Wood County reporter. [volume] (Grand Rapids [i.e. Wisconsin Rapids], Wis.) 1857-1923, 1863-05-28

OPINION OF JUDGE LEAVITT,

The opinion of Judge LEAv1rT, of the
Circuit Court, denying the application of
G. L. VALLANp1aHAM for q writ of ha6eas
corpus, is published in full in the Cincin-
natl Gazette.
The application is denied on the ground
that military arrest in time of war is q
legal arrest, if the necessity exists, and,
therefore, military arrest is not of itself
q sufficient showing for the issue of the
writ of habeas corpus, and the practice of
the Court is not to issue it without sufi-
Gent showing. Also that the military
power is coordinate branch Of the Gov
eminent, with its just constitutional re-
sponsl bilities, and that the Court would
not be warranted in assuming that its acts
were iliegsl, and in interfering to revise
and reverse them.
Judge LEAvITT states that an applica-
ton for a writ of ha6eas corpus last year
to Mr.. Justice SwAYNE, the District Judge,
by one BETHUEL RUPERT arrested by mill
tary authority, was denied. In that case
the Judge held that the writ twas not
grantable of course, and would only be all
lowed on sufficient showing that it ought
to ISSUE" and further that "the court
would not grant the wit when it appear
ed that the arrest or imprisonment was
under military authority"
We annex some extracts from the opin-
ion:
COURTS BOUND TO REGARD THE STATE OF
THE COUNTRY.
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 mill
tary power as invoked in the pending ap'
plication2 The court cannot shut its eyes
to the grave fact that war exists, involv.
ing the most imminent public danger, and
threatening the snbversion and destruc.
ton of the Constitution itself. In my
Judgment, when the life of the Republic
is imperiled, he mistakes his duty and OBJ.
legation as a patriot, who is not willing to
concede to the constitution such capacity
of adaptation to circumstances as may be
necessary to meet great emergency, and
save the nation from hopeless ruin. Self
preservation is paramount law, which 6
nation, as we'll as an individual, may fine
it necessary to invoke.
THE WAR POWER OF THE PRESIDENT UNDEI
THE CONSTITUTION.
Nothing is hazsrded in saying, that the
great and far seeing men who framed The
Constitution of the United States, suppos
ed they were laying the foundations o.
our National Government on an immova,
BILE basis. They did not contemplate the
existence of the state of things with which
the nation is now uRhappily confronted
| the heavy pressure of which is felt by ev
cry true patriot. They did not recognize
the right of secession By one or more
States, for the obvious reason that it woult
have been an incorporation of an element
in the Constitution for the destruction o
the Union. In their glowing visions o
futurity, there was no foreshadowing of .
period, when the people of large geo
graphical section would be guilty of th'
madness and the crime of arraying them
selves in rebellion against a Government
under whose mild and benignant sway
there was so much of hope and promise
for the coming ages. We need not be sur.
prised, therefore, that, in the organic law
which they gave US, they made no specific
provision for such lamentable occur
renee. They did, however, distinctly con
template the possibility of foreign war
and vested in Congress the power to de
clare its existence, and "to raise and sup
port armies" and ''provide and maintain
a navy" They were aware that th,
grant of these powers implied all othe
powers necessary to give them full effect
They also declared that the President 0
the United States ''shall be Commander
in-Chief of the Army and Navy, and O
the Militia of the several States whel
called into actual service" and they plac
ed upon him the solemn obligation SIT
take care that the laws be faithfully exc
cuted."
Under this last named provision, and il
reference to local rebellion, in which tn
laws of the Union were obstructed, tn
act of the 2sth of February, 1895, wa
passed, providing in substance, that when
ever in any State the civil authorities O
the Union were unable to enforce tn,
| laws, the President shall be empowered t,
| call out such military force as might b.
necessary for the emergency.
DUTY OF CITIZENS.
1t is not to be disguised that our coun
try is in imminent peril, and that the cri
sis demands of every American citizen
hearty support of all proper means for tn
restoration of the Union, and the return
| of en- honorable peace. Those placed BY
the people at the head of the Government
are earnestly and sincerely devoted to it,
preservation and rerpetuity. The Presi
dent may not be the man Of our choice
and the measures of his Administration
may not be such as all can fully approve
But these are minor considerations, ane
can absolve no MAJ from the paramount
obligation of lending his aid for the saliva.
ton of his country. Ali should feel thai
no evil they can be called on TO endure al
the result of war, is comparable with the
subversion of our chosen Government, ant
| the horrors which must follow from suct
catastrophe.
| GEN. BURNs1DE's AUTHORITY AS THE PREsI
DENTS AGENT. .
Now, the question which I am called
upon to decide is, whether Gen. Burnside
as an agent of the Executive Department
| of the Government, has transgressed biz
authority in ordering the arrest Of Mr.
Vallandigham. If the theory of his coun
sci is sustainable, that there can be no lie
gal arrest except by warrant based On an
affidavit of probable cause, the conclusion
would be clear, that the arrest was illegal
But l do not think l am bound to regard