|
1. Circuit Courts, as well as the judges
thereof, are authorized, by the fourteenth section of the Judiciary Act,
to issue the writ of habeas corpus for the purpose of inquiring into the
cause of commitment, and they have [p*3] jurisdiction, except in cases
where the privilege of the writ is suspended, to hear and determine the
question whether the party is entitled to be discharged.
2. The usual course of proceeding is for the court, on the application
of the prisoner for a writ of habeas corpus, to issue the writ, and, on
its return, to hear and dispose of the case; but where the cause of
imprisonment is fully shown by the petition, the court may, without
issuing the writ, consider and determine whether, upon the facts
presented in the petition, the prisoner, if brought before the court,
would be discharged.
3. When the Circuit Court renders a final judgment refusing to
discharge the prisoner, he may bring the case here by writ of error,
and, if the judges of the Circuit Court, being opposed in opinion, can
render no judgment, he may have the point upon which the disagreement
happens certified to this tribunal.
4. A petition for a writ of habeas corpus, duly presented, is the
institution of a cause on behalf of the petitioner, and the allowance or
refusal of the process, as well as the subsequent disposition of the
prisoner is matter of law, and not of discretion.
5. A person arrested after the passage of the act of March 3d, 1863, "relating
to habeas corpus and regulating judicial proceedings in certain cases,"
and under the authority of said act, was entitled to his discharge if
not indicted or presented by the grand jury convened at the first
subsequent term of the Circuit or District Court of the United States
for the District.
6. The omission to furnish a list of the persons arrested to the judges
of the Circuit or District Court as provided in the said act did not
impair the right of said person, if not indicted or presented, to his
discharge.
7. Military commissions organized during the late civil war, in a State
not invaded and not engaged in rebellion, in which the Federal courts
were open, and in the proper and unobstructed exercise of their judicial
functions, had no jurisdiction to try, convict, or sentence for any
criminal offence, a citizen who was neither a resident of a rebellious
State nor a prisoner of war, nor a person in the military or naval
service. And Congress could not invest them with any such power.
8. The guaranty of trial by jury contained in the Constitution was
intended for a state of war, as well as a state of peace, and is equally
binding upon rulers and people at all times and under all circumstances.
9. The Federal authority having been unopposed in the State of Indiana,
and the Federal courts open for the trial of offences and the redress of
grievances, the usages of war could not, under the Constitution, afford
any sanction for the trial there of a citizen in civil life not
connected with the military or naval service, by a military tribunal,
for any offence whatever.
10. Cases arising in the land or naval forces, or in the militia in
time of war or public danger, are excepted from the necessity of
presentment or indictment by a grand jury, and the right of trial by
jury in such cases is subject to the same exception. [p*4]
11. Neither the President nor Congress nor the Judiciary can disturb
any one of the safeguards of civil liberty incorporated into the
Constitution except so far as the right is given to suspend in certain
cases the privilege of the writ of habeas corpus.
12. A citizen not connected with the military service and a resident in
a State where the courts are open and in the proper exercise or their
jurisdiction cannot, even when the privilege of the writ of habeas
corpus is suspended, be tried, convicted, or sentenced otherwise than by
the ordinary courts of law.
13. 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
its return, the court decides whether the applicant is denied the right
of proceeding any further.
14. A person who is a resident of a loyal State, where he was arrested,
who was never resident in any State engaged in rebellion, nor connected
with the military or naval service, cannot be regarded as a prisoner of
war.
This case came before the court upon a certificate of division from the
judges of the Circuit Court for Indiana, on a petition for discharge
from unlawful imprisonment.
The case was thus:
An act of Congress -- the Judiciary Act of 1789, 1 section 14 -- enacts
that the Circuit Courts of the United States
Shall have power to issue writs of habeas corpus. And that either of
the justices of the Supreme Court, as well as judges of the District
Court, shall have power to grant writs of habeas corpus for the purpose
of an inquiry into the cause of commitment. Provided,
&c.;
Another act -- that of March 3d, 1863, 2 "relating to habeas
corpus, and regulating judicial proceedings in certain cases" -- an
act passed in the midst of the Rebellion -- makes various provisions in
regard to the subject of it.
The first section authorizes the suspension, during the Rebellion, of
the writ of habeas corpus, throughout the United States, by the
President.
Two following sections limited the authority in certain respects. [p*5]
The second section required that lists of all persons, being citizens
of States in which the administration of the laws had continued
unimpaired in the Federal courts, who were then held, or might
thereafter be held, as prisoners of the United States, under the
authority of the President, otherwise than as prisoners of war, should
be furnished by the Secretary of State and Secretary of War to the
judges of the Circuit and District Courts. These lists were to contain
the names of all persons, residing within their respective
jurisdictions, charged with violation of national law. And it was
required, in cases where the grand jury in attendance upon any of these
courts should terminate its session without proceeding by indictment or
otherwise against any prisoner named in the list, that the judge of the
court should forthwith make an order that such prisoner, desiring a
discharge, should be brought before him or the court to be discharged,
on entering into recognizance, if required, to keep the peace and for
good behavior, or to appear, as the court might direct, to be further
dealt with according to law. Every officer of the United States having
custody of such prisoners was required to obey and execute the judge's
order, under penalty, for refusal or delay, of fine and imprisonment.
The third section enacts, in case lists of persons other than prisoners
of war then held in confinement or thereafter arrested, should not be
furnished within twenty days after the passage of the act, or, in cases
of subsequent arrest, within twenty days after the time of arrest, that
any citizen, after the termination of a session of the grand jury
without indictment or presentment, might, by petition alleging the facts
and verified by oath, obtain the judge's order of discharge in favor of
any person so imprisoned, on the terms and conditions prescribed in the
second section.
This act made it the duty of the District Attorney of the United States
to attend examinations on petitions for discharge.
By proclamation, [3] dated the 15th September
following, [p*6] the President, reciting this statute, suspended the
privilege of the writ in the cases where, by his authority, military,
naval, and civil officers of the United States
hold persons in their custody either as prisoners of war, spies, or
aiders and abettors of the enemy, . . . or belonging to the land or
naval force of the United States, or otherwise amenable to military law,
or the rules and articles of war, or the rules or regulations prescribed
for the military or naval services, by authority of the President, or
for resisting a draft, or for any other offence against the military or
naval service.
With both these statutes and this proclamation in force, Lamdin P.
Milligan, a citizen of the United States, and a resident and citizen of
the State of Indiana, was arrested on the 5th day of October, 1864, at
his home in the said State, by the order of Brevet Major-General Hovey,
military commandant of the District of Indiana, and by the same
authority confined in a military prison at or near Indianapolis, the
capital of the State. On the 21st day of the same month, he was placed
on trial before a "military commission," convened at
Indianapolis, by order of the said General, upon the following charges,
preferred by Major Burnett, Judge Advocate of the Northwestern Military
Department, namely:
1. "Conspiracy against the Government of the United States;"
2. "Affording aid and comfort to rebels against the authority of
the United States;"
3. "Inciting insurrection;"
4. "Disloyal practices;" and
5. "Violation of the laws of war."
Under each of these charges, there were various specifications. The
substance of them was joining and aiding, at different times between
October, 1863, and August, 1864, a secret society known as the Order of
American Knights or Sons of Liberty, for the purpose of overthrowing the
Government and duly constituted authorities of the United States;
holding communication with the enemy; conspiring to seize munitions of
war stored in the arsenals; to liberate [p*7] prisoners of war, &c.;
resisting the draft, &c.; . . .
at a period of war and armed rebellion against the authority of the
United States, at or near Indianapolis [and various other places
specified] in Indiana, a State within the military lines of the army of
the United States and the theatre of military operations, and which had
been and was constantly threatened to be invaded by the enemy.
These were amplified and stated with various circumstances.
An objection by him to the authority of the commission to try him being
overruled, Milligan was found guilty on all the charges, and sentenced
to suffer death by hanging, and this sentence, having been approved, he
was ordered to be executed on Friday, the 19th of May, 1865.
On the 10th of that same May, 1865, Milligan filed his petition in the
Circuit Court of the United States for the District of Indiana, by
which, or by the documents appended to which as exhibits, the above
facts appeared. These exhibits consisted of the order for the
commission; the charges and specifications; the findings and sentence of
the court, with a statement of the fact that the sentence was approved
by the President of the United States, who directed that it should "be
carried into execution without delay;" all "by order of the
Secretary of War."
The petition set forth the additional fact that, while the petitioner
was held and detained, as already mentioned, in military custody (and
more than twenty days after his arrest), a grand jury of the Circuit
Court of the United States for the District of Indiana was convened at
Indianapolis, his said place of confinement, and duly empaneled,
charged, and sworn for said district, held its sittings, and finally
adjourned without having found any bill of indictment, or made any
presentment whatever against him. That at no time had he been in the
military service of the United States, or in any way connected with the
land or naval force, or the militia in actual service; nor within the
limits of any State whose citizens were engaged in rebellion against the
United States, at any time during the war, but, during all the time
aforesaid, and for twenty years last past, he had been an [p*8]
inhabitant, resident, and citizen of Indiana. And so that it had been
wholly out of his power to have acquired belligerent rights or to have
placed himself in such relation to the government as to have enabled him
to violate the laws of war.
The record, in stating who appeared in the Circuit Court, ran thus:
Be it remembered, that on the 10th day of May, A.D. 1865, in the court
aforesaid, before the judges aforesaid, comes Jonathan W. Gorden, Esq.,
of counsel for said Milligan, and files here, in open court, the
petition of said Milligan, to be discharged.. . . . At the same time
comes John Hanna, Esquire, the attorney prosecuting the pleas of the
United States in this behalf. And thereupon, by agreement, this
application is submitted to the court, and day is given, &c.;
The prayer of the petition was that, under the already mentioned act of
Congress of March 3d, 1863, the petitioner might be brought before the
court and either turned over to the proper civil tribunal to be
proceeded with according to the law of the land or discharged from
custody altogether.
At the hearing of the petition in the Circuit Court, the opinions of
the judges were opposed upon the following questions:
I. On the facts stated in the petition and exhibits, ought a writ of
habeas corpus to be issued according to the prayer of said petitioner?
II. On the facts stated in the petition and exhibits, ought the said
Milligan to be discharged from custody as in said petition prayed?
III. Whether, upon the facts stated in the petition and exhibits, the
military commission had jurisdiction legally to try and sentence said
Milligan in manner and form, as in said petition and exhibit is stated?
And these questions were certified to this court under the provisions
of the act of Congress of April 29th, 1802, 4 an act [p*9] which
provides
that whenever any question shall occur before a Circuit Court upon
which the opinions of the judges shall be opposed, the point upon which
the disagreement shall happen shall, during the same term, upon the
request of either party or their counsel, be 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 Circuit 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, further proceedings can be had without prejudice to the
merits.
The three several questions above mentioned were argued at the last
term. And along with them, an additional question raised in this court,
namely:
IV. A question of jurisdiction, as -- 1. Whether the Circuit Court had
jurisdiction to hear the case there presented? -- 2. Whether the case
sent up here by certificate of division was so sent up in conformity
with the intention of the act of 1802? in other words, whether this
court had jurisdiction of the questions raised by the certificate?
[p*107] | |
| Mr.
Justice DAVIS delivered the opinion of the court.
On the 10th day of May, 1865, Lambdin P. Milligan presented a petition
to the Circuit Court of the United States for the District of Indiana to
be discharged from an alleged unlawful imprisonment. The case made by
the petition is this: Milligan is a citizen of the United States; has
lived for twenty years in Indiana, and, at the time of the grievances
complained of, was not, and never had been, in the military or naval
service of the United States. On the 5th day of October, 1864, while at
home, he was arrested by order of General Alvin P. Hovey, commanding the
military district 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 General Hovey, tried on
certain charges and specifications, found guilty, and sentenced to be
hanged, and the sentence ordered to be executed on Friday, the 19th day
of May, 1865.
On the 2d day of January, 1865, after the proceedings of the military
commission were at an end, the Circuit Court of the United States for
Indiana met at Indianapolis and empaneled a grand jury, who were charged
to inquire [p*108] whether the laws of the United States had been
violated. and, if so, to make presentments. The court adjourned on the
27th day of January, having, prior thereto, discharged from further
service the grand jury, who did not find any bill of indictment or make
any presentment against Milligan for any offence whatever, and, in fact,
since his imprisonment, no bill of indictment has been found or
presentment made against him by any grand jury of the United States.
Milligan insists that said military commission had no jurisdiction to
try him upon the charges preferred, or upon any charges whatever,
because he was a citizen of the United States and the State of Indiana,
and had not been, since the commencement of the late Rebellion, a
resident of any of the States whose citizens were arrayed against the
government, and that the right of trial by jury was guaranteed to him by
the Constitution of the United States.
The prayer of the petition was that, under the act of Congress approved
March 3d, 1863, entitled, "An act relating to habeas corpus and
regulating judicial proceedings in certain cases," he may be
brought before the court and either turned over to the proper civil
tribunal to be proceeded against according to the law of the land or
discharged from custody altogether.
With the petition were filed the order for the commission, the charges
and specifications, 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 directing that it be carried into execution
without 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 counsel, the
application was submitted to the court. The opinions of the judges of
the Circuit Court were opposed on three questions, which are certified
to the Supreme Court:
1st. "On the facts stated in said petition and exhibits, ought a
writ of habeas corpus to be issued?" [p*109]
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 jurisdiction legally to
try and sentence said Milligan in manner and form as in said petition
and exhibits is stated?"
The importance of the main question presented by this record cannot be
overstated, for it involves the very framework of the government and the
fundamental principles 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 purely judicial question. Then, considerations of safety
were mingled with the exercise of power, and feelings and interests
prevailed which are happily terminated. Now that the public safety is
assured, this question, as well as all others, can be discussed and
decided without passion or the admixture of any element not required to
form a legal judgment. We approach the investigation of this case fully
sensible of the magnitude of the inquiry and the necessity of full and
cautious deliberation.
But we are met with a preliminary objection. It is insisted that the
Circuit Court of Indiana had no authority to certify these questions,
and that we are without jurisdiction to hear and determine them.
The sixth section of the "Act to amend the judicial system of the
United States," approved April 29, 1802, declares
that whenever any question shall occur before a Circuit Court upon
which the opinions of the judges shall be opposed, the point upon which
the disagreement shall happen shall, during the same term, upon the
request of either party or their counsel, be 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 [p*110] Supreme Court
and their order in the premises shall be remitted to the Circuit 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, further proceedings can be had without prejudice
to the merits.
It is under this provision of law that a Circuit Court has authority to
certify any question to the Supreme Court for adjudication. The inquiry,
therefore, is, whether the case of Milligan is brought within its terms.
It was admitted at the bar that the Circuit Court had jurisdiction to
entertain the application for the writ of habeas corpus and to hear and
determine it, and it could not be denied, for the power is expressly
given in the 14th section of the Judiciary Act of 1789, as well as in
the later act of 1863. Chief Justice Marshall, in Bollman's case, 5
construed this branch of the Judiciary Act to authorize the 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 after the writ has been issued and a
return made.
Independently of the provisions of the act of Congress of March 3,
1863, relating to habeas corpus, on which the petitioner bases his claim
for relief and which we will presently consider, can this position be
sustained?
It is true that it is usual for a court, on application for a writ of
habeas corpus, to issue the writ, and, on the return, to dispose of the
case, but the court can elect to waive the issuing of the writ and
consider whether, upon the facts presented in the petition, the
prisoner, if brought before it, could be discharged. One of the very
points on which the case of Tobias Watkins, reported in 3 Peters, 6
turned was [p*111] whether, if the writ was issued, 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 awarded if the court is satisfied that the prisoner would be
remanded to prison.
The judges of the Circuit Court of Indiana were therefore warranted by
an express decision of this court in refusing the writ if satisfied that
the prisoner, on his own showing, was rightfully detained.
But, it is contended, if they differed about the lawfulness of the
imprisonment, and could render no judgment, the prisoner is remediless,
and cannot have the disputed question certified under the act of 1802.
His remedy is complete by writ of error or appeal, if the court renders
a final judgment refusing to discharge him; but if he should be so
unfortunate as to be placed in the predicament of having the court
divided on the question whether he should live or die, he is hopeless,
and without remedy. He wishes the vital question settled not by a single
judge at his chambers, but by the highest tribunal known to the
Constitution, and yet the privilege is denied him because the Circuit
Court consists of two judges, instead of one.
Such a result was not in the contemplation of the legislature of 1802,
and the language used by it cannot be construed to mean any such thing.
The clause under consideration was introduced to further the ends of
justice by obtaining a speedy settlement of important questions where
the judges might be opposed in opinion.
The act of 1802 so changed the judicial system that the Circuit Court,
instead of three, was composed of two judges, and, without this
provision or a kindred one, if the judges differed, the difference would
remain, the question be unsettled, and justice denied. The decisions of
this court upon the provisions of this section have been numerous. In
United States v. Daniel, 7 the court, in holding that a division
[p*112] of the judges on a motion for a new trial could not be
certified, say: "That the question must be one which arises in a
cause depending before the court relative to a 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? If, in
the sense of the law, the proceeding for the writ of habeas corpus was
the "cause" of the party applying for it, then it is evident
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 the proceeding does not ripen into a cause until
there are two parties to it.
This we deny. It was the cause of Milligan when the petition
was presented to the Circuit Court. It would have been the cause
of both parties if the court had issued the writ and brought those who
held Milligan in custody 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 he had a right to test the validity of his trial and
sentence, and the proceeding which he set in operation for that purpose
was his "cause" or "suit." It was the only one by
which he could recover his liberty. He was powerless to do more; he
could neither instruct the judges nor control their action, and should
not suffer, because, without fault of his, they were unable to render a
judgment. But the true meaning to the term "suit" has been
given by this court. One of the questions in Weston v. City Council
of Charleston, [8] was whether a writ of
prohibition was a suit, and Chief Justice Marshall says:
The [p*113] term is certainly a comprehensive one, and is understood to
apply to any proceeding in a court of justice by which an individual
pursues that remedy which the law affords him.
Certainly Milligan pursued the only remedy which the law afforded him.
Again, in Cohens v. Virginia, [9] he
says: "In law language, a suit is the prosecution of some demand in
a court of justice." Also,
To commence 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
demand.
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 law. One of the questions in Holmes v. Jennison,
et al., [10] was whether, under the 25th
section of the Judiciary Act, a proceeding for a writ of habeas corpus
was a "suit." Chief Justice Taney held that,
if a party is unlawfully imprisoned, the writ of habeas corpus is his
appropriate legal remedy. It is his suit in court to recover his
liberty.
There was much diversity of opinion on another ground of jurisdiction,
but that, in the sense of the 25th section of the Judiciary Act, the
proceeding by habeas corpus was a suit was not controverted by any
except Baldwin, Justice, and he thought that "suit" and "cause,"
as used in the section, mean the same thing.
The court do not say that a return must be made and the parties appear
and begin to try the case before it is a suit. When the petition is
filed and the writ prayed for, it is a suit -- the suit of the party
making 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
analogies 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
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
the legislature had in view, which was to enable [p*114] 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 application, and
appeared on behalf of the government to contest it. The government was
the prosecutor of Milligan, who claimed that his imprisonment was
illegal and sought, in the only way he could, to recover his liberty.
The case was a grave one, and the court unquestionably directed that the
law officer of the government should be informed of it. He very properly
appeared, and, as the facts were uncontroverted and the difficulty was
in the application of the law, there was no useful purpose to be
obtained in issuing the writ. The cause was therefore submitted to the
court for their consideration and determination.
But Milligan claimed his discharge from custody by virtue of the act of
Congress "relating to habeas corpus, and regulating judicial
proceedings in certain cases," approved March 3d, 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 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. [p*115] An armed rebellion against the
national authority, of greater proportions than history affords an
example of, was raging, and the public safety required that the
privilege of the writ of habeas corpus should be suspended. The
President had practically suspended it, and 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
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 was of the
highest importance that the lawfulness of the suspension should be fully
established. It was under these circumstances, which were such as to
arrest the attention of the country, that this law was passed. The
President was authorized by it to suspend the privilege of 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, suspend it.
The suspension of the writ does not authorize the arrest of anyone, but
simply denies to one arrested the privilege of this 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
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 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 furnish to the judges of
the courts of the [p*116] United States a list of the names of all
parties, not prisoners of war, resident in their respective
jurisdictions, who then were or afterwards should be held in custody by
the authority of 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 district convened
and adjourned, and did not 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 furnish the list could not
operate to the injury of anyone 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
entitled to his discharge as if the list were furnished, and any
credible person, on petition verified by affidavit, could obtain the
judge's order for that purpose.
Milligan, in his application to be released from imprisonment, averred
the existence of every fact necessary under the terms of this law to
give the Circuit Court of Indiana 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 service, and the grand jury of the district had met, after he
had been arrested, for a period of twenty days, and adjourned without
taking any proceedings against him, then the court had the right to
entertain his petition and determine the lawfulness of his imprisonment.
Because the word "court" is not found in the body of the
second section, it was argued at the bar that the application should
have been made to a judge of the court, and not to the court 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 anyone deprived of liberty could obtain it if there was
a judicial failure to find cause of offence against him. Courts are
[p*117] 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 contingency,
authority was given 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 Milligan's case was defective because it did not
state that the list was furnished to the judges, and therefore it was
impossible to say under which section of the act it was presented.
It is not easy to see how this omission could affect the question of
jurisdiction. Milligan could not know that the list was furnished,
unless the judges volunteered to tell him, for the law did not require
that any record should be made 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 averment? How can Milligan be harmed by the absence
of the averment when he states that he was under arrest for more than
sixty days before the court and grand jury, which should have considered
his case, met at Indianapolis? It is apparent therefore that, under the
Habeas Corpus Act of 1863, the Circuit Court of Indiana had complete
jurisdiction to adjudicate 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 arrest and detention of Milligan were not before the
court, and their rights might be prejudiced by the answer which should
be given to those questions. But this court cannot know what return will
be made to the writ of habeas corpus when issued, and it is very clear
that no one is concluded upon any question that may be raised to that
return. In the sense of the law of 1802 which authorized a certificate
of division, a final decision [p*118] means final upon the points
certified, final upon the court below, so that it is estopped from any
adverse ruling in all the subsequent proceedings of the cause.
But it is said that this case is ended, as the presumption is that
Milligan was hanged in pursuance of the order of the President.
Although we have no judicial 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 his case. It can never be,
in this country of written constitution and laws, with 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 denied the
jurisdiction that tried and convicted him after his case was before
Federal judges with power to decide it, who, being unable to agree on
the grave questions involved, had, according to known law, sent it to
the Supreme Court of the United States for decision. But even the
suggestion is injurious to the Executive, and we dismiss it from further
consideration. There is therefore nothing to hinder this court from an
investigation of the merits of this 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 commission, 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 considered by this court, nor one which
more nearly concerns the rights of the whole [p*119] people, for it is
the birthright of every American citizen when charged with crime to be
tried and punished according to law. The power of punishment is alone
through the means which the laws have provided for that purpose, and, if
they are ineffectual, there is an immunity from punishment, no matter
how great an offender the individual may be or how much his crimes may
have shocked the sense of justice of the country or endangered its
safety. By the protection of the law, human rights are secured; withdraw
that protection and they are at the mercy of wicked rulers or the clamor
of an excited people. If there was law to justify 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 precedents inform us of the
extent of the struggle to preserve liberty and to relieve those in civil
life from military trials.
The founders of our government were familiar with 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 instrument on the administration of
criminal justice are 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 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
amendments. The fourth proclaims the right to be secure in person and
effects against unreasonable search and seizure, and directs that a
judicial warrant shall not issue "without proof of probable cause
supported by oath or affirmation." The fifth declares
that no person 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 time of war or public danger, nor be deprived [p*120] 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 juries, 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 nature and
cause of the accusation, to be confronted 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, 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, expressed in such plain English words that it would seem the
ingenuity of man could not evade them, are now, after the lapse of more
than seventy years, sought to be avoided. Those great and good men
foresaw that troublous times would arise when rulers and people would
become restive under restraint, and seek by sharp and decisive measures
to accomplish ends deemed just and proper, and that the principles of
constitutional liberty would 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 for rulers and people, equally in war and in
peace, and covers with the shield of its protection all classes of men,
at all times [p*121] and under all 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 government. Such a doctrine leads directly to anarchy or
despotism, 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 the result of the great effort to throw off its just
authority.
Have any of the rights guaranteed by the Constitution been violated in
the case of Milligan?, and, if so, what are they?
Every trial involves the exercise of judicial power, and from what
source did the military commission that tried him derive their
authority? Certainly no part of judicial power of the country was
conferred on them, because the Constitution expressly vests it "in
one supreme court and such inferior courts as the Congress may from time
to time ordain and establish," and it is not pretended that the
commission was a court ordained and established by Congress. They cannot
justify on the mandate of the President, because he is controlled by
law, and has his appropriate sphere of duty, which is to execute, not to
make, the laws, and there is "no unwritten criminal code to which
resort can be had as a source of jurisdiction."
But it is said that the jurisdiction is complete under the "laws
and usages of war." I
t can serve no useful purpose to inquire what those laws and usages
are, 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 and their
process unobstructed. This court has judicial knowledge that, in
Indiana, the Federal authority was always unopposed, and its courts
always open to hear criminal accusations and redress grievances, and no
usage of war could sanction a military trial there for any offence
whatever of a citizen in civil life in nowise [p*122] connected with the
military service. Congress could grant no such power, and, to the honor
of our national legislature be it said, it has never been provoked by
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
composed of judges appointed during good behavior.
Why was he not delivered to the Circuit Court of Indiana to be
proceeded against according to law? No reason of necessity could be
urged against it, because Congress had declared penalties against the
offences charged, provided for their punishment, and directed that court
to hear and determine them. And soon after this 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 conclude 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
interrupted in its administration 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 arrest him, confine him closely,
render him powerless to do further mischief, 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
defended.
Another guarantee of freedom was broken when Milligan was denied a
trial by jury. The great minds of the country [p*123] have differed on
the correct interpretation to be given to various provisions of the
Federal Constitution, and judicial decision has been often invoked to
settle their true meaning; but, until recently, no one ever doubted that
the right of trial by jury was fortified in the organic law 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 everyone 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 indictment or
presentment before anyone 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 were subject to indictment
or presentment in the fifth.
The discipline necessary to the efficiency of the army and navy
required 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 offences committed while the party
is in the military or naval service. Everyone 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 administration 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, [p*124] 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 society 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
intrusted with the guardianship of the Constitution and laws. In no
other way can we transmit 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
proceedings of this 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 except 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 Executive, 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
regulated by law. Martial law established on such a basis destroys every
guarantee of the Constitution, and effectually renders the "military
independent 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 [p*125] together; the antagonism is
irreconcilable, and, in the conflict, one 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
rulers sincerely attached 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 befall 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 reposed 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 the inheritance they had fought to
maintain by incorporating in a written constitution the safeguards which
time had proved were essential to its preservation. Not one of these
safeguards can the President or Congress or the Judiciary disturb,
except the one concerning the writ of habeas corpus.
It is essential to the safety of every government that, in a great
crisis 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 combinations. In the emergency of
the times, an immediate public investigation according to law may not be
possible, and yet the period to the country may be too imminent 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 be required
to produce the persons arrested [p*126] 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 the course of the common law; if it had intended this result, it
was easy, by the use of direct words, to have accomplished it. The
illustrious men who framed that instrument were guarding the foundations
of civil liberty against the abuses of unlimited power; they were full
of wisdom, and the lessons of history informed them that a trial by an
established court, assisted by an impartial jury, was the only sure way
of protecting the citizen against oppression and wrong. Knowing this,
they limited the suspension to one great right, and left the rest to
remain forever inviolable. But it is insisted that the safety of the
country in time of war demands that this broad claim for martial law
shall be sustained. If this were true, it could be well said that a
country, preserved at the sacrifice of all the 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 overthrown. Nor is it a question what rule a
military commander, at the head of his army, can impose on states in
rebellion to cripple their resources and quell the insurrection. The
jurisdiction claimed is much more extensive. The necessities of the
service during the late Rebellion required that the loyal states should
be placed within the limits of certain military districts and commanders
appointed in them, and it is urged that this, in a military sense,
constituted them the theater of military operations, and as, in this
case, Indiana had been and was again threatened with invasion by the
enemy, the occasion was furnished to establish martial law. The
conclusion does not follow from the premises. If armies were collected
in Indiana, they were to be employed in another locality, where the laws
were obstructed and the national authority disputed. On her soil there
was no hostile foot; if once invaded, that invasion was at an end, and,
with [p*127] 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 and deposes the
civil administration.
It is difficult to see how the safety for the country required martial
law in Indiana. If any of her citizens were plotting treason, the power
of arrest could secure them until the government was prepared for their
trial, when the courts were open and ready to try them. It was as easy
to protect witnesses before a civil as a military tribunal, and as there
could be no wish to convict except on sufficient legal evidence, surely
an ordained and establish court was better able to judge of this than a
military tribunal composed of gentlemen not trained to the profession of
the law.
It follows from what has been said on this subject that there are
occasions when martial rule can be properly applied. If, in foreign
invasion or civil war, the courts are actually closed, and it is
impossible to administer criminal justice according to law, then, on the
theatre of active military operations, where war really prevails, there
is a necessity to furnish a substitute for the civil authority, thus
overthrown, to preserve the safety of the army and society, and as no
power is left but 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 government is continued
after the courts are reinstated, it is a gross usurpation of power.
Martial rule can never exist where the courts are open and in the proper
and unobstructed 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 become a necessity in one state when, in another, it
would be "mere lawless violence." [p*128]
We are not without precedents in English and American history
illustrating our views of this question, but it is hardly necessary to
make particular reference to them.
From the first year of the reign of Edward the Third, when the
Parliament of England reversed the attainder of the Earl of Lancaster
because he could have been tried by the courts of the realm, and
declared that,
in time of peace, no man ought to be adjudged to death for treason or
any other 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 case, has been
condemned by all respectable English jurists as contrary to the
fundamental laws of the land and subversive of the liberty of the
subject.
During the present century, an instructive debate on this question
occurred in Parliament, occasioned by the trial and conviction by
court-martial, at Demerara, of the Rev. John Smith, a missionary to the
negroes, on the alleged ground of aiding and abetting a formidable
rebellion in that colony. Those eminent statesmen Lord Brougham and Sir
James Mackintosh participated in that debate, and denounced the trial as
illegal because it did not appear that the courts of law in Demerara
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 General Gage issued his
proclamation of martial law, they spoke of it as an "attempt to
supersede the course of the common law, and, instead thereof, to publish
and order the use of martial law." The Virginia Assembly also
denounced a similar measure on the part of Governor Dunmore
as an assumed power which the king himself cannot exercise, because it
annuls the law of the land and introduces the most execrable of all
systems, martial law.
In some parts of the country, during the war of 1812, our officers made
arbitrary arrests and, by military tribunals, tried citizens who were
not in the military service. These arrests [p*129] and trials, when
brought to the notice of the courts, were uniformly condemned as
illegal. The cases of Smith v. Shaw and McConnell v. Hampden
(reported in 12 Johnson 11) are illustrations, which we cite not only
for the principles they determine but on account of the distinguished
jurists concerned in the decisions, one of whom for many years occupied
a seat on this bench. It is contended, that Luther v. Borden, 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 II in
1663, and, as that limited the right of suffrage, and did not provide
for its own amendment, many citizens became dissatisfied because the
legislature would not afford the relief in their power, and, without the
authority of law, formed a new and independent constitution and
proceeded to 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 declaring martial law. Borden, in
the military service of the old government, broke open the house of
Luther, who supported the new, in order to arrest him. Luther brought
suit 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 military power to put down an armed
insurrection too strong to be controlled by the civil authority,"
and, if the legislature of Rhode Island thought the period so great as
to require the use of its military forces and the declaration of martial
law, there was no ground on which this court could question its
authority, and, as Borden acted under military 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 [p*130] into and entering Luther's house. This is the extent of
the decision. There was no question in issue about the power of
declaring martial law under the Federal Constitution, and the court did
not consider it necessary even to inquire "to what extent nor under
what circumstances that power may by exercised by a state."
We do not deem it important to examine further the adjudged cases, and
shall therefore conclude without any additional reference to
authorities.
To the third question, then, on which the judges below were opposed in
opinion, an answer in the negative must be returned.
It is proper to say, although Milligan's trial and conviction by a
military commission 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 resistance to the
measures deemed necessary to subdue a great rebellion, by those who
enjoy the protection of government, and have not the excuse even of
prejudice of section to plead in their favor, is wicked; but that
resistance 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 into peaceful
communities, there to light the 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 receive the heaviest
penalties of the law as an example to deter 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 preserve the rich blessings of a free
government.
The two remaining questions in this case must be answered in the
affirmative. The suspension of the privilege of the [p*131] 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
entitled, on the facts stated in his petition, to be discharged from
custody by the terms of the act of Congress of March 3d, 1863. The
provisions of this law having been considered in a previous part of this
opinion, we will not restate the views there presented. Milligan avers
he was a citizen of Indiana, not in the military or naval service, and
was detained in close confinement, by order of the President, from the
5th day of October, 1864, until the 2d day of January, 1865, when the
Circuit Court for the District of Indiana, with a grand jury, convened
in session at Indianapolis, and afterwards, on the 27th day of the same
month, adjourned without finding an indictment or presentment against
him. If these averments were true (and their truth is conceded for the
purposes of this case), the court was required to liberate him on taking
certain oaths prescribed by the law, and entering into recognizance for
his good behavior.
But it is insisted that Milligan was a prisoner of war, and therefore
excluded from the privileges of the statute. It is not easy to see how
he can be treated as a prisoner of war when he lived in Indiana for the
past twenty years, was arrested there, and had not been, during the late
troubles, a resident of any of the states in rebellion. If in Indiana he
conspired with bad men to assist the enemy, he 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 engaged in legal acts of hostility
against the government, and only such persons, when captured, are
prisoners of war. If he cannot enjoy the immunities attaching to the
character of a prisoner of war, how can he be subject to their pains and
penalties?
This case, as well as the kindred cases of Bowles and Horsey, were
disposed of at the last term, and the proper orders were entered of
record. There is therefore no additional entry required. [p*132]
1. 1 Stat at Large 81.
2. 12 id. 755.
3. 13 Stat. at Large 734.
4. 2 Stat. at Large 159.
5. 4 Cranch 75.
6. Page 193.
7. 6 Wheaton 542.
8. 2 Peters 449.
9. 6 Wheaton 264.
10. 14 Peters 540.
11. Pages 257 and 234. | |
| The
CHIEF JUSTICE delivered the following opinion.
Four members of the court, concurring with their brethren in the order
heretofore made in this cause, but unable to concur in some important
particulars with the opinion which has just been read, think it their
duty to make a separate statement of their views of the whole case.
We do not doubt that the Circuit Court for the District of Indiana had
jurisdiction of the petition of Milligan for the writ of habeas corpus.
Whether this court has jurisdiction upon the certificate of division
admits of more question. The construction of the act authorizing such
certificates, which has hitherto prevailed here, denies jurisdiction in
cases where the certificate brings up the whole cause before the court.
But none of the adjudicated cases is exactly in point, and we are
willing to resolve whatever doubt may exist in favor of the earliest
possible answers to questions involving life and liberty. We agree,
therefore, that this court may properly answer questions certified in
such a case as that before us.
The crimes with which Milligan was charged were of the gravest
character, and the petition and exhibits in the record, which must here
be taken as true, admit his guilt. But whatever his desert of punishment
may be, it is more important to the country and to every citizen that he
should not be punished under an illegal sentence, sanctioned by this
court of last resort, than that he should be punished at all. The laws
which protect the liberties of the whole people must not be violated or
set aside in order to inflict, even upon the guilty, unauthorized though
merited justice.
The trial and sentence of Milligan were by military commission convened
in Indiana during the fall of 1864. The action of the commission had
been under consideration by President Lincoln for some time when he
himself became the victim of an abhorred conspiracy. It was approved by
his successor in May, 1865, and the sentence was ordered to be carried
into execution. The proceedings therefore had the fullest sanction of
the executive department of the government. [p*133]
This sanction requires the most respectful and the most careful
consideration of this court. The sentence which it supports must not be
set aside except upon the clearest conviction that it cannot be
reconciled with the Constitution and the constitutional legislation of
Congress.
We must inquire, then, what constitutional or statutory provisions have
relation to this military proceeding.
The act of Congress of March 3d, 1863, comprises all the legislation
which seems to require consideration in this connection. The
constitutionality of this act has not been questioned and is not
doubted.
The first section authorized the suspension, during the Rebellion, of
the writ of habeas corpus throughout the United States by the President.
The two next sections limited this authority in important respects.
The second section required that lists of all persons, being citizens
of states in which the administration of the laws had continued
unimpaired in the Federal courts, who were then held or might thereafter
be held as prisoners of the United States, under the authority of the
President, otherwise than as prisoners of war, should be furnished to
the judges of the Circuit and District Courts. The lists transmitted to
the judges were to contain the names of all persons, residing within
their respective jurisdictions, charged with violation of national law.
And it was required, in cases where the grand jury in attendance upon
any of these courts should terminate its session without proceeding by
indictment or otherwise against any prisoner named in the list, that the
judge of the court should forthwith make an order that such prisoner,
desiring a discharge, should be brought before him or the court to be
discharged on entering into recognizance, if required, to keep the peace
and for good behavior, or to appear, as the court might direct, to be
further dealt with according to law. Every officer of the United States
having custody of such prisoners was required to obey and execute the
judge's order under penalty, for refusal or delay, of fine and
imprisonment.
The third section provided, in case lists of persons other [p*134] than
prisoners of war then held in confinement, or thereafter arrested,
should not be furnished within twenty days after the passage of the act,
or, in cases of subsequent arrest, within twenty days after the time of
arrest, that any citizen, after the termination of a session of the
grand jury without indictment or presentment, might, by petition
alleging the facts and verified by oath, obtain the judge's order of
discharge in favor of any person so imprisoned on the terms and
conditions prescribed in the second section.
It was made the duty of the District Attorney of the United States to
attend examinations on petitions for discharge.
It was under this act that Milligan petitioned the Circuit Court for
the District of Indiana for discharge from imprisonment.
The holding of the Circuit and District Courts of the United States in
Indiana had been uninterrupted. The administration of the laws in the
Federal courts had remained unimpaired. Milligan was imprisoned under
the authority of the President, and was not a prisoner of war. No list
of prisoners had been furnished to the judges, either of the District or
Circuit Courts, as required by the law. A grand jury had attended the
Circuit Courts of the Indiana district while Milligan was there
imprisoned, and had closed its session without finding any indictment or
presentment or otherwise proceeding against the prisoner.
His case was thus brought within the precise letter and intent of the
act of Congress, unless it can be said that Milligan was not imprisoned
by authority of the President, and nothing of this sort was claimed in
argument on the part of the government.
It is clear upon this statement that the Circuit Court was bound to
hear Milligan's petition for the writ of habeas corpus, called in the
act an order to bring the prisoner before the judge or the court, and to
issue the writ, or, in the language of the act, to make the order.
The first question, therefore -- ought the writ to issue? -- must be
answered in the affirmative. [p*135]
And it is equally clear that he was entitled to the discharge prayed
for.
It must be borne in mind that the prayer of the petition was not for an
absolute discharge, but to be delivered from military custody and
imprisonment, and if found probably guilty of any offence, to be turned
over to the proper tribunal for inquiry and punishment, or, if not found
thus probably guilty, to be discharged altogether.
And the express terms of the act of Congress required this action of
the court. The prisoner must be discharged on giving such recognizance
as the court should require, not only for good behavior, but for
appearance, as directed by the court, to answer and be further dealt
with according to law.
The first section of the act authorized the suspension of the writ of
habeas corpus generally throughout the United States. The second and
third sections limited this suspension, in certain cases, within states
where the administration of justice by the Federal courts remained
unimpaired. In these cases, the writ was still to issue, and, under it,
the prisoner was entitled to his discharge by a circuit or district
judge or court unless held to bail for appearance to answer charges. No
other judge or court could make an order of discharge under the writ.
Except under the circumstances pointed out by the act, neither circuit
nor district judge or court could make such an order. But under those
circumstances, the writ must be issued, and the relief from imprisonment
directed by the act must be afforded. The commands of the act were
positive, and left no discretion to court or judge.
An affirmative answer must therefore be given to the second question,
namely: ought Milligan to be discharged according to the prayer of the
petition?
That the third question, namely: had the military commission in
Indiana, under the facts stated, jurisdiction to try and sentence
Milligan? must be answered negatively is an unavoidable inference from
affirmative answers to the other two. [p*136]
The military commission could not have jurisdiction to try and sentence
Milligan if he could not be detained in prison under his original arrest
or under sentence after the close of a session of the grand jury without
indictment or other proceeding against him.
Indeed, the act seems to have been framed on purpose to secure the
trial of all offences of citizens by civil tribunals in states where
these tribunals were not interrupted in the regular exercise of their
functions.
Under it, in such states, the privilege of the writ might be suspended.
Any person regarded as dangerous to the public safety might be arrested
and detained until after the session of a grand jury. Until after such
session, no person arrested could have the benefit of the writ, and even
then no such person could be discharged except on such terms, as to
future appearance, as the court might impose. These provisions obviously
contemplate no other trial or sentence than that of a civil court, and
we could not assert the legality of a trial and sentence by a military
commission, under the circumstances specified in the act and described
in the petition, without disregarding the plain directions of Congress.
We agree therefore that the first two questions certified must receive
affirmative answers, and the last a negative. We do not doubt that the
positive provisions of the act of Congress require such answers. We do
not think it necessary to look beyond these provisions. In them, we find
sufficient and controlling reasons for our conclusions.
But the opinion which has just been read goes further, and, as we
understand it, asserts not only that the military commission held in
Indiana was not authorized by Congress, but that it was not in the power
of Congress to authorize it, from which it may be thought to follow that
Congress has no power to indemnify the officers who composed the
commission against liability in civil courts for acting as members of
it.
We cannot agree to this.
We agree in the proposition that no department of the [p*137]
government of the United States -- neither President, nor Congress, nor
the Courts -- possesses any power not given by the Constitution.
We assent fully to all that is said in the opinion of the inestimable
value of the trial by jury, and of the other constitutional safeguards
of civil liberty. And we concur also in what is said of the writ of
habeas corpus and of its suspension, with two reservations: (1) that, in
our judgment, when the writ is suspended, the Executive is authorized to
arrest, as well as to detain, and (2) that there are cases in which, the
privilege of the writ being suspended, trial and punishment by military
commission, in states where civil courts are open, may be authorized by
Congress, as well as arrest and detention.
We think that Congress had power, though not exercised, to authorize
the military commission which was held in Indiana.
We do not think it necessary to discuss at large the grounds of our
conclusions. We will briefly indicate some of them.
The Constitution itself provides for military government, as well as
for civil government. And we do not understand it to be claimed that the
civil safeguards of the Constitution have application in cases within
the proper sphere of the former.
What, then, is that proper sphere? Congress has power to raise and
support armies, to provide and maintain a navy, to make rules for the
government and regulation of the land and naval forces, and to provide
for governing such part of the militia as may be in the service of the
United States.
It is not denied that the power to make rules for the government of the
army and navy is a power to provide for trial and punishment by military
courts without a jury. It has been so understood and exercised from the
adoption of the Constitution to the present time.
Nor, in our judgment, does the fifth, or any other amendment, abridge
that power. "Cases arising in the land and naval forces, or in the
militia in actual service in time of war [p*138] or public danger,"
are expressly excepted from the fifth amendment, "that no person
shall be held to answer for a capital or otherwise infamous crime,
unless on a presentment or indictment of a grand jury," and it is
admitted that the exception applies to the other amendments as well as
to the fifth.
Now we understand this exception to have the same import and effect as
if the powers of Congress in relation to the government of the army and
navy and the militia had been recited in the amendment, and cases within
those powers had been expressly excepted from its operation. The states,
most jealous of encroachments upon the liberties of the citizen, when
proposing additional safeguards in the form of amendments, excluded
specifically from their effect cases arising in the government of the
land and naval forces. Thus, Massachusetts proposed that
no person shall be tried for any crime by which he would incur an
infamous punishment or loss of life until he be first indicted by a
grand jury except in such cases as may arise in the government and
regulation of the land forces.
The exception in similar amendments proposed by New York, Maryland, and
Virginia was in the same or equivalent terms. The amendments proposed by
the states were considered by the first Congress, and such as were
approved in substance were put in form and proposed by that body to the
states. Among those thus proposed and subsequently ratified was that
which now stands as the fifth amendment of the Constitution. We cannot
doubt that this amendment was intended to have the same force and effect
as the amendment proposed by the states. We cannot agree to a
construction which will impose on the exception in the fifth amendment a
sense other than that obviously indicated by action of the state
conventions.
We think, therefore, that the power of Congress in the government of
the land and naval forces and of the militia is not at all affected by
the fifth or any other amendment. It is not necessary to attempt any
precise definition of the boundaries of this power. But may it not be
said that government [p*139] includes protection and defence, as well as
the regulation of internal administration? And is it impossible to
imagine cases in which citizens conspiring or attempting the destruction
or great injury of the national forces may be subjected by Congress to
military trial and punishment in the just exercise of this undoubted
constitutional power? Congress is but the agent of the nation, and does
not the security of individuals against the abuse of this, as of every
other, power depend on the intelligence and virtue of the people, on
their zeal for public and private liberty, upon official responsibility
secured by law, and upon the frequency of elections, rather than upon
doubtful constructions of legislative powers?
But we do not put our opinion that Congress might authorize such a
military commission as was held in Indiana upon the power to provide for
the government of the national forces.
Congress has the power not only to raise and support and govern armies,
but to declare war. It has therefore the power to provide by law for
carrying on war. This power necessarily extends to all legislation
essential to the prosecution of war with vigor and success except such
as interferes with the command of the forces and the conduct of
campaigns. That power and duty belong to the President as
commander-in-chief. Both these powers are derived from the Constitution,
but neither is defined by that instrument. Their extent must be
determined by their nature and by the principles of our institutions.
The power to make the necessary laws is in Congress, the power to
execute in the President. Both powers imply many subordinate and
auxiliary powers. Each includes all authorities essential to its due
exercise. But neither can the President, in war more than in peace,
intrude upon the proper authority of Congress, nor Congress upon the
proper authority of the President. Both are servants of the people,
whose will is expressed in the fundamental law. Congress cannot direct
the conduct of campaigns, nor can the President, [p*140] or any
commander under him, without the sanction of Congress, institute
tribunals for the trial and punishment of offences, either of soldiers
or civilians, unless in cases of a controlling necessity, which
justifies what it compels, or at least insures acts of indemnity from
the justice of the legislature.
We by no means assert that Congress can establish and apply the laws of
war where no war has been declared or exists.
Where peace exists, the laws of peace must prevail. What we do maintain
is that, when the nation is involved in war, and some portions of the
country are invaded, and all are exposed to invasion, it is within the
power of Congress to determine in what states or district such great and
imminent public danger exists as justifies the authorization of military
tribunals for the trial of crimes and offences against the discipline or
security of the army or against the public safety.
In Indiana, for example, at the time of the arrest of Milligan and his
co-conspirators, it is established by the papers in the record, that the
state was a military district, was the theatre of military operations,
had been actually invaded, and was constantly threatened with invasion.
It appears also that a powerful secret association, composed of citizens
and others, existed within the state, under military organization,
conspiring against the draft and plotting insurrection, the liberation
of the prisoners of war at various depots, the seizure of the state and
national arsenals, armed cooperation with the enemy, and war against the
national government.
We cannot doubt that, in such a time of public danger, Congress had
power under the Constitution to provide for the organization of a
military commission and for trial by that commission of persons engaged
in this conspiracy. The fact that the Federal courts were open was
regarded by Congress as a sufficient reason for not exercising the
power, but that fact could not deprive Congress of the right to exercise
it. Those courts might be open and undisturbed in the execution [p*141]
of their functions, and yet wholly incompetent to avert threatened
danger or to punish, with adequate promptitude and certainty, the guilty
conspirators.
In Indiana, the judges and officers of the courts were loyal to the
government. But it might have been otherwise. In times of rebellion and
civil war, it may often happen, indeed, that judges and marshals will be
in active sympathy with the rebels, and courts their most efficient
allies.
We have confined ourselves to the question of power. It was for
Congress to determine the question of expediency. And Congress did
determine it. That body did not see fit to authorize trials by military
commission in Indiana, but, by the strongest implication, prohibited
them. With that prohibition we are satisfied, and should have remained
silent if the answers to the questions certified had been put on that
ground, without denial of the existence of a power which we believe to
be constitutional and important to the public safety -- a denial which,
as we have already suggested, seems to draw in question the power of
Congress to protect from prosecution the members of military commissions
who acted in obedience to their superior officers and whose action,
whether warranted by law or not, was approved by that upright and
patriotic President under whose administration the Republic was rescued
from threatened destruction.
We have thus far said little of martial law, nor do we propose to say
much. What we have already said sufficiently indicates our opinion that
there is no law for the government of the citizens, the armies or the
navy of the United States, within American jurisdiction, which is not
contained in or derived from the Constitution. And wherever our army or
navy may go beyond our territorial limits, neither can go beyond the
authority of the President or the legislation of Congress.
There are under the Constitution three kinds of military jurisdiction:
one to be exercised both in peace and war, another to be exercised in
time of foreign war without the boundaries of the United States, or in
time of rebellion and civil war within states or districts occupied by
rebels treated [p*142] as belligerents, and a third to be exercised in
time of invasion or insurrection within the limits of the United States
or during rebellion within the limits of states maintaining adhesion to
the National Government, when the public danger requires its exercise.
The first of these may be called jurisdiction under MILITARY LAW, and is
found in acts of Congress prescribing rules and articles of war or
otherwise providing for the government of the national forces; the
second may be distinguished as MILITARY GOVERNMENT, superseding, as far
as may be deemed expedient, the local law and exercised by the military
commander under the direction of the President, with the express or
implied sanction of Congress, while the third may be denominated MARTIAL
LAW PROPER, and is called into action by Congress, or temporarily, when
the action of Congress cannot be invited, and, in the case of justifying
or excusing peril, by the President in times of insurrection or invasion
or of civil or foreign war, within districts or localities where
ordinary law no longer adequately secures public safety and private
rights.
We think that the power of Congress, in such times and in such
localities, to authorize trials for crimes against the security and
safety of the national forces may be derived from its constitutional
authority to raise and support armies and to declare war, if not from
its constitutional authority to provide for governing the national
forces.
We have no apprehension that this power, under our American system of
government, in which all official authority is derived from the people
and exercised under direct responsibility to the people, is more likely
to be abused than the power to regulate commerce or the power to borrow
money. And we are unwilling to give our assent by silence to expressions
of opinion which seem to us calculated, though not intended, to cripple
the constitutional powers of the government, and to augment the public
dangers in times of invasion and rebellion. Mr. Justice WAYNE, Mr.
Justice SWAYNE, and Mr. Justice MILLER concur with me in these views.
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