The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1867-01-02

wound Is dangerous The burglar escaped with two
watches belonging to Mrs. Ward.
Joseph A. veszc, broker in Boston, is said to have
failed with liabilities amounting to half million
dollars.
partial list OF the rebels pardoned by the President is
published in columns this morning.
All the hotcls In Brighton. Mass had their stocks Of
liquors seized yesterday while the Bostonans there
sleghing There considerable disappointment among
them on the occasion
The Late Supreme Court Dccison-Thc Court
and the War.
From the opinion in full Of the Supreme
Court of the United States, delivered the other
day by Mr.. Justice Davis, in the Indiana Mill
gan case, and from the dissenting views (gven
with the above In crtenso in yesterdays
HERALp) Of Mr.. Chief Justice Chase, we are
enabled 10 understand the scope of this de-
csion, and the point Of disagreement betwe en-
the majority (fve) and the minority Gour) 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 ought to be issued in behalf of Mlligan;
second, that on the facts, as stated in the petit
ton of his counsel, he ought to be discharged
from custody; and third (thc important qucs-
tion) that upon the facts stated in said petition
and exhibits, the military commission men
toned therein had no jurisdiction legally
TO try and sentence said Milligan in
the manner and form as in said petit
ton and exhibits is stated. Thus the
ground taken by the petition in behalf
of the prisoner Is affirmed by the entire court,
to wit-that under the act Of Congress APP
proved March 3. 1868. entitled Tan act relat-
ing to habcas corpus and regulating judicial
proceedings in certain cases." the military COM
mission under which Milligan was arrested as
reasonable conspirator, tried, condemned to
death and held in custody, was illegal and
void, these proceedings having taken place in
Indiana, where the civil courts provided by
Congress under the constitution 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 mill
tary trial without authority In the act Of Con-
gress referred to, but that even Congress
could grant no such power" and tina, mo
doctrine involving more pernicious conse-
quences was ever invented by the wit Of man
lhan that any Of its provisions (the constitu-
tlon) can be suspended during any Of the
great exigcncies Of the government" Touch
ing the power of Congress In the premises,
Chief Justice Chase and the three other judges
concurring In his views hold that Congress,
under the authority to raise and support
armies, may in times Of war, at Its discretion.
determine in what States or districts such
great and imminent danger exists as justides
the authorization Of military tribunals for the
trial Of crimes and offences against the discl-
plne or security Of tbs army or against the
public safety" This appears TO be the extent
Of the disagreement between the majority and
the minority Of tho court. Upon this point, II
tho opinion Of the Chief Justice Is not sound,
the government Is at the mercy Of any such
rebeliious conspiracy as that which II has just
put down.
We 60 further, however. than the Chief JUS
tice, although not further than he might have
gone, in combating the opinion of Mr.. Justice
Davis. We bold that the latter In his argu-
ment stultiHes himself He contends, for
example, that the war for the suppression Of
the rebellion was conducted within the land
marks Of the constitution, while at the same
time these military arrests and trials Of
civilians in the loyal States were unconstitu-
tional. They were . great feature of the
war, and they have been sustained everywhere
by public opinion, from q conviction of
their public necessity, harsh as they were in
some cases. In the next place, the most promi-
against the obiter dicium Of Judge Davis that
there can be no exigency in the government
/! justifying suspension Of the provisions Of the
constitution. The late rebellion, in the bonn
bardment 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,
waited for the assembling Of Congress before
acting in defence Of the government in 'assum-
ing 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 force sufficient to hold
the capital could have been mustered accord
ing TO the constitution. This was what the
rebels expected. They could not believe that
President Lincoln would dare 10 assume the
constitutional powers Of Congress in order TO
serve the soycrnment; but he did, and in the
face Of the opinion Of bis immediate predecessor
that Congress itself had no power to coerce q
seeding State.
This two-faced opinion of Mr.. Justice Davis
Of the Supreme Court is, then, utterly incon-
sistent with the leading facts Of the war, and
! therefore utterly preposterous. This stull6-