The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1867-01-04

The New York Herald ON the BeeIs-
ION OF the Supreme Court In the
aIIlIIgan Case---The Late Supreme
Court tDeeIsIOn---Tho Court and the
War.
From the opinion in full of the Su-
preme Court of the United States, de-
iivered the other day by Mr.. Justice
Davis, in the Indiana Milligan case,
and from the dissenting views of Mr..
Chief Justice Chase, we are enabled to
understand the scope of this decision,
and the point of disagreement between
the majority (fye), and the minority
(four) of the court.
Upon the actual questions involved
the judges were unanimous in their
decisions-First, that upon the facts
presented writ of habeas corpus
oug ht to be issued in behalf OF MiIli-
gan; second, that on the facts, as stated
| in the petition of his counsel, he ought
to be discharged from custody; and
/ third (the important question: that, up
on the facts stated in said petition and
exhibits, the military commission mem
toned therein bad no jurisdiction le-
gally to try and sentence said Milligan
in the manner and form as in said petit
ton and exhibits stated. Thus the
ground taken by the petition in behalf
of the prisoner is affirmed by the en-
Congress approved March 3, 1868, en-
titled San act relating to habeas corpus
and regulating judicial proceedings in
certain cases." the military commits
sion under which Milligan was arrest
ed as reasonable conspirator, tried,
condemned to death and held in custo-
dy, was illegal and void, these proceed
ings having taken place in Indiana,
where the civil courts provided by Con-
gress under the con Stitution were open
and unobstructed, Notwithstanding the
civil war was then in full blast in
other States.
So far the court was unanimous. But
Mr.. Justice Davis, in the course of his
opinion, takes the ground that not only
was this military trial without author
ity in the act of Congress referred to,
but that even Congress could grant no
such power" and that mo doctrine in
volving more pernlcious consequences
was ever invented by the wit of man
than that any of its provisions (the
constitution can be suspended during
any of the great exigencies of the gov
ernment." Touching the power OF
Congress in the premises, Chief Justice
Chase and the three other judges con-
curing in his views, hold, that Con-
gress, under the authority TO raise and
support armies, may in time of war,
at its discretion, determine in what
States or districts such great and i'm
minent danger exists as justifies the
authorization of military tribunals for
the trial of crimes and offences against
the discipline or security of the army
or against the public safety" This ap-
pears to be the extent of the disagree
ment between the majority and minori-
ty OF the court. Upon this point, if the
opinion of the Chief Justice is not
sound, the Government is at the mercy
OF any such rebellious conspiracy as
that which has just been put down.
We go further, however, than the
Chief Justice, although no further than
he might have gone, in combating the
opinion of Mr.. Justice Davis. We hold
that the latter in his argument stulti-
fies himself. He contends, for exam
pie, that the war for the suppression of
the rebellion was conducted within the
landmarks of the constitution, while
at the same time these military arrests
and trials of civilians in the loyal States
were unconstitutional. They were n
great feature of the war, and they have
been sustained everywhere by public
opinion, from a conviction of their pub
lie necessity, harsh as they were in
some cases. In the next place, the
out in bold relief against the obiter die
tuT of Judge Davis that there can be
no exigency in the government Justify
ing a suspension of the provisions of
the constitution. The late rebellion, in
the bombardment of Fort Sumter, was
commenced in the absence of Congress,
and to Congress alone belonged the
power to "raise and support armies"
Had President Lincoln, however, wait
ed for the assembling of Congress be-
fore acting in defense of the government
in assuming the war powers, in all
probability he would have been
turned out of the White House
by JEFF Davis and by the rebel
army at his back, together with
the expulsion of Congress from
Washington, before a force sufficient to
hold the capital could have been mus
tered according to the constitution.
This was what the rebels expected
They could not believe that President
Lincoln would dare to assume the con-
stitutional powers of Congress in order
to save the government; but he did and
in the face OF the opinion of his imme-
diatO predecessor that Congress itself
had no power to coerce a seeding
State.
This two-faced opinion of Mr.. Justice
Davis of the Supreme Court Is, then,
utterly inconsistent with the leading
facts of the war, and therefore utterly
preposterous. This stultitication of the
Supreme Court we dare saw results
from the great blunder of attempting to
regulate the war by the old exploded
Taney and Buchanan notions of the
constitution. These eantedeluyian iudC-
eS seem to forget that the war was an
appeal from the constitution to the
sword, and that the sword is the ultima
ratio Tegum-the last appeal of kings
and peoples. Thus the Constitution has
received new Interpretation from the
war; but what II the Supreme Court
still adheres to the old Interpretation? +?
Then 1t becomes the plain duty of Con-
gress to reconstruct this Court; for even
to this extent, sooner or later, the issue
decided in that final appeal to the sword
will be enforced by the loyal States.
This constitutional twaddle of Mr.. JUS
tice Davis will no more stand the fire of
public opinion than the Dred Scott de-
cision.