Five years afterward, when Chase was Chief Justice,
the Supreme Court, in ex parte Milligan, took the same view and
further declared that even Congress could not deprive a citizen
of his right to trial by jury so long as the local civil courts
are in operation. The Confederate experience differed from the
Federal inasmuch as Congress kept control of the power to suspend
the writ. But both governments made use of such suspension to
set up martial law in districts where the local courts were open
but where, from one cause or another, the Administration had not
confidence in their effectiveness. Under ex parte Milligan,
both Presidents and both Congresses were guilty of usurpation.
The mere layman waits for the next great hour of trial to learn
whether this interpretation will stand. In the Milligan case the
Chief Justice and three others dissented.
There can be little doubt that this proclamation caused something
like a panic in many minds, filled them with the dread of
military despotism, and contributed to the reaction against
Lincoln in the autumn of 1862. Under this proclamation many
arrests were made and many victims were sent to prison. So
violent was the opposition that on March 3, 1863, Congress passed
an act which attempted to bring the military and civil courts
into cooperation, though it did not take away from the President
all the dictatorial power which he had assumed.
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