Page:Suspension of Habeas Corpus during the War of the Rebellion.djvu/23
476 [Vol. III.
POLITICAL SCIENCE QUARTERLY.
Confederate territory, who had never joined the Confederacy and who had no connection with it except by sympathy, should, in a loyal Northern state of which he was a citizen, persuade soldiers to desert, combine with others to liberate prisoners, to resist the draft, and to seize the arms and munitions in the arsenals, what name was to be given to this species of traitor? Beyond question he was injuring the military force of the government, and injuring it more thoroughly than if he were an armed Southern soldier. Could he be seized by the army and under martial law dealt with as the commander or a military tribunal saw fit? or must he be simply arrested and turned over to the courts and the ordinary procedure of law? This was Milligan's case. He was a citizen of Indiana, a state within the military district of General Hovey, but at that time not invaded by the enemy, or at most only threatened with invasion, and with courts of law and all the machinery of civil government in full operation. Milligan believed in the Southern cause, but he did not care to join the Southern army and carry a musket or wear a sword. He found he could do better at home; and he used his best energies to injure the National government and the Northern army, and belonged to a secret society devoted to that purpose. There is reason to believe that he and some others, belonging to the order of American Knights or Sons of Liberty, had formed a conspiracy to release the ten thousand Rebel prisoners in Indiana, supply them with arms from the Federal arsenal, and use them to conquer the state and take it over to the Confederacy. He and his accomplices were in communication with the enemy, and indulged freely in the usual disloyal practices of the party to which they belonged. It was a case which seemed to justify the argument, that whoever aids the enemy is an enemy, and may be dealt with by the army. A conspiracy by Northern men in the North certainly seemed to be as much an act of hostility as an open attack by armed Southern men from the South. It was hard to say to the army which Milligan attacked, that, because he was not a soldier and because he stood on loyal soil and by accident of birth and residence was a citizen of a loyal state, they could not touch him. It was equiva-