ilitary commission and to determine their legality. The court
dismissed his application on the ground that the writ applied for
was not a legal means of bringing the proceedings of the military
court under review. The charges and specifications and the sentence
were all set forth in the application, so that the court was made
officially aware of the full character of the case. This was
naturally accepted at the time as practically sustaining the action
of the President and General Burnside. When, however, the war was
over, there was taken up to the Supreme Court the case of Milligan
from Indiana, who had been condemned to death for treasonable
conduct in aid of the rebellion, done as a member of the Knights of
the Golden Circle, an organization charged with overt acts in
attempting to liberate by force the Confederate prisoners of war in
the military prisons, and otherwise to assist the rebellion. The
current public sentiment in regard to executive power had
unquestionably changed with the return to peace, and Lincoln having
been assassinated and Johnson being in the presidential chair, the
tide was running strongly in favor of congressional rather than
executive initiative in public affairs. 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. Jefferson, Jackson