The Burlington weekly hawk-eye. [volume] (Burlington [Iowa]) 1860-1876, 1863-05-23

tended to guard the citizens against unlaW-
full arrests and imprisonments, have been
cited and urged upon the attention OF the
Court as having direct bearing on the
point. 1t is hardly necessary to quote these
excellent guarantees of the rights and I'D
critics of an American citizen, as they are
familiar to every reader of the Constitution.
And it may be conceded that if, by just
construction of the constitutional powers
of the Government, in the solemn emeT-
gency now existing, they are applicable
to- and must control, the question OF the
| legality of the arrest of the prisoner, 1t can
not be sustained for the obvious reason tnat
no warrant was issued upon probable
cause, supported by oath or affirmation, as
| is required in ordinary arrests for alleged
tons of a controlling character apphcapie
to the question? Is not the Court impera-
lively bound to regard the present state OF
! the country, and, in the light when IL
throws upon the subject, to decide upon the
expediency of interfering with the exercise
of the military power as invoked III inc
pending application? The Court cannot
shut it's eyes to the grave fact that war ex-
lists, involving the most imminent puonc
danger, and threatening the subvcrslon
and destruction of the Constitution ltsen.
In my judgment, when the life OF the ne
public is imperiled, he mistakes his duty
and obligation as a patriot, who IS not VII
l
capacity of adaptation to circumstances as
may be necessary to meet a great emer-
gency and save the nation from hopeless
ruin. Self-preservation is a paramount
law, which a nation as well as an lndlvld-
ual may find it necessary to invoke
Nothing is hazarded in saying, that the
great and far seeing men VINO framed the
Constitution of the United States, supposed
they were laying the foundations OF our
J National Government on an lnmovable
) basis. They did not contemplate the exis-
tence of the state of things with which the
nation is now unhappily confronted, the
heavy pressure of which is felt by every
true patriot. They did not recognize the
right of secession by one or more States,
J for the obvious reason that it would have
been an incorporation of an element III the
Constitution for the destruction OF the
, Union. In their glowing visions OF futurl-
ty their was no foreshadowing of period
, when the people of a large geographical
section would be guilty OF the madness and
the crime of arraying themselves in rebel
, lion against a Government, under whose
5 mild and benignant sway there was sc
much of hope and promise for the coming
3 ages. ...
We need not be surprised, therefore, tina
In the organic law which they gave US, they
: made no specific provision for such Ia
mentable occurrence. They did, however
{ distinctly contemplate the possibility o
!, foreign war, and vested in Congress The
: power to declare its existence, and to ''rais'
and support armies" and 'provide ant
0 maintain navy" They were aware tina
q q the grant of these powers Implied All otl
Z err powers necessary to give them full ct
l feet. They also declared that the Preslden
e of the United States ''shall be Commander
: in-Chief of the Army and Navy, and OF tn
: Militia of the several States when calle'
q q into actual service and then placed upoi
- him the solemn obligation, ''to take car
that the laws be faithfully executed Tn
,, der this last named provision, and in ref
:. erence to local rebellion, in which tn
u laws of the Union were INSTRUCTED, the ac
} OF the 18th of February, 1875, was passed
providing in substance, that whenever 4
It any State the civil authorities OF the Unlo
e were unable to enforce the laws, the Presi
l. dent shall be empowered TO call out sue
81 military force as might be necessary for th
y emergency. Fortunately for the country
IS this law was in force when several State
g. of the Union repudiated their allegiance
e, the National Government, and place
e themselves in armed rebellion against 1t.
N 1t was sufficiently comprehensive IN Ii
e terms to meet such an occurrence, althoug
ii it was not case within the contemplate
st of Congress when the law was enacted
ii was under this statute that the Presider
Of issued his proclamation OF the 10Th OF apr
ut 1861, From that time the country has bee
II III a SI3IS OF war, inc ItlSbOlF pioSlSs
v of which are familiar TO all. More tina
L, two wears have elapsed. during which til
s. treasure of the Nation has been lavlsh'
~ contributed and blood has freely howe'
n and this formidable rebellion is not "
he subdued. The energies OF the loyal pei
" pie of the Union are to be put to furtht
N trials, and in all probability, the enemy
at vet to be encountered on many blood
s. field.
n 1t is not to be disguised that our countl
re is in imminent peril, and that the crisis q
TT mands of every American citizen, a hea
or ty support Of all proper means for the re
st toration of the Union, and the safe retul
of an honorable peace. Those placed
to the people at the head of the Governme1
to are earnestly and sincerely devoted to
RS preservation and perpetuity. The Pres
ne dent may not be the man of our choice, al
he the measures of his Administration m;
,y not be such as all can fully approve.
in these are minor considerations, ana q
al absolve no man from the paramount oD
is cation of lending his aid for the salvati'
ir of his country All should feel that
re evil they can be called on to endure as t
he result OF war, is comparable with the su
sit version of our chosen Government, ana |
RI. horrors which must follow from such a
N, tastrophe.
is have referred thus briefly to the pre-
IL ent crisis of the country as having SOL
at bearing on the question before the Court
d. 1t is clearly not a time when any one &C
ed nected with the Judicial Department OF
on Government should allow himself, exec
lis from the most stringent obligations OF q
re- ty. to embarrass or thWart the Execute
aid in his efforts to deliver the country tr'
ant the dangers which press so heavily up
&C. it. Now. the question which am call
upon to decide is. whether Gen Bnrns
, of as an agent of the Executive Department
ion the Government, has transgressed his .
lis thority in ordering the arrest OF Mr. V
ant landigham. If the theory OF his counse
ar sustainable, that there can be no legal
vas rest except by warrant based omar aftl'
hat Wit of probable cause, the conclusion wo'
n be clear that the arrest was illegal. BIT
in do not think am bound to regard the
Ell curry as occupying this narrow base Ct
mi burnside, by the order of the Preside
no has been designated and appointed to tt
diff the military supervision OF the Departm
the of the Ohio, composed of the States OF X
ow- lucky, Ohio, Indiana, Illinois and MIC
ted gan. The precise extent of his author
in this responsible position, are not kno
the to the Court. 1t may, however, be prop