Weekly national intelligencer. [volume] (Washington [D.C.]) 1841-1869, 1863-06-18

writ of habsss corpus when il appeared that the deten
ton Imprisonment under military authority iii
true that Rupert in humble position-unknown
beyond the circle 10 which he moved while the
present petitioner has widespread fame prominent
politician and statesman But will insist that there
should be any difference in the principles applicable to the
two cases. If any distinction were allowable it would be
against him Of admitted intelligence and distinguished Ia
Tents.
ton propose the present upon the decision OF the
learned Judge in Just referred to- EVENT. entertained
doubts Of the soundness Of his views principle on
which could be justified in treating the decision a. VOID
of authority But the counsel of Mr. Vallandgham was
restricted in the argument Of this motion to ths point
1t seemed due to him that the court should hear what could
urged against the legality Of the arrest and In favor OF
the Interpolation of the court iu behalf Of the petitioner
And have been greatly interested in the orcble argu-
ment which has been submitted though unable to concur
with the speak or ia all his conclusions.
III were my desire to do have not the physi-
cal strength to notice discuss at length the grounds
which the learned counsel hiss attempted to the
legaty OF Gen. Burnsdes order for the arrest OF Mr.
vaandgham and the duty Of the court to grant the writ
applied for The basis Of the whole argument 10 the fact
that Mr. Vaandgham, not being n the military or naval
service Of the Government and not therefore subject to
the rules and articles of not liable to arrest under
by military power And the various provisions OF the
Constitution intended to guard the citizen against unlaw
full arrests and imprsonments have been cited and urged
upon the attention Of the court having direct bearing
the point is hardly necessary to quote these excel
lent guarantees Of the rights and liberties of an American
citizen they familiar to every reader Of the C0nst
tuition And it may be conceded that if, by just con-
structon of the constitutional powers Of the Government
the solemn emergency existing they applicable
and must control the question of the Legality OF the
of the prisoner be sustained for the obvious
thai warrant issued "upon probable
supported by oath affirmation, as is required in ord
nary arrests for alleged crimes But there other
considerations OF controlling character applicable to the
question IL not the court mperatvey bound to regard
the present state of the country and in the light which
it throws upon the subject TO decide upon the expedency
Of interfering with the exercise of the military powers
invoked in the pending application The court cannot
shut its eyes to the fact that war exists involving
the most imminent public danger aud threatening the
subversion aud destruction Of the Constitution itself 10
my judgment when the life Of the Republic is impered,
he mistakes his duty and obligation patriot who not
adaptation to circumstances be necessary to meet
great emergency and the nation from hopeless
ruin SelLpreservatiOn is paramount law, which
nation well as individual may find it necessary to
invoke. !.
Nothing hazarded in saying that the great and farsee
ing who framed the Constitution of the United States
supposed they laying the foundations of Nstona
Government on mmovabe basis. They did not con-
template the existence Of the state Of things with which
the nation 10 unhappy confronted the heavy pressure
cognise the right Of secession by one or more states for
the obvious that would have been incorporation
of element 10 the Constitution for the destruction of
the Union In their glowing vsioos OF uturity there was
foreshsdowiDg Of period when the people of large
geographical section would be guilty of the madness and
the crime Of arrayng themselves in rebellion against Go
uAder whose mild and benignant sway there
much of hope and promise for the coming ages We
need not be surprised therefore, that in the organic law
which they they made specific provision for
such lamentable They did, however, dis
tncly contemplate the possibility of foreign war; and vest
ed in Congress the power to declare it's existence and to
raise and support armies" and provide and maintain
navy" They that the grant of these powers
implied all other powers necessary give them ulsct
They alec declared that the President If the United States
shall be Commanderin Chief Of the Army and Navy and
of the militia Of the several States, when called into
tual service and they placed upon him the solemn obi
CATION to take that the laws be faithfully executed
Under this last named prsvson and reference to local
rebellion in which the of the Union Obstructed
the of the 28th Of February 1885, passed. pro-
vding in substance that whenever in any State the civil
authorities of the Union unable to enforce the laws
the President shall be to call out such military
force might be necessary for the emergency Fortu
natey for the country this law in force when several
States Of the Union repudated their allegiance to the
honal Government and placed themselves in armed rebel
lion against it, 1t sufficiently comprehensive in its
terms to meet such although it not
within the contemplation of Congress when the law
enacted 1t under this statute that the President
issued his proclamation of the 18th Of April 1861 Prom
that time the country has been state Of war; the his
tory aud progress of which familiar to all More than
two years have elapsed during which the treasure of the
nation has been avbly contributed and blood has freely
lowed and this formidable rebellion 10 not yet subdued
The energies Of the loyal people Of the Union to be
to further trials and in all probability the enemy is yet
be encountered on many bloody field.
1t is not to be disguised that country is in imminent
peril and that the crisis demands Of every American c
hearty support Of all proper for the restora
ton OF the Union and the Of honorable peace
Those placed by the people at the head of the
earnestly and sincerely devoted to it's preservation and
perpetuity The President may not be the Of our
choice, and the Of his Administration may not be
such a. all can fully approve but these minor
alterations and absove from the paramount
obligation OF lending hs aid for the salvation of his
try All should feel that evil they be called to
endure the result Of is comparable with the sub
vers0n of chosen Government and the horrors which
must follow from such catastrophe.
have referred thus briefly to the present crisis OF the
country having bearing the question before the
court. It'll clearly not time when any connected
with the Judicial department of the Government should
low himself except from the most stringent obligations Of
duty, to embarrass thwart the Executive his efforts
to deliver the country from the dangers which press
heavily upon it
Now the question which called upon 10 decide IT,
whether Gen Burnside agent of the executive de-
Partmen OF the Government has trangressed bis autho
y Ia ordering the arrest of Mr. Vaandghsm If the the
DRY of his counsel sussnabe that there be legal
arrest except by warrant based affidavit of probable
cause the conclusion would be clear that the arrest was
Illegal But do not think bound to regard the in
quiry occupying this base Gen. Burnside, by
the order Of the President has been designated aud
pointed to take the military supervision Of the Department
OF the Ohio OF the States of Kentucky Ohio
diana, Illinois, aud Michigan The precise extent Of his
authority in this responsible position not known to the
court 1t may, however, be properly assumed, fair
that the President has clothed him with all
the powers necessary to the efficient discharge Of his du
ties 10 the station to which he has been called He the
and agent Of the President within the limits
of his department In time OF the President 10 not
above the Constitution, but derives his power express
from the provision of that instrument declaring that he
shall be CommandernChirf Of the Army and Navy. The
Constitution does not specify the powers be may rghtuly
exercise 10 tbis character they defined by leg
No 0ned howe that th;.