A history of Columbia County, Pennsylvania. From the earliest times., Part 42

Author: Freeze, John G. (John Gosse), 1825-1913
Publication date: 1883
Publisher: Bloomsburg, Pa. : Elwell & Bittenbender
Number of Pages: 594


USA > Pennsylvania > Columbia County > A history of Columbia County, Pennsylvania. From the earliest times. > Part 42


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But it is urged that there must be two parties to the suit, because the point is to be stated upon the request of "either party or their counsel." Such a literal and technical construction would defeat the very purpose tlic 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 construed as words of enlargement and not of restriction. Although this case is here ex parte, it was not considered by the court below without notice having been given to the party supposed to have an interest in 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 Attorney for Indiana, also appeared ; and, by agreement, the application was submitted to the court, who took the case under advisement, and on the next day announced their inability to agree, and made the certificate. It is clear that Mr. Hanna did not represent the petitioner, and why is his appearance entered ? It admits of no other solution than this-that he was informed of the ap- plication, and appeared on behalf of the Government to contest it. The Government was the prosecutor of Milligan, who claimed that liis im-


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prisonment was illegal; and sought, in the only way he could. to recover his liberty. The case was a grave onc; and the court, unquestionably, directed tliat the law officer of the Government should be informed of it. He very properly appearcd, and, as the facts were uncontroverted and the difficulty was in the application of the law, there was no uscfnl pur- pose to be obtained in issning the writ. The cause was, therefore, sub- mitted to the court for their consideration and determination. But Milli- gan claimed his discharge from custody by virtue of the act of Congress "relating to habeas corpus and regulating judicial proccedings in certain cases," approved March 3, 1863. Did that act confer jurisdiction on the Circuit Court of Indiana to hear this case ? In interpreting a law, the motives which must have operated with thic Legislature in passing it are proper to be considered. This law was passed in a time of great national peril, when our heritage of frec government was in danger An armed rebellion against the national authority, of greater proportions than his- tory affords an example, was raging; and the public safety required that the privilege of the writ of habeus corpus should be suspended. The President had practically suspended it, aud detained suspected persons in custody without trial ; but his authority to do this was questioned. It was claimed that Congress alone could exercise this power; and that the Legislature, and not the President, should judge of the political consid- crations 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 was of the highest importance that the lawfulness of the suspension should be fully estab- lished. It was under these circumstances, which were such as to arrest the attention of the country, that this law was passed. The President was authorized by it to suspend the privilege of thic 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 statutc, suspend it. The suspension of the writ does not authorize the arrest of any one, but simply denies to one arrested the privilege of the writ in order to obtain his liberty.


It is proper, therefore, to inquire under what circumstances the courts could rightfully refuse to grant this writ, and when the citizen was at lib- erty 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 person, that he should not be required to give the cause of his detention on return to a writ of habeas corpus. But it was not contemplated that such person should be detained in custody beyond a certain fixed period ; unless certain judicial proceedings known to the common law, were commenced against him. The Secretaries of State and War were directed to furnishi to the judges of the courts of the United States a list of names of all parties, not prisoners of war, resident


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in their respective jurisdictions, who then were or afterwards should be held in custody by the anthority of the President, and who were citizens of States in which the administration of the laws in the Federal tribunals was unimpaired. After the list was furnished, if a grand jury of the dis- trict convened and adjourned and did not indict or present one of the per- sons 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 discharg- ed, if he desired it. The refusal or omission to furnish the list could not operate to the injury of any one who was not indicted or presented by the grand jury; for, if twenty days had elapsed from the time of his arrest and the termination of the session of the grand jury, he was equally en- titled to his discharge as if the list were furnished ; and any credible person, on petition verified by affidavit, conld obtain the judge's order for that purpose.


Milligan, iu his application to be released from imprisonment, averred the existence of every fact necessary under the terms of this law to give the Circuit Court of Indiana jurisdiction. If he was detained in custody by the order of the President, otherwise than as a prisoner of war, if he was a citizen of Indiana and had never been in the military or naval ser- vice, and the grand jury of the district bad met, after he had been arrest- ed, for a period of twenty days, and adjourned without taking any pro- ceedings against him, then the court had the right to entertain his petition and determine the lawfulness of his imprisonment. Because the word "conrt" is not found in the body of the second section, it was argued at the bar, that the application should have been made to the judge of the court, and not to the court itself ; but this is not so, for power is expressly conferred in the last proviso of the section on the court equally with a judge of it to discharge from imprisonment. It was the manifest design of Congress to secure a certain remedy by which any one, deprived of liberty, conld obtain it, if there was a judicial failure to find cause of of- fense against him. Courts are not always in session, and can adjourn on the discharge of the grand jury ; and before those who are in confinement could take proper steps to procure their liberation. To provide. for this coutingency, authority was given to the judges out of court to grant re- lief to any party, who could show, that, under the law, he should be no longer restrained of his liberty. It was insisted that Milligan's case was defective, because it did not state that the list was furnished to the judges; and, therefore, it was impossible to say under which section of the act it was presented.


It is not easy to see how this omission could effect the question of juris- diction. Milligan could not know that the list was furnished unless the judges volunteered to tell him; for the law did not require that any record should be made of it or anybody but the judges informed of it. Why aver the fact, when the truth of the matter was apparent to the court without an avermeut ? How can Milligan be harmed by the absence of the averment, when he states that he was under arrest for more than


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sixty days before the court and grand jury, which should have considered his case, inet at Indianapolis? It is apparent, therefore, that under the habeas corpus act of 1863 the Circuit Court of Indiana had complete juris- diction to adjudicate upon this case, and, if the judges could not agree on questions vital to the progress of the cause, they had the authority, (as we have shown in a previous part of this opinion, ) and it was their duty to certify those questions of disagreement to this court for final decision. It was argued that a final decision on the questions presented ought not to be made, because the parties who were directly concerned in the ar- rest and deteution of Milligan, were not before the court; and their rights might be prejudiced by the answer whichi should be given to those questions. But this court cannot know what return will be made to the writ of habeas corpus when issued ; and it is very clear that no one is con- cluded upon any question that may be raised to that return. In the sense of the law of 1802, which authorized a certificate of division, a final decision means final upon the points certified : final upon the court below, so that it is estopped from any adverse ruling in all the subsequent pro- ceedings of the cause. But it is said that this case 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 this court to decide the case.


It can never be in this country of written Constitution and laws, witlı a judicial department to interpret them, that any chief magistrate would be so far forgetful of his duty as to order the execution of a man who de- nied the jurisdiction that tried and convicted him, after his case was before Federal judges with power to decide it, who, being unable to agree on the grave questions involved, bad, according to known law, sent it to the Supreme Court of the United States for decision. But even the sug- gestion is injurious to the Executive, and we dismiss it from further consid- eration. There is, therefore, nothing to hinder this court from an inves- tigation of the merits of this controversy.


The controlling question in the case is this : Upon the facts stated in Milligan's petition, and the exhibits filed, had the military commission mentioned in it jurisdiction. legally to try and sentence him ? Milligan, not a resident of one of the rebellious 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 military power of the United States, imprisoned, and, on certain criminal charges preferred against him, tried, convicted, and sentenced to be hanged by a military "ommission, organized under the direction of the military commander of the military district of Indiana. Had this tribunal the legal power and authority to try and punish this man ? No graver question was ever con- sidered by this court, nor one which more nearly concerns the rights of the whole people ; for it is the birth right of every American citizen wlien charged with crime, to be tried and punished according to law.


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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 immunity from punishment, no matter how great an offender the individ- ual may be, or how much his crimes may have shocked the sense of justice of the country, or endangered its safety. By the protection of the law human rights are secured ; withdraw that protection, and they are at the mercy of wicked rulers, or the clamor of an excited people. If there was law to justify this military trial, it is not our province to interfere ; if there was not, it is our duty to declare the nullity of the whole proceedings. The decision of this question does not depend on argument or judicial precedents, numerous and highly illustrative as they are. These prece- dents 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 govern- ment were familiar with the history of that struggle; and secured in a written Constitution every right 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 instru- ment on the administration of criminal justice are too plain and direct to leave room for misconstruction or doubt of their true meaning. Those ap- plicable to this case are found in that clause of the original Constitution which says, "That the trial of all crimes, except in case of impeachment. shall be by jury ;" and in the fourth, fifth, and sixth articles of the amend- ments. The fourth proclaims the right to be secure in person an 1 effects against unreasonable search and seizure; and directs that a judicial war- rant shall not issue "without proof of probable cause supported by oath or affirmation." The fifth declares "that no persou shall be held to answer for a capital or otherwise infamous crime unless on presentment by a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in the time of war or public danger, nor be deprived of life, liberty, or property without due process of law." And the sixth guarantees the right of trial by jury in such manner and with such regulations that with upright judges, impartial junes, and an able bar, the innocent will be saved and the guilty punished. It is in these words : "In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law. and to be informed of the na- ture and cause of the accusation, to be coufronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence." These securities for personal liberty thus embodied, were such as wisdom and experience had demonstrated to be necessary for the protection of those accused of crime. And so strong was the sense of the country of their importance, and so jealous were the people that these rights, highly prized, might be denied them by implication ; that when the original Constitution was proposed for adoption, it encountered severe opposition ;


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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 diseernment of our ancestors; for even these pro- visions, expressed in such plain English words that it would seem the ingenuity of men could not evade them, are now, after the lapse of more tban seventy years, sought to be avoided. These great and good men foresaw that troublous times would arise, when rulers and people would beeomc restive under restraint, and seek by sharp and deeisive measures to aceomplish ends deemed just and proper, and that the principles of constitutional liberty would be in peril, unless established by irrepealable law. Thic 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 for rulers and people, equally in war and in peace, and covers with the shield of its protection all elasses of men, at all times and under all circumstances. No doctrine involving more pernici- ous 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 Government. Sueli a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false ; for the Govern- ment, within the Constitution, has all the powers granted to it which are neecssary to perserve its existence, as has been happily proved by the re- sult of the great effort to throw off its just authority.


Have any of the rights guaranteed by the Constitution been violated in tbe ease of Milligan ? and if so, what are they ? Every trial involves the exercise of judicial power ; and from what souree did the military com- missiou that tried him derive their authority ? Certainly no part of the judicial power of the country was conferred on them, because the Con- stitution expressly vests it "in one supreme court and sueh inferior eourts as the Congress may from time to time ordain and establish," and it is not pretended that the commission was a court ordained and estab- lished by Congress. They cannot justify on the mandate of the Presi- dent ; because he is controlled by law, and has hiis appropriate sphere of duty, which is to execute, not to make the laws; and there is "no un- written criminal eode to which resort can be had as a source of jurisdie- tion." But it is said that the jurisdiction is complete under the "laws and usages of war." It ean serve no useful purpose to inquire what tbose laws and usages arc, wlienee they originated, where found, and on whom they operate; they ean never be applied to eitizens in States which have uphield the authority of the Government, and where the eourts are open and their process unobstrueted. This eourt lias judicial knowledge that in Indiana the Federal authority was always unopposed, and its courts always open to hear eriminal accusations and redress grie z- ances ; and no usages of war eould sanetion a military trial there for any offence whatever of a eitizen in civil life, in nowise connected with the military serviee. Congress could grant no sueli power; and, to the honor of our national legislature be it said, it has never becn provoked by


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the state of the country even to attempt its exercise. One of the plainest constitutional provisions was, therefore, infringed when Milligan was tried by a court not ordained and established by Congress, and not com- posed of judges appointed during good behavior. Why was he not delivered to the Circuit Court of Indiana to be proceeded against accord- ing to law ?


No reason of necessity could be urged against it, because Congress had declared penalties against the offences charged, provided for their pun- ishment, and directed tliat court to hear and determinc them. And soon after this military tribunal was ended, the circuit court met, peacefully transacted its business and adjourned. It needed no bayonets to protect it, and required no military aid to execute its judgments. It was held in a State eminently distinguished for patriotism, by judges commissioned during the rebellion, who were provided with juries, upright, intelligent, and selected by a marshal appointed by the President. The Government had no right to couclude that Milligan, if guilty, would not receive in that court merited punishment; for its records disclose that it was constantly engaged in the trial of similar offences, and was never inter- rupted in its administratiou of criminal justice. If it was dangerous in the distracted condition of affairs to leave Milligan unrestrained of his liberty, because he "conspired against the Government, afforded aid and comfort to rebels, and incited the people to insurrection," the law said ar- rest him, confine him closely, render him powerless to do further mis- chicf ; and then present his case to the grand jury of the district, with proofs of his guilt, and, if indicted, try him according to the course of the common law. If this had been done the Constitution would have been vindicated, the law of 1863 enforced, and the securities for personal liberty preserved and defendcd.


Another guarantee of freedom was broken when Milligan was denied a trial by jury. The great minds of the country have differed on the cor- rect interpretation to be given to various provisions of the Federal Con- stitution ; and judicial decision has been often invoked to settle their true meaning ; but until recently no one ever doubted that the right of trial hy jury was fortified in the organic law against the power of attack. It is now assailed ; but, if ideas can be expressed in words, and language has any meaning, this right -one of the most valuable in a free country- is preserved to every one accused of crime who is not attached to the army, or navy, or militia in actual service. The sixth amendment af- firms that "in all criminal prosecutions thic accused shall enjoy the right to a speedy and public trial by an impartial jury," lauguage broad enough to embrace all persons and cases ; but the fifth, recognizing the necessity of an indictment, or presentment, before any one can be held to answer for high crimes, 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, doubtless, meant to limit the right of trial by jury, in the sixth amendment, to those persons who


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were subject to indictment or presentment in the fifth.


The discipline, necessary to the efficiency of the army and navy, requir- ed other and swifter modes of trial than are furnished 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 offenses committed while the party is in the military or naval service. Every one, connected with these branches of the public service, is amenable to the jurisdiction which Congress has created for their government, and while thus serving, surrenders his right to be tried by the civil courts. All other persons, citizens of States where the courts are open, if charged with crime, are guaranteed the inestimable privilege of trial by jury. This privilege is a vital principle, underlying the whole ad- ministration of criminal justice ; it is not held by sufferance, and cannot be frittered away on any plea of State or political necessity. When peace prevails, and the authority of the Government is undisputed, there is no difficulty of preserving the safeguards of liberty ; for the ordinary modes of trial are never neglected, and no one wishes it otherwise; but if so- ciety is disturbed by civil commotion-if the passions of men are aroused and the restraints of law weakened, if not disregarded-these safeguards need, and should receive, the watchful care of those entrusted with the guardianship of the Constitution and laws. In no other way can we trans- mit to posterity unimpaired, the blessings of liberty, consecrated by the sacrifices of the revolution.


It is claimed that martial law covers with its broad mantle the proceed- ings of the military commission. The proposition is this : That in a time of war the commander of an armed force (if in his opinion the exigencies of the country 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 subject citizens as well as soldiers to the rule of his will, and in the exercise of his lawful authority cannot be restrained, cx- cept by his superior officer or the President of the United States. If this position is sound, to the extent claimed, then when war exists, foreign or domestic, and the country is subdivided into military departments for mere convenience; the commander of one of them can, if he chooses, within his limits, on the plea of necessity, with the approval of the execu- tive, substitute military force for and to the exclusion of the laws, and punish all persons, as he thinks 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 regulat- ed by law. Martial law, established on such a basis, destroys every guar- antee 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 thiem to declare their independence. Civil liberty and this kind of martial law


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cannot endure together ; the antagonism is irreconcilable; and in the con- flict, onc or the other must perish.


This nation, as experience has proved, cannot always remain at peace, and has no right to expect that it will always have wise and humane rul- ers, sincerely atttached to the principles of the Constitution. Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln ; and, if this right is conceded and the calamities of war again hcfall us, the dangers to human liberty are frightful to contemplate. If our fathers had failed to provide for just such a contingency, they would have been false to the trust imposcd in them. They knew-the history of the world told them -the nation they were founding, be its existence short or long, would be involved in war; how often or how long continued, human foresight could not tell, and that unlimited power, wherever lodged at such a time, was especially hazardous to freemen. For this and other equally weighty reasons they secured tlie inheritance they had fouglit to maintain, hy in- corporating in a written constitution, the safeguards which time had prov- ed were essential to its preservation. Not one of these safeguards can the President or Congress or the judiciary disturh, except the one con- cerning the writ of habeas corpus.




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