Worcester daily spy. [volume] (Worcester [Mass.]) 1850-1888, 1863-05-22
THE vALLANDIGaAM HA8EAS CORPUS CASE.
Opinion of Judge Lcavit as to the Pow
of Arrest.

nati was thron5ed on Saturday last to hear
the decision Of Judge Leavitt in the appica-
ton OF G. l.. Vallandigham for writ Of ha-
beas corpus. The decision is very long, and
Is highly important as affirming the power oil
military authority in time of war. The appli-
cation is denied on the ground that military
arrest IN time of war is legal arrest, if the
necessity exists, and therefore military ar
rest is not Of itself sufficient showing tor the
issue OF the writ OF habeas corpus, and the
practice OF the court is not to issue it without
sufficient showing. Also that the military
power is a coordinate branch OF the govern
ment, With its just constitutional responsible
ties, and that the court would not be warrant
ed in assuming that its acts were illegal, and
In interfering to revise and reverse them.
We give some passages from Judge Leavitt's
opinion:
"The question which am called upon to
decide is, whether Gen. burnside, as an agent
of the executive department of the govern
ment, has transgressed his authority in order
ing the arrest Of Mr.. Valandigham. If the
theory of his counsel is sustainable, that there
can be no legal arrest except by warrant
based on an affidavit of probable cause. the
conclusion would he clear that the ar, est was
illegal. But do not think | am bound to re-
gard the inquiry as occupying this narrow
base. Gen. Burnside, by the order of the
president, has been designated and appointed
to take the military supervision of the de-
partment of the Ohio, composed of the states
OF Kentucky, Ohio, Indiana, Illinois and
Michigan. The precise extent of his author
ity IN this responsible position are not known
to the court. 1t may, however, be properly
assumed as fair presumption that the presi.
dent has clothed him with all the powers ne.
cessary to the efficient discharge OF his duties
in the station to which he has been called
He Is the representative and agent of the
president within the limits of his department.
In the time OF war the president is not above
the constitution, but derives his power ex-
presSly from the provision of that instrument
declaring that he shall be commander-ip-
chief of the army and navy. The constitu-
hon does not specify the powers he may
rightfully exercise in this character, nor
are they defined by legislation. No one
denies however, that the president, III this
character is invested with very high powers !
which, it is well known, have been exercised !
on various occasions during the present rebel |
lion. A memorable instance of its exercise |
is seen IN the emancipation proclamation is |
sued by the president as comm inder in chief. |
anu winch he JuSutes as military necessity. |
1t IS, perhaps not easy to define vi ..,t tMev
must undoubtedly be limited to such as are
deemed essential to the protection and pre-
seryation of the government and the conStitu-
ton, which the president has sworn to sup
port and defend. And in deciding what lie
may rightfuly do under this power, where
there is no express legislative declaration, the
president is guided solely by his own judy
ment and discretion. and is only amenabe for
an abuse OF his authority by impe ichment,
prosecuted according to the requirement of
the constitution. The occasion which calls
for the exercise of this power exists only
from tine necessity of the case; and when tho
necessity exists there is clear justification
of the act.
''If this view of the power of the president
is correct, it undoubtedly implies the right to
arrest persons who, by their mischievous acts
of disloyalty, impede or endanger the military
operations of the government. And, if the
necessity exists, see no reason why the pow
er does not attach to the officer or general in
command of military department The only
reason why the appointment is made, is that
the president cannot discharge the duties in
person. He, therefore, constitutes an agent
to represent him, clothed with the necessary
power for the efficient supervision of the mill
tary interests of the government throughout
the department. And it is not necessary that
martial law SHOULD be proclaimed or exist, to
enable the general in command 20 perform the
defined by an able jurist to be She will of a
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 cannot be claimed that this law
was in operation in Gen. Burnsides depart
ment when Mr.. Vallandigham was arrested.
'Nori is it necessary that it should have
been in force to justify the arrest The power
by the appointment of the president Under
that appointment General Burnside assumed
the command of this department. That he
was man eminenty fitted for the position
there is no room for doubt He had
achieved during his brief military career ma
tional reputation as a wise, discreet, patriotic
and brave general. He not only enjoyed the
confidence and respect of the president and
secretary of war, but of the whole country.
He had noby laid his party preferences and
predictions upon the altar of his country,
and consecrated his life to her service. 1t
was shown that the widely extended depart
ment, with the military supervision of which
he was charged, was one of great Importance,
and demanded great vigilance and ability in
the administration of its military concerns.
Kentucky was border state in which there
was a large element of diSatfection toward the
national government, and sympathy with
those in rebellion against it, Formidable
inyasions have been attempted and are now
threatened. Four OF the states have a
river border, and in perpetual danger
of invasion. In Ohio, Iadiana and Hi
nois class of mischievous politicians had
succeeded in poisoning the minds of portion
of the community with the rankest feel
ings of disloyaty. Artful politicians, dis
guising their latent trea under hollow pre-
tensions of devotion to the Union, were striv-
ing to disseminate their pestilent heresies
among the masses OF the people. The evil
was one Of alarming magnitude, and threat
ened seriously to impede the military opera
tions of the government, and greatly to pro-
tract the suppression of the rebellion. Gen.
burnside was not slow to perceive the dan-
gerous consequences of these disloyal efforts,
and resolved, if possible, to suppress them.
IN the exercise of his discretion, he issued
the order-No. 3S-which has been brought
TO the notice of the court. shall not COM
ment on that order, or say anything more in
vindlcahon of its expediency. 1 refer to it
only because Gen. Burnside, in his manly and
patriotic communication to the court, has
stated fully his motives and reasons for issu-
ing it, and also that it was for its supposed vi
olation that he ordered the arrest of Vallan-
digham. He has done this under his respon-
sibility as the commanding general of this
| department, and in accordance with what he
| supposed TO he the mower vested in hin, h., "a n