CONSTITUTIONAL QUESTIONS IN THE SUPREME COURT OF THE UNITED STATES. THE MILLIGAN CASE, 1867. LAMDIN P. MILLIGAN, a resident of Indiana and a citizen of the United States, was arrested at his home October 5, 1864, by order of the military commandant of his district, and imprisoned at Indianapolis. He was placed on trial October 21st before a "military commission" at Indianapolis, upon charges of "conspiracy against the Government of the United States; affording aid and comfort to rebels against the authority of the United States; inciting insurrection; disloyal practices and violation of the laws of war." Objection to the jurisdiction of the commission was overruled, and Milligan was convicted and sentenced to death by hanging. The sentence was approved by the President, and he was ordered to be executed May 19, 1865. On May 10th, however, a petition was filed by him in the Circuit Court of the United States for Indiana, showing that a grand jury of that Court had convened after his arrest but that no indictment against him had been found; that he had at no time been in the military, naval, or militia service, nor within any State engaged in rebellion against the United States at any time during the war. The petition demanded that Milligan be delivered to the proper civil tribunal to be tried, or discharged from custody. The Acts of Congress bearing upon this case were: 1. The Judiciary Act of 1789, § 14, by which the Circuit Courts are empowered to issue writs of habeas corpus; and 2. The act of March 3, 1863, "relating to habeas corpus," etc., passed during the rebellion. The latter act authorized the President to suspend the writ of habeas corpus during the rebellion, subject to the following limitations: Lists of prisoners, in States where the administration of justice has not been disturbed, are to be presented to the Judges of the United States Circuit and District Courts; and where the grand jury, in attendance upon such Courts, terminates its sessions with. out proceeding against the prisoners, they are to be discharged upon a recognizance to keep the peace, or to appear before the Court when directed. In case the lists of prisoners are not furnished or the grand jury adjourns without indictment, the prisoners are entitled to a discharge upon the conditions mentioned. The President suspended the writ of habeas corpus, by proclamation of September 15th, following this act, in cases where military, naval, and civil officers of the United States, held "persons in their custody either as prisoners of war, spies, or aiders and abettors of the enemy." The principal questions arising in the case were: 1. Ought the writ of habeas corpus to issue? 2. Ought Milligan to be discharged from custody? and, 3. Had the military commission jurisdiction to try and sentence Milligan? The Supreme Court of the United States answered the first two questions in the affirmative, and the last in the negative. Associated with Mr. Field were Judge Black and General Garfield, late Presi dent of the United States. On the other side were the Attorney-General and General Butler. If the Court please— Before I say anything else, let me, on behalf of my brethren and myself, thank the Court for its indulgence, both in respect to the early argument of these cases, and in respect to the time allowed for their discussion. While we are aware that, but for the magnitude of the cases themselves, this indulgence would not have been granted, we are none the less sensible of your courtesy and kindness. Let me say next, that some things have been brought into this discussion which have no proper place in it, and which, for my part, I shall endeavor to keep out of it. I shall presently state what I suppose the question to be; I will first state what it is not: It is not a question of the discipline of camps; it is not a question of the government of armies in the field; it is not a question respecting the power of a conqueror over conquered armies or conquered States. What may or may not be the rightful interference of the military in the States lately in rebellion-to what extent they may go, how long continue, and when and how cease to act-are not questions in this case. Nor is it a question, as my learned friend who opened the cause on the other side (General Butler) stated, what shall be the condition of the emancipated slaves. Their freedom is placed beyond all peradventure by the great constitutional amendment, if we shall be so happy as to preserve the Constitution itself intact and supreme. Nor is it a question how far the legislative department of the Government can deal with the question of martial rule. Whatever has been done in these cases has been done by the executive department alone. It did not wait for Congress to act, and when Congress acted it did not regard its action. When the judiciary acted, it did not respect its mandate. It disregarded the authority of the learned Judge in the First Circuit; it disregarded the authority of the late Chief Justice in the Fourth Circuit; and I believe it is well understood that, if the habeas corpus in these cases had been issued, it would have been disregarded. Nor, may it please the Court, is it a question of the patriotism, or the character, or the services of the late Chief Magistrate, or of his constitutional advisers. It is known to you, sir (addressing the Chief Justice), that I ventured to call myself a personal friend of the late President, and I was happy to believe that he so regarded me. I did not conceal from him my dislike and fear of the extent to which some of his subordinate officers were carrying the military power; but this did not diminish my personal regard for him, nor, as I believe, his friendship for me. His great heart, his forgiving spirit, his sagacious touch of the chords of public sentiment, and his unexampled patience made him a popular idol; and the manner of his death canonized him. He is far above any praise or blame of mine. The quiet grave where he reposes after the storm of this awful conflict will be a shrine for his countrymen, so long as they have a country; and the swarthy race which he did so much to emancipate will visit it in long succession, through uncounted ages, as the burial-place of their deliverer. Nor do we cast any reflection upon the Secretary of War. It has been my fortune to be with him in some of the darkest hours of the tempest, and I can bear personal witness to his indomitable energy, to the erect front which he maintained against all disaster, to his industry which knew no weariness, and to his absolute devotion to the public service. Next to the President himself, and to the illustrious man who organized that gigantic system of finance which carried us through the war without a shock to the public credit, to the amazement of the Old World, and the admiration of the New; next, I say, after the great President and his minister of finance, the country owes more to the Secretary of War than to any other civilian. His services may be, for the time, lost in the blaze of military |