1734 The entire Court rejected the Government’s contention that the President’s determination was conclusive in the absence of restraining legislation. 1733 The minority argued that the question was for Congress’s determination. The majority claimed this function for the courts and asserted that an area in which the civil courts were open and functioning, and in which there were no hostilities, does not qualify. The point of disagreement was over which department of the government had authority to say with finality what regions lie within the theater of military operations. Although unanimous in the result, the Court divided five-to-four on the ground of decision. This view was assumed by all members of the Court in Ex parte Milligan, 1732 in which the trial by a military commission of a civilian charged with disloyalty in a part of the country remote from the theater of military operations was held invalid. Theater of Military Operations.-Military law to the exclusion of constitutional limitations otherwise applicable is the rule in the areas in which military operations are taking place. To make Rules for the Government and Regulation of the land and naval Forces.Īnnotations Constitution and the Advance of the Flag To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years. The Congress shall have power * * * To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.
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