Indianapolis Times, Volume 34, Number 100, Indianapolis, Marion County, 6 September 1921 — Page 3

Indiana Military Case, Carried to the , Supreme Court 55 Years Ago, Cause of Holding Up Martial Law Edict in W.Va

Reluctancy of President Harding to declare a state of martial law In the West Virginia coal Helds and the long series of deliberations held in Washington on the subject were due to the famous case of Lambdin P. Milligan of Huntington, Ind., decided by the Supreme Court of the United States April 3, 1868. This decision, which is conconsidered one of the strongest statements of the rights of citizens against military domination ever pronounced, hcs been the leading case of Its kind ever since. In brief, the doctrine advanced is nothing more than this, that military tribunals can have no authority over civilian territory not actively occupied by enemy forces and where the local civil courts are functioning The Supreme Court dt-ided unanimously that Milligan was not subject to military court-martial In Indiana, as the I courts were functioning at the time of his trial. Pour judges dissented from the majority line of reasoning, but all agreed as to the conclusion reached. Without authority to try prisoners by court-martial the military authorities In West Virginia would be shorn of a great pß;nount of their power and their effectiveness almost nullified. But until the local courts are made inactive bv the promulgation of martial law and as long as they function military authorities are up against the stone wall of the Milligan decision as reported In Wallace 2, United States Supreme Court reports. STOBT OF CASE TWENTY YEARS AGO. The story of the famous Milligan case and a reminiscent interview with Mr. Milligan, was written by Thad Butler, then editor of the Huntington Herald more than twenty years ago. It Is as follows: “Lambdin P. Milligan was born near St. Clairsville, Belmont County, Ohio, March 24, 1812. He was reared on a farm In a sparsely settled community and his opportunities for education were indeed limited, but at the age of 19 he had received for the period a fairly good education. He taught school for a number of years and read law with Shannon Alexander of St. Clairsville, Ohio, In the class with him and one of his first antagonists in a Jaw suit and afterwards to figure strongly In his own career, was Edward M. Stanton. He practiced law In Ohio until 1545, when he came to Huntington County and engaged In that profession. He lived on a farm for a while, but during such time he continued to practice In Huntington and Wabash Counties. From that time until 1800 he was recognized us a strong lawyer, comparing favorably with Colerlck, Coombs, John U. Pettit, Daniel D. Pratt and John R. Coffroth, and was known throughout

the State as a man of ability and learning as a lawyer. He was not remarkable as an advocate, but was, however, a clear, terse and forcible speaker. lie was earnest, direct, logical, clear; endeavored always to convince and not merely to please. He was held In the highest esteem by the judges and fellow members of the bar, and was known purely as a lawyer. “Little was said or known of him politically outside bis own county until the eventful campaign of 18CO. lie then became distinguished as an ultra leader of the Breckenridge wing of the Indiana Democracy, and was strongly opposed to Stephen A. Douglas and. with this, began and prepared the way for the events rapidly following that made him known ail over the world; and his life and strange experience will be a theme for the constitutional lawyer, the politician and the soldier for all time to come. "As has been stated Mr. Milligan belonged to the ultra Breckenridge wing of the Democracy of the State of Indiana. He believed that there was no constitutional power to prevent sesesslou or to coerce the seceding States and from the beginning of the War of tne Rebellion constantly opposed the Administration at Washington. He, however. attracted but little attention until early In the year 1861. when he became a candidate for Governor of the State of Indiana, but was defeated by Joseph G. McDonald in the convention held July 12, 1864. “During the campaign, however. Mr. Milligan made a number of speeches in which he uttered sentiments that attracted ttie attention of the Government. He was charged with being a member of what was known as ‘Knights of the Golden Circle' and on the otb of October, 1864, was arrested at his home west of rHuntington by ordi-r cf Major General Horey, military commandant of the district of Indiana, and placed in military prison at Indianapolis. On the 21st day of the same month he was placed on trial before a military commission comprised of the colonels of some eleven volunteer regiments, the president of the commission being Gen. Silas A. Colgrove. afterward a well-known circuit judge of eastern Indiana. In the 21 at of October. 1864, he was brought before this military com mission which had been detailed and convened by General Ilovey, upon charges of conspiracy against the Government of the United States, giving aid and comfort to rebels against the authority of the United States; inciting insurrection, disloyal practices and violation of the laws of war. The specifications were, without giving them in great detail, that he had joined and aided at different times between October, 1863 and August, 1864, a secret society known as the Order of American Knights or Sons of Liberty, for the purpose of overthrowing the Government and the authority of the United States; that he held communication with the enemy; conspired to seize munitions of war stored in arsenals and to liberate prisoners of war, and resisted the draft, and all done at a period of war and armed rebellion against the authority of the United States at Indianapolis and other named places in Indiana, a State within military lines of the army of the United States and the theater of military operations which had been constantly threatened by the enemy with invasion. -ENTERS I LEA

OF SOT GUII/TT. “Mr. Millikan appeared before this eommisslca in person and br John R. Cofroth, his attorney. For bis plea he said he was not guilty and he presented a special plea to the commission that such rommission had no jurisdiction to try him nor to sentence him for the reason that he vras not a resident of one of the rebellious States, nor a prisoner of war nor a soldier, but a citizen of Indiana ;wbo was never in military or naval service, but was, while at his home, arrested by the military power of the United States and imprisoned. He also asked for a separate trial. This motion was overruled. His plea as to jurisdiction of the court was presented in a strong argument. This also was overruled, two of the members of the commission only voting that they had no jurisdiction. He war therefore put on trial with W. A. Bowles Andrew Humphreys, Horace Hefron, and .Stephen Horsey. The trial lasted until jthe early days of December, resulting In ths conviction and sentence to death o' Colonel Milligan, together with Bowler -find Horsey. Hefron baring turned Stater evidence and Humphreys receiving s llighter sentence. They were sentenced ito be hanged on the 19th day of May *ISS. “President Lincoln was importuned to commute the sentence, but before action was taken he was assassinated. Then the counsel for Colonel Milligan filed a petition for a writ of habeas corpus addressed to the United States Circuit Coart for the release of the defendant, and presented It to Judgfr Davis anil Jndge Drummond. Judge Davis was in favor Bond dissented. The grounds f the petition stsxe the game aa set on at iha

trial at Indianapolis, and were that the military commission had no jurisdiction to try a citizen of Indiana. A division of the judges having occurred, the question was certified from the Circuit to the Supreme Court of the United States and the Supreme Court was asked to pass upon the following points: FI T QUESTION TO SITREME COURT. • “1. On the facts stated In petition and exhibits, ought a writ of havens corpus be issued according to prayer of said petitioner? “2. On the facts stated in petition and exhibits, ought the said Milligan be discharged from custody as in said petition prayed? “3. Whether upon the facts stated in petition and exhibits the military commission has Jurisdiction legally to try and sentence said Milligan in manner and form as In said petition and exhibits is stated? "This placed the question before the Supreme Court of the United States. For the petitioner appeared J. E McDonald, ,T. S. Black, James A. Garfield and David Dudley Field. For the United States appeared Speed, the Attorney General, 11. M. Stanberry and Benjamin F. Butler. “But the day fixed for the final tragedy was fast approaching May 19, 1865. There was no time, it was now manifest to obtain a decision of the Supreme Court before the execution. It was a fearful moment for prisoner. He wrote to his family to prepare for the worst. He selected his pallbearers and made all necessary arrangements for his funeral. His gallows was built by rebel prisoners at Indianapolis. “At this time, however, his counsel, his wife, and many prominent citizens of Indiana of both parties, among the Republicans Oliver P. Morton, then Governor, and Hot . John U. Pettit of Wabash, strongly recommended a commutation of the death sentence. His wife, who had been a school mate of Edwin M. Stanton, went to Washington and saw Stanton in person. President Johnson was importuned by Governor Morton, by John U. Pettit and many prominent persons throughout the Nation, to commute the sentence to imprisonment for life. The day before the day fixed for the execution, the commutation was received from Washington and Mr. Milligan was sent to the prison at Columbus, Ohio. “Afterwards, In Mar<h, 1860, the case was presented to the Supreme Court of the United States and decided on April 3 of that year. Able agruinents were made for the petitioner, perhaps the most eloquent being that of James A. Garfield. The opinion was rendered by Judge David Davis. The decision sustained Mr. Milligan’s petition on all the points as heretofore set out. and he was discharged from custody, having been Imprisoned something like eighteen months. The decision of the Supreme Court was unanimous as to his discharge, but Chief Justice Chase, Justice Wayne, Justice Swayne and Justice Miller dissented on some of the reasoning of the principal opinion. The case is fully reported in Fourth Wallace, pages 2 to 142. The opinion cannot be set out here, as it is too voluminous, but it Is said In this opinion that—‘no graver question was ever considered by this court, nor one which more nearly concerned the rights of the whoe peope.' The whloe opinion with dissenting view by some of the judges may be considered a most interesting chapter in American historv.

FRED RETURNS TO HUNTINGTON. “Mr. Milligan returned to his home in Huntington in April, 1866. He was afterward indicted In the Federal Court at Indianapolis, May, 1866, by the grand jury, on the same charge on which he had been tried by the military eornmis sion, but was allowed to go on bail. The case was not pressed and was afte--ward dismissed. In the spring of 180S he brought suit agiinst the members of the military commission and others for damages fur his imprisonment. The case was tried in May. 1871. Thomas A. Hendricks was his leading counsel and Gen. Benjamin Harrison the leading attorney for the defense. The trial was a long one, the defense setting up on mitigation of damages that Mr. Milligan was in fact guilty of the charges upon which the commission tried him. Under this plea nil the evidence was again Introduced. and the jury found a verdict for Mr. Milligan in the sum of s•'>. “He resumed the practice of law at Huntiuglon, and was engaged to some extent in stock raising. lie again became, as be had been before the war. one cf the leading lawyers in Northern Indiana. lie became much Interested In Internal improvements, gravel roads, drains and was one of the promoters of the Chicago and Atlantic (now Erie; railroad. He was practically ruined financially by bis troubles during the war, but before his death had become quite well fixed —owning a fine farm and considerable city property In Huntington “He continued to practice law actively until Oct. 27, 1897, or sixty-two years after he was admitted to the bar. On tha tdny he arose In his place in the Huntington Circuit Court and, in an address specially remarkable for Its eloquence, dignity, and simplicity, announced his withrdawai from the bar and practice, stating, sxiODg otner things, that he felt himself to be on the best of terms with the court and brethren of the bar, and equal to the lask of trying cases, but for his infirmity of hearing and Indeed, this seamed to be his only difficulty, as he had during the same term tried an Important case with his old time ability. “He was a man of giant size and marked intellect. He was absolutely without affectation, kind-hearted, simple, approachable, dignified and courteous. He had, however, upon ocasions, the power to exercise a bursting sarcasm. Whatever may be said by his political opponents of liis career, all parties must admire his wonderful patience and unflinching courage when he was under the shadows of the gallows. Others charged with him ran off, turned State's evidence, hastened to explain and apologize, but he never wavered for a moment, and In this, like Brutus, he was the ‘noblest Roman of them all.’ The reminiscent interview Is as fellows: “Mr. Milligan seldom referred to hls experience as a military prisoner during the war, and when he did talk on the subject there was little t-ace of bitterness in his remarks. It Is related that a mutual friend cnee introduced him to a stranger visiting in the city. "Milligan did you say, sir?” said the visitor, as he shook his hand warmly. “Let me see, the name is familiar. By the way, Mr. Miillgan, were you not a member of Congress once?” “No, sir,” was the reply, “I was In the State’s prison!” “in an Interview given to the editor of the Herald some years ago. Mr. Milligan said of the commutation of his sentence and of his prison life:

OWED LIFE TO SECBETART STAXTOX. “From the date of my arrest to thr time of my release covered a period of eighteen months. I owe the commutation of my sentence to Secretary of War Edwin M. Stanton. Governor Morton and Hon. John U. Pettit had Interested themselves in ah effort on my behalf, as wel as Senator Hendricks and other leading Democrats, and the Hon, Joseph E. McDonald, who was my attorney, but despite their efforts I should probably have been bung, but for Stanton. Mr. Stanton and I were early frienda. We weria both admitted to the practice of law al the same tuur, end he sad been a frcuuerJ

f visitor at my house while I was still a resident of Ohio. A few days before the date set for my execution at Indianapolis, my wife visited Washington. A card from Judge McCulloch to Mr. Stanton obtained her an interview with the Secretary of War. She was very cleverly and courteously received, and although the Interview was brief —Mr. Stanton being very much occupied by business —Mrs. Milligan left bis presence with the full assurance that I should not be executed. Governor Morton was using bis utmost endeavors to Influence Johnson to commute my sentence, and bad sent Hon. John U. rettit of Wabash to intercede in my behalf. The morning before the day set for my execution, Mr. Petit had an Interview with Johnson, but the Presi dent gave no sign of Interference. He do dared in language exceedingly discourteous, that ‘Morton was not running this shebang,’ and that his leniency already was bringing him Into reproach. Mr. Petit was thoroughly disheartened. The President was about to a* tei 1 a grand review of the Army, and Petit made one last appeal. “Is there n hope?” “I will not say that,” said Johnson, “but we will see you again.” In the meantime, word was received in Indianapolis about 3 o’clock p. m. and before the review at Washington was over, from the War Department, ordering the commutation of the sentence. If President Johnson ever consented so the commutation it was after Secretary Stanton had Issued tho order and redeemed his promise to Mrs. Milligan. FEARED INJURY TO UNION CAUSE. “The interest of Governor Morton in my case is explained by the fact that but for his influence with the commission, the night of their final action, and his promise to its members that I never should be harmed, I would not have been convicted of the charge of treason. A majority of its members favored my acquittal. Governor Morton, General Hovey and other prominent men feared such a result. It had been alleged that my arrest was for political effect, and the commission were told that an aequittal would be an Injury to the Union cause. My conviction, therefore, was demanded as a necessity, and Governor Morton personally pledged the members of the commission that I should not be heard. Alluding to Dr. Bowles, Horsey and myself, he said, we will shield them from barm, and they will be glad enough after a while to take the oath of allegiance and secure their release Morton probably believed Lincoln would commute the sentence when it came to hiu. Whn a copy of the record was taken to Lincoln in December, 1864, by niy a'tornevs, Joseph E. McDonald and Jonathan W. Gordon, Mr, Lincoln de rlared he could find nothing to Justify the finding as against Horsey and m.v sdf, and promised these gentlemen, in the presence of General Singleton, that when official record reached him, he would disaffirm the finding, and set Horsey and myself at liberty. Dr. Bowles, he said, should bo sent across the line to bis southern friends until the dose of the war. Judge Advocate Holt never presented the official record to Lincoln, and when af’er Lincoln's as sassination. It was presented to Johnson. he promptly affirmed the finding without an examination. The earnest efforts of Governor Morton to indue* President Johnson to commute the sentence were due to his promise to the members of the commission mure than his *enee of Justice to ms or his appreciation of the fact that my trial was an Illegal one. Pettit's efforts were solely at the solicitation of Morton. He was neither .nfluenced by persona] friendship for me. nor expectation of personal gain. Petitt was speaker of the Indiana House, and ex member of Congress and was selected by Morton as his ambassador to influence Johnson ATE WITH COLORED MEN IN PRISON. “After my sentence had been commuted I was taken to Columbus for confinement, lor the purpose of annoying me, I suppose. I was assigned a place at a table where all my associates were colored men. This was, no doubt, regarded as a Joke, but it did not disturb me In the least. Whenever there were distln-

THE oiher day • • THE Silk Man AT 1.. 8 Ayres & Cos. WAS showing me • • • SOME lovely silk: GEORGETTE It was, • • • FORTY Inches wide • • AND very fine • • AND be said • • * FOR the first time • • • IN four years WE are selling GEORGETTE silk • • • OF this quality • • • AT $1 68 a yard • • AND then • • • OUT of curiosity • e • I asked him • • HOW much • • • THI9 same silk • * • WAS selling for • • • ONE year ago • • • AND he said • • • TWICE as much, • • • SO I guess • • • IT'S a real bargain • • AT One Sixty Eight. • • • —Thank you. (Advertisement.)

80 Years Old -Was Sick Now Feels Young Alter Taking Eatoioic for Sour Stomach “I bad soar stomach ever since I bad the nip and it bothered me badly. Have taken Eatonio only a weei and am much better. Am 80 vean old," says lira. John Hill. Eatonle qnickly relieves sour atom* ach, indigestion, heartburn, bloating and distress after eating because it takes np and carries out the excess acidity and gases which cause most stomach ailments. If you have "tried everything" and still suffer, do not give np hope. Eatonio has brought relief to tens of thousands like yon. A bis; box oosta but a trifle with y<jr

INDIANA DAILY TIMES, TUESDAY, SEPTEMBER 6, 1921.

guished visitors at the prison, Dr. Bowles and myaelf were Invariably paraded befora them for their gratification. The first quarters given me were exceedingly unhealthy, and 1 fell Bick and was sent to the hospital. I was transferred to the ‘ldle house,’ but on account of my physical condition the officers could not ‘sell me’ —that is dispose of m.v services to prison labor contractors—and the directors ordered that I should be asaigned to the position of hospital doctor. 1 knew nothing of medicine, but had been confounded with a Dr. Milligan, at one time a member of the Indiana Legislature, and my denial was not believed. I had some knowledge of chemistry, and os the duties were largely clerical, got along satisfactorily. The directors were kind enough to tell me that as I had a life sentence to serve oven if my medical knowledge was limited, they preferred to have mo in the place rather than a prisoner who might possibly soon leave the prison! "I recollect my first ease. A young

man was brought In one evening, suffering with the toothache. In vain 1 protested that I had never drawn teeth, end had no experience. The guard threatened severe punishment If 1 didn't pull the teeth, tout at last I fished out an old pair of turnkeys and proceeded to business. I pulled two teeth Instead oi one, but fortunately the aching tooth was one of them. I afterward became quite expert as a dentist and have often pulled from ten to twenty teeth a day. “The deputy warden of the prison was a brutal wreteh, but my position saved me from his petty persecutions. The directors saw proper to consult me In several Instances affecting the prison management, and I had the satisfaction of knowing that I stopped considerable official stealing which had been going on in the hospital. Among the officers was a whisky thief, quinine thief, and a morphine fiend; and at last, one of the wardens robbed the hospital of a fine new mattress and a considerable quantity of bedding. I learned that the

Wins at Pike’s Peak Again Another Great Victory for Indiana-Made Car With the Ansted Engine

A Lexington Special with the Ansted Engine won First Place yesterday in Pike’s Peak Hill Climb for cars in its event arj class of 184 to 300 cubic inches piston displacement. Time: nineteen minutes forty-seven and four-fifths seconds. Ott laoesche, winner, beat his last year’s time by almost three minutes and was only a few seconds behind the v.ivjr in the class for cars of larger piston displacement.

Engineers recognize that the final test of a car’s ability and reliability is the way it climbs hills—that is the hardest punishment and the most severe strain upon the efficiency and stamina of a car’s entire mechanism. Victory at Pike’s Peak again is taken almost as a matter of course by those who know what Izexington has “under the hood.” For the past several months, all over the United States, Lexington cars with the Ansted Engine have been consistently breaking local hillclimbing records and out-per-forming others on straightaways and in economy tests. The list of these achievements is amazing, attracting unparalleled attention and admiration for this Indianabuilt car. It provides what the purchaser of today demands — proof, Proof, PROOF! Times have changed. The public now demands unquestionable proof of a car’s intrinsic value. A good past reputation can not substitute for present performance. Ijexington builders are able to surpass former standards because of the vast manufacturing advantages and savings that develop from their many allied factories. Why not drive a wanner? You get the same Ansted Engine, the same unusual range of performance, the same lightning acceleration, the same quiet, vibrationless efficiency, and the same dependability that won up Pike’s Peak, in the Lexington’s smart, new sport car —the Lark. Each Lexington is a Winner — each Lexington is a Champion—and each Lexington owner knows exactly what to expect, he need never fear a rival.

The Lack comes to you with every thing complete: bumpers, windshield wings, motormeter, an extra wire wheel and cord tire on each running board, rea /trunk and rack. Several optional color sc hemes enable yvu to geta car that looks custom-burtt to your special order. Lexington Motor Sales, 1142 Meridian, North Lexington Motor Company, Connersville, Indiana, U. S. A. Subsidiary United States Automotive Corporation

thief was properly punished, but as I was soon after released, do not know whether the reform was permanent. “I had no doubt of my release when the Supreme Court should hear the case. Although Judge David Davis did not promulgate the opinion of the court until the spring of 1866, Chief Justice Field himself has informed me that the court had agreed as to what the opinion should be in November of the previous year. Tha last six months of my imprisonment were for the glory of Judge Davis that he might have ample time to prepare the opinion of the court which, by the way, was a very able and exhaustive paper, covering lully 100 pages. GOVERNOR COX ORDERED RELEASE. “When the Supreme Court announced its decision declaring the Illegality of the trial by the military commission Warden Prentis did not release me until Judge Pugh, of Columbus, Issued a writ or habeas corpus. Even then, be did not

I asl year. two cars built bv the I.erington Motor Company of Conntrsrillc, Indiana. with the famous Ansted Engine, defeated the entire field at Pike’s Peak, winning first and second place. So COS'S ISTEX T teas their performance that they finished only five seconds apart. Ihe Pike's Peak Hill Climb is really three contests in one. Event So. 3 nonstock car ; with piston displacement over 300 cubic inches. Event S'o. 2 nonstock cars with piston displacement of 194 to 300 cubic inches. This second class is the one in which the sice of the Ansted Engine 224 cubic inches piston displacement puts I.ejington. It is well known that the Ansted Engine develops twice the horse power of conventional engines of similar size. Event No. 1 nonstock cars of piston dis placement of 184 cubic inches and under. All three events are run as one race, the winners of different events are determined bu the time in their respective class and event.

The Ansted Engine is strictly an Indiana product. It was conceived and designed by our own engineers and is built under their direction in our new million-dol-lar engine factory*, the most modern of its kind. The most talked-about and sensational feature of the new Lexington car is this engine, with its unusual “volumetric efficiency”— Ijexington achieves this great success by opening the valves further —increasing the “lift,” as it is called. And equally remarkable, ington achieves high lift power with economy and unusual quiet, due to another exclusive Lexington feature, the “rocking-chair rocker arm. What has impressed the public so forcefully is the fact that the new Lexington, in every part and detail of its mechanical excellence, is as advanced and perfected as its marvelous engine.

consent to do so rntll advised by Governor Cox that he must obey the writ. An effort was tnaflo to prolong my imprisonment but Judge Pugh refused to grant a delay ‘one day, one hour or one minute,’ and ordered my Immediate release. It was not until I was a free man that President Johnson granted a pardon. “My arrest and insearceration was a heavy drain on me financially. In round numbers I am safe In saying it cost mo SB,OOO. Besides this, my friends raised a considerable sum of money, well up In the hundreds, if not thousands, for my defense. Several of my neighbors here In Huntington contributed liberally. I could name a half dozen who gave at least S3O each. I never knew the full amount or the names of the donors or the manner in which It was expended Hon. Jerry Black, famous attorney, and General Garfield were voluntary counsel before the Supreme Court In my behalf, and scither, to my knowledge, received a cent for their services.”

Many of Lexington’s advantages are exclusive. Paramount among these features are the Moore Multiple Exhaust System and the Lexi-gasi-fier. These two exclusive Lexington devices are linked together in such a way as to produce maximum power with minimum fuel consumption. The Moore Multiple Exhaust System prevents the overlapping of the exhaust by leading each alternate discharge into separate exhaust lines. Engineers have long recognized that the ordinary six-cylin-der engine was inefficient because the advantage of the overlapping power stroke was largely counteracted by the overlap in the exhaust, resulting in back pressure and other difficulties. The Lexi-gasifier consists of a small grid over which the incoming gas stream passes. It is heated by the outgoing exhaust streams, which pass immediately beneath it. In passing over this hot grid, the inflowing gas stream deposits thereon any liquid fuel which has resisted the vaporizing action of the carburetor. This grid is a miniature distillation plant and as soon as this liquid fuel has been “fried” into vapor it passes on into the combustion chambers in condition to do useful, economical work. Let us show you how Lexington, better than any other car, regardless of price, combines all the essentials for efficiency, safety and economy to-day.

POSTAL RECEIPTS SHOW INCREASE Figures Indicate Business on Upgrade. Postoffice receipts for the month of August showed an Increase of $10,398.03 over those of August, 1920, according to 1 figures given out by Postmaster Robert E. Springsteen today. Total receipts for the month amounted to $234,473.01. The fact that receipts for permits for third and fourth-class matter showed an increase or almost 100 per cent Is taken as n Indication that business conditions are improving. “A large percentage of these permits are used for sending out advertising matter,” Mr. Springsteen said, “and it looks very much as if business concerns are beginning to send out advertisements in increasing quantities.”

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