It cannot be denied that the
court responded more or less fully to the popular drift, then as in
other important historical junctures. In the opinion as delivered by
Judge Davis, it went all lengths in holding that the military
commission could not act upon charges against a person not in the
military service, and who was a citizen of the State where tried,
when in such State the civil courts were not actually suspended by
the operations of war. Chief Justice Chase and three of the justices
thought this was going too far, and whilst concurring in discharging
Milligan, held that Congress could authorize military commissions to
try civilians in time of actual war, and that such military
tribunals might have concurrent jurisdiction with the civil courts.
[Footnote: Ex parte Vallandigham, Wallace's Reports, i. 243. Ex
parte Milligan, _Id_., iv. 2, etc.]
We must not forget that whilst the judicial action determines the
rights of the parties in a suit, the executive has always asserted
his position as an independent co-ordinate branch of the government,
authorized by the Constitution to determine for himself, as
executive, his duties, and to interpret his powers, subject only to
the Constitution as he understands it.
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