LIGAN, Petitioner.

(See S. C. 4 Wall. 2-142.)

Questions in habeas corpus proceeding may be certified such a proceeding is a cause-circuit courts have jurisdiction of habeas corpus under act of March 3, 1863-jurisdiction of military commission-cannot try citizens when civil courts are open—right to jury trial -martial law only arises from such necessity

in invasion or civil war that courts are actually closed-never exists when courts are open -confined to locality of actual war-suspension of privilege of writ of habeas corpus does not suspend writ-citizen of Indiana arrested there, not a resident of any states in rebellion, is not a prisoner of war.

The U. S. circuit court has authority to certify questions in a proceeding for a writ of habeas corpus to inquire into a sentence of a military commission, and this court has jurisdiction to hear and determine them.

A habeas corpus is a

that

military operations, where war really prevails, as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course.

Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war.

habeas corpus does not suspend the writ itself.

The suspension of the privilege of the writ of

The writ issues as a matter of course; and on the return made to it the court decides whether the party applying is denied the right of proceeding any further with it.

If the military trial of Milligan was contrary to law, then he was entitled, on the facts stated in his petition, to be discharged from custody by the terms of the act of Congress of March 3, 1863. He could not be treated as a prisoner of war, when he had lived in Indiana for the past twenty years, was arrested there, and had not been, during the late troubles, a resident of any of the states in rebellion.

[No. 350.]

Argued Mar. 5 to 13, 1866. Decided Apr. 3, 1866. Opinion delivered Dec. 17, 1866.

a certificate of division in opinion between

act.

The act of Congress "relating to habeas corpus," approved March 3, 1863, conferred jurisdiction on the circuit court of Indiana to hear such a case. A military commission has no jurisdiction, legally, to try and sentence one not a resident of one of the rebellious states, nor a prisoner of war; but a citizen of Indiana who never was in the military or naval service, but was while at his home, 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.

In a state where Federal authority was always unopposed, and its courts always open to hear criminal accusations and redress grievances, 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. Congress could grant no such power.

The right of trial by jury is preserved to every one accused of crime, who is not attached to the Army, or Navy, or Militia in actual service.

Martial law cannot 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. If, in foreign invasion or civil war, the courts NOTE.-Martial law, what is; different from mil itary law; extent of; in whom the power to declare resides; when it may be exercised; suspension of writ of habeas corpus practically equivalent thereto; occasions of such suspension; what is military neccssity-see note to Luther v. Borden, 12 L. ed. U. S. 581.

Martial law when there is no actual war-see note, 65 L. R. A. 193.

Suspension of the writ of habeas corpus-see note, 45 L. R. A. 832.

ed States for the District of Indiana.

The cases of Ex parte Bowles and Ex parte Horsey were argued and decided at the same time with the above, and involved substantially the same questions. The charges upon which Milligan was tried by the Military Commission are:

First. A conspiracy against the government of the United States; second, affording aid and comfort to the Rebellion against the authorities of the United States; third, inciting an insurrection; fourth, disloyal practices; fifth, violation of the laws of war.

The specifications under these charges set forth with more or less particularity, that in a time of actual war, the petitioner, with others, set on foot a secret military organization for the purpose of overthrowing the government.

That he, with others, conspired to seize the United States and state arsenal, and to release the prisoners of war confined in the military prison under charge of the military authorities; to arm these prisoners; to join with them such other forces as they could raise; and to march into Kentucky and Missouri and to co-operate with the rebel forces there; that the conspirators communicated with the enemy to induce them to invade the states of Kentucky, Indiana and Illinois, intending themselves to join and co-operate with the enemy in the event of such an invasion, and that they armed themselves