The daily Gate City. [volume] (Keokuk, Iowa) 1855-1916, 1867-01-08

In the recent decision Of the Supreme
Court in the Milligan case, thu minority of
the Bench, consisting Of Messrs. Chase,
Wayne, Svayne and Miller, dissent from the
opinion of the majority Of the Court as to
the powers of Congress in time of war, and
they conclude their opinion thus: 1--WE are
unwilling to give our assent by silence to ex>
pressions of opinion which seem to be calcu-
lated, though not intended, TO cripple the
Constitutional powers of the Government,
and to augment the public dangers in times
of invasion and rebellion" They refer here
to the holding Of the majority of the Court
that the military commission which tried
Milligan was not only not authorized by Con-
gress, but that Congress had no power to au-
thorize it. Here is the ultimate judicial tri-
bunal TO which We look ~ the expounder Of
National Law and the consequent conserva-
tor Of popular right, divided against itself on
a subject Of the utmost consequence TO the
nation. 1t is noticeable, too, thss this di
vision is marked by the known politics of the
Justices. Of the majority, who denied the
power of Congress in the premises, and leave
thus the officers of the Court who tried Nil
igan liable to be civilly prosecuted by him
without protection from Congress, Messrs.
Nelson, Grier and Clifford are pro>slavery
Democrats, Davis and Field are Copperjohn>
sonites, while the minority, who dissented as
named above, are Republicans. We do
not propose here to refer further
81 tL.s Ian,esNn dr. prrau - I,Harant
AS when in the fifteenth century, in the cul-
mination Of the supremacy Of the Roman
Church, mems faith in the Pope's infallibili
ty was shaken by the contest between Greg
DRY, Benedict and Alexander Y, each Of
whom claimed TO be the divinely commits
stoned and only successor of St. Peter. So
with a Supreme Court standing FIVE to four
on a profound political problem growing out
of the war for the Union, faith in the infalli>
bility Of a Judiciary ceases; Judges become
our fellows, with a common heritage Of faults
and short sightedness, and we can weigh their
dicta without any conjunction, as though
guilty of sscrilege. With a breed Scott de-
cision before the war and this Milligan decis>
ion following it, we will be pardoned for
briefly considering historically the connec
ton of Judges with the growth of Liberty in
a nation. England will do, for an example,
and even then we can merely indicate re-
suits, not detail processes. The growth of
English liberty has been gradual: from early
popular opposition to the tyranny of the Nor
man Kings Of the Plantagenets, Of the Stu
arts; from the Magma Charta to the present
clamor that will surely end in an enlargement
of suffrage, the people have wrought their
own emancipation by contests in which the
Pariiaments. their representatives, have been
their steadfast allies, for the most part,
against a Kingly despotism which has had for
'he most part a Judiciary for an ally. This grew
out of the fundamental constitution of the
Courts, for there the King was, BY legal fc.
ton, always present; he was the fountain Of
justice. Read Hallam and Hume as 10 the venal
administration Of Justice, rather of Injustice.
under Norman rule. HuAE, noticing the
kingly control of the court at that time, says:
" Such an accumulation of powers was Of il
self a great source of authority chat means
royal despotism), and rendered the jurisdic-
ton of the court formidable to all the sub.
lects but the turn which judicial trials took
soon after the conquest, served still more TO
increase its authority, and to augment the
royal prerogatiYe.n So when the Parliament
bravely resisted the encroachments of Rich.
ard III. upon popular rights, trying to shield
the people from his arbitrary acts. it was to
the judges he turned for protection for his
tyranny, and these did not hesitate to give il.
They obsequiously ruled in his favor, against
Parliament, although in doing it they had to
establish dicta that, says H.rIAx, were
for the most part seryile and unconstitution>
al" The people stood with the Parliament
against Judges and King. We appeal to the
whole course Of English history to demon
strate that the contest for popular right in
England continued almost uniformly in that
order, the people and the Parliament rs. the
King and the Judges.
We will come to times controlled BY the
same spirit which. in its fuller development.
inspires England and Europe and America
to-day. The tyranny of the Stuarts at once
repressed and fostered freedom in England
and in the American colonies. The genius
and erudition of MAcAuLEY have worked into
one bright and glowing whole the various
shades Of Stuart rule. Take his portrai,ure
OF the infamous se~rvility of Judges to
kingly wishes and kingly injustice.
We should have to tran scribed many of his
pages il we gave the record Of il. He save:
"The tribunals afforded no protection to tie
subject against the civil and ecclesiastical ~,
ranny OF that period. The Judges Of the
Common Law, holding their situations during
the pleasure of the King, were scandalously
obsequiops.n And the Stuarts found their
readiest and most efficient instruments of
oppression in two coYSts-the Star Chamber
and the High Commission OF these courts
Macaulay says, and his words are noticeable,
"F|eed from the control Of Parliament, they
displayed a rapacity, a violence, q malignant
energy, which had been unknown to any for.
mer age" So, when Charles supposed the
faerantly unjust shipsmoney tax, and the
whole English people were thereby aroused
and incensed, and John Hampden resisted
the illegal measure in the Courts, Macaulay
says: 1.-THE case was argued before the
Judges in the Exchequer Chamber. Sc
strong we're the arguments against the preten.
sions Of the Crown, that dependant and ser
vile as the Judges were, the majority aeains,
Hampden was the smallest possible. Still
there was a majority. The interpreters of The
Law had pronounced that one great and pro.
due6ve tax might be imposed By the roya,
authority" The %servility and infamy of JEFF
fries need no repetition here. We do not tr,
70 establish a ~ 2~osition by isolated facts
These are but elarsions from facts ALI hea,
ing one way. IT, aoint We make Il tba, j.
n9eriy every cont, II the English peonl,
With the Crown, had he national policy beer
ultimately settled bs the attitude and dac;s
ioas of.s0 Courts. here would have been y,
ssrowth'of English ~lioersy; Kingcraft wouIt
hare beeryictor. The peoples representa-
dyss, notthe judges. have been the champi
ohs Of pdpulasright. The American reader q
Z Al. ls-A-- NJ