I now quote from the opinion of the minority of the court, delivered by
Chief Justice Chase:
We by no means assert that Congress can establish and apply the laws of
war where no war has been declared or exists. Where peace exists, the
laws of peace must prevail.
This is sufficiently explicit. Peace exists in all the territory to
which this bill applies. It asserts a power in Congress, in time of
peace, to set aside the laws of peace and to substitute the laws of war.
The minority, concurring with the majority, declares that Congress does
not possess that power. Again, and, if possible, more emphatically, the
Chief Justice, with remarkable clearness and condensation, sums up the
whole matter as follows:
There are under the Constitution three kinds of military
jurisdiction--one to be exercised both in peace and war; another to be
exercised in time of foreign war without the boundaries of the United
States, or in time of rebellion and civil war within States or districts
occupied by rebels treated as belligerents; and a third to be exercised
in time of invasion or insurrection within the limits of the United
States, or during rebellion within the limits of the States maintaining
adhesion to the National Government, when the public danger requires its
exercise.
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