Ex Parte Milligan and Mary Surratt

[Thomas Thorne]

Fascinating topic which deserves much more research than I have done.

The Supreme Court in 1864-Ex Parte Vallandigham-refused to take up the issue -grant certiorari -and hear the case of Ex Congressman Clement Vallandigham of Ohio who challenged a general order of Gen Ambrose Burnside,commander of a military department in Ohio prohibiting disloyal statements and activities which aided the rebellion and promised that any offenders would be arrested,tried by military commission and subject to penalties that might go as high as death upon conviction.

Vallandigham denounced the war as "wicked" among other things and Burnside had him arrested,tried and convicted by a military commission which sentenced him to imprisonment for the duration. Pres Lincoln ordered Vallandigham be sent beyond the Union lines to the Confederacy.

Vallandigham was soon permitted to return to the North. In 1864 the US Supreme Court refused to take up his appeal-grant certiorari-and the full court never rendered a decision. No justice argued that the court should accept the case. 4 justices said that the appellate jurisdiction of the Supreme Court are under the Constitution 'limited and regulated by the acts of Congress and must be excercised subject to the exceptions and regulations made by Congress." As the Congress had not explicitly given the Supreme Court power to hear appeals of military commission convictions, the Supreme Court lacked the power to take such cases.

Of the 4 justices who signed on to Vallandigham, only 1-Justice Wayne who was from Georgia was consistent in his dissenting vote in Milligan. The other 3-from New York,Pennsylvania and California respectively changed their views on judicial power and voted to overturn Milligan's conviction.

In our history the Supreme Court has usually been aware that the exercise of its powers should be tempered by the danger that judicial opinions strongly and even violently opposed by the vast majority of the country can boomerang on the Supreme Court and weaken its subsequent authority and prestige.

Congress can overturn constitutionally derived Supreme Court decisions by constitutional amendment. It can overturn statutorily derived Supreme Court decisions by statue. On very rare occasions an angry Congress will ignore an unpopular Supreme Court and dare the Court to to fall into the same quicksand, Such was the fate of the Dred Scott case in which Congress in 1862 prohibited slavery in the territories. One final Congressional power has been used only once;Congress does have the Constitutional authority to limit appeals to the Supreme Court.

I believe the Supreme Court was fearful of Northern reaction to a Supreme Court decision challenging military commissions during the war. But once the war was won, applying constitutional precepts would do no harm.
Tom