[No. 8. See p. 275.]

MILITARY COMMISSIONS,

As regarded by the Supreme Court, and by Congress. The Case of Ex parte Milligan.

Congress passed an act, March 3, 1863 (12 Stat. 755), which provided that persons imprisoned under the authority of the President, and not held as prisoners of war, should, under the circumstances therein set forth, be entitled to be brought, by writ of habeas corpus, before certain courts of the United States, and to be discharged from military custody. Milligan claimed his release under the provisions of this act. None of the judges of the Supreme Court questioned its constitutionality, and all agreed that the petitioner's case came within its provisions, and that he was therefore entitled to his discharge. The order of the court was, "That, on the facts stated in the said petition and exhibits, the said Milligan ought to be discharged from custody as in said petition is prayed, according to the Act of Congress passed March 3, 1863, entitled "An Act relating to habeas corpus, and regulating judicial proceedings in certain cases."

In the elaborate opinions of the Chief Justice and of Mr. Justice Davis, a further question is discussed - "Whether it would have been within the power of Congress to authorize such a military commission to be held in Indiana,” under the circumstances set forth in the petition and exhibits?

As Congress had passed no law authorizing that commission, and as no case had arisen involving any question as to the validity of such a law, it is clear that the Supreme Court had no power to decide this abstract question. It must therefore be deemed as still undecided. But the discussions and the reasons of the opposing judges are none the less interesting and instructive.

It was held by the court that a certain military commission, before which one Milligan was tried, in October, 1864, at Indianapolis, had no jurisdiction to try and sentence him, he not being a resident of one of the rebellious States, nor a prisoner of war, but a citizen of Indiana for twenty years past, and never in the military or naval service of the United States, or of their enemies; the majority of the court claiming to have "judicial knowledge that in Indiana, in time of war, the Federal authority was always unopposed, and its courts always open to hear criminal accusations, and redress grievances.” On this statement of facts five of the judges were of opinion that Milligan had the right of trial by jury, and could not be lawfully tried by the military commission. The same judges also said that in case of foreign invasion, or civil war, "if the courts are closed," and if 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 of society; and as no power is left but military, it is allowed to govern by martial rule, until the laws can have their free course, but that martial law must be confined to the locality of actual war. "It may be a necessity in one State, when in another it would be lawless violence.” It will be observed that the majority of the court, in delivering their opinion, declare and assume, as the basis of their judgment, the existence of a state of facts, of which they claim to have had judicial knowledge; namely, that in Indiana, at the time and place where Milligan was arrested, in a period of civil war, "the Federal authority was always unopposed."

The act of Congress approved March 3, 1863, authorized the President, when public safety required it, during the war, to suspend the writ of habeas corpus throughout the United States; and by proclamation of September 15, 1863, he had suspended the privilege of the writ in cases where, by his authority, military, naval, and civil officers of the United States held persons in their custody, either as prisoners of war, spies, or aiders or abettors of the enemy, or as belonging to the land or naval forces of the United States, or otherwise amenable to military law, or the rules and articles of war, or the rules and 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.”

The record of the military commission showed that Milligan was guilty of 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; that he was guilty of holding communication with the enemy (in Indiana); that he conspired with others to seize the munitions of war of the United States stored in the public arsenals, and to liberate prisoners of war held by the military forces of the United States; that he resisted the draft during a period of war and armed rebellion against the authority of the United States, at or near Indianapolis, and other places specified, in Indiana; that that State was within the military lines of the army of the United States, and was the theatre of military operations, and had been invaded, and was constantly threatened to be invaded, by the enemy.

In this state of facts, shown upon the record, it is not easy to see how the court could have judicial knowledge "that the Federal authority was always unopposed in Indiana; that State having been actually invaded by the public enemy, and invasion being then threatened, and measures being then in progress among the inhabitants of Indiana to join in the rebellion, to overthrow the government, to seize its public property, to liberate its prisoners of war, and thus to create an army of rebels, who, with our prisoners of war, might co-operate with Milligan and his associates in acts of hostility against the United States, in the places where our armies were being recruited and organized, and within our military lines.

The fact, whether the legal status of war, or of peace, was recognized by the political department of the government, was of vital importance to the question of jurisdiction of the military commission which tried Milligan. That certain courts of the United States were held in Indiana, according to law, might be judicially known to the Supreme Court at Washington; but whether, in time of civil war, the authority of the United States was unopposed," or whether the state of our military operations in that district was such that the courts could be held only because they were protected by the presence of the army, as was the case in some localities, which had not been formally declared by the President in rebellion, and the question what was the military status of that district in which the petitioner was captured, involved the ascertainment of facts of a political character, and of which our Supreme Court has not hitherto felt authorized to take judicial cognizance.

What is "the theatre of active military operations," in which, as declared by the majority of the court, martial law must be allowed to govern? What, in time of civil war, which involves every citizen, is "the actual locality of war"? Who is to determine these questions, or to say whether "the Federal authority is unopposed," or whether, on the contrary, hostile military organizations are in existence, which, if not opposed by arms, or by arrest or capture of their leaders, will break out into open hostilities, when it may be too late to avert the mischief? When civil war has been recognized or declared by the proper departments of the government, who has a right to decide where rebellion and war exist, and what are and what are not "active hostilities"? What department has the right to decide, for the time being, the legal status or condition of the inhabitants of any portion of any State, when hostilities are, in fact, going on, or are threatened? Such questions, under our government, cannot be decided by the Judicial Department, either on affidavits or other evidence taken by judges, or by their orders, nor by their opinions upon supposed judicial knowledge of facts. These are political questions to be decided by the political department of the government, and the courts are bound to respect and to be governed by those decisions.

Whenever, in case of foreign invasion, or of civil war, any section of the country is so remote from all military or naval operations as to have remained undisturbed by the presence of our military or naval forces, or by the open or secret hostilities of the enemy; when martial law has not been. declared, and when the privilege of the writ of habeas corpus has not been suspended by reason of public danger; when the courts are open and unobstructed in the discharge of their official duties, without being dependent upon the military power of the country for their protection, the government not having taken those measures which it is authorized to take in time of insurrection, invasion, or civil war, a state of war not having been declared or recognized by the political departments, the Executive would have no right to institute military tribunals for the punishment of citizens not be

longing to the military or naval service, in such a section of the country, and in such a condition of affairs, nor to deprive citizens of any of the privileges ordinarily secured to them under the Constitution. Whenever and wherever a state of peace is recognized as existing by the political department of the government, the laws of peace prevail, and the rights secured to citizens in time of peace must be respected and maintained; but wherever and whenever, in the United States, a state of war is so recognized, there and then the rights and liabilities of war attach.

Among the questions which it would seem desirable to have raised in preparing the record, and to have presented on the part of the United States, for the judgment of the court in Milligan's case, are, 1. Whether, under all the circumstances of hostilities practised against the Union by the public enemy in Indiana, a state of war had in fact been recognized by the political departments as existing at the time and place when said Milligan was captured? 2. Whether he was captured and held as a prisoner of war? It does not appear that he was alleged, in the record, to have been captured as a prisoner of war, nor that the officer who held him claimed to hold him as a prisoner of war; and it does appear that Milligan sought his discharge under the act of March 3, 1863, which is by its own terms inapplicable to prisoners of war. These questions, though not overlooked by counsel, were not properly presented by the record for adjudication. On the contrary, the only question presented and really decided was, whether Milligan was entitled to his discharge under the provisions of the law of Congress of March 3, 1863? and the court, taking it as conceded that the petitioner was not captured and held as a prisoner of war, unanimously decided that he was entitled to his discharge by the provisions of that law; thus, by necessary implication, sustaining the validity of the statute, and of the war powers embodied in it. This case decides nothing in relation to military commissions in rebel States. Since the opinions of the judges were announced, Congress has passed a statute for the purpose of preventing future litigation which would be likely to arise from the decisions of military courts and commissions during the war, by extending to their proceedings a full sanction, and by depriving civil courts of all right of subsequent jurisdiction over the same. (See Act, March 2, 1867, Chap. 155; also note on "Military Government.") *

See Ex parte M'Cardle, 7 Wallace, 509.

Act, March 27, 1868, 15 Stat. at Large, 44.

Ex parte Yerger, 8 Wallace, 85.

*Since the above was in type, the Supreme Court have fully recognized the war power of the government to establish military courts in the rebel territory. See The Grapeshot, 9 Wallace, 131, App. 601.

[No. 9. Extracts from the Records of the War Department.]

THE EMANCIPATION BUREAU.

Letter from Hon. Thomas D. Eliot, Chairman of the Committee on Eman

cipation.

HOUSE OF REPRESENTATIVES,

3.}

ROOMS OF COMMITTEE ON EMANCIPATION, Dec. 26, 1863.

HON. E. M. STANTON, Secretary of War.

DEAR SIR: The Committee on Emancipation have directed me to submit to you a bill creating a Bureau of Emancipation in your department. Will you be pleased to examine the bill, and make such suggestions concerning it as may seem right? The committee will be also glad if they may have the benefit of any legal suggestions or criticisms from the eminent law solicitor of your department, and I respectfully ask that the bill may be referred to him for that purpose.

I have the honor to be, very truly,

Your friend and servant,

THOMAS D. ELIOT, Chairman.

To the Committee on Emancipation, House of Representatives.

HON. THOMAS D. ELIOT, Chairman:

The letter of which the foregoing is a copy has been received by the Secretary of War, and by him referred to me.

In compliance with the request which your chairman has made, I have the honor to say, that I have examined the bill presented by him (H. R., No. 51) to establish a Bureau of Emancipation, aided by personal explanations, which he has done me the favor to make, and I would suggest that there be inserted in the first page, eleventh line, after the word enacted, the following: "concerning persons of African descent, and of persons who are or shall become free by virtue of any proclamation, law, or military order, issued, enacted, or promulgated during the present rebellion, by virtue of any act of emancipation which has been or shall be enacted by any State for the freedom of such persons held to service or labor within such State, or who shall now be or hereafter become otherwise entitled to their freedom; and such commissioner shall have authority, under, the direction of the Secretary of War, to make all needful rules and regulations for the general superintendence, direction, and management of all such persons, to appoint a chief clerk," &c.

In the foregoing, the change proposed gives the commissioner positive authority to make "rules and regulations," instead of merely "referring to him for adjustment and determination of all questions which may arise concerning persons of African descent. This language might be narrowed by opponents down to a mere arbitration of legal questions.