512 



MILITARY COMMISSIONS. 



ing to our constitutional system of government, is 

 cognizable by the judicial authorities of the State, 

 and not of the Federal Government. And, also, that 

 the trial was not under the rules and articles of war 

 as established by the United States, in Congress 

 assembled, as these are limited to the government of 

 the land or naval forces of the United States, and of 

 the militia when in actual service in time of war or 

 public danger. 



The trial must have been had under what is known 

 and denominated "martial law," and the question in 

 the case is, whether or not this conviction and pun- 

 ishment can be upheld by reason of that authority. 



All respectable writers and publicists agree in the 

 definition of martial law that it is neither more nor 

 less than the will of the general who commands the 

 army. It overrides and suppresses all existing laws, 

 civil officers, and civil authorities, by the arbitrary 

 exercise of military power; and every citizen or sub- 

 ject in other words, the entire population of the 

 country within the confines of its power, is subject- 

 ed to the mere will or caprice of the commander. 

 He holds the lives, liberty, and property of all in 

 the palm of his hand. 



Martial law is regulated by no known or established 

 system or code of Taws, as it is over and above all of 

 them. 



The commander is the legislator, judge, and ex- 

 ecutioner. His order to the provost marshal is the 

 beginning and the end of the trial and condemnation 

 of the accused. 



There may be a hearing, or not, at his will. If 

 permitted, it may be before a drum-head court-mar- 

 tial, or the more formal board of a military commis- 

 sion, or both forms may be dispensed with ; and the 

 trial and condemnation equally legal, though not 

 equally humane and judicious. 



This being the nature and extraordinary character 

 of martial law, which, as observed by Sir Matthew 

 Hale, is not law, bnt something indulged rather 

 than allowed as law, all the authorities agree that it 

 can be even indulged only in case of necessity ; and 

 when the necessity ceases martial law ceases. When 

 a government or country is disorganized by war, and 

 the courts of justice broken up and dispersed, or are 

 disabled, from the prevalence of disorder and anar- 

 chy, to exercise their functions, there is an end to 

 all law, and the military power becomes a necessity, 

 which is exercised under the form and according to 

 the practice and usage of martial law. 



This necessity must be shown affirmatively by the 

 party assuming to exercise this extraordinary and 

 irregular power over the lives, liberty, and property 

 of the citizen, whenever called in question. 



Applying these principles to the case in hand, we 

 think the record fails to show any power on the part 

 of the military officer over the alleged crime therein 

 stated, or jurisdiction of the military commission 

 appointed by him to try the accused. No necessity 

 for the exercise of this anomalous power is shown. 

 For aught that appears, the civil local courts of the 

 State of South Carolina were in tha- full exercise of 

 their judicial functions at the time of this trial, as 

 restored by the suppression of the rebellion, some 

 seven months previously, and by the revival of the 

 laws and reorganization of the State government in 

 obedience to, and in conformity with, its constitu- 

 tional duties to the Federal Union. 



Indeed, long previous to this a provisional gov- 

 ernor had been appointed by the President, who is 

 commander-in-chief of the army and navy of the 

 United States, (and whose will' under martial law 

 constituted the only rule of action,) for the_ special 

 purpose of changing the existing state of things and 

 restoring civil government over the people. In pur- 

 suance of this appointment a new constitution had 

 been formed, a Governor and Legislature elected 

 under it, and the State in the full enjoyment, or en- 

 titled to the full enjoyment, of all her constitutional 

 rights and privileges. 



The Constitution nnd laws of the Union were 

 thereby acknowledged and obeyed, and were sis au- 

 thoritative and binding over the people of the State 

 as in any other portion of the country. Indeed the 

 moment the rebellion was suppressed, and ihe gov- 

 ernment growing out subverted, thje ancient posses- 

 sion, authority, and laws resumed their accustomed 

 sway, subject only to the new reorganization or the 

 appointment of the proper officers to give to them 

 operation and effect. 



This reorganization and appointment of the 

 public functionaries, which was under the superin- 

 tendence and direction of the President, as" com- 

 mander-in-chief of the army and navy of the country, 

 who, as such, had previously governed the people of 

 the State from imperative necessity by force of mar- 

 tial law, had already taken place, and the necessity 

 no longer existed. 



We liave not deemed it necessary, if proper, to 

 look into the merits of the offence charged against 

 the prisoner, although it is insisted that it occurred 

 in self-defence, and in resisting a violent assault 

 upon himself. 



Let the prisoner be discharged. 



The different commanders in the Southern 

 States issued orders directing that all civilians 

 held for trial by military courts, should be 

 turned over to the custody of the civil tribunals. 



The case of the persons charged with con- 

 spiracy in Indiana, and who were tried by a 

 military commission, and sentenced to death, 

 having been argued before the Supreme Court 

 in March, but no decision having been rendered 

 at that time, went over to the December term, 

 when the opinions of the court were given. 

 Mr. Justice Davis delivered the opinion of the 

 court : 



On May 10, 1865, Lambdin P. Milligan presented a 

 petition to the Circuit Court of the Lnited States for 

 the District of Indiana to be discharged from an al- 

 leged 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 Octobers, 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 October 21, 1864, he was brought before a mil- 

 itary commission, convened at Indianapolis by order 

 of General Hovey, tried on certain charges and spe- 

 cifications, found guilty, and sentenced to be hanged, 

 and the sentence ordered to be executed on Friday, 

 May 19, 1865. 



On January 2, 1865, after the proceedings of the 

 military commission were at an end, the Circuit 

 Court of the United States for Indiana met at India- 

 napolis, and empanelled a grand jury, who were 

 charged to inquire whether the laws of the United 

 States had been violated, and if 89, to make present- 

 ments. The court adjourned to January 27th, having 

 prior thereto discharged from further service the 

 grand jury, who did not find any bill o indictment, 

 or make any presentment against Milligan for any 

 ofi'ence whatever, and, in fact, since his imprison- 

 ment no bill of indictment has been found or present- 

 ment 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 citi- 

 zen 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 citi- 

 zens were arrayed against the Government, and that 



