| Show UNITED states sl preme ylie COURT douat fix fil TRIALS OF CIVILIANS tiie THE INDIANA conspiracy CASE casl ARGUMENT bugi augi m r ine INT or the THE hos HOK JEREMIAH 9 black in september 1864 L P milligan WT W A bodies Step stephen wien fien horsey and aua others were arrested and brought before a military commission at indianapolis indiana charged with being members of the order of american knights or sons bons of liberty in league with armed rebels and with having conspired to release tle the the rebel prisoners of war confined in the united states military prisons at indianapolis chicago and rock island the three parties named after a protracted trial were found guilty g of the bli bil charges arges and specifications preferred referred against thein them and condemned to 0 death abb phe the findings s and sentence were approved pro ved by dy the i he president and promulgated 9 abed by the war department on the ad d day of may 1865 and the day of the same month was fixed for the execution on the loth of may however they applied by petition to the circuit circuit court of the united states state for the fhe district of indiana judges davis and me donald for a writ of badras badeas copus or I 1 xa foran rain rtin order of discharge under unar the act of bf congress approved march 2 1863 I 1 entitled eni oni ti I 1 an act relating to habeas corpus kaik sari and d judicial proceedings in certain cases I 1 the judges of the circuit court were divided in opinion up J i oh on this application and certified the following questions on which they dif adred fd red to the supreme court for deel slon sion i i ll 11 an anth tha fact stated in said petition arnd annd and arid exhibits ought a writ of habeas capus to be issued according to the prayer of said petition 2 ta 2 V on the taets facts stated in said peti tio nand exhibits ought the said parties fo be dascha discharged aged from custody as in said petition prayed 3 whether u upon on the facts fiets stated in said petition ani ans and exhibits the military commission mentioned therein rhad Ahad had jurisdiction legally to try and son sentence tonce tence said parties in manner and form i us a q in said petition and exhibits is stated after frer the action of the circuit court 4 certifying the caieto caseto case to the Supreme court court kpor ninal final decision the president commuted the sentence of the petition petitioners ers to tj imprisonment t for life the arguments of these theae questions which eom tom commenced menaced on the ath and ter 4 on oil the of march 1866 W was as conducted on the part of the petitioners petition ers by byj J E mcdonald mcdo E esq sq of indiana hon J A GARFIE garfield LD of ohio hon hom J S SLACK of pennsylvania and DA DAVID id judney JUDLEY FIELD elend fieldson of new york and on behalf of the 10 united n cited states by B F hbutler BUTLER esq of massachusetts hon EH H of ohio and hon JAS SPEED attorney general of the united states the argument of mr BLACK for the petitioners petition ers was taken in shorthand by mr D F mur Mun MURPHY merphy rity pity one of the conductors of the reporter a periodical published in washington and devoted to tov religion law legislation V and i public events mr black sald said in addressing nadi dadi tessing the court ma may it please your honors I 1 am hm not afraid you oli dil will underrate this case it concerns the right of the whole people such questions have genie gente pel pei rally raily been settled by arms but nut since the be linning of the world no battle has ever been een eon lost or won upon which the liberties of a nation were so distinctly stake staked 0 4 as they are on the result of this ment the pen th that writes the ju judg g divent af pf f the court will be mightier for good or for evil tb than an any sword that ever was wielded by mortal arm i As might be expected from the nature j of the subject it has been a good deal discussed elsewhere in legislative bod ii ies les in public publia assemblies and in the newspaper newspaper press lessof of the country but there it has reen been mingled with inte interests of feelings not verj very friend friendly li to a correct conclusion here we are in a higher atmosphere where no passion can candis dis the judgment or shake the even T balance in ia which the scales of reason are held here it is purely a judicial A question and I 1 J can speak for ni my colleagues lea ues aes as well ag as myself when I 1 isay say that thal we have no thought to suggest which we do not suppose to bo a fair element in the strict legal judgment which you are required to make up j tn in performing tile the duty assigned to mein the case I 1 shall necessarily refer 13 to the mere rudiments of constitutional blaw the iho most common place topics ff bf history and alid to those plain rules of justice an and ight right which pervade all our institutions institution I 1 beg your honors to believe that this is is not done because I 1 think that the court or any member of it is les less familiar with these things athani airi am or less liss sensible of their value but simply and only because according to my view of the subject there is absolutely no iio other way of dealing with it if the fundamental principles of american amerlean am rican liberty are arc attacked and we are driven within the inner walls of the constitution to defend them we can repel the assault only with those same old oid weapons which our ancestors used a hundred years ago you must not think the worse of our armor because it happens to be old fashioned and looks a little rusty from long disuse the case before you presents but a single point and that an exceedingly pla pia plain v in one it it is not inc wit with any a ny of those hosi hosl e vexed questions that might I 1 be e expected to arise out of a great war you jou are not called upon to decide what kind of a rule a military commander may impose upon n the inhabitants of a hostile country which he occupies as us a conqueror or what punishment he may inflict upon the soldiers of his own army pr or the followers of his campi camp or at yet vet how he may way deal with civilians in a city or other place in a state of actual biege siege which lie he is Js required to defend against a public enemy this corl cori contest test covers no such ground as that themen whose acts we complain of erected themselves into anto a tribunal for the trial aud and punishment of citizens who were vere connected in no way whatever with the army or navy andthil and this they did in n the midst of a community whose social and legal organization had noverleen never nover been disturbed by any war or ili lii insurrection where the courts were wide open where judicial process was executed every day without interruption and where all t the e civil authorities both state and national vrem in the fil full fuli fil exercise of th their e ir functions ay my clients were dragged before this tills strange tr n g etri tribunal bunal bunai which ch it would would be e mere mockery to call a trial they were fredred to be hung the charge against them was put into writing whitin and is found on this record but you will hlll not be able to decipher its meaning the Tela tors were not accused of treason for no act is imputed to them which if true would come corne within the definition of that crime it was not conspiracy under the act of 1861 borall for all ali concerned in this business must have known that conspiracy was not a capital lense offense of if the cornils commissioners were vere able to read english the they y could not abt help heip but see that it was made mado punishable even by fine and imprisonment only upon condition that the parties should first be convicted before a circuit or district court of the united states the judge advocate must have meant to charge them with some offic inse unk unknown to the laws which he chose to make capital by legislation of his own and the commissioners were so profoundly ignorant as to think that the legal innocence of the parties artles arties made no difference in the case Y I 1 do not say what sir james mackintosh said of a similar proceeding that the trial was a mere amere conspiracy to commit wilful murder upon three innocent men the commissioners are not on trial they are absent and undefended and they are entitled to the tho benefit of that charity which presumes them to be wh wholly oly unacquainted with just principles of n natural justice and quite unable to comprehend either the law or the facts of a criminal cause keeping keepin the character of the charges in mind let yet us come at once to the slin simple tle gle simpie question upon which the court beelow divided in opinion had the commissioners juri jurl jurisdiction were they invested with le leai leal legal al authority to try the thu relators rela tors and pa pub them to death for the offense of which they were irete accused we vve answer no and therefore the whole proceeding from begin beginning ning hing to end en was utterly null and void on the tele other hand it is absolutely necessary for those who mhd oppose us to assert and they do assert that the commissioners had complete legal jurisdiction both of the subject matter and of the parties so that their judgment upon the law a and n d the facts is absolutely conclusive and binding not subject to correction nor open to inqui inquiry iry ery in any court whatever of these two opposite views you must adopt one ono or the other for there is no middle ground on which you can possibly stand I 1 need not say for it is the law of the horn books that where a c ourt court whatever may be its power in other respects presumes r e su m es thas to tryl arya man for an offense of pr which h 1 1 i i it has no righetto right to take judicial cognizance all ail 11 its proceedings in that case are null and void if the party is acquitted lie he can ean not nob plead the acquittal afterwards in bar of another prosecution if he is found guilty and sentenced he is entitled to be renn relieved eved froin from the punishment if a circuit court of the united states should undertake to party p arty for lornia in on enie ente clearly with in the ilie e exclusive clug lve ive jurisdiction of the state courts the judgement jud gement could have lio ho effect if a cou country court in the inter perlor or of a state should arrest an outer of the federal navy try him and order him to bo be hung for some aa against galust the law of nations committed upon the in high agh seas orin a foreign port nobody would treat such judgement jud gement otherwise than with mere aerts derision lon ion the federal courts have bava jurisdiction to try offenses against the laws of the united state states and the authority lof lor the state courts is confined to the punishment of acts which are mad made penal by state law laws it follows that where the accusation docs does not amount to td an ottense against the law of either the state or the federal government no court can have jurisdiction to try it suppose for example that the judges judg e s of this court should organize themselves lem iem selves into a tribunal to try itry a man for witchcraft or heresy or treason against the confederate state states of america would any body say that your judgment had the least validity I 1 care not therefore whether the tile re latora were intended to be charged wit with oy treason or conspiracy or with some gome 01 fente fento of which the law takes no notice either eitner or arany anyway way the men who undertook to try them h had ad no jurisdiction of the smatter nor had they jurisdiction of the parties it is not intended that this was a e case ase of impeachment 1 or a dase gase case arising in theland tholand thoi thol and or naval forces it is elther cither nothing at all or else dise eiselt it is n al simple erime crime against again st the united states committed by private individuals not in the public service civil or military persons st standing in that relation to tile the government are answerable forthe for fon the offenses which they may commit only to the civil courts of tho the country so says the constitution as we read it and the act of congress of march 3 1863 wh which I 1 h was passed with express Te reference ference 16 16 p persons emons precisely in the situation of these men deci deel declares apes afes that they liall be delivered up for trial to the proper civil authorities there being no jurisdiction of the subject matter or of the parties you are bound to relieve the petitioners petition ers it is as much the duty of a judge to protect the innocent as it is to punish the guilty suppose that the secretary of some department part ment should take it into his head to establish an ecclesiastical tribunal here in the city of washington composed of clergymen organized to convict every eveny i body who prays after a fashion incon sistena with the supposed suppose d safety of the state if he would select members with a proper regard to the edlum odium I 1 think I 1 could insure him a commission th atwould that thal would hang every man and woman who might be brought before if 1 but would you F the judges of the land stand by and see their sentences executed no you would interpose your urit wit of 1 prohibition your habeas corpus or arany any other process that inight might be at your colinan command d between them and their victims and you would do that for precisely the reason which requires your intervention here because rell reil religious erious cylous e errors like ilke i e po political i ica iea errors are arc no not crimes IV winch wiach an anybody y 0 y in t this is country lias has jurisdiction n to punish and biZe because ause ecclesiastical commissions like military commissions are not among the judicial institutions of this people our fathers hodg awo ago esst ca st them both aside among among the of we tife dark n ages ea and they intended that ii we c their eb children lidren should shoula know them only that we might blush and shudder at the shameless injustice and the brutal cruel cruelties eru cru ellies ties which they were allowed to perpetrate rate in other times and other countries but our friends on the other side are not at all impressed with these views the brief corresponds exactly with the doctrines propounded by the attorney general in a very elaborate official paper which he lie published last july upon this same subject he then avowed riot c it to be his settled and deliberate opinion that the military might take and kill tr try Y and execute 1 Y I use his own words persons who had no sort of connection with the army or navy and though this be done in hi t the he face of the open courts coutts tho the judicial authorities according to him are utterly powerless to prevent the slaughter which may thus be carried on that is the thesis of the attorney general and his assistant counselors counsel rs are to maintain this day if they can maintain it with all ai the power of their artful eloquence we wo on theother theof other her hen ll 11 hand and submit gilb mit that a person not in the th e military or naval service ser cail can not be punished at all ali until til he has had bad a fair opeil open public trial be forean imp impartial jury in an ordained and established court to which the jurisdiction ha has been givel by law to try him for that odense there is our proposition between the ground we vp take and the W ground wound they occupy th ili theres ereis and thereca there can car AV e eeb rib b comptom compromiser lie it Js is one way or the other our proposition ought tobe received as astrue true without any an argument to support if it because if that or tome come some thing precisely equivalent to it be not a artof our law this ia Is not what we ww have al ul ways supposed it tp be a free country nevertheless I 1 tako upon myself the he burden of showing atil aill arniat wel nel N not oni only |
