CASES ARGUED AND DETERMINED IN THE CIRCUIT AND DISTRICT COURTS OF THE UNITED STATES. SEVENTH JUDICIAL CIRCUIT. MILLIGAN vs. HOVEY. CIRCUIT COURT.-DISTRICT OF INDIANA.-MAY TERM, 1871. MILITARY COMMISSIONS. 1. WHEN UNCONSTITUTIONAL.-Military commissions and their acts, in the trial of persons not in the military service, during the late civil war, in states where the courts were undisturbed, were unconstitutional. 2. LIABILITY OF MEMBERS AND OF ARMY OFFICERS.-The members of such commissions, and officers of the United States army, are liable for arrest and imprisonment ordered by them in such states, even though ratified and approved by the Executive Department of the Government. 3. They are also liable for imprisonment suffered beyond their jurisdiction, if such imprisonment was the natural and necessary result of the sentence pronounced by them. 4. LIMITATION OF ACTION.-The limitation imposed by the act of Congress of March 3, 1863, was within the power of Congress, and binding upon state tribunals. (13) Milligan vs. Hovey. 5. The defendants are not liable for any acts, nor any portion of the term of imprisonment, prior to two years before the commencement of the action; the statute begins to run notwithstanding that the imprisonment was a continued act. 6. It seems that an act of Congress would not be complete justification, if the trial by a military commission was forbidden by the Constitution. 7. DAMAGES.—The damages to be allowed should be compensatory, and not exemplary or punitive. 8. The action of military commissions, and duties of army officers, commented on. This was an action of trespass, by Lambin P. Milligan, for an alleged wrongful arrest and imprisonment. The principal facts which gave rise to the controversy were undisputed. On the 5th of October, 1864, during the rebellion, the plaintiff was a citizen of Indiana, residing in the county of Huntington, and not engaged in the military or naval service of the United States. General Hovey, one of the defendants, was the military commander of the District of Indiana, duly appointed by the President. On that day General Hovey, as such commander, ordered an officer and some soldiers to proceed to Huntington and arrest the plaintiff. He was accordingly arrested at his house there and brought to Indianapolis, and confined in prison. He was shortly after tried before a military commission on certain charges brought against him for conspiring against the Government, affording aid and comfort to the enemy, inciting insurrection, disloyal practices, and violation of the usages of war. The commission convicted him and sentenced him to be hanged. His imprisoninent was continued under this sentence at Indianapolis till the 2d day of June, 1865, when, a commutation having been made in the sentence by the President, General Hovey ordered the plaintiff to be removed to the penitentiary of Ohio, at Columbus, in compliance with instructions from the War Department, where he remained till the 10th of April, 1866, when he was liberated. In the meantime, on the 10th of May, 1865, the plaintiff had made application to this Court for a writ of habeas corpus, Milligan vs. Hovey. upon which the opinions of the judges were divided, and the questions certified to the Supreme Court, under the act of Congress of April 29th, 1802. That Court, after elaborate argument and consideration, held that the military commission had no jurisdiction to try and sentence the petitioner, and ordered the writ to issue according to the prayer of the petitioner, and that he be discharged from custody. Ex parte Milligan, 4 Wallace, 2. It was for these acts thus done by General Hovey as military commander, by other defendants as members of the military commission, and by others as having some agency in his arrest, trial and imprisonment, that the action was brought, although the plaintiff simply set them out as a wrongful arrest and imprisonment, without stating the reasons which influenced the defendants. The defendants pleaded: 1. Not guilty. 2. That the arrest and imprisonment grew out of the plaintiff's participation in the offenses charged against him before the military commission; that he was guilty thereof, and that the defendants were acting as officers in the army of the United States, under the authority of the President, without malice, and with no more force than necessary. 3. That for all acts done prior to the 13th of March, 1866, the limitation of two years prescribed by the seventh section of the habeas corpus act of Congress of March 3, 1863, applies, the suit having been brought on the 13th of March, 1868; and the defendants say as to the imprisonment after March 13, 1866, they are not guilty. T. A. Hendricks, for plaintiff. J. W. Gordon and Benjamin Harrison, for defendants. DRUMMOND, J., after stating the facts, charged the jury as follows: The agency of most of the defendants in the arrest and Milligan vs. Hovey. imprisonment of the plaintiff is not seriously controverted. The arrest was made on the order of General Hovey, and by him he was held for military trial. The defendants Spooner, Dehart, Bennett, Murray, and Williams, were members of the military commission that tried and convicted him, and it was in consequence of their action that he was still retained in prison. If they had acquitted him it is a fair inference he would have been released, unless, indeed, other charges were preferred against him. This being the case on the part of the plaintiff, we now proceed to consider the defense. However it may have been before the arrest and trial, there is no doubt that the acts of General Hovey and his brother officers, in the seizure, trial and sentence of the plaintiff, were ratified and approved by the Executive Department of the Government. The legislation of Congress has also been to the same effect, (§4, act of March 3, 1863, 12 U. S. Statutes at Large, 756; § 1, act of May 11, 1866, 14 do. 46; act of March 2, 1867, Id. 432; Statutes of Indiana, Davis' Supplement, Vol. 3, p. 570). The first question, therefore, is whether this constitutes a good defense. The Supreme Court of the United States decided upon the facts then before it that the action of the military commission in the trial and sentence of the plaintiff was null and void. (4 Wallace, 2.) The court also decided that in the trial and sentence the constitutional rights of the plaintiff were invaded; that is, the act done was prohibited by the Constitution of the United States. A majority of the court held that even Congress could not authorize the act. If an act is prohibited by the Constitution, and it is beyond the power of Congress to authorize it, then it may be said the wrong done by the act is not subject to complete indemnity by Congress, because then the prohibition of the Constitution to protect private rights would be without effect. (4 Wallace, 136.) As the minority |