times of insurrection or invasion, or of civil or foreign wars, " be called into action by Congress or by the President in recess, when the action of Congress cannot be invited "within districts or localities where ordinary law no longer adequately secures public safety and private rights." But the decision of the Court contains no such doctrine. It is positive in the assertion that martial law cannot exist over the citizen in a state or locality, even in time of war, where the civil courts are open and in the exercise of their jurisdiction.

In the District of Columbia, in the capital of the country, under the shadow of the Supreme Judiciary, while all the local courts were open, a fearful tragedy was being enacted, a few months after the Supreme Court had discharged Mr. Milligan from the death to which he had been condemned. It will ever remain a dark spot on the fame of the Nation, that this tragedy of martial violence was enacted after every vestige of war and insurrection had disappeared. It is needless to say that it was the execution of Mrs. Surratt, under the judgment of a military commission, and outside of the courts which alone had jurisdiction then and there over life and liberty. Even that incarnate spirit of war and jurisprudence, General Butler, who had so strenuously contended for the legality of martial rule in Indiana in 1864, denounced its operation in the District of Columbia in 1865. "It was," said he, " judicial murder." The members of the military commission that tried the parties charged with complicity in the assassination of President Lincoln, were murderers in the sight of the law! To this crowning infamy did the passions of war and radical hate, and a reckless. contempt of the sacred guaranties of the Constitution bring the Nation.

In arguing for the petitioner in Ex-parte Milligan, General Garfield, then a Republican member of Congress, said:

"Near the close of the Thirty-eighth Congress, when the miscellaneous appropriation bill, which authorized the disbursement of several millions of dollars for the civil expenditures of the government, was under discussion, the House of Representatives, having observed with alarm the growing tendency to break down the barriers of law, and desiring to protect the rights of citizens as well as to preserve the Union, added to the appropriation bill the following section: And be it further enacted, That no person shall be tried by court-martial or military commission in any State or Territory where the courts of the United States are open, except persons actually mustered, or commissioned, or appointed in the military or naval service of the United States, or rebel enemies charged with being spies."" This section was merely the assertion of the law of the land from the foundation of the Union down. The Senate acknowledged its justice; yet they struck out the section. The bill came back from that body. Important as it was, the bill failed in the House, notwithstanding all the radical efforts

'