lent to saying that a citizen may take advantage of his citizenship and of the protection of his government to conspire against it. After they had caught this arch-traitor, tried him by a military commission and sentenced him to be hanged, they thought it a strange thing to be told that all their proceedings were void and that he must be allowed to go free. But that is what the Supreme Court decided and it is the law if the constitution is to be followed.
Milligan, though reeking with treason and rebellion, could not be taken as a prisoner of war. He was unfortunately a civilian and a resident of a state which was not the theatre of actual warfare, and in which the courts of law were wide open. All the offences of which he was accused were forbidden by law and could he punished by the courts. Habeas corpus was at that time suspended by act of Congress. He might, therefore, have been arrested and held in custody to prevent his taking part in the conspiracy, and finally turned over to the courts for trial and punishment. But to seize him, try him, and condemn him by a military commission violated three or four provisions of the constitution. First of all, the constitution says, that "'The trial of all crimes except in cases of impeachment, shall be by jury." Again, "No person shall be held to answer for a capital or otherwise infamous offence unless on presentment by a grand jury, . . . nor be deprived of life, liberty or property without due process of law." The sixth amendment declares that, "In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed," and goes on to describe further formalities for such a trial. When used to deal with offences which can be tried in courts, martial law and military commissions violate every one of these provisions. The constitution says that no man may be tried and punished except by a jury and due process of law. If the courts are open, and opportunity given for jury trial and due process of law, the constitution must be obeyed, and it is absurd to say that martial
- 4 Wallace, 58, 122.