army. The latter is made, by statute, subject to trial by court-martial. Rev. St. U. S. § 1256 (U. S. Comp. St. 1901, p. 888). A retired militiaman is not made subject to trial by such court, and the character of his position as fixed by our Code renders it inappropriate that he should be subject to court-martial, at least when not on detail by order of the Governor. Relator was not on any kind of duty, and the decision need go no farther than to cover the case of such an officer. I rest my concurrence on the ground that an officer retired by operation of law is not subject to be tried by court-martial when not on duty under detail by order of the Governor. I express no opinion farther than this.

On Petition for Rehearing.

FISK, J. We have carefully considered the petition for a rehearing filed by appellant and find nothing therein to cause us to change our views as above expressed.

In denying such petition we deem it advisable to briefly notice some of the principal contentions made in such petition. It is manifest that appellant's counsel are laboring under a misapprehension regarding the court's holding, for they start the petition with the following assertion: "The decision of the court proceeds upon the theory that the militia of a state can only be subject to trial by court-martial when they are in the actual service of state or nation." This is very far from the fact, for the exact contrary is true. We held that the Articles of War do not govern the state militia in times of peace, for the Legislature has not thus ordained, and consequently the officers and members of such militia are not subject to court-martial in time of peace for alleged violations of such Articles of War. But we distinctly said that the power of the Legislature to provide for the enforcement of discipline in the organized militia by fine and imprisonment imposed by courts-martial for infractions of rules and regulations, even in times of peace, is undoubted.

Counsel in their petition again call our attention to sections 188 to 193 of our state Constitution and insist that we have overlooked the same. In this they are again mistaken. There is no room for doubt that "all able-bodied male persons residing in the state between the ages of 18 and 45 years," with certain exceptions, constitute the militia of the state, nor is there any room for doubt that the organized militia or National Guard constitutes the "active militia." But the terms "active militia" and "the militia when in actual service in time of war or public danger" are entirely distinct and of different meaning, and the basic fallacy in counsel's contention apparently is their failure to distinguish the difference between these terms. Section 8 of our Constitution, which provides that no person shall for a felony be proceeded against criminally otherwise than by indictment, does not except from its provisions the active militia in time of peace, but it excepts "the militia when in actual service in time of war or public danger." No doubt the framers of the Constitution contemplated that the Legislature would prescribe rules and regulations for the government of the organized or active militia in time of peace as well as when called into active service for the state in time of public danger, etc., for section 192 clearly contemplates that there may be trials by courts

martial; but it is perfectly manifest that until such time as the Legislature has made provision therefor no such trials could be had. Our attention is called to section 1753, R. C., which makes certain acts a misdemeanor and concludes with the statement "and upon conviction shall be fined in a sum not less than $50.00 nor more than $100.00, or may be cashiered." This section is somewhat vague; but, conceding all that is claimed for it by appellant's counsel, the most that can be said is that in cases falling within the provisions of said section members of the militia may be court-martialed, but this does not aid appellant in this case, for respondent is not charged with a violation of said section, but is, as we have seen, charged with a violation of the twenty-first and sixty-first Articles of War.

Our attention is called in the petition to the fact that in three instances during statehood prosecutions by court-martial have taken place in this state; but this fact is in no manner controlling, nor does it operate in the least to change our views of the law as above expressed.

Counsel evidently do not understand the decision in State v. Nuchols, for they criticise the special concurring opinion of the Chief Justice in the case at bar and assert that it is contrary to the holding in that case. In this, counsel are grievously in error. We did not hold in the Nuchols Case that the court-martial had jurisdiction, but we held merely that no power has been conferred by the Constitution on the Supreme Court to issue the writ of prohibition in a case like that, and that the relators therein should seek relief, if at all, in the proper court. See opinion in 18 N. D. 233, 119 N. W. 632, 20 L. R. A. (N. S.) 413. The petition is denied.

(b) Martial Law-Ordinary and Extraordinary Jurisdiction

1. Ex parte MILLIGAN.

(Supreme Court of the United States, 1866. 4 Wall. 2, 18 L. Ed. 281.)

This case came before the court on certificate of division from the Circuit Court for the District of Indiana on a petition' for discharge from unlawful imprisonment. The act of March 3, 1863 (12 U. S. St. at Large, 755), authorized the President to suspend the writ of habeas corpus throughout the United States during the Civil War, and required that lists of prisoners who were citizens of States wherein the administration of law by the federal courts had been unimpaired, and who were held by the United States otherwise than as prisoners of war, should be furnished to the judges of the federal courts, and also that, in case a grand jury of such a court should fail to indict a person on the list, the judge should make an order that such prisoner should be brought before the court to be discharged on entering into recognizance, if required, for good behavior or for future appearance. The President by proclamation, September 15, 1863 (13 Ü. S. St. at Large, 734), recited this statute and suspended the privilege of the writ in cases where persons were held by the United States as prisoners of war, spies. aiders or abettors of the enemy, or for resisting a draft, or for

any offence against the military or naval service. On October 5, 1864, Milligan, a citizen of Indiana, was arrested in that State by order of the military commandant of the District of Indiana. On October 21, 1864, he was brought before a military commission convoked by the commandant. He was found guilty of conspiring against the government of the United States, affording aid and comfort to the enemy, inciting insurrection, and violating the laws of war. He was sentenced to death, and the sentence was approved by President Johnson, the execution to occur on May 19, 1865. On January 2, 1865, after the proceedings of the military commission were at an end, the Circuit Court. met in Indiana, and impaneled a grand jury; and on January 27, 1865, the court adjourned, neither that grand jury nor any other having found an indictment against Milligan. On May 10, 1865, Milligan filed his petition, stating the facts and praying that he be brought before the court in accordance with the act of Congress, and that he be either turned over to the proper civil tribunal or discharged from custody. The opinions of the judges were opposed on the following three questions certified:

1st. On the facts stated, ought a writ of habeas corpus to be issued?

2d. On the facts stated, ought Milligan to be discharged from custody?

3d. Whether, on the facts stated, the military commission had jurisdiction legally to try and sentence Milligan.

*

*

DAVIS, J., delivered the opinion of the court. The controlling question in the case is this: Upon the facts stated in Milligan's petition, and the exhibits filed, had the military commission mentioned in it jurisdiction, legally, to try and sentence him? Milligan, not a resident of one of the rebellious states, or a prisoner of war, but a citizen of Indiana for twenty years past, and never in the military or naval service, is, 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 direction of the military commander of the military district of Indiana. Had this tribunal the legal power and authority to try and punish this man?

No graver question was ever 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. The power of punishment is alone through the means which the laws have provided for that purpose, and if they are ineffectual, there is an immunity from punishment, no matter how great an offender the individual may be, or how much his crimes may have shocked the sense of justice of the country, or endangered its safety. By the protection of the law human rights are secured; withdraw that protection, and they are at the mercy of wicked rulers, or the clamor of an excited people. If there was law to justify this military trial, it is not our province to interfere; if there was not, it is our duty to declare the nullity of the whole proceedings. The decision of this question does not depend on argument or judicial precedents, numerous and highly illustrative as they are. 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 a 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 trial 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, [and] 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; and, but for the belief that it would be so amended as to embrace them, it would never have been ratified.

* * *

Have any of the rights guaranteed by the Constitution been violated. in the case of Milligan? and if so, what are they?

Every trial involves the exercise of judicial power; and from what source did the military commission that tried him derive their authority? Certainly no part of the judicial power of the country was conferred on them; because the Constitution expressly vests it "in one supreme court and such inferior courts as the Congress may from time to time ordain and establish," and it is not pretended that the commission was a court ordained and established by Congress. They cannot justify on the mandate of the President; because he is controlled by law, and has his appropriate sphere of duty, which is to execute, not to make, the laws; and there is "no unwritten criminal code to which resort can be had as a source of jurisdiction."

But it is said that the jurisdiction is complete under the "laws and usages of war."

It can serve no useful purpose to inquire what those laws and usages are, whence they originated, where found, and on whom they operate; they can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed. This court has judicial knowledge that in Indiana the Federal authority was always unopposed, and its courts always open to hear criminal accusations and redress grievances; and no usage of war could sanction a military trial there for any offense whatever of a citizen in civil life, in nowise connected with the military service. Congress could grant no such power; and to the honor of our national legislature be it said, it has never been provoked by the state. of the country even to attempt its exercise. One of the plainest constitutional provisions was, therefore, infringed when Milligan was tried by a court not ordained and established by Congress, and not composed of judges appointed during good behavior.

Why was he not delivered to the Circuit Court of Indiana to be proceeded against according to law? No reason of necessity could be urged against it; because Congress had declared penalties against the offences charged, provided for their punishment, and directed that court to hear and determine them. And soon after this military tribunal was ended, the Circuit Court met, peacefully transacted its business, and adjourned. It needed no bayonets to protect it, and required no military aid to execute its judgments. It was held in a state, eminently distinguished for patriotism, by judges commissioned during the Rebellion, who were provided with juries, upright, intelligent, and selected by a marshal appointed by the President. The government had no right to conclude that Milligan, if guilty, would not receive in that court merited punishment; for its records disclose that it was constantly engaged in the trial of similar offences, and was never interrupted in its administration of criminal justice. If it was dangerous, in the distracted condition of affairs, to leave Milligan unrestrained of his liberty, because he "conspired against the government, afforded aid and comfort to rebels, and incited the people to insurrection," the law said arrest him, confine him closely, render him powerless to do further mischief; and then present his case to the grand jury of the district, with proofs of his guilt, and, if indicted, try him according to the course of the common law. If this had been done, the Constitution would have been vindicated, the law of 1863 enforced, and the securities for personal liberty preserved and defended.

Another guarantee of freedom was broken when Milligan was denied a trial by jury. The great minds of the country have differed on the correct interpretation to be given to various provisions of the Federal Constitution; and judicial decision has been often invoked to settle their true meaning; but until recently no one ever doubted that the right of trial by jury was fortified in the organic law against the power of attack. It is now assailed; but if ideas can be expressed in words, and language has any meaning, this right-one of the most valuable in a free country-is preserved to every one accused of crime who is not attached to the army, or navy, or militia in actual service.