The Union and journal. [volume] (Biddeford, Me.) 1858-1882, 1863-06-05
Judge Leavitt's Decision.


We print the following abstract OF Judge
Leavi,t's reason for refusing tho application
Of yallandigham for writ of habeas cor
pus, and only regret that our lack of space
will not permit the publication'of the whole
of the learned Judges decision. After n
general statement of the case he remarked
that it was definitely settled, OF course. the
writ could only issue on sufficient cause
shown. which could only be sufficient when
the person making the arrest had not proper
authority. He then referred to the Rupert
case decided in the Same court in October,
1862, which was substantially the same as
tho present, in which the writ was disal-
lowed. That was made with concurrence Of
Judge Swayne, and he could not now reverse
il he would. The fact that Rupert was a
public man did not change the aspect Of the
case. Commenting upon the argument of
counsel that Yallandisdam was not in the
military or naval service, and consequently
not amenable to the military authority, the
Judge says:
"This Court cannot shut its eyes to the
grave fact that war exists, involving the most
imminent public danger, and threatening the
subyersion and destruction Of the Constitu-
ton itself. In my judgment, when the life
of the republic is impcriled, no mistakes his
duty and obligations US u patriot who is not
a.. 40 kha tint m
capacity Of adaptation to circumstances as
may be necessary to meet great emergency
and save the nation from helpless ruin
'Self.prcservation is q paramount law, which
a nation. rs well rs an individual, may End
il necessary to invoke Our fathers, fore
seeing the result Of ambitious schemes for
ACCOMPLISHMENT, provided for just such an
emergency as tho present, by granting Con-
Crcss tho power to raise and support armies
and create navy. When they made thcso
grants they were aware OF the magnitude OF
the powers conferred, in order to give the
clause effect. The rebellion Of 1895 called
for the enactment Of law in pursuance of
these provisions Of the Constitution, and il
was enacted. IL was under the statute that
the President issued his call for volunteers af-
ter the bombardmcnt Of Fort Sumter. IL is
not to DO disguised that the country is in i'm
minent danger, and that the crisis demands
of every American citizen a hearty support
Of all proper measures for the restoration OF
the Union and the return OF an honorable
peace"
The Judge then vigorously states that in
time Of revolution and great public danger
the liberty Of every individual is abridged,
and that, too, by tho express provision Of
tho Constitution. His political status is not
changed, but in war different means must of
necessity be used to secure the rights Of per.
sons, from those employed during profound
peace. The preservation OF tho Constitution
takes precedence OF all other objects. After
stating tho obligations Of the citizen in time
Of war. he says:
"All should remember that no evil is so
great as disunion. Ii is clearly no time tor
any ono connected with the Judicial depart
mcnt of the Government to allow himself,
except from tho most stringent obligations OF
duty. to thwart the executive in his efforts to
deliver tho country from tho dangers which
press so heavily upon 10. TX Gen. BURNSIDE
has exceeded his authority, it is Che duty OF
the President to apply the remedy. The
President, being Commander in, Chief of the
army, must judge of tho military necessity.
lie Is responsible to the country for n viola
ton OF his duties. and can be impeached.-
The power OF the President undoubtedly i'm
plies the right to arrest persons who are mis-
ohievous and disloyal. thereby endangering
tho existence OF the Government, and the
success OF tho army and possessing il, no
can delegate il 10 the commander OF depart.
ment. Martial law is defined to be .the will
of the military commander. operating with.
out restraint, save his own Judgment, upon
the entire social and individual condition Of
the people. To tho objection that no proc
ismation Of martial law had been issued, 1t
need only DO said. that no such thing is No
cessary.'"
A high culogy on the capacity and inses'
rity Of Gen. Burnside is here pronounced
lie then adds: