The Tipton advertiser. [volume] (Tipton, Cedar Co., Iowa) 1856-1962, 1863-05-28

IN command of a military department
The only reason why the appointment i
made, is that the President cannot dis
charge the duties in person. He, there
tore, constitutes an agent to represcn
him, clothed with the necessary powc
for the efficient supervision Of the mill
tary interests Of the Government through
out the department. And it is not nee
cssary that martial law should be pro
claimed or exist, to enable the Genera
IN command to perform the duties assign
ed to him. Martial law is well detin &c
by IN able jurist to be "the will of a mil
itay commander operating without an,
restraint, save his judgement upon the
lives, upon the persons, upon the entire
social and individual condition of all over
whom this law cxtends.' 1t cannot be
claimed that this law was in operation in
Gen. Burnside's Department., when Mr..
Nallandigham was arrested.
Nor is it necessary that it should have
been in force to justify the arrest. The
r.'wer vested by virtue of the authority
was conferred by the appointment cf the
President Under that appointment
Gen. Burnside assumed the command Of
this Department. In Ohio, Indiana and
Illinois class Of miscellaneous politicians
had succeeded in poisoning the minds of
a portion of the community with the rank
est feeling Of disloyalty. ArtfuI politi-
clans, Disgusting their latent treason un-
der hollow pretensions Of devotion to the
Union, were striving to disseminate their
pestiIent heresies among the masses of
the people. The evil was one of alarm
ing magnitude, and threatened seriously
to impede the military operations of the
Government and greatly to protract the
suppression Of the rebellion. Gen
Burnside was not slow to perceive the
dangerous consequences of these disloyal
efforts, and resolved, if possible, to sup
press them. In the exercise of his dis
crction, he issued the order (Nc. 3s)
which has been brought to the notice of
the Court. shall not comment on that
order, or say anything more in vindica-
tion Of its expediency. refer to it only
because Gen. Burnside, in his manly
and patriotic communication 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.. Vallan ai CHAM. H. has
ione this under his responsibility as the
commanding General of this Department,
and in accordance with what he suppos-
ed to be the power vcste in him by the
Of the President. 1t was
virtually the act of the Executive Dc.
partment under the over vested in the
President under the Constitution; and
am unable to perceive 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 iscreetIy is no: properly subject for
judicial review.
The sole question is, whether the or
rest was legal; and, as before remarked,
its legality depends On the necessity
which existed for making it; and of that
necessity, for the reason stated, this
Court cannot judicially determine. Gen.
Burnside is unquestionabIy amcnab'e to
the Executive department for his con-
duct If he has acted arbitrarily and
upon insufficient reasons, it is within the
power, and would be the duty of the
President not only to annul his acts, but
% visit him with decisive marks of his
lisapprobation. To the President, in his
capacity of Comman der in. Chief of the
Army, he must answer for his official
conduct. But under our Constitution. |
which studiously seeks to keep the exec
ltive, Legislative and judicial departments
If the Government from all interference
md conflict with each other, it would be !
N unwarrantable exercise of the judicial
power to decide that co. ordinate branch
If the Government, acting under its high /
esponsibilities, had violated the Consti- /
ut',". =" ito lAttAr or its spirit, by ""-
horIzlng the arrest in question. Espe- /
Tally in these troublous times, when the .
'at'onal life is in peril, and when union /
nd harmony among the different branch /
$ OF the Government are SO imperativoly
emanded, such interference would find
% excuse or vindication. If the dec
rue is to obtain, that every one charged
nth and guilty of acts Of mischieyous
IsIoyalty, not within the scope of the
rlminal laws Of the land, in custody un-
@r military authority, is to be set free
y courts or judges on haJcos corpus, it
equlres no argument to prove that the
lost alarming conflicts must follow, and
he power Of the Government be most
eriously impaired. | dare not, in my
adicial position, assume the fearful re-
implied in the sanction of
uch doctrine
And here, without subjecting myself
the charge of trenching upon the do
'aln Of political discussion, | may be in
ulged in the remark that there is too
'uch of the pestilential leaven of disloy-
lty IN the community. There is class
men in the loyal States who seem to
ave no just appreciation of the deep
of those who are in arms