, 1863-05-19

they gave us, they made 10 specific mr.
er, 1as4oA i9f such hmentable occurrence
They Gid, however, distinctly contem
Fpeated ptte she pc Possibility Of foreign war, an
us existence, and ito raise and support a,
n1cs' and provide and maintain i navy.
lhty were aware that the grant of these DOW
G ~ impl'ed I'll other powers necessary t
q Etse tnem lnll effect. They also declared tha
= Commander-fn- Chief of the Army and Nav
- ard Of the Militia Of the several Safes vie,
called into actual service" and they place,
upon hin the splcmn obligation Ito Tx
Snre ttat ne laws be faithfully executed.
+ ence to local rebellion, in which the laws q
: aot aoe Union we're obstructed, the act Of ths
. 18TH Of February, l75, was passed. pro
ElolnE, in substance, that whenever il
any State the civil authorities Of The Unio1
nele unable to enforce the laws, the Presi
I'M snail be empowered to call out such mil
la1y force as might be necessary Tor tht
emergency. Fortunately for the country
THIS la4s Was in force when several States ri
, ,he Union repudi.ted their allegiance TO the
Maaloha rad Goye1nmen and placed themselves
hclentIy comprehensive in its terms to meet
snch an occurrence, although it was not a
case within the contemplation Of Congress
thie Mhen s.a9. t1e lay E vas eneted: 1t was under
proclamation Of the 18th of April, 1861. From
tEat t1me the country has been in a state OF
"ar, !he history aud progress of which are
familiar to all. More than two Years have
eIapsed, daring which the treasure Of the na-
tion M eas been 1ayjsh1y contributed and blood
has freely flowed, and this Formidable rebel-
lion is not yet subdued, The energies of the
I"ya! people Of the Union are to be nut to
!ufther trial., and in all probability tile enemy
field. "A4's'e Gu VI ll'anS u oloody
;s It. It. Is not to be disguised that our country
mands Of every American citizen, a hearty
support Of all proper means for tie restora-
llen Of the Union, and the return Of an Inn,
th Gtaole peace Those placed by the people at
~ .nG neao o. Inc Government, are earnestly
perpetaity. The President NAV not he the
Ian ot our choice, aud the measures of His
| Auiulhlstfauon nlay not be such as a1j co,,
luHy approve. But these are minor consid-
eIat'ons, and can abEolye no man from thu
ACKNOWLEDGEMENTS Of lending his nh inr tnr
thc salvation Of his country. All should fec1 i
liiat no cEll they eau be called on to endnra
as tAe result Of war, is comparable with tbe
subTerslon Of our chosen Government ani
ane horrors which must follow from such a
I have referred thus briefly to the nreso,t
crlsl5 Of the country as having some be rim
en- the question brfoEe the Court. II y
cieariJ not 4 time When any one connecfcd
HhAthe Judicial Department OF the Govern
meh1, should allow himself except from the
| barr1ss or thwart the Executive in lis eff5r,,
! 10 deliver the country from tic dangers
winch press so heavily upon 1t. Nov The
question which, am called upon to deejdc Is
| Whcrc Gen: Burnside, as an agent Of the
'LA'cutlEc department Of the Government.
LAS transgresscd his authority in ordering The
| arrest Of Mr.. V:.3landishani. If Tie t6sorg
| ol us counsel is sustai1'ablc, that there eau
pc no no legal arrest except By warrant based
on an affidavit Of probable causc, the con.l1.
80. s11n you'd be clear, that the arrest was itlc-
the inquiry as occupying this narrow BE ba.e
yen; burnside, by the order Of the President.
has been designated aud appointed ia takcthc
nli'tary supervision Of the Department Of the
0nio, composed Of the States Of Kentucky.
.J. un,o. 1naiana, lllinois, and Michigan. Tie
precise extent Of his authority in this
responslble position is not known to the
Court. 1t may, however, be properly assumed
ar fair presumption, that the President has
clothed lltm with I'LL the powers necessary to
I've clleic1t discharge Of his duties in the sta.
non, 10 winch be has been called. He is the
representative aud agent Of the President,
within the limits Of his Department. IN tine
Of war, the PRESIDENT is not above the Consti-
tntion, but derives his power expressly trom
the provision Of that Instrument, declaring
Army and Navy. The Constitution does nut us
specify the powers he may 1igltfully ex-
ereise in this character, nor arc thew
defined By. legislation No one denies,
however, that the President, IN this chnr..
actsr, Is invested with very high powers,
which it Is well known have been exercised
on various occasions during the present re-
hcllion. A memorable instance Of its excr
else is seen in the Emancipation Proclamation
Issued by the President as Commander-in-
Chief, and which he justifles as . military
necessity. It's, perhaps uot easy to define
what acts are properly within this designation.
but they must undoubtedly be limited to such
rs are deemed essential to the protection and
preservation Of the Government and the Con
support and defend. And in deciding what
ne may rlghtfully do under this power where
there Is no express legislative declaration.
the President is guided sole1y bY bis own
1ldgmcnt and discretion, and is only amcula.
nle lor an abuse OF his authority by impeach-
ments 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 is clear
5ustif}ca'ion Of the act
II this vic" OF the power of the President
Is correct, it undoubtedly implies the right to
arrest persons, who, by their mischierous
acts OF disloyalty, impede or endaucer tAe
military. operations Of the Government And.
II Inc necessity exists, sec no reason why
- Po".t uoeo Aot attatu 10 the 0tf1cer OF
Gynefal IN command Of 4 military department.
The only raeson why the appointment is
made, is that the President cannot discharge
the duties in person. He, therefore, consIi. |
tutes an agent to represent him, clothed with |
the necessary power for the efficient super
c1nmcnt throughout the department, And it |
Is not necessary that martial law should be |
proclaimed or exist, to enable tue General in |
command to perform the duties assigned to !
hlm. Martial law is well defined By an able |
?nfast 70 oe "the will Of military comman-
Judgment upon the lives, upon the persons. |
upon Inc entire social and individual condI- !
ton OF all over whom this Law extends" It |
cannot be claimed that this Law was In opera
tion TO u II General Burnside's Department, when
Mr: fa1landlgham WAS arrested
Nor is it necessary that it should hare bern
IN force TO justify the arrest. The power
vested By virtue Of the authority was conferred |
oy the appointment of the President Under !
that appointment General Burnside assumed
was man elninently lifted for the position
there Is no room for doubt. He had achieved
during his brict national career q national
reputation as q wise, discreet, patriotic and
eaaH oaaTe Genera1 lie not only enjoyed the
Secretary Of War, but Of the whole country. W
lie had nobly laid his party preferences and
predictions upon the altar OF his country
and consecrated his life to her service. II
was known that the widely extended d.
ra1tment, with the military supervision Of
which he was charged, WAS one of great i'm.
portance, md demanded great vigilance and
ability IN the administration of It's military !
concerns. Kentucky WAS 4 border State. in
which there was large element Of dlsafisc-
tlon toward the National Government, and
sympathy with those in rebellion against it.
Formidable inyasions have been aticmnted
and a1c now threatened. Four of the States
have river border, and arc in perpetual
danger Of Invasion. In Ohio, 1ndiana and
Illinois class Of mischicyous politicians had
succeeded in poisoning the minds Of 4 por.
tion of the community with the rankcst feel
ing Of disloyalty. Artfnl politicians, disgufs.
ing their latent treason under the hollow nrc-
tensions Of devotion to the Union, were stry
ing to disseminate sLcir pestiient lercsics
among tue masses Of the people The eyil
was Que of alarming magnitude, and threat
entd seriously to impede the military opera.
tions Of the Government, and greatly to pro-
tact the suppression Of the rebellion. Gen.
eEal Burnside was not sloE to perceive the
dangerous consequences Of these disloyal cf.
torts, and resolved, if possible, to suppress
them. In thu exercise 0f his discretion, hc
iesncd the ordcr-No. SS-wlich has been
brought 10 the notice of this Court. shall
not comment on that order, or say ANYTHING
more In yindicatlon Of Its cxpeliency. re-
fer to it because General Burnside, in his
manly and patriot3c communication to the
Court, has stated fully his motives and rea-
supposed violation that he ordered the arrest
Of Mr. Tallaudighnn.. he has done this un-
der his responsibility rs the Commanding
General IF thfs 6.,pc in