484 



HABEAS CORPUS. 



His offence is hardly known to civil law, and there 

 would have been no end of trouble in getting him in- 

 dicted. Then he would have been simply bound to 

 stand his trial at some future day, ana would have 



one on talking his treason and sedition. And the 

 ad effects before mentioned would have gone on 

 growing in power and influence, and might have got 

 too big to stop. 



Moreover, special cases of ill-doing, resulting from 

 and directly in accordance with his teachings, have 

 constantly to be attended to. They cannot be over- 

 looked. Should we punish them and let him go on 

 inciting the commission of just such acts? abusing 

 the courts that try them, and bringing their authori- 

 ty into disrepute. 



You have no idea of the amount of open and bold 

 disloyalty not simply disloyalty by the Republi- 

 can standard, but by that of any honest man exist- 

 ing in Ohio, Indiana, and Illinois, among the Vallan- 

 digham party. It must be stopped and put down 

 now not six months hence and military tribunals 

 are the only ones that can do it. It must be put 

 down if it should take a temporary military despot- 

 ism out here to do it. It is that, or the loss of the 

 cause. The course of these men prolongs the war 

 and costs lives by thousands, and I tell you either 

 they or the Government must go down, and that 

 speedily. 



The law of the case was reivewed in an ar- 

 ticle in the " National Intelligencer " of May 

 20th, as follows : 



As much confusion seems to prevail with regard to 

 the legal aspects of the arrest, trial, and conviction 

 of Mr. Vallandigham, on the charge of giving aid and 

 comfort to the enemy, we think it proper, in view of 

 the interest attaching to this question, considered as 

 one of law rather than military caprice, to place dis- 

 tinctly before our readers the points on which it 

 turns. 



The charge brought against Mr. Vallandigham was 

 as follows : 



Publicly expressing, in violation of General Order No. 83, 

 from headquarters department of the Ohio, his sympathy for 

 those in arms against the Government of the United States, 

 declaring disloyal sentiments and opinions, with the object 

 and purpose of weakening the power of the Government in 

 its efforts to suppress an unlawful rebellion. 



The specification adduced by the Judge Advocate 

 in support of this charge, see ante. 



It will thus be seen that the charge and the specifi- 

 cation, even if entirely sustained by the evidence (as 

 to which in this inquiry we raise no question), seek 

 to convict Mr. Yallandigham, a citizen of Ohio, of 

 "giving aid and comfort to the enemy." 



Now this offence has, by the recent legislation of 

 Congress, been made expressly cognizable by the 

 courts of the United States. This will appear from 

 "An act to suppress insurrection, to punish treason 

 and rebellion, and confiscate the property of rebels, 

 and for other purposes," approved July 17, 1862, and 

 found in volume 12, chapter 195, page 589 of the 

 Statutes at Large as printed by order of Congress, 

 sections 2 and 8. 



The tribunal to take cognizance of such cases and 

 questions distinctly appears from the concluding sec- 

 tion of this statute, as follows : 



SEC. 14. And be it further enacted, That the courts of the 

 United States shall have full power to institute proceedings, 

 make orders and decrees, issue process, and do all other things 

 to carry this act into effect 



This is conclusive as to the jurisdiction of the 

 courts of the United States, and of them alone, over 

 the offence alleged to have been committed by Mr. 

 Vallandigham. 



But the last Congress did not stop here. As if to 

 shut the door against any such proceedings as those 

 instituted by Gen. Burnside, it passed an act, ap- 

 proved March 3, 1863, expressly "relating to habea* 

 corpus and regulating judicial proceedings in cer- 



tain cases." The section of this act relevant to the 

 case of Mr. Vallandigham may be found on page 755 

 of the volume of the Statutes at Large as just printed 

 by order of Congress, sections 1, 2, and 3. 



The reader can easily educe from these provisions 

 the law of the question raised by the arrest made by 

 Gen. Burnside. They will perceive that proceedings 

 under the writ of haoeas corpus are to be suspended 

 by the courts whenever and wherever the privilege 

 of this writ has been suspended by the President, 

 which is not the case in the State of Ohio. Judge 

 Leavitt, in refusing to grant the writ sued out in be- 

 half of Mr. Vallandigham, stated that he had not 

 seen this law, which was cited in court by Mr. Pugh, 

 the attorney for Mr. Vallandigham. 



And when a judge of the United States is ignorant 

 of the legislation of Congress on this head, surely 

 Gen. Burnside may be excused for not knowing 

 that Congress, by the act of July 17, 1862, had ex- 

 pressly provided for the trial by the courts of the of- 

 fence he alleges against Mr. \ allandigham. Nor is 

 it any answer to say, as Gen. Burnside urges in 

 his statement made to the judge, that "we are in a 

 state of civil war, and an emergency is upon us 

 which requires the operations of some power that 

 moves more quickly than the civil," for it was pre- 

 cisely in view of such an "emergency" that Con- 

 gress passed the act of July 17, 1862, already cited, 

 and it was to exclude the possibility of the arbitrary 

 detention of persons held " as prisoners of the Uni- 

 ted States by order or authority of the President of 

 the United States, as a state or political prisoner, or 

 otherwise than as prisoners of war," that Congress 

 passed the act approved on the 3d of March last, 

 and the sections of which, so far as they relate to 

 this case, we have recited above. The intervention 

 of a court-martial, illegally charged with the trial of 

 a citizen, does not alter the nature of the imprison- 

 ment of Mr. Vallandigham, who, while deprived of 

 his liberty, must be regarded in law as one "impris- 

 oned by the order or authority of the President, act- 

 ing through the Department of War." 



ed" 



legect conduct and language of Mr. Vallandigham, 

 and has thus made provision for the "emergency. 

 The only justification heretofore assigned for such 

 extraordinary arrests in the heart of a loyal popula- 

 tion no longer exists, for the " normal ' course" of 

 proceedings is now plainly marked out by the law 

 made and provided for the trial and punishment of 

 all who give "aid and comfort to the enemy," and 

 who are "citizens of States in which the administra- 

 tion of the laws has continued unimpaired in the fed- 

 eral courts. 



In May, Brig.-Gen. Hascall in command in 

 Indiana and Illinois, issued an order similar in 

 substance to the order of Gen. Burnside, which 

 subjected him to strictures in some of the pa- 

 pers, for which offence Gen. Hascall caused 

 the arrest of the editors and the suppression 

 of the paper. (See FREEDOM OF THE PEESS and 

 INDIANA.) The extent to which the summary 

 arrest of parties was carried may be gathered 

 from the number in confinement in Cincinnati 

 May 19th. It is said : 



There are now confined in the military prison here 

 two hundred and twenty political prisoners, all to be 

 tried by the t court-martial now holding daily sessions. 

 Gen. Burnside has notified sundry weekly papers of 

 this State to send him proofs of the matter they de- 

 sign publishing, before it appears in their issues ; the 

 reason assigned being the publication of articles 

 against the Administration Order No. 88, Ac. 



Another correspondent, writing from Indian- 

 apolis, mentions two more papers which have 



