The Evansville journal. [volume] (Evansville, Ind.) 1866-1870, 1867-02-05
Fruits Of the MiIllgan ease.

a
over the continent, and It's theory, It's
spirit, and its logic. somewhat roughly
handled. 1t is remarkable that the
technical accuracy of the main decis-
ion disposing of Milligan has rarely
been called in question; but it is the
narrow spirit inspiring the obiter dicta
which has aroused controversy. And
even those who acquiesce in the ma
jority decision Of the court are in
clined to think that, in a similar
struggle for life, the nations only
hope would be in doing its. so-called
~" illegal " acts right over again. 1t is
commentary which soldier can I'M
derstand at once. + For ourselves, we
have been driven to no such pardona-
dqb BILE contradiction between theory and
practice, but have objected to the de-
3 cision of the Supreme Court as for
getting, in its implicit reliance on the
written Constitution, the express and
indubitable mandate of that sove-
reign will which is greater than any
constitution. 1t made the creature
greater than the creator.
j Comparatively little, however, has
yet been said OF the practical conse-
quences of the decision in the Mill
gan case, and nothing at all, we be-
lieve, of the means of averting those
consequences. We apprehend that
this decision exposes to legal persecu-
ton all those of our officers, who, i'm
PEELED by patriotism, and discharge of
their duty as true and loyal soldiers,
took part in such military commits
sions as the court has declared lille
gal. For it may be we'll supposed
that those persons who were arraigned
for disioyalty before such commits
sions, and were punished in person
or property, will now, under this de-
cision, turn on the individual officers
and seek to recover damages. These
actions for trespass and assault and
battery can obviously be conducted in
State courts, and officers will be ex-
posed to endless worry and expense.
For, surely, if Congress had no origi-
nal power to establish such military
commissions, as held by the Supreme
Court, 1T has no power to legalize
4 them Eby retrospective legislation
Congress can not, in such a view.
throw back its shield over its faithful
servants, who obeyed its laws and the
will of the nation, and to whom alone
lit Il owing that Congress, courts or
country remains 4e
As practical measure, we would
put forth the suggestion that Congress
should Immediately vindicate the ma
tional authority wherever it has been
properly exercised by our soldiers and
sailors; and at the same time that it
should give the latter the means of re-
moving the reyengeful suits commence
ed against them from State to United
States courts. This latter result could
be accomplished by passing law
that, wherever prosecution for as
sault and battery, &c., shall be COM
menced in State court, then, upon
the certificate of any United States
Commissioner that the act complained
of took place during the late rebel
lion, while the defendant was clothed
with the military authority of the
United States, and in prosecution
of that authority, the suit
may be removed at the defen-
dant's option to the United States
courts. 1t is true that, even in this
case, the facts would have to be tried
before PANEL from the yicinage.
But it would, doubtless, be possible
in some cases to avoid local preiudices
by this assertion of United States IN
risdiction, and if any such ADVANTAGE
be possible, it should be secured Fl
once to our loyal officers The great
gain, however, would be in settling
the question of Jurisdiction. Instead
of the action being carried up from
court to court In the gradations of
State judicature, it would be carried
into the United States courts. z
Another result would flow from the
passage Of a Congressional law vindi-
eating the. national jurisdiction, de-
rived from its military authority, and
providing for the trial of cases under
it. 1t would promptly raise direct
III issue between Congress and the iu-
dietary on this momentous question.
q And to that complexion sooner or
later we must come 1t is a weighty
fact that the most Objectionable part
of the decision of the Supreme Court
in the Milligan case was an obiter dc
Il tam, and the court went officiously
beyond the line of its duty to D 20
mulgate an opinion which shocked
the common sense of a majority of the
people of this country It yet re-
mains to be seen whether, in view of
this obvious public sentiment, and in
the cautious second thought which
this rebuke must have stirred, the
court will give direct decision iden-
teal with its obiter. Such direct
decision it would be one object of
the Congressional act we suggest to
provoke. Congress, on the one hand,
would affirm its power to have au-
thorized military commissions during
the late rebellion, anywhere from
Maine to Mexico, in Indiana as legal
ly as in Florida. In this way it
would sustain the minority opinion
of the court against the majority,