MIUTAUY < >M MI-IONS. 



513 



the right of trial by jury was guaranteed to him by 



utioii "t the United M 



. iif tin- petition was, tliut, under the act 



1'i-fss, upprored March 8, 18i; '., entitled "Au 



i the habetu cor/ rotating jodi- 



08," If :n:i.V In- liniilu'lit 



.n.l rillu-r turni'd ovrr tiithr proptT 



to In- pM'.-ivd.-d again*t according to the 



,.i:id, or discharged from custody alto- 



With t I.- petition wore filed the order for the com- 

 .'ions, the findings 



(if tin.- court, with the order of tho War Department, 



nt. -nee was approved by the Pres- 



.md directing that it be 



u ion without delay. The petition 



1 and tiled in open court by the counsel 



for Milli^in ; at the same time tho District Attorney 



ites for Indiana appeared, and, by 



ut of the counsel, tho application was 



i tho court. The opinions of the judges 



Circuit Court were opposed on three questions, 



which are certified to the Supreme Court: 



1. "On the facts stated in said petition and exhib- 

 its, ought a writ of habeas cprpv* to be issued ? " 



<>u the facts stated in said petition and exhib- 

 its, ought the said Lambdin P. Milligan to be dis- 

 diar:rol from custody, as in said petition prayed?" 



'Vh.'ther, upon the facts stated in said petition 



and exhibits, the military commission mentioned 



therein h:ul jurisdiction legally to try and sentence 



'. ' ii'.Mii, in manner and form as in said petition 



and exhibits is stated?" 



to these questions, after a thorough ex- 

 amination of tho cases and consulting, the court 

 IK ild that tho first two must bo answered affirm- 

 atively the third in the negative. Justices 

 \ elson, Clifford, and Field, hold- 

 sat Congress provided against such com- 

 >ns, rather than in favor of them, by the 

 18G3, and that Congress has not the con- 

 stitutional power to authorize such commis- 

 sions; that the Constitution is express against 

 them, and it is the supreme law of tho land, in 

 times of war as in times of peace. 



Mr. Chief Justice Chase read an opinion (in 

 vrbioh Justices Wayne, Swayne, and Miller con- 

 curred), dissenting from so much of the opinion of 

 the court as held that Congress did not have the 

 constitutional power to authorize military com- 

 iiis, but concurring as to tho answer given 

 to the questions certified up. Tho dissenting 

 opinion held that in time of war ('onjrivss may 

 authorize military commissions to try offences 



-o before the court. 



Tho parties were afterward discharged from 

 imprisonment. 



Jefferson Davis, having been captured by the 

 military forces, was kept in custody at F<> 

 Monroe as a prisoner. Although no definite 

 steps were taken to try him by a military com- 

 m, it may not bo out of place to state hero 

 what proceedings were had in regard to his 

 trial, as he was held during the year as a pris- 

 oner by the military authorities, although >uh- 

 ject to the orders of the civil courts. 



On September 21, 1805, the Senate of tho 

 United States called upon tho President tor in- 

 formation on tho subject of. the trial. In ro- 

 Hponse to this resolution, reports were submitted 

 frora the Secretary of War aitd Attorney-General. 

 VOL. TI. 33 A 



Tho following N t!io report of the Secretary 

 of War on the subject: 



WAR DtrARTMixT, January 4, 1864. 

 : To the annexed Senate resolution, pa* 

 ccrnbor 21, 18(55, referred to me by you for report, I 

 hare the honor to state : 



1. That Jefferson Davis was captured by tho Uni- 

 ted States troops in the State of Georgia, on or about 

 the 10th day or May, 1865, and by order of this De- 

 partment has been, and now is, confined at Fortress 

 Monroe, to await such action as may be taken by the 

 proper authorities of the United States Government. 



-. That he has not been arraigned upon any in- 

 dictment or formal charge of crime, but has been in- 

 dicted for the crime of high treason by the grand 

 jury of the District of Columbia, which indictment is 

 .MOW pending in the Supreme Court of said District, 

 lie is also charged with the crime of inciting the as- 

 sassination of Abraham Lincoln, and the murder of 

 Union prisoners of war, and other barbarous and 

 cruel treatment toward them. 



3. The President deeming it expedient that Jeffer- 

 son Davis should be put upon his trial before a com- 

 petent court and jury for the crime of treason, he 

 was advised by the law officer of the Government 

 that the proper place for such trial was in the State 

 of Virginia. That State is within the judicial circuit 

 assigned to the Chief Justice of the Supreme Court, 

 who has held no court there since the apprehension 

 of Davis, and who declines for an indefinite period to 

 hold any court there. 



The matters above stated are, so far as I am in- 

 formed, the reasons for holding Jefferson Davis in 

 confinement, and why be has not been tried. 



The then Attorney-Gen eralj James Speed, 

 enters into an argument to show that, although 

 originally captured by the military, Jefferson 

 Davis and other parties alluded to are, after a 

 cessation of hostilities, subject to trial only by 

 the civil courts. Tho following are his official 

 conclusions : 



I have ever thought that trials for high-treason 

 cannot be had before a military tribunal. The civil 

 courts have alone jurisdiction of that crime. The 

 question then arises, Where and whc%uiust the trial 

 thereof be held? ******* 



It follows, from what I have said, that I am of 

 opinion that Jefferson Davis and others of the insur- 

 gents ought to be tried in some one of the States or 

 districts in which they in person respectively com- 

 mitted the crimes with which they may be charged. 



When tho courts are open, and the laws can be 

 peacefully administered and enforced in those States 

 whose people rebelled against the Government 

 when thus peace shall have come, in fact and in law, 

 i!u 1'iTsons now held in military custody as prisoners 

 of war, and who have not been tried and convicted 

 for offences against the laws of war, should be trans- 

 ferred into the custody of tho civil authorities of the 

 proper districts, to be tried for such high crimes and 

 misdemeanors us may be alleged against them. 



On the ICth of January, 3866, tho Senate 

 called upon the President for tho correspond- 

 ence between himself and Chief Justice Chase. 

 On the -;1 February the President responded 

 as follows : 



EXECUTIVE MANSION, WASHINGTON, D. C., Oct. 2, 1865. 



DEAR SIR: It may Become necessary that the Gov- 

 ernment prosecute some high crimes and misde- 

 meanors committed against the United States within 

 the district of Virginia. 



IVrmit me to inquire whether the Circuit Court of 

 the United States for that district is so fur organized 



