Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1863-05-19

the President as Commander-in-C Chief, an
which he justlflea as O military necessity. It'll
perhaps, not easy to define what acts are prop
erly within this deSignation, but they must. un
doubtedly, be limited to such as are deemed ca
sential to the protection and preservation of th
Government and the Constitution, which tn
President has sworn to support and defend
And In deciding what he may rigbtfully do un
der this power, where there Ia no express legis
lative declaration, the President 10 guided sole
ly by his own Judgment and discretion, and Il
only amenable for an abuse of his authority b,
impeachment, prosecuted according to the re-
qurements of the Constitution. The occasion
which calls for the exercise OF this power exists
only from the necessity Of the case; and when
the necessity exists, there Ia clear justi6ca.
tion Of the act.
II this View Of the power of the President ia
correct, it undoubtedly implies the right to ar
rest persona, who, by their mischievous acts Of
disloyalty, impede or endanger the military Cd.
erations OF the Government. And, if the ne.
cesslty exists, see no reason why the power
does not attach 10 the officer or General in com
mad OF military department. The only rea.
son why the appointment Ia made, ia that the
President ca not discharge the duties in Der.
son, He, therefore, constitutes an agent Ia
represent him, clothed with the necessary DO =
er for the efficient supervision of the military
interests Of the Governments throughou. the
department.. And 1t is not neoessarg that mar.
tial law should be proclaimed or exist, to epa
BILE the General In command to perform the
duties assigned to him. Martial law Ia we'll
defined by an able jurist to be "the will Of q
military commander, operating without any
restraint, save his Judgment, upon the lives,
upon the persons, upon the entire social and
Individual condition of all over whom this law
extends" 1t can not be claimed that this law
was in operation in General Burnsde,s dammit.
ment, when Mr.. Vsllandigham was srrested
Nor 10 II necessary that it should have hoe,
in force to justify the arrest. The mower vested
by virtue of the authority was conferred bv IN a
appointment of the President Under that an.
pointment, General Burnside assumed the cnm
mand of this department. That be was man
emineutly fitted for the position, there ia mn
room for doubt. He had achieved, during
his brief military career, a national reputation
as WISE discreet, patriotic and brave GeneraI
tie not only enjoyed the confidence and reanoct
of the President and Secretary of War. bnt of
tho whole country. He had nobly laid bis rar
ty preferences end predictions upon the altar
OF his country, and consecrated his life 10 her
service. IL was known that the widely. ex.
tended department, with the military snner
vision with which he was charged, was one
of great Importance, and demanded great vigil
ance and ability in the administration of its
military concerns. Kentucky Was a bnrder
State, In which there was large element of
disafechon toward the National Government.
and sympathy with those 10 rebellion against N.
Formidable invasions have been attempted, and
are now threatened Four of the States ave a
river border, and are in perpetual danger of in
vssion. la OniO, Indiana and Illinois a claaa
OF mischievous politicians had succeeded In
poisoning the minds OF portion of the commu
nifty with the rankest feelings of disloyslty.
Artful politicians disgusting their latsnt treason
under hollow pretensions of devotion to the
Union, were striving 70 disseminate their pesti-
lent heresies among the masses of the people
The evil was one Of alarming magnitude. and
threatened seriously to impede the military an.
erations Of the Government, and greatly In nro.
tract the suppression of the ebellon. General
Burnside was not sloW to perceive the danger.
Gus consequences OF these disloyal efforts, and
resolved, # possible, to suppress them. In the
exercise OF his discretion, he issued the order
mo. 3o-Which has been brought 70 the notice
OF the Court l shall not comment on that or.
der, or say anything more in vindcation of its
expectancy. refer to 1t only because General
Burnside, In his manly and patriotic communi-
cation to the Court, has stated fully his motives
and reasons for issuing It,, and also that It was
for its supposed violation that he ordered the
arrest OF Mr.. Vallandigham. He has done this
under bis responsibility as the Commanding
General of this department, and in accordance
with what he supposed to be the power vested in
him by the appointments of the President. Il
was virtually the act of the Executive Depart
ment under the power vested 10 the Psesideat
by the Constitution; and l am unable to per-
celve on what principle this judicial tribunal
can be Invoked to annul or reverse it. In the
Judgment OF the commanding General, the
emergency required it, and whether he acted
wisely or dscreetly is not properly subject for
judicial review. M
1t 10 worthy Of remark here, that this arrest
was not MADE by General Burnside under any
claim or pretension that he had authority to
dispose oil or punish the party arrested, accord.
Ing TO bis own will, without trial and proof of
the facts alleged as the ground for the arrest,
but with view to an investigation BY mi ilitary
court or commission Such an investigation has
taken place, the result OF which has not beer,
made known to this Court. Whether the Mill
tary Commlsslol for the trial of the CHARGES
against Mr.. Vallandigham was legally consti-
tuted and had Jurisdiction oil the case, is not
question before this Court. There is clearly no
authority In this Court, on the pending motion,
to revise or reverse the proceedings OF the Mill.
tary Commission, II tbey.were before the Court.
Inc sole question is whether the arrest was le.
gal; and, as before reraar6 ed, It's legality de-
pends on the necessity which existed for making
IL; and OF chat necessity, for the reason stated.
this Court cannot judicialIy determine. Gen.
erai Burnside is unquestionably ame0able TO the
Executive Department for his conduct. Ii he
has acted arbitrarily and upon insufficient rea.
soma, IL 10 within the power, and would be the
duty, OF the President not only to snnul his
acts, but to visit him with decisive marks of
his disapprobation. To the President, 10 his
capacity of Comm andsr-in Chief of the army,
no must answer for his official conduct. But,
under our Constitution, which studiousy seeks
to keep the executive, legislative and judicial
departments of the Government from ali inter-
ference aud conflict with each other, it would be
an unwarrantable exercise OF the judicial power
to decide that Coordinate branch of the Gov
ernment, acting under its high responsibilities,
had violated the Constitution in its letter or its
spirit by authorizing the arrest in question
Especially In these troubloua times, when the
national life ia in peril, and when union and
harmony among the different branches Of the
Government are go imperatlveIy demanded,
such interference would fnd no excuse or vim
dication. II the doctrine is to obtain, that
every enc charged with, and guilty OF, acts Of
mlschievous disloyalty, not within the SCOPE of
the Criminal laws of the land, In custody under
military authority, is TO be set FREQ by courts or
nsf0 b