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powers, since it would be composed of citizens well disciplined and well instructed in their rights and duties.1

1 The Federalist, No. 29. [Near the close of the war of 1812, the Secretary of War made an elaborate report recommending conscription as a means of recruiting the national armies. This was strongly protested against in some quarters as unconstitutional (see Dwight's History of the Hartford Convention, 359), and the recommendation was not adopted. During the late civil war, however, conscription became a necessity, and was carried out not only by the government but also by the insurgents under constitutional provisions like those of the Union. The right to do this was but feebly contested, and indeed cannot be seriously doubted.

It is remarkable that during the civil war but few questions respecting the war power were passed upon by the courts. Some most extravagant claims were put forth on behalf of this power by theorists, as if where war existed, Constitution and laws alike were to give way, and the military authority to be supreme and unlimited. Undoubtedly the war power is great and terrible, and there is no calamity to the country or its institutions - even to the dismemberment of the former, or the overthrow of the latter that might not by possibility result from an exercise of the power to declare war and make peace. In a great and desperate struggle for existence, the laws of necessity may become the absolute ruler, and private and public rights may alike give way before it. But these are what Mr. Walpole once called the "never-to-be-expected-occasions," "never to be thought of but when an utter subversion of the laws of the realm threatens the whole frame of the Constitution, and no redress can otherwise be hoped for." The people have never delegated to any department of the government, or to any officer, civil or military, the authority to subvert the laws, or put aside the Constitution, either temporarily or permanently; and whoever finds himself tempted to do either, would do well to ponder the words of Gov. Wm. Livingston: "If any necessity demands any measures contrary to the law, I hope those measures will be executed by officers who never have been sworn to act agreeably to it."

In ex parte Milligan, 4 Wall. 118, Mr. Justice Davis, speaking for the majority of the court, denied that military commissions could be empowered to try citizens not in military service for treasonable acts or conspiracies in those parts of the country where the courts were open and the laws unobstructed. The point is so important that we copy his remarks at some length.

"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 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 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

§ 1193. The next power of Congress is "to provide and maintain a navy."

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 impeachments 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 other 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 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 trials 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 proved 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 and under all circumstances. No doctrine involving

§ 1194. Under the confederation, Congress possessed the power "to build and equip a navy." The same language was adopted

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 had been happily proved by the result of the great effort to throw off its just authority.

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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 the judicial power of the country was conferred on them; because the Constitution expressly vests it 'in one Supreme Court, and in 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.

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'But it is said that the jurisdiction is complete under the 'laws and usages of war.'

"It can serve no useful purpose to inquire what those laws and usages are, 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 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, peaceably 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,

1 Art. 9.

in the original draft of the Constitution, and it was amended by substituting the present words, apparently without objection, as

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 have differed on the correct interpretation to be given to various provisions of the federal Constitution; and judicial decision has often been 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 valued 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 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 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 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 naval or military 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 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, 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 entrusted 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, 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

more broad and appropriate. In the convention, the propriety of granting the power seems not to have been questioned. But it

to the rule of his will; and in the exercise of this 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 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 of 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 peril 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 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;

1 Journ. of Convention, 221, 262.

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