War of the Rebellion: Serial 119 Page 0624 PRISONERS OF WAR AND STATE, ETC.

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of the United States, but is entirely independent of it. If this be so, the military commission which tried Vallandigham is not a court within the meaning of that term as used in the fourteenth section of the judiciary act, nor did it exercise any part of the judicial power of the United States, though its proceedings were of a judicial character. Upon the authorities above cited, in the cases of Bollman, Metzger, Fereira, Kaine, &c., there can in such case be not appellate jurisdiction in the Supreme Court of the United States, unless expressly given by Congress. That there is no express act of Congress giving the Supreme Court of the United States appellate jurisdiction to revise, by writ of error, habeas corpus, or in any way, the proceedings of courts-martial or military commissions will doubtless be conceded. If wrong has been done the applicant by the commanding officer who ordered his arrest, or by the military court who tried and sentenced him, his remedy is by action against them, not by review in this court of their proceedings. It is not deemed necessary to discuss the question of the power of Congress to confer the appellate jurisdiction claimed, in the absence of any statute for that purpose. That this military power for the common defense in time of war inheres in the military commander, to the exclusion of the civil authority, appraise by the elaborate opinion of the late Attorney-General Cushing. (Opinions, vol. 8, p. 365. See also Benet, 14, and Halleck, 380.)

In the face of Luther, vs. Borned (7 Howard, 45), the court, per Chief Justice Taney, say:

Unquestionably a State may use its military power to put down as armed insurrection too strong to be controlled by civil authority. * * * Without authority to do this martial law and the military array of the Government would be mere parade, and rather encourage attack than repel it.

Upon this view of the subject, the Supreme Court might with as much propriety be called upon to restrain by injunction the proceeding of Congress as to revise by certiorari and reverse and proceedings of the military authorities in time of war in the punishment of all military offenses according tot he usages of civilized nations and the powers given by the Constitution and laws of the United States for he common defense and public safety.

Respectfully submitted. *

J. HOLT,

Judge-Advocate-General.

NOTE. -Though Marshall, Chief Justice, in the case of Watkins ex parte (3 Peters, 198), above cited, says: "No law of the United States prescribes the cases in which the writ of habeas corpus shall be issued," it is submitted that he does not decide that the law does not prescribe the Federal tribunals which may issue it, and courts whose proceedings may be revised by it, upon habeas corpus, certiorari, &c., in the Supreme Court. Certiorari will not lie to remove a proceeding pending in an inferior court on the ground of a want of jurisdiction. (Fowler vs. Lindsey, Fowler vs. Miller, 3 D., 411; I, 291.)

Quaere. Will it lie in a case where the tribunal has been dissolved and has ceased to exit, and the sentence, as appears by the record, has been revoked by being commuted by the President in the exercise of his constitutional authority? Is not the Supreme Court asked virtually to review and reverse an order made by the President as Commander-in-Chief of the Army, by which he directed a public enemy to be sent beyond the lines of the Army of the United States?

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* See ex parte Vallandigham, 1 Wallace, p. 243.

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