The Burlington weekly hawk-eye. [volume] (Burlington [Iowa]) 1860-1876, 1863-05-23
me Vallandfgham Habcas Cor
pus Case.
uEFORE JUDGE LEAvITT.


corpus.
This case is before the Court on the petit |
ion.of Clement l.. Vallandigham, a citizen |
Of Ohio, alleging that he was unlawfully |
arrested at his home in Dayton, in this
State. on She night of the 5th of May inst,
bw q detachment of soldiers of the army of
the United States, acting under the orders
Of Ambrose e. Burnside, a Major General
in the army of the United States, and
brought, against his will, to the Citv of Gin
cinnati, where he has been subjected to a
trial before Military Commission, and is
sttll detained in custody, and restrained of
his liberty. The petitioner also AYERS that
he is not in the land or naval service of the
United States, and has not been called into
active service in the militia of any State;
and that his arrest, detention and trial, as
set forth in his petition, are illegal, and in
violation of the Constitution of the United
States. The prayer is that writ of habeds
corpus may issue, requiring General Burn
side to produce the body of the petitioner
before this Court. Accompanying the Pc
ttion is statement of the charges or spe-
cifications on which he alleges he was tried
before the Military Commission. For the
purposes of this decision it is not necessary
10 notice these charges specially, but 1t
may be stated in brief that they impute to
the petitioner the utterance OF sundry
disloyal opinions and statements in pub
lie speech at the town of Mt. Vernon, IN the
the knowledge ''that they did aid and COM
fort and encourage those in arms against
the Government, and could but induce in
his hearers q distrust in their own Govern
ment and sympathy for those in arms
against it, and a disposition to resist the
laws Oft the land" The petitioner does not
state what the Judgment of the Military
Commission is, nor is the Court informed
whether he has been condemned or acqult-
ted on the charges exhibited against MN.
1t is proper to remark here, that on the
presentation of the petition, the Court sta
ted to the counsel for Mr.. Vallandlgham
that, according to the usages OF the Court,
as well as of other courts of high authorl-
ty. the writ was not grantable OF course,
and would only be allowed on sufficient
showing that it ought to issue. The Court
is entirely satisfied of the correctness OF the
course thus indicated. me su9,ect was
fully examined by the learned Justice
Swayne. when present, the presiding Judge
of this Court. on q petition Tor a hdOedS
corpus. presented at the last October term;
case to which further reference Will be
presently made. / shall now only note the
authorities on this point, "nicn seem 10 De
entirely conclusive. Peters 20l, Cushing,
X. 2S5. Hurd on h1beGS corpus, 222, 3. A.
In pursuance of this ruling, an order was
made by the Court that notice be given to
General Burnside, of the tendency in the
Court of the application for the writ, to the
otherwise, to oppose the granting of the
writ. That distinguished General has ac-
cordingly presented a respectful commune
cation to the Court, stating generally ano
argumentatively the reasons OF the arrest
of Mr. Vallandigham and has also author
lied able counsel to represent nm IN re-
sistance of the application for the writ
And the case has been argued at grea
length. and with great ability on the mo-
ton for its allowance.
1t is proper tc remark, 1urther, ina
when the petition was presented, tn'
Court made distinct reference to the deci
sion of this Court in the case OF Bethue
Rupert, at October Term, 1862, before no
ticed. as an authoritative precedent for IT
action on this application. On full reflec
ton. do not see how it is possible Tor me
sitting alone in the Circuit Court to ignor
the decision made upon full consideration
by Justice Swayne, with the concurrehc
of myself, and which, as reterable TO al
cases, involving the same principle, mus
be regarded as the law Of this court unit
reversed by a higher Court. The case o
Rupert was substantially the same as ina
of the present petitioner. he set out II
his petition what he alleged to be an unlaw
full arrest by the order of a military officer
on a charge imputing to him acts OF DIS
LOYALTY to the Government and sympath'
withthe rebellion against 1t, ana an un
lawful detention and imprisonment as tn
result of such order The application, how
ever. in the case of Rupert differed from
the one now before the Court, in this, tina
atfidavits were exhibited, intended to dis
prove the charge of dsloyal conduct in,
puted to him: and also in this, that ther
was no pretense or showing by kupel
that there had been any investigation o
trial by any Court of the charges aSains
him.
The petition in this case is addressed
{ ha not
a single Judge of that Court 1t occur
from the absence of Mr.. Justice Swayn
that the District Judge is now holding th
Circuit Court, as he is authorized TO 90 o
law. But thus sitting, would 1t not De !
violation of all settled rules of judlcl'
practice, as well as of courtesy for the Di
trict Judge to reverse a decision OF the Cl
emit Court. made when both Judges WEI
on the Bench? 1t is well known that IL
District Judge, though authorized to
with the Circuit Judge in the Circuit Cour
does not occupy the same oihclai posiuo
and that the latter Judge, when present,
er odicio, the presiding Judge. 1t is is Of
yious that confusion and uncertainty ,grea
ly impairing the respect due to the adJud
cations Of the Circuit Court OF the Unite
States, would result from the assu!nptio
of such an exercise OF power by the III
trict Judge. 1t would not only be dlsr
spectful 10 the superior Judge, but Won
eyince in the district Judge an utter wa
of appreciation of his true official come
ton with the Circuit Court.
Now, in passing upon the app!lca,ion
Rupert, Mr.. Justice Swayne, III an opihi
of some length, though not written, a
tinctly held that this Court would not gra
the writ Of habeas corpus, when 1t a ai, e.
ed that the detention or imprisonment "
under military authority. II Is true, u
Rupert was man in humble positioi
unknown beyond the marrow circle
which he moved; while the present pc
toner has d widespread fame as a proi
nent politician and statesman. But
one will mist that there should be any G
ference in the principles applicable TO
two cases. If any distinction were al!o
able, it would be against him of admit
intelligence and distinguished talents.
might with entire confidence, place
grounds of action propose in the pres
case upon the decision of the learned Jud
in that just referred to. Even if emit
tanned doubts of the soundness of his vie
I see no principle on which I could