, 1863-05-19
THE FALLaNDIGuAM HABEAS
CORPUS CASE.
The Circuit Court Declines to Issua
the Writ.


/ lFfom she cincinnati Gazette, OF MONDAY
t At ten o'clock on Saturday morning +,
Clrcnlt Court room vas crowded to heer ~
decision Of Judge 1eayitt on tie ann,;aa.;1 :.
Of c. L. Ta1landfgham tor M writ SfaSa1te = Saas
Court: "e@A9tou VI Il
Ez Iartt-c. [. HaRand;gham-uaD<a, r,
- ThIs n case is before the Court on the pct;tto
Of Clement L: Vallandgla1n. @ e;t1%an rssr'lo y
ONO, alleging that he was unlawfni1v nvn arree
ea atths home in Dayton, in this state ~ -
MgAt Of the 5th Of 3fay. inst. hr 49, ~ .h
S.et Me4t OF soldiers Of the amy Of the Init
gags, AGING under the orders Of Amhros
n p14I1nisl9e, 1Iti4a Major-General in the army
viii, to tic eitreo ety 81 ana brought against hi
uGeh subjected to trial before Military Con- nr
mission, and is still retained in cnstody eo ~
@ ses.1aned OF bis liberty. The petitioner, aIs s,n
eca - tnat M he 1s not in the land or naval scr
called int inta onlted States, and has not bce1
ans State; and that his arrest. de,cnt;nn m, ~
l.isa. as set forth in his petitjon aTa ffI.1.1
3na % IN VIOLATION Of the Constitution Of H.
1oiro. tvu .e S.ates: The prayer is, that writ o
Rnrns;da dtotI'ns may Issue requiring Genera
er before this Court, with tie cansc Ft,fG 81 ~
eapt;.;I 1ap;a9;Ie and detention Acconpanyin.- tht
HsasItlon Is astatement Of the CHARGES or sne
e1tsalone eate on Which lie alleges be wa, triti
.,rsn nr,ofe Lne e Military Commission, For thu
nmt; rtf;es q ms decision it is not necessar3
be stated in brief that they inn,,+e ~ - ~ ns
inlohe1 ; Tue utterance Of s1ndry disloTal onin in
| 19ns an4 statements, in 4 public :nccch ~
| AounI vernon, in the State Of Ohio on tl,c '
I'll ~ .! Aay inst, with the knowledge athat
~ :,,n uia ala and comfort and encourage those
out induce in lis hearers distrnst in Their
o"n government aud sympathy for thosc
~ AIMS against 1t, and disposition to rc,ist
lhe LAWS Of the land" The petitioner dnes
ron,1n1 Got S1aae mhat the Judgment Of the Military
whether he has been condemned or acuuitie'1
on me charges exhibited against him.
~ ls proper TO remark here, that on the nre.
senta'lon e Of the petition the Court stuted tn
1ne counsel for Mr. Vallandigham that. ac.
e9funs TO me nsages Of the Court, US well as
q other Courts Of high authority, the writ
was not grantable OF course, aud would only
oe allowed on q sufficient showing that It
ought to isEue. The Court is cntirrIv salts.
ned OF the correctness of the course thus in
ulealsd. The subject was fully cxnuincd br
.ae learned Justice swayne, when prcsrnt.
ne presiding Judge of this Court, on peti,
ton for hdoeas corpus, presented at the | last
oetoner ierm; a case to which further
reference will be presently made. I shnll
now only note the authorities on this
Ro.h1, Whlcl! seem to be entirely conclusive.
ao, ae1ers :ot ~, gushing as5. Hurd on habea.
a9n order was made BY the Court that uotie,s, tI,,
he given to General Burnside, Of the pcnden-
q IL the Court OF the application FIR the
writ, to the end that he might appcar by
counsel or otherwise to oppose the granting
Of the:wrlt. That distinguished General has
accordingly presented respectful communi-
ration to the Court. stating generally aud ar
gu.nentatfsely the reasons Of the arrest OF
ar. sallandiglam, and has also authorized
able counsel to represent him iu resistance Of
lhc application fur the writ. And the case
Jus been argued at great length, and with
g1eat ability on the motion for lis allowance.
1t Is proper to remark further, tllat Wien
tne petition was presented, the Court maica
distinct reference to the decision of tf;s
Conrt IN the case Of Bethuel Rupert, at Octo-
per Term, ls6o, before noticed, as an authori-
ta'c precedent re for its action on this appllca
non. On tnll reflection, do not see now it
Is possible for me, sitting alone in the Circuit
Court, to ignore the decision, made upon full
consideration by Justice Sxayne, with the
concurrence Of myself, and which, rs rcferra-
Die TO all cases Involving the same principle,
must be regarded as he law Of this Court un-
u reversed by higher Court The case OF
Kuper. was substantially the same as that Of
the present petitioner. Hc set out in his pc.
titlon what be alleged to be an Unlawful ar
rest By the order Ut q military officer, on q
charge imputing to him disloynlty to the GOV
against it, and an unlawful detention aud im-
prisonment as the result Of such order. The
application, however, in the case Of Rupert,
differed from the one now before the Court,
in this, that a1lidayits we're exhibited intended
to disProye the charge If disloyal conduct
imputed to him and also In this, that there
was no pretense or showing by Rupert that
there had been any Investigation or trial by
anJ Court Of the charges against him.
The petition in this case Is addressed to tho
Judges OF the Circuit Court, and not to a sin
g1e Judge Of that Court. 1t occurs from the
trict Judge is now holding the Circuit Court,
as he is authorized to do BY law. But thus
sitting, would II not be IN Violation Of Ill set
tied rules Of Judicial practice, rs well IS of
decision Of the Circuit Court, made when both
Judges were on the Bench? It is well known
that the District Judge, though authorized to
ri with the Circuit Judge in the Circuit Court,
docs not occupy the same official position, and
that the latter Judge when present IL, er o6tcio,
the presiding Judge, It is obvious that con,
respect due to the adjudications Of The Circuit
Courts Of the United .Siates, would result
from The assumption Of such an exercise Of
power By the District Judge. 1t would not
only be disrespectful to the Superior Judge,
bul would evince in the District Judge, al IT.
ter want Of appreciation Of lis true official
connection with the Circuit Court.
Now. in passing upon tue application Of
Rppert, Mr.. Justice Swayne in IN opinion Of
some length, though not written, distinctly
held, TINT this Court would not grant the
writ Of hateas corpus, when 1t appeared that
the detention Or imprisonment was under
military authority. It is true, that Rupert
was aman In humble position-unknown
beyond the harrow circle in which he moved:
while the present petitioner has wide
spread lame as prominent politician aud
Rrf -. n
should be any difference in the principles
applicable to the two cases. II any distinc-
tion we're allowable, it would be against him
Of admitted intelligence and distinguished
talents.
might with entire confidence place the
grounds Of action propose in tue present
case, upon the decision Of the learned Judge
in that just referred to. Even if l entertained
doubts of the soundncss Of bis yfewe. SEQ M
p1anS;ip,e ;p on which could be justified in
But the connsel OF Mr. Vallandigham was not
restricted III the argument Of this motion to
this point. It seemed due to him that tho
Court should hcarwhat could be urged against
the legality Of the arrest, and III favor Of the
lnteTposltlon Of the Court in behalf of the
ested in the forciblc argument which has
been submitted, though unable 10 CONCUR
with the speaker in all Ills conclusions,
II II were my desire to do SO, have not
noT % ne physical st1cngthto notice or discuss
at length the grounds on which the learned
counsel has attempted to prove tue illesality
Of General Burnsidc's order for the arrest Of
Mr. Vallandigha1n, and the duty Of the Court
to grant the writ applied Tor. The basis Of
t.c Whole argument is the fact that Mr., Val.
1andighaln, not being In the military or naval
service OF the Government, and not therefore
subject TO the rules and articles Of war, Was
not liable to arrest under or BY military
lower: And thc various provisions of The
Constitution, intended to guard the citizen
against unlawful arrests and imprisonmcn,s.
Lave been cited and urged upon ihc attention
of the Court as having direct bearing on the
point. 1t is hardly necessary to quote these
excellent guarantees Of the rights and librr-
ties Of IN American citizen, as they arc fa,nil.
lar to every ready Of the Constitution And
it may be conceded that If, by just construc-
tion ofthc constitutional powers Of the Coy
crImcnt, in the solemn emergency now cx-
listing, they arc applicable to, and must con-
Of the petitioner, 1t cannot be sustained for
the obsfous reason that no warrant was Is.
sutd ..upon probable cause, supported
by oath or afirmation,n as is required
in ordinary arrests for alleged crimes. But
arc there not other considerations Of
a controlling character applicable to the
question: Is not the Court imperatiyely
bound to regard the present state OF the coun
try, and, in the Ggh. which it throws upon
Of interfering with tho exercise ofthc military
power as invoked in the pending application
The Court cannot shut its eyes to the grave
fact that war exists, involving the most I'M
1nincnt public danger, and threatening the
eubycrsion and destruction Of the Constitu-
tion itself. In my Judgment, when the life Of
the Republic is impcrhcd, be mistakes his
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