482 



HABEAS CORPUS. 



of that order, for which he has been tried. The result 

 of that trial is now in my hands. 



In enforcing this order, I can be unanimously sus- 

 tained by the people, or I can be opposed by the fac- 

 tious, bad men. In the former event quietness will 

 prevail ; in the latter event the responsibility and re- 

 tribution will attach to the men who resist the author- 

 ity and the neighborhoods that allow it. 



All of which is respectfully submitted. 



A. E. BURNSIDE, Maj.-Gen., 

 Commanding Department of the Ohio. 



The motion was denied by Judge Leavitt, 

 who delivered a very lengthy decision, of which 

 the following are extracts. After arguing at 

 length, and with great ability, the more strictly 

 legal and constitutional points involved in the 

 case, he proceeds : 



Now, the question which I am called upon to decide 

 is, whether Gen. Burnside, as an agent of the Exec- 

 utive Department of the Government, had trans- 

 gressed his authority in ordering the arrest of Mr. 

 Vallandigham. If the theory or his counsel is sus- 

 tainable, that there can be no legal arrest except by 

 warrant based on an affidavit of probable cause, the 

 conclusion would be clear that the arrest was illegal. 

 But I do not think I am bound to regard the inquiry as 

 occupying this narrow base. Gen. Burnside, by the 

 order of the President, has been designated and ap- 

 pointed to take the military supervision of the Depart- 

 ment of the Ohio, composed of the States of Ken- 

 tucky, Ohio, Indiana, Illinois, and Michigan. The 

 precise extent of his authority in this responsible po- 

 sition is not known to the Court. 



It may, however, be properly assumed, as a fair 

 presumption, that the President has clothed him 

 with all the powers necessary to the efficient dis- 

 charge of his duties, in the station to which he has 

 been called. He is the representative and agent of 

 the President, within the limits of his department. 

 In time of war the President is not above the Con- 

 stitution, but derives his power expressly from the 

 provision of that instrument declaring that he shall 

 be Commander-in-Chief of the Army and Navy. The 

 Constitution does not specify the powers he may 

 rightfully exercise in this character, nor are they 

 defined by legislation. No one denies, however, 

 that the President, in this character, is invested with 

 very high powers, which it is well known have been 

 exercised on various occasions during the present 

 rebellion. A memorable instance of its exercise is 

 seen in the Emancipation Proclamation, issued by 

 the President as Commander-in-Chief, and which he 

 justifies as a military necessity. 



It is, perhaps, not easy to define what acts ore 



SrSperly within this designation, but they must, un- 

 oubtealy, be limited to such as are deemed essen- 

 tial to the protection and preservation of the Gov- 

 ernment and the Constitution, which the President 

 has sworn to support and defend. And in deciding 

 what he may rightfully do under this power, where 

 there is no express legislative declaration, the Presi- 

 dent is guided solely by his own judgment and dis- 

 cretion, and is only amenable for an abuse of his au- 

 thority by impeachment, prosecuted according to the 

 requirements of the Constitution. The occasion 

 which calls for the exercise of this power exists only 

 from the necessity of the case : and when the neces- 

 sity exists, there is a clear justification of the act. 



If this view of the power of the President is cor- 

 rect, it undoubtedly implies the right to arrest per- 

 sons, who, by their mischievous acts of disloyalty, 

 impede or endanger the military operations of the 

 Government. And, if the necessity exists, I see no 

 reason why the power does not attach to the officer 

 or General in command of a military department. 

 The only reason why the appointment is made, is 

 that the President cannot discharge the duties in 

 person. He, therefore, constitutes an agent to rep- 



resent him, clothed with the necessary power for the 

 efficient supervision of the military interests of the 

 Government throughout the department. And it is 

 not necessary that martial law snould be proclaimed 

 or exist, to enable the General in command to per- 

 form the duties assigned to him. Nor is it necessary 

 that it should have been in force to justify the arrest. 

 The power vested by virtue of the authority was con- 

 ferred by the appointment of the President. Under 

 that appointment, Gen. Burnside assumed the com- 

 mand of this department. 



In the exercise of his discretion, he issued the or- 

 der No. 38 which has been brought to the notice 

 of the Court. I shall not comment on that order, 

 or say any thing more in vindication of its expedi- 

 ency. I refer to it only because Gen. Burnside, in 

 his manly and patriotic communication to the Court, 

 has stated fully his motives and reasons for issuing 

 it, ami also that it was for its supposed violation that 

 he ordered the arrest of Mr. yallandigham. He has 

 done this under his responsibility as the commanding 

 General of this department, and in accordance with 

 what he supposed to be the power vested in him by 

 the appointment of the President. It was virtually 

 the act of the Executive Department under the power 

 vested in the President by the Constitution ;_ and I 

 am unable to perceive on what principle this judicial 

 tribunal can be invoked to annul or reverse it. In 

 the judgment of the commanding General, the emer- 



fency required it ; and whether he acted wisely or 

 iscreetly, is not properly a subject for judicial re- 

 view. 



I am aware there are points made by the learned 

 counsel representing Mr. Vallandigham, to which I 

 have not, adverted. I have had neither time nor 

 strength for a more elaborate consideration of the 

 questions involved in this application. For the rea- 

 sons which I have attempted to set forth, I am led 

 clearly to the conclusion mat I cannot judicially pro- 

 nounce the order of Gen. Burnside for the arrest of 

 Mr. Vallandigham as a nullity, and must, therefore, 

 hold that no sufficient ground has been exhibited for 

 granting the writ applied for. 



In pursuance of the sentence of the Presi- 

 dent, Mr. Vallandigham was sent south beyond 

 our lines, of which occurrence the following 

 account is given in a letter from Murfreesboro', 

 under date of May 25th : 



Last night, at a little past ten o'clock, Clement L. 

 Vallandignom arrived at this place on an extra train 

 of cars from Nashville, in charge of Capt. Murry, of 

 the 13th Regular Infantry, with a small squad of men. 

 It was two o'clock in the morning before Vallandig- 

 ham was started on his journey. He rode in tho 

 same wagon that brought him up from the depot. 

 Col. McKibben, Senior, Aid to the General Com- 

 manding; Lieut. -Col. Ducat, Inspector General of 

 the Department ; Major Wiles, Provost Marshal 

 General: Capt. Goodwin, 37th Indiana, Assistant 

 Provost Marshal General: Capt. Doolittle, of the 4th 

 Regular Cavalry; and Lieut. Kelley, co,mmandin;' 

 two companies of cavalry, composing the general 

 escort, accompanied the prisoner. The first signs of 

 daylight were appearing in the east, when the caval- 

 cade stopped at a house to wait for the full morning'. 

 Soon after we were again on the way, and just as the 

 sun rose reached our extreme outposts, and signallci 

 to the rebel videttes, a half mile ahead. Maj. Wiles 

 and Col. McKibben started forward with a flag <f 

 truce, and were soon in communication with the 

 rebel authorities. The latter having expressed a 

 willingness to receive Mr. Vallandignam, the two 

 officers returned. 



Maj. Wiles and Capt. Goodwin accompanied the 

 prisoner within the rebel lines, and about ten o'clock 

 A. M., delivered him into the hands of a single private 

 soldier of the 31st Alabama, Colonel Webb Mr. Val- 

 landigham making the following declaration : 



