The Burlington weekly hawk-eye. [volume] (Burlington [Iowa]) 1860-1876, 1863-05-23


of the Constitution. The occasion winch |
calls for the exercise of this power exists |
only from the necessity OF the case ana
when the necessity exists, there is a clear
justification of the act.
If this view of the power of the President |
is correct, it undoubtedly implies the right
to arrest persons, who, by their mischlev-
Gus acts of disloyalty, impede or endanger
the military operations OF the Governments
| And, if the necessity exists, see no reason
why the power does not attach to the ofhcer |
| or General in command of military de- |
partment The only reason why the APP
pointment is made, is that the President can
not discharge the duties in person. He,
| therefore, constitutes an agent to represent
him, clothed with the necessary power tor
the efficient supervision of the military IN
| terests of the Government throughout the |
department. And it is not necessary that
martial law should be proclaimed or exist,
| to enable the General in command to per-
form the duties assigned to him. Martial
law is well defined by an able jurist to be
''the will of a military commander, operat-
ing without any restraint, save his judg-
ment, upon the lives, upon the persons,
upon the entire social and individual con-
dition of all over whom this law extends"
It can not be claimed that this law was in
operation in Gen. Burnside's department,
when Mr.. Vallandigham was arrested.
| Nor is it necessary that it should nave
been in force to justify the arrest. The
power vested by virtue of the authority was
conferred by the appointment OF the PreSl-
dent. Under that appointment, General
Burnside assumed the command of this de-
partment. That he was man eminently
fitted for the position, there is no room for
a doubt. He had achieved, during his brief
military career, a national reputation as a
| wise, discreet, patriotic and brave General.
He not only enjoyed the confidence and
respect of the President and Secretary of
War, but of the whole country. He had
nobly laid his party preferences and predl-
lections upon the altar of his country, and
consecrated his life to her service. 1t was
known that the widely-eXtended depart
ment, with the military supervision of
| which he was charged, was one of great i'm
portance, and demanded great vigilance
, and ability in the administration of its mill
, itary concerns. Kentucky was border
= State, in which there was large element
OF disaffection toward the National Govern
+ ment, and sympathy with those in rebel
> lion against it. Formidable invasions have
been attempted, and are now threatened
Four of the States have river border, and
+ are in perpetual danger of invasion. In
a Ohio, Indiana and Illinois a class of mis-
a chieyCus politicians had succeeded in poi
! soning the minds of a portion of the COM
+ munity with the rankest feelings of disloy-
atty. Arttul politicians, Disgusting their
latent treason under hollow pretenSionS of
: devotion to the Union, were striving to dis
: seminate their pestilent heresies among the
o masses of the people. The evil was one of
! alarming magnitude, and threatened seri-
!, ously to impede the military operations Of
e the Government, and greatly TO protract
the suppression of the rebellion. General
;. Burnside was not slow to perceive the dam
q gerous consequences OF these disloyal eli
!. forts and resolved, if possible, to suppress
them. In the exercise of his discretion, he
!, issued the order-No. 3S-which has been
| ~ oh.
! not comment on that order, or say any
h thing more in vindication Of its eXpediency.
a refer to it only because General Burnside,
in his manly and patriotic communication
= to the Court, has stated fully his motives
q and reasons for issuing it. and also that 1t
d was for its supposed violation that he or
: dered the arrest of Mr.. Vallandigham. He
G has done this under his responsibility as
n the commanding General Of this depart
n ment, and in accordance with what he sup
II posed TO be the power vested in him by the
# appointment OF the President. IL was VIZ
il tt.ally the act of the Executive Department
n under the power vested IN the President by
% the Constitution; and l am unable to per-
n ceive on what principle this judicial tribu-
10 nal can be invoked to annul or reverse It.
In the Judgment of the commanding Gene
/ raj, the emergency required it, and whether
of he acted wisely or discreetly is not properly
- a subject for judicial review.
,r 1t is worthy of remark here, that this ar.
is rest was not made by General Burnside
Nv under any claim or pretension that he haC
authority to dispose of or punish the party
" arrested, according to his own will, without
o. trial and proof of the facts alleged as the
T. ground for arrest but with aview to an in
s. vestigation by military court or commits
IN sion. Such an investigation has taker
~ place, the result of which has not beer
IT. made known to this Court. Whether the
tS Military Commission for tho trial OF these
III. i. In
nd gally constituted and had jurisdiction 0
Nv the case is not question before this Court
ut There is clearly no authority in this Court
an on the pending potRn, to revise or revers
IL the proceedings Of the Military Commits
m sion if they were Before the Court. Tn
no soleuuestion is whether thearrest was legal
he and, as before remarked, its legality de
H. ponds on the necessity which existed 70
he making it; and of that necessity, for tn
"a reason stated, this court cannot judicial.
determine. General Burnside is unques
,s- tionabiy amenable to the Executive De
ne partment for his conduct. Ii he has acte
: arbitrarily and upon insufficient reasons
m il is within the power, and would the duty
,ha of the President not only to annul his act
ant but to visit him with decisive marks of hi
In dsapprobation. To the President, in hi
we capacity as Commander-in-chi Of the al
nm my, he must answer for his official cOnduc
ON But, under our Constitutiin, which stud
led ously seeks to keep the executive, legisls
de. tive and judicial departments of the Go,
+ of eminent from all interference and contii
an with each other, it would be an unwarran
al able exercise of jucical power to decide tn;
is a coordinate branch of the Government
ar acting under its high responsibilities ha
da- Violated the Constitution, in its letter or i
Md spirit, by authorizing the arrest in que
IT I ton. Especially in these troubled time
in when the national life is in peril, and whe
en-. union and harmony among the ditferel
mt branches of the Government are so impe
Axe atively demanded, such interference wou
emf find no excuse or vindication. If the do
en- trine is to obtain, that every one charge
hi with and guilty of, acts of mischievo1
rity disloyalty, not within the scope of Il
WIN criminal laws ofthe land, in custody und
Der military authority, is to be set free
the courts or judges on habeas corpus, it +
ow quires no argument to prove that the mo
, of alarming conflicts must follow, and t
has power of the Government be most seriou
and Iy impaired. 1 dare not, in my judici
5 of position, assume the the fearful responsib