In 1864, during the war, but in Indiana, a State
distant from the seat of hostilities, the military commandant
of the district ordered the arrest of a private
citizen and his trial before a military commission on
charges of conspiracy against the United States, as a
member of a secret organization known as the Order
of American Knights or Sons of Liberty. The trial
resulted in his conviction, and a sentence to death, which
was approved by the President of the United States.
Before it could be executed, he applied to the Circuit
Court of the United States for the District of Indiana
for a writ of _habeas corpus_. The judges of that court
were divided in opinion in regard to the case, but it
was decided in his favor when it came before the
Supreme Court of the United States.[Footnote: _Ex parte_
Milligan, 4 Wallace's Reports, 2, 121, 127.] The decision
was unanimous, but in stating the reasons for it the
court was divided in a manner which has not been
uncommon since the death of Chief Justice Marshall
when any great question of a political nature has
been involved. Five justices held that the trial of
a civilian by a military commission can never be vindicated
in a peaceful State where the courts are open
and their process unobstructed. Four justices dissented,
and Chief Justice Chase thus summarized their
conclusions:

There are under the Constitution three kinds of military
jurisdiction: one to be exercised both in peace and war;
another to be exercised in time of foreign war without the