cite, not only for the principles
they determine, but on account of the
distinguished jurists concerned in the de
cision, one of whom for many years occu
pied a seat on this bench.
It is contended that Luther vs. Berden
decided by this court is an authority for
the claim of martial law advanced in this
case. The • decision is misapprehended.
That case grew out of the attempt in
Rhode Island to supersede the old colonial
government by a revolutionary proceeding.
Rhode Island, until that period, had no
other form of local government than the
charter granted by King Charles 11, in
1803, and as that limited the right of suf
frage, and did not provide for its own
amendment, many citizens became dissat
isfied because the Legislature would not
afford tbe relief in their power, and with
out the authority of law formed anew and
independent constitution, and procedcd to
assert its authority by force of arms. The
old government resisted this, and as the
rebellion was formidable, called out the
militia to subdue it, and passed an act de
claring 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
against Borden, and the question was,
whether, under the constitution and laws
of the State, Borden was justified. This
court held that a State “may use its mili
tary power to put down an armed insurrec
tion too strong to be controlled by the civil
authority,” and if the Legislature of Rhode
thought the peril so great as to require the
use of its military forces and the declara
tion of martial law, there was no grouud
on which this court could question its au
thority, and as Borden acted under milita
ry orders of the charter government, which
had been recognized by the political power
of the country, and was upheld by the
State judiciary, he was justified in breaking
into and entering Luther’s house. This is ,
the extent of the decision. There was no
question in issue about the power of de
claring martial law under the Federal Con
stitution, and the court did not consider it
necessary even to inquire “to what extent
nor under what circumstances that power
may be exercised by a State.”
YV r e do not deem it important to exam
ine further the adjudged cause; and shall,
therefore, conclude without any additional !
reference to authorities. To the third
question, then, On which the judges below j
were opposed in opinion, an answer in the j
negative must be returned.
It is proper to say, although Milligan’s
trial and conviction by, a military com
mission was illegal, yet, if guilty of the
crimes imputed to him, and his guilt had
been ascertained by an established court
and impartial jury, he deserved severe
punishment. Open resistence to the
measures deemed necessary to subdue a
great rebellion by those who enjoy the pro
tection of government, and have not the
excuse even of prejudice of section to plead
in their favor, is wicked; but that re
sistance becomes an enormous crime when
it assumes the form of a secret political
organization armed to oppose the laws,
and seeks by stealthy means to introduce
the enemies of the country iuto peaceful
communities, there to light tue torch of
civil war, and thus overthrow the power of
the United States. Conspiracies like these,
at such a juncture, are extremely perilous;
and those concerned in them are dangerous
enemies to their country, and should re
ceive the heaviest penalties of the law, as
an example to defer others from similar
criminal conduct. It is said the severity
of the laws caused them; but Congress
was obliged to enact severe laws to meet
the crisis ; and as our highest civil duty is
to serve our country, when in danger, the
late war has proved that rigorous laws,
when necessary, will be cheerfully obeyed
by a patriotic people, struggling to pre
serve the rich blessings of a free govern
ment.
The two remaining questions in this case
must be answered in the affirmative. The
suspension of the privilege of the writ of
habeas corpus does not suspend the writ
itself. The writ issues as a matter of
course; and on the return made to it, the
court decides whether the party applying
is denied the right of proceeding any !
further with it.
If the military trial of Milligan was !
contrary to law, then he was entiUeJ, on j
the facts stated in jiis petition, to be _dis- :
charged frbm custody by the terjhs of the j
act of Congress of March 3, 1843. The pro
visions of this law having been considered
in a previous part of iAts opinion, we will not '
restate the views there presented. Milli
gan avers he was a citizen of Indiana not j
in the military or naval service, and was
detained in close confinement, bv order of |
the Pres;.:, nt, from Hie nth day of October,
lfM> 1, until tiie 2d day of February, 1805,
when the Circuit Court for tho District of
Indiana, with a grand jury, convened in
session at Indianapolis, anil afterwards, ou
the 27th day of the same month, adjourned
without finding an indictment or present
ment against him. If these averments
were true, (and their truth is conceded for
the purposes of the case,) tlie court was re
quired to liberate him on taking certain
•oaths prescribed by the law, and entering
into recognizance for his good behaviour.
But it is insisted that Milligan was a
prisoner of war, and, t here fore, excluded
from the privileges of the statute. It is
not easy to see how he can be treated as a
prisoner of war, when he lived in Indiana
for the past twenty years, was arrested
there, aud had not'been, during the late
troubles, a resident'of any of tho States in
rebellion. If, in Indiana, he conspired
with bad men to assist the enemy, lie is
punishable for it in the courts of Indiana;
but, when tried for the offence, he cannot
plead the rights of War, for he was not en
gaged in legal acts of hostility against the
Government, and only such persons, when
captured, are prisoners of war. If ho can
not enjoy the immunities attaching to tlie
character of a prisoner of war, how can he
be subject to their pains and penalties ?
" This case, as well as the kindred eases of
Bowles and Horsey, were disposed of at
the last term, and tne proper orders were
entered of record. {There is, therefore, no
additional entry required.
FROM WASHINGTON.
r lhe Mdligan Case—The Chronicle and the
jV ie York Herald on the Decision of the
Supreme Court —The Ex-Dolice Com
missioners of Baltimore —Conover and
Surratt—Appropriations for the Frced
tnen’s Bureau—A Mysterious Paragraph.
Washington, December 30, 1866.
Among not the least conclusive evidences
that the Radicals feel themselves complete
ly cornered, is the daily resort of their
organs to naked lying, and in a manner
that the falsehood uttered is not attempted
to be hid by any pretence to circumlocution
or ambiguous phraseology. In referring
to the President's conversation with Mr.
\\ eathwhy, of South Carolina wherein he
is alleged to have expressed confidence
from the recent decision of the Supreme
> jun, that he wiil be sustained by that
law-abiding body, the Jacobin mouth-piece
“Here » h.-v.-g at a glance another c-vi ,
donee oi .lie lat;.l tonuencv of the recen
(icci.-.-UiOi i 1 ■ Mirremoi.-ourt, oy <i ‘"i ntj
oj one im(u, that iheie is noway Iv*union
a large class of guilty traitors save l>y civil
trials, and that all former trials of this
kind were illegal. ’ ’
And its coadjutor, the bribed Herald,
simultaneously thus utters the samWfiin
blushing falsehood : “The issue, in the
appeal from Congress to the people, lias
been decided by the people against the
President’s policy and in favor of Congress.
Can the Supreme Court reverse tho de
cision of the war and of the people of tlie
loyal States? If so, then one man of the
Supreme Court holds the destinies of this
country, peace or war, subject to his ipse
dixit, for it appears that upon this late
Milligan decision the Court was divided five
to four."
In the articles from which these extracts
are taken, the decision in the ‘'''Milligan
case," and the Judges who rendered it, are
unmeasuredly abused, but it suited the
purposes of these paid liars, as well to les
sen the weight of the judgment as to ex
clude certain Judges from their censure, to
represent the Court as divided, and the
one consequently deelares that the decision
that there is no ivay to punish civilians save
by civil trials, was made "by a majority of
one man,” and the other that "it appears
that upon this late Milligan decision the
Court was divided Jive to four." Now
Bonnet and Forney both knew when these
declarations were penned that they were
naked falsehoods; they knew that the
Court was unanimous in the decision of
the case at bar, unanimous in the judge
ment that no civilian can be lawfully tried
for any offence except by a civil tribunal,
and unanimous in the opinion that “ all
former trials of this kind were illegal.”
They also'well know that every denunci
ation they have levelled at the Court, and
every opprobious epithet they haveapplied
to the Judges, collectively or personally,
applied with equal force to Chief Justice
Chase as to Judge Davis. Yet in such
contempt do they hold the intelligence and
love of truth of their patrons and their
party, that such shameless falsehoods are
reiterated daily in the face of the fact that
every reader must know them to be so.
A telegram.from your city announces the
withdrawal of the prosecutions against the
insurrectionary Police Commissioners. —
What influence prevailed in this action, or
rather want of action, is unknown here,
but your friends feel somewhat chagrined
at this seeming lack of “earnestness;”
and feel fearful that it indicates a for
bearance wholly unsuited to the enormity
of tho offences committed against the
neople of Maryland, for the past few years,
j a miserable minority oi tiie itie«Tn/cro > \
| tive*. The people of the District » >,’ 5 • 5
' (H..U imitated—they \srfffiw v - Ghirm Ilk
intolerance or revengeful proscription', but
they wore led to hop. that the laws would
oc suffered to take .heir course, -and to
that extent that the insurrectionists might
be punished, and insurrection made odious.
It is though t that the time is near at hand
when an offensive policy may not only he
deemed safe, but when the Constitutional
party may come to the conclusion that it is
eminently expedient.
No day has yet been assigned for the
argument before the Court of this District
of tho demurrer in tho case of Conover.
Surratt is expected to arrive here about
the Ist proximo. Many rumors are afloat
respecting official action in these eases.
But suffice it to say that they all point to
tho probability of a triumph of justice in
the end. It is not thought possible further
to carry on the farce of “ conspiracy,” and
it will most likely be suffered to die away
—to be gradually dismissed from the
public mind—finally to become as “last
year’s clouds. ” -Per contra, a contempo
rary, speaking of these cases, says :
“Put Surratt in the witness box, with his
life the price of his testimony, and Conover
would appear an angel of truth beside him.
Try him on honest evidence before an im
partially empanneled jury, giving him
counsel good and true, and a ray of truth
may pierce the double conspiracies of
Booth on the one hand and of Conover or
his bosses on the other. Which will be
done? Will Surratt bs punished, or will
Surratt be used ? In tho struggle over him,
between Anglo-Saxon justice and Machia
vellian craft, which is likely to prevail?
Time alone can determine; but while
awaiting the determination our knowledge
of the past affords, alas ! too little ground
of hope for the future.”
Among the items of appropriation for
the present fiscal year there is one of over
fifty millions of dollars for the support of
the Frcedmcn’s Bureau. Notwithstand
ng this vast amount, (which is more than
the whole expenses of the Government per
annum in Jackson’s time, and' twice as
much as in any year of Mr. Adams’ ad
ministration) the mendicant negroes in our
streets number thousands, excluding those
who pretend to be in search of employ
ment.
_ The Sunday Morning Herald of this
city has the following mysterious para
graph :
“The United States steamer Gettysburg
left Annapolis, Maryland, on Christmas
night, with all possible secresy, and with
persons on board who are said to be pro
minent men in the councils of the nation.
She is believed to have intended visiting
Mexico or the West Indies for political
purposes, and it is said that Admiral
Porter and Federick Seward were on
board. On her way out, however, she
ran aground at Horn Point, and has not
been got off since. Iler passengers were
landed, and the expedition, whatever it
was, has been abandoned for the present.”
The Congressional Investigating Com
mittee at New Orleans heard the evidence
of Mayor Monroe, Jacob Baker, and Judge
Roselius on Friday. They testified that a,
Union mans life was just as safe there as
it is in Boston. —Correspondent Baltimore
Gazette.
Supreme Court Decisions.
[RETORTED EPECIALLY FOR THE CHRONICLE &, SESTIJTBI* BT
Walker J.
Complaint from Jones.
Clark,
vs.
Green.
1. The relation of landlord and tenant is
necessary to sustain an action for U3e and
occupation.
2. The possession, by defendant in Ufa,
of land sold by the Sheriff as his f properly,
creates the relation of landlord and tenant
between him and the purchaser, in the
absence of any proof to the contrary.—
Judgment affirmed.
Judge Cabiness for Plaintiff in error.
W. Poe, for defendant.
Anecdote op General Lee.-— General
Longstreet lately related the following an
! eedote.in Texas: “On one occasion, Gen
! eral Leo called Colonel L. one of his staff
■ officers into hi3 tent, and commenced dic
| taring while Colonel L. wrote. Colonel L.
| had in his mouth a pipe* and was smoking.
\ The General inhaled the noxious vapor un
-1 til his patience became exhausted, andthen
1 said, ‘Colonel L., you can retire, and send
Ime Colonel M.; he does not smoke. Colo
| nol L. retired, and in a few minutes Colo
nel M. entered, to whom the General com
menced dictating, but after inhaling the at
mosphere«of the tent for awhile ho discov- :
ered it to be considerably impregnated, not j
with the perfume of roses, but the odious j
smell of villianous whisky, which he could |
not stand.* ‘Retire Colonel M. and send j
me an officer who neither drinks nor I
smokes; I would rather endure the smoke i
of tobacco than the smell of whisky.’”
The Protestant Churchman is to be re
established in New York, under the editor
ship of Rev. Drs. .J. Cotton Smith, S. It.
Tyng, Butler of Philadelphia, and others,
opposed to the ritualistic party of the Pro
testant Episcopal Church.
News and Other Items!
TTnn. John R*]l n f Tcnn- -see is
quite feeble health.
•' N - ' ■ Wi'dis may recover from his ill
ness, but ms literary labor is over.
General Francis P. Blair, Jr , succeeds
Sl* “ Com-
J£Z7*£!Zg‘ d ” s a « “ and hia
tlirkS? l “ 1 ‘“ happy?
i.’&ssg'snj ssr
$500,000. VlUg ex Ponses
There are now eight hundred barrels of
outers consumed m New Orleans in one
pS k as -, been commenced against the
1 acme Railroad Company for forfeiture of
the road° U C ° Unty boudli issuoJto complete*
Solomon advises the .sluggard to go to
the ant, but the shiftless in our davs gen
erally go to their uuelc. J h
A placid old lady in England gave
Home, the spiritualist, £24,000 in consols.
That is eonsol-ing to Home. —Boston
Post.
A Congressional prayer-meeting society
has been organized. May it prove benefi
cial.—Boston Post.
When Congressmen pray they prey upon
the treasury.— Louisville Journal.
A clock is said to have tho least
selt-estecin ot any article of manufacture
as it is constantly running itself down and
lidding its hands before its face, however
good it works.
A h©.\ who had heard of sailors heaving
up anchors, wanted to know if it was sea
sickness that made them do it.
A young lady is charged with having
said that it a cart wheel has nine felloes,
it sa pity a pretty girl like her can’t have
one.
Bi>h.<p Green. MLsmripi i ’ wrtiten
•> pastoral ’otter to to the 'C*>urch and
Laity oj that Mate, r, which b iamends
the subject of negro edit .-.lion.
. ' " i officers, in which
. "•’inn legethtir. «ne victor d‘ l sta, was
' a; i> qo. ,UO:i wns ills : iieed to
Austrian fleet i» t ‘ Gulf of
” ’opposition cted by
a large majority.
“ Your conduct is very singular, sir,”
said a young lady to the gentleman who
had just kissed her. “Oh ! well, my dear
miss, I will soon make it plural.”
Beauty, as the flowering blossom, soon
fades, but the divine excellency of the
mind, like tho medical virtues of the plant,
remains in it when all the charms are
withered.
An exchange says that “ editors should
be ever watchful.” Then they must do
better than the Disciples did, who could
not “ watch one hour.”— Prentice.
An English Judge, iu charging the jury
in a railway case, said that lie thought that
the 1 (lowing of tobacco smoke in the face of
a fellow railway passenger might be con
sidered an assault.
Mary—“ Charles, dear, now that we are
married, you know, we must have no
secrets. So, do, like a dove, hand me that
Lottie of hair dye you will find in my
dressing-case. ’ ’
At a celebration of a marriage, a large
number of young ladies were present, the
minister said ; “ Those who wished to he
joined in the holy bonds of,matrimony will
please stand up,” aud all the young ladies
arose.
The Alderman who was lately in jured by
the accidental discharge of his duties, is
reported to be in a fair way of recovery,
lie says he’ll never be caught in that way
again while in the full possession of his
senses.
When has a lady more water in her sys
tem than when she has a cataract in her
eyes, a creek in her back, a waterfall on
her poll and her shoes high-tied? When
she has an oeeau on her head.
An Irishman was asked what was his re
ligious belief. “Is’t me, bedade, ye’d be
asking about ?” said he. “It’s the same
as the widow Brady. I owe her thwelve
shillings, and she belaves I 11 never pay
her, and faith that’s my belafe, too.”
Dryden was so bound up in his books
that his wife one day exclaimed : “I wish
I were a book that I might always be in
your society. ” “I wish you were an al
manac, so I could change you every year,”
replied he.
In the execution of two negroes for high
way robbery at Wilmington. North Caro
lina, on Friday, the rope on the neck of
one became misplaced, and he struggled
through a gradual suffocation for half an
hour.
A monument is to bo erected over the
r hfr fbief Juctinc Hr-,- B.
1 •?• • 1 n-d ini he Catholic tVine
at *r- ; „ i*f ML Li K' Mm : hall
anu Hugh ’• Em. inch : Tivder-
WM MBH»K* -■ : tve i; tb movement.
old bis
brother, ti t ■ i< roj ol Egypt, foi the -mu
oi tiiry millions ot I'i aues, the wholt of the
property which he possesses in that coun
try. The commission to the bankers who
negotiate the transaction will be scarcely
less than three millions.
A certain writer says, “no fragment of
an army ever survived so many battles as
the Bible; no citadel ever withstood so
many sieges ; no work was ever battered
by so many hurricanes and so swept by
storms. And yet it stands. ’ ’
Miss Susan Denin, the well known ac
tress, has married again, this time to a
well known young man named Peter Cur
ley. An exchange says this is the fourth
or fifth time that the “festive” Susan has
been married.
Colfax for President, and Gen. Howard,
(Freedmen’s Bureau) tor Vice-President,
have been hitched together for the next
Presidential race, by some of the New
York political jockeys.
r lhc Hon. Gustavus A. Henry and wile,
both of Tennessee, were passengers on tho
ill-fated steamboat Eashton, winch was
burned last Wednesday, twenty miles
above Itayou Sara, and by which disaster
twenty lives were lost. Their fate is not
yet known.
Mr. Joseph Segar writes to the Balti
more Sun that he never undertook to
make any authoritative statement or
pledges as to the future action of the Vir
ginia Lesislaturo, on the question of the
Constitutional amendment.
A Roman paper says of the French Em
peror, “Napoleon the Third has fallen
back ;he is lost. He has retreated from
Poland from fear of Russia; ho has re
treated from Germany from fear of the
needle-gun ; lie lias retreated from Mexico
from fear of the United States; he has
retreated from Rome from fear of (Jr.-ini
and Mazzini.”
General Butler says that President
Johnson “doc,-; not like to show his hand.”
Mr. Prentice adds : “If he were to show
both his hands and all his pockets, and the
inside of his lint, his cock-eyed assailant
would see no silver spoons in them.”
“Shall ladies have votes?” asked a
stump speakei. “Certainly,” replied a
strong-minded woman in the audience.
“Is woman made only to sew on but
tons? And, if she is, it is against the
law of nature to turn away the needle from
the poll.”— Exchange.
The artesian wells of Greeneile and Passy,
France, now emit volumes of steam ; the
temperature of the waters, which rise from
the depth of two thousand three hundred
feet, reached eighty-five degrees Faren
heit, while that at the surface by night i3
only thirty-five or thirty-six.
A father out West kicked his daughter’s
lover into the street, and the lover reveng
ed himself by causing a stick of wood filled
with gunpowder to be placed in the old
gentleman’s stove—effect to bo imagined.
The Empress Eugenio has sent to M.
Earnest Mouton, pupil at the Louis Napo
leon College, at Compiegne, a magnificent
gold watch and chain, as a souv uir of the
verses which he recited to her Majesty on
her fete day.
A* man who was reading in a paper a.i
account of the destruction of some gbi
houses at the South, remarked to a friend •
“Well, 1’ ui a good temperance man, and
do not care how many gin-houses are burn
ed ; but if is too bad for these Southern
ers to burn them, when they belong to the
people of the North.”
The Mayor of a town in the west of
England, questioning the boys at the rag
ged schools asked them what were pomps
and vanities of this wicked world ? A lit
tle boy said—“ The Mayor and corporation
going to church, sir. ”
A special correspondent from Washing
ton says, it is fully agreed that anew
President, pro tern., of the Senate, in place
of Foster, shall not be selected until along
in February. It was at one time con
templated to have an election immediately
after the holidays.
A paper asks very innocently it it is any
harm to sit in the lapse of ages. Another
replies that it all depends on the kind of
ages selected. Those from eighteen to
twenty-five, it put down an extra haz
ardous.
The terms of 4 Union and 10 Disunion
Senators expire with the present Congress
viz: Messrs. Cowan, of Pennsylvania" Mc-
Dougali, of California : Nesmith, of Ore
gon, and Davis, of Kentucky; and the
Disuniomstsare: Sherman, of Ohio; Fos
ter- of Connecticut; Kirkwood, of Iona;
Trumbull, of Illinois; Edmunds, of Ver
mont ; I omeroy and Ross? of Kansas;
Creswell, of Maryland ; Brown, of Mir
soun ; Fogg of New Hampshire; Harris,
e . r k> Lane, of Indiana; Howfi
of Wisconsin, and Nye, of Nevada. To
these vacancies elections have been thus
tar held as follows : Sherman, re-elected ;
Teny, ir, place of Foster; Justin S. . lor
ry!, in place of Edmunds, and James
Harlan, in place of Kirkwood; their poli
tics being the same as those of the letiring
Senators.