The Hancock Jeffersonian. [volume] (Findlay, Ohio) 1857-1870, 1863-05-29

Now, in passing upon the applica-
lion of Rupert, Mr. Justice Swayne
IN an opinion of some length, though
not written, distinctly held, that this
Court would not grant the writ OF
tlabeas Corpus, when it appeared chat
tic detention was under military au,
thority 1t is trle. that Rupert VI
man III humble position-unki
beyond the narrow circle in which
moved; while the present pctitioS
has a widespread fame as n promF
nCnt politician and statesman. But
no one will insist that there should he
any difference in the principles appli-
cable to the two cases. Ii any dis.
tinction were allowable, It would bc
against him of admitted intelligence
and distinguished talents.
I might with entire confidence place
the grounds of action l propose In the
present case, upon the decision oftht
learned Judge in that just referred to
Even II entertained doubts of the
soundness of his views, I see no prin.
ciple on which could be Justified il
treating the opinion rs void ofauthor
lily But the council of Mr. Vallan
! ldigham was not restricted in the ar
Igument of this motion to this point
II seemed due TO him that the Court
should hear what could te urgeC
against the legality of the arrest, ant
in favor of the interposition Of tht
Court in behalf of the petitioner
And l have been greatly interested
In the forcible argument which has
been submitted; though unable to con
cur with the speaker in all his con.
clusions.
If it were my desire to do so, l have
not now the physical strength to no.
ticc or discuss at length the grounds
on which the learned counsel has at.
tempted to prove the illegality of Gen
Burnside order for the arrest of Mr.
Vallandigham, and the duty of the
Court to grant the writ applied for
The basis Of the whole argument is
the fact that Mr.. Vallandigham, not
being in the military or naval ser.
vice of the Government and not there.
fore subject to the rules and articles
of war, was not liable to arrest under
or by military power. And the vari
ous provisions of the Constitution
intended to guard the citizen against
unlawful arrest and imprisonments
have been cited and urgel upon the
attention of tho Court as having 9
direct hearing on the point. 1t is
hardly necessary to quote these ex.
ccl.,0 guarantees of the rights and
lihortios Of an Am .rican citizen, as
they are famiim..q" to every reader o.
the Constitution And it may be
conceded that if. by a Just constrGc.
ton of the constitutional =. overs Oh tn' W
Government, In the solemn e. "lseu'
cy now existing, they are appli,. u ''
to, and must control, the question o..
the legality of the arrest OF the peti.
toner, it cannot lie sustained for the
obvious reason that 10 warrant was
issued "upon probable cause, support
Cd by oath or a!llrmatiG1,' as is re-
Quired in ordinary arrests for alleged
crimes. Bat are not other consider
ations Of n controlling character appli-
cable to the question? Is not the
Court imperatively bound to regard
the present state Of the country, and,
in the light which it throws upon the
subject, to decide upon the expediency
of interfering with the exercise of the
power as Invoked in the pend
ing application? The Court cannot
shut its eyes to the grave fact that
war exists, involving the most immi-
nent public danger, and threatening
the subversion and destruction of the
itself. III my Judgment,
when the life of the Republic is i'm
periled, he mistakes his duty and
as patrot, who is not vii
ling to conceic to the Constitution
such capacity of adaptation to cir
cumstances as may be necessary to
meet great emergency, aud save the
nation from hopeless ruin. Selfpres-
eryation is paramount law, which
u nation, as well rs an Individual, may
find It necessary to invoke. Nothing
is halarded in saving, that the great
and far seeing men who frame the
Of the United States,
they were laying the found
ations of oar National Government
on an immovablc basis. They did
not contemplate the existence 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 re-
co9niZe the right of Secession by one
or more States, for the obvious reason
that il would have been an iucorpora-
ton Of an element in the Constitution
tor the destruction Of the Union. In
their glowing visions offuturity, there
was 10 foreshadowing OF period;
when the people OF large geogra-
phical section would be guilty Of the
madness and the crime OF arraying
themselves in rebellion against a Gov
ernment, under whose mild and be-
nignant sway there was so much OF
hope and promise for the. coming
ages. We need not be surprised,
therefore, that, in the organic law
which they gave as, they made nc
specific provision for such a lamen'
table occurrence. They did, howey,
er, distinctly contemplate the posi-
bility OF foreign war, and vested il
Congress the power to declare its ex
istence, and ''to raise and support ar
mics and "provide and maintain
navy" They were aware that tAt
-, - &c thnno ,,orun,.s. Inn rlinl oil 9th