tiorari, and against the jurisdiction of a military commission to try Constituthe petitioner, that the latter was prohibited by the 30th section tional objections of the Act of March 30, 1863, for enrolling and calling out the na-stated. tional forces,-12 Statutes at Large, 736, -as the crimes punishable in it by the sentence of a court-martial or a military commission applied only to persons who are in the military service of the United States, and subject to the articles of war; and also, that by the third section of the 3d Article of the Constitution, all crimes, except in cases of impeachment, were to be tried by juries in the State where the crime had been committed, and when not committed within any State, at such place as Congress may by law have directed; and that the military commission could have no jurisdiction to try the petitioner, as neither the charge against him nor its specifications imputed to him any offence known to the law of the land; that General Burnside had no authority to enlarge the jurisdiction of a military commission by the General Order Number Thirty-eight, or otherwise. General Burnside acted in the matter as the general commanding the Ohio Department, in conforinity with the instructions for the government of the armies of the United States, approved by the President of the United States, and published by the Assistant Adjutant-General, by order of the Secretary of War, on the 24th of April, 1863.*

It is affirmed in the thirteenth paragraph of the first section of these Instructions, that "military jurisdiction is of two kinds: first, that which is conferred and defined by statute; second, that which is derived from the common law of war. Military offences, under the statute, must be tried in the manner therein directed; but military offences which do not come within the statute must be tried and punished under the common law of war. The character of the courts which exercise these jurisdictions depends upon the local law of each particular country. In the armies of the United States, the first is exercised by courts martial; while cases which do not come within the 'rules and articles of war,' or the jurisdiction conferred by statute or court martial, are tried by military commissions."

These jurisdictions are applicable, not only to war with foreign nations, but to a rebellion, when a part of a country wages war against its legitimate government, seeking to throw off all allegiance to it to set up a government of its own.

Our first remark upon the motion for a certiorari is, that there is no analogy between the power given by the Constitution and laws of the United States to the Supreme Court and the other inferior courts of the United States, and to the judges of them to issue such processes, and the prerogative power by which it is done in England. The purposes for which the writ is issued are alike, but there is no similitude in the origin of the power to do it. In England the Court of King's Bench has a superintendence over all courts of an inferior criminal jurisdiction, and may, by the plenitude of its power, award a certiorari to have any indictment removed and brought before it; and where such certiorari is allowable, it is awarded at the instance of the king, because every indictment is at the suit of the king, and he has a prerogative of suing in whatever court he pleases. The courts of the United

* They were prepared by Francis Leiber, LL. D., and were revised by a board of officers, of which Major-General E. A. Hitchcock was president.

States derive authority to issue such a writ from the Constitution and the legislation of Congress. To place the two sources of the right to issue the writ in obvious contrast, and in application to the motion we are considering for its exercise by this Court, we will cite so much of the third article of the Constitution as we think will best illustrate the subject. "The judicial power of the United States shall be vested in the Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish." "The judicial power shall extend to all cases in law and equity, arising under the Constitution, the laws of the United States, and treaties made or which shall be made under their authority; to all cases affecting embassadors, other public ministers and consuls," etc., "and in all cases affecting embassadors, other ministers and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such_regulations, as the Congress shall make." Then Congress passed the act to establish the judicial courts of the United States, 1 Stats. at Large, p. 73, chap. 20, — and in the 13th section of it declared that the Supreme Court shall have exclusively all such jurisdiction of suits or proceedings against embassadors or other public ministers or their domestics or their domestic servants as a court of law can have or exercise consistently with the laws of nations, and original but not exclusive jurisdiction of suits brought by embassadors, or other public ministers, or in which a consul or vice-consul shall be a party. In the same section the Supreme Court is declared to have appellate jurisdiction in cases hereinafter expressly provided. In this section, it will be perceived that the jurisdiction given, besides that which is mentioned in the preceding part of the section, is an exclusive jurisdiction of suits or proceedings against embassadors or other public ministers or their domestics or domestic servants, as a court of law can have or exercise consistently with the laws of nations, and original, but not exclusive, jurisdiction of all suits brought by embassadors, or other public ministers, or in which a consul or vice-consul shall be a party, thus guarding them from all other judicial interference and giving to them the right to prosecute for their own benefit in the courts of the United States. Thus substantially reaffirming the constitutional declaration that the Supreme Court had original jurisdiction in all cases affecting embassadors and other public ministers and consuls and those in which a State shall be a party, and that it shall have appellate jurisdiction in all other cases before mentioned, both as to law and fact, with such exceptions and under such regulations as the Congress shall make.

The appellate powers of the Supreme Court, as granted by the Constitution, are limited and regulated by the acts of Congress, and must be exercised subject to the exceptions and regulations made by Congress. Durousseau vs. The United States, 6 Cranch, 314; Barry vs. Mercien, 5 How. 119; United States vs. Currey, 6 How. 113; Forsyth vs. United States, 9 How. 571. In other words, the A military petition before us we think not to be within the letter or spirit of not a court, the grants of appellate jurisdiction to the Supreme Court. It is within the not in law or equity within the meaning of those terms, as used in meaning of the third article of the Constitution. Nor is a military commission the Judici- a court within the meaning of the 14th section of the Judiciary Act

commission

ary Act.

from the

of 1789. That act is denominated to be one to establish the judicial courts of the United States, and the 14th section declares that all the 'before-mentioned' courts of the United States shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions agreeably to the principles and usages of law. The words in the section, 'the before-mentioned' courts, can only have reference to such courts as were established in the preceding part of the act, and excludes the idea that a court of military commission can be one of them. Whatever may be the force of Vallandigham's protest, that he was not triable by a court of military commission, it is certain that his petition cannot be brought within the fourteenth section of the Act; and further that the court cannot, without disregarding its frequent decisions and interpretations of the Constitution in respect to its No certiorajudicial power, originate a writ of certiorari to review or pronounce ri can issue any opinion upon the proceedings of a military commission. It Supreme was natural, before the sections of the third articles of the Constitu- Court to retion had been fully considered in connection with the legislation of view, proCongress, giving to the courts of the United States power to issue a military writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which might be necessary for the exercise of their respective jurisdiction, that by some members of the profession it should have been thought, and some of the early judges of the Supreme Court also, that the 14th section of the Act of 24th September, 1789, gave to this court a right to originate processes of habeas corpus ad subjiciendum and writs of certiorari, to review the proceedings of the inferior courts as a matter of original jurisdiction, without being in any way restricted by the constitutional limitation that in all cases affecting embassadors, other public ministers and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction.

This limitation has always been considered restrictive of any other original jurisdiction. The rule of construction of the Constitution being, that affirmative words in the Constitution declaring in what cases the Supreme Court shall have original jurisdiction, must be construed negatively as to all other cases. 1 Cranch, 137; 5 Peters, 284; 12 Peters, 637; 9 Wheaton; 6 Wheaton, 264.

The nature and extent of the court's appellate jurisdiction and its want of it to issue writs of habeas corpus ad subjiciendum, have been fully discussed by this court at different times. We do not think it necessary, however, to examine or cite many of them at this time. We will annex a list to this opinion, distinguishing what this court's action has been in cases brought to it by appeal, from such applications as have been rejected, when it has been asked that it would act upon the matter as one of original jurisdiction. In the case Ex parte Milburn, 9 Peters, 704, Chief Justice Marshall said, as the jurisdiction of the court is appellate, it must first be shown that it has the power to award a habeas corpus. In Ex parte Kaine, 14 Howard, the court denied the motion, saying that the court's jurisdiction to award the writ was appellative, and that the case had not been so presented to it, and for the same cause refused to issue a writ of certiorari, which in the course of the argument was prayed for. In Ex parte Metzger, 5 How. 176, it was determined that a writ of certiorari could not be allowed to examine a commitment by a district judge, under the treaty between the United States and France,

ceedings of

commis

sion.

Military commission exercises

special authority;

Not judicial;

be reversed

for the reason that the judge exercised a special authority, and that no provision had been made for the revision of his judgment. So does a court of military commission exercise a special authority. In the case before us, it was urged that the decision in Metzger's case had been made upon the ground that the proceeding of the district judge was not judicial in its character, but that the proceedings of the military commission were so; and, further, it was said that the ruling in that case had been overruled by a majority of the judges in Kaine's case. There is a misapprehension of the report of the latter case; and as to the judicial character of the proceedings of the military commission, we cite what was said by the court in the case of Ferreira. "The powers conferred by Congress upon the district judge and the secretary are judicial in their nature, for judgment and discretion must be exercised by both of them, but it is not judicial in either case, in the sense in which the_judicial power is granted to the courts of the United States." 13 Howard,

48.

Nor can it be said that the authority to be exercised by a military commission is judicial in that sense. It involves discretion to examine, to decide and sentence, but there is no original jurisdiction in the Its proceed- Supreme Court to issue a writ of habeas corpus ad subjiciendum to ings cannot review or reverse its proceedings, or the writ of certiorari to revise the by the Su-proceedings of a military commission. And as to the President's action in such matters, and those acting in them under his authority, we refer to the opinions expressed by this court in the cases of Martin vs. Mott, 12 Wheaton, pages 19, 28 to 35 inclusive; and Dynes vs. Hoover, 20 Howard, page 65, &c.

preme Court.

For the reasons given, our judgment is, that the writ of certiorari prayed for to revise and review the proceedings of the military commission, by which Clement L. Vallandigham was tried, sentenced, and imprisoned, must be denied, and so do we order accordingly."

THE CHEROKEE NATION v. THE STATE OF GEORGIA, 5 Peters, 1. This case is thus stated by Nelson, J., in delivering the opinion of the court in 6 Wallace, 73, 74:

A bill was filed in that case, and an injunction prayed for to prevent the execution of certain acts of the legislature of Georgia within the territory of the Cherokee nation of Indians, they claiming a right to file it in this court, in the exercise of its original jurisdiction, as a foreign nation. The acts of the legislature, if permitted to be carried into execution, would have subverted the tribal government of the Indians, and subjected them to the jurisdiction of the State. The injunction was denied, on the ground that the Cherokee nation could not be regarded as a foreign nation within the judiciary act, and that therefore they had no standing in court. But Chief Justice Marshall, who delivered the opinion of the majority, very strongly intimated that the bill was untenable on another ground, namely, that it involved simply a political question. He observed "that the part of the bill which respects the land occupied by the Indians, and prays the aid of the court to protect their possessions, may be more doubtful. The mere question of right might, perhaps, be decided by this court in a proper case with proper parties. But the court is asked to do more than decide on the title. The bill requires us to control the legislature of Georgia, and to restrain the exertion of its physical force. The propriety of such an interposition by the court may be well questioned. It savors too much of the exercise of political power to be within the province of the judicial department." Several opinions were delivered in the case, a very elaborate one by Mr. Justice Thompson, in which Judge Story concurred. They maintained that the Cherokee nation was a foreign nation within the judiciary act, and competent to bring the suit, but agreed with the Chief Justice that all the matters set up in the bill involved political questions, with the exception of the right and title of the Indians to the possession of the lands which they occupied. Mr. Justice Thompson, referring to this branch of the case, observed,

"For the purpose of guarding against any erroneous conclusions, it is proper I should state that I do not claim for this court the exercise of jurisdiction upon any matter properly falling under the denomination of political power. Relief, to the full extent prayed for by the bill, may be beyond the reach of this court. Much of the matters therein contained by way of complaint would seem to depend for relief upon the exercise of political power, and as such appropriately devolving upon the executive and not the judicial department of the government. This court can grant relief so far, only, as the rights of persons or property are drawn in question, and have been impinged."

And, in another part of the opinion, he returns again to this question, and is still more emphatic in disclaiming jurisdiction. He observes, "I certainly do not claim, as belonging to the judiciary, the exercise of political power. That belongs to another branch of the government. The protection and improvement of many rights secured by treaties most certainly does not belong to the judiciary. It is only where the rights of persons and property are involved, and when such rights can be presented under some judicial form of proceedings, that courts of justice can interpose relief. This court can have no right to pronounce an abstract opinion upon the constitutionality of a State law. Such law must be brought into actual or threatened operation upon rights properly falling under judicial cognizance, or a