The weekly Lancaster gazette. (Lancaster, Ohio) 1860-1863, 1863-05-28
The VaIandigh ana Hubeas Corpus
Case.
Before Judge LeaYitt.


L. Valaudigham. for writ Of haJsas cor
pus. After citing various authority, he
concluded as follows:
II is not to be disguised that our coun
try is in eminent peril, and that the chi
sis demands of every American citizen.
hearty support Of al proper means for
The restoration Of the Union, and The re.
turn Of an honorable peace Those pla.-
ced at the head of the Government by
The people, are earnestly aud sire rly de-.
voled 10 its preservation and Perpetuity.
The President may not be the man OF our
choice. and the measures Of his Admins.
lration may not be such as all can fully
approve. Bat these are minor consider
a.ions, and can absolve no mau from the
paramount obligation OF lending his aid
for the salvation Of his county. All
should feel ttat NO evil can be called OH
10 endure os the result ol war, is compa-
rable with the subversiou OF our chosen
Government, and the horrors which musl
follow from such II catastrophe.
have referred thus briefly 10 the pres
ent crisis of the country as having some
bearing on the question before the Court
1t is clearly not time when any one
connected with lhe Judicial Department
Of the Government, should allow himself,
except from the most string mt obIiga-
tions Of duty, 10 embarrass or thwart the
Executive in his efforts to deliver tie
country from the dangers which press 50
heavily upon it. Now, the question
which l am called upon 10 decide is
whether General Burnside, as an agent of
the Executive Department. OF The Govern.
ment, las lransgiessed his aur bor,ty IN
ordIing Tie arrest If Mr.. Vailandighsm
II the theory Of his counsel is sustainable
that there can be no legal arrest except
by warrant based ON ab affidavit Of prob
able cause, the conclusion would be cl ar,
that the arrest was illegal But I do not
think am bound to regard the inquiry
as occupying this narrow base General
Burnside, by The order Of the Presid mt,
has been designated and appointed TO take
the mill ary supervision Of the Debrl-
ment of the Ohio, composed Of the S atcs
OF Kentucky. Ohio, Indiana, Illinois, aud
Michigan. The precise extent of his au
thoriiy in this responsible osi.ion, are
unknown to the Court. 1t may, huwev
er, lie properly assumed as fair pre-
sumption, that the President has cloled
him with al the powers necessary 10 tie
efficient discharge of his duties in tile STA.
uon, TO which he has been called He
is the representative and agent Of the
President, within the limits Of his De-
partment. 1n time Of war. the President
is not above the Consliuti n, but derives
his power expressly from the provisions
OF that instrument, declaring that he sha)
be Commander in Chief Of the Army and
Navy The Constitution does not speci.
fy the powers he may rightfully exercise
in this character. nor are they d. fined by
legislation. No one character, is inves
ted with very high powers. which it is
well know have been exercis d on various
occasions during the present rebellion
A memorable instance of ts exercise is
seen in the Emancipation Proclamation
lssued by the President as Commander,
in. Chief, and which he justiies as mil
ltary necessity. 1t is, perhaps, not easy
10 d, ine What acts are properly within
this designation. but they must uudoubt
-dy be imited losuch as are deemed ts,
s-uriaI 10 The protection and preservation
Of the Government and the Constitution,
which the President has sworn 10 sup
port and deleud. Aud in deciding what
lie may rghtlully do und'r this power,
where there is no express legislative dee
arslion. lhe President is guided SOL ly
by his own judgment and discretion and
is only ameuablr fS an abuse of his au-
thoriy by impeachment. prosecuted. ac-
cordiug to the requ rement OF the Consli,
ton. The ccaslun Shich calls for the
exercise of this power exists only from
the uecc i'y Of the case; and when the ne
cessty exists, there is clear justi6ca-
ton Of the act.
If this view Of the power tf the Presi
dent is correct it undoubtedly impli'
the right to srrest pt rsons, who. by thei
misohievous acts Of dsloy atty. impede o
endanger the military operations of tn,
Government. And if The Necessity exist,
| see no reason why the power does no
attach to The fficer OF General in com
mand Of miIitsry department. The on
" reason why the appointment is made
is that.lhe President cannot discharge
the duties in person. h., therefore, con
sIitutes an agent TO represent bin, cloth
ed with the necessary power for the eff
cient supervision oi the military interests
Of the Government throughout tho de-
partment. And i. is not necessary that
marshal law should be p proclaimed or ex
ist, to enable the General in command to
perform the duties assigned TO him. -
Martial law is well defined by an able ju
Tis; TO be "lhe will oil a military comman
der operating without restraint, save his
judgment upon the lives, upon the per-
sons, upon the entire social and individ-
ual condition Of all over whom this law
extends" II cannot be claimed that this
law was in operation in Gen'l Burnside,s
Department., when Mr.. Vallandigham
~as arrested.
Nor is il necessary that 1t should have
been in force 10 justify the arrest. The
power vested by virtue oi the authority
was conferred by the appointment Of the
President. Under that appoiDtmsutGen.