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 service of the United States. On the 5th day of October, 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 the 21st day of October, 1864, he was brought before a military commission, convened in Indianapolis, by order of General Hovey, tried on certain charges and specifications; found guilty, and sentenced to be hanged, and the sentence ordered to be executed on Friday, the 19th day of May, 1865. On the 2d day of January, 1865, after the proceedings of the military commission were at an end, the Circuit Court of the United States for Indiana met at Indianapolis and impaneled a grand jury, who were charged to inquire whether the laws of the United States had been violated; and if so, to make presentments. The court adjourned on the 27th day of January, having, prior thereto, discharged from further service the grand jury, who did not find any bill of indictment or make any presentment against Milligan for any offense whatever; and, in fact, since his imprisonment, no bill of indictment has been found or presentment made against him by any grand jury of the United States. Milligan insists that such military commission had no jurisdiction to try him upon the charges preferred, or upon any charge whatever; because he was a citizen of the United States and of the state of Indiana, and had not been, since the commencement of the late Rebellion, a resident of any of the states whose citizens were arrayed against the Government, and that the right to trial by jury was guaranteed to him by the Constitution of the United States. The prayer of the petition was, that under the act of Congress approved March 3d, 1863 (12 Stat. 755), entitled 'An Act Relating to Habeas Corpus, and Regulating Judicial Proceedings in Certain Cases,' he

may be brought before the court, and either turned over to the proper civil tribunal to be proceeded against according to the law of the land, or discharged from custody altogether."

Upon that state of facts the Supreme Court held that the act of Congress approved March 3, 1863, "relating to habeas corpus," conferred jurisdiction on the Circuit Court of Indiana to hear such a case; that a proceeding by habeas corpus is a cause, as that term is used in section 25 of the Judiciary act; that the said Circuit Court had authority to certify questions in a proceeding for a writ of habeas corpus to inquire into a sentence of a military commission; and that it had jurisdiction to hear and determine them.

Thus in possession of the merits of the case, upon questions properly certified, the Supreme Court said: "No graver question was every 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. 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 the 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 impeachment, 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 otherwise 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 prosecutions 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 defense.' 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; but for the belief that it would be so amended as to embrace them, it would never have been ratified." In order to enforce those constitutional guarantees in Milligan's favor, the court held that Congress could not grant the power, and no usage of war could sanction a military trial for any offense whatever, of a citizen in civil life, in nowise connected with the military service, in a state where federal authority was always unopposed, and its courts always open to hear criminal accusations and redress grievances; that to every one accused of crime, who is not attached to the

army, or navy, or militia in actual service, the right of trial by jury is preserved; that martial law can not arise from a threatened invasion; that the necessity must be actual, the invasion real, such as actually closes the courts and overthrows the civil administration; that martial law can never exist where the courts are open and in the unobstructed exercise of their jurisdiction; that a military commission has no jurisdiction to try and sentence one not a resident of one of the states in rebellion, nor a prisoner of war; that Milligan could not be treated as a prisoner of war, when, at the time of his arrest, he had been living in Indiana for twenty years, he never having been in the military or naval service, but living at his home when 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 military commander of the military district of Indiana; that if such military trial of Milligan was contrary to law, he was entitled, on the facts presented by this petition, to be discharged from custody under the terms of the act of Congress of March 3, 1863, and it was so certified to the said Circuit Court. Thus the right to trial by jury was preserved to every one accused of crime, who is not attached to the army, navy, or militia in actual service. Martial law can not arise from a threatened invasion; the necessity must be actual and present; the invasion real, such as effectually closes the courts and deposes the civil administration.

§ 29. Ex-parte McCardle-Military commission, habeas corpus. Reference should here be made to the closely related case of McCardle, who was arrested and held in custody in the state of Mississippi by a military commission organized under the Reconstruction acts, upon charges of disturbing the public peace, and inciting to insurrection. As the case involved the validity of the Reconstruction acts, it excited universal interest and was

argued by counsel of the greatest distinction. In Exparte McCardle, 6 Wall. 318, it was held that an appeal lies to the Supreme Court, from the judgment of the Circuit Court in cases of habeas corpus; and that every question of substance which the Circuit Court could decide upon the return of the habeas corpus, including the question of its own jurisdiction, may be reviewed on appeal from its final judgment. From the statement of the case it appears that "in obedience to the writ, Major General Gillem, on the 21st day of November, made a return to the cause of imprisonment, from which it appeared that McCardle had been arrested and held in custody for trial by a military commission under the alleged authority of the Reconstruction acts." In Exparte McCardle, 7 Wall. 506, it was held that, as the act of March, 1868, took away the jurisdiction defined by the act of February, 1867, of the Supreme Court, in habeas corpus cases, no judgment could be rendered in a suit, after the repeal of the act under which it was brought and prosecuted. In the opinion in which the validity of the repealing act was sustained, the court, speaking through Chief Justice Chase, said: "It is quite clear that this court can not pronounce judgment in this case, as it has no longer jurisdiction of the appeal, and judicial duty is not less fitly performed by declining jurisdiction than in exercising formally that which the Constitution and laws confer."