The independent. [volume] (Oskaloosa, Kan.) 1860-1874, 1863-05-30
Judge Lervitt's Decision.


writ of ha6eas corpus. the Judge refus
Ell the wit, stated the President hat
clothed Gen. Burnside with all Oh,
powers necessary to the Efficient dis
charge of his duties as commander o
The Department Of the Ohio. and said
"He is the representative and agent o
the President, within the limits Of hi
Department. In time Of war the Pres
ident is not above the Constitution, bu
derives his power expressly from the
provision o: ,aat instrument, declaring
that he shall be Commander-in. Chiel
.. o. the Army and Navy. The Cons,i.
tuition does no, specify the powers he
may rightfuily exercise in that charac.
Ter. nor are they defined by legislation
No one denies, however. that the Pres.
ident. In this character, is invested will,
very high powers. which, il is WILL
known, have been exercised on various
occasions during the present .ebslIion.
A memorable instance Of lis exercise
is seen in the Emancipation Proclama-
tion issued by the President as Com.
mander in Chief. and which he justifies
as military necessity. 1t is. perhaps,
not easy TO define what acts are prop
erly within this designation, but they
must undoubtedly be limited to such
as are deemed essential TO the pro,ec-
| ton aud preservation OF the Govern
ment and Constitution. which the Pres
ideni is sworn to support and defend.
And in deciding what he may rightiul-
ly 60 der this power. where there is
no express legislative declaration. the
P-.si...". - lid, =.
, .--.--..- A. s..-eu soie'. ~ his own
jud ymsrt and discretion, and is only
smcnabie for an abuse OF his authority
by impeachment. prosecuted according
TO the requirement Of the Constitution
The occasion which calls for the exer-
clse OF this power exists only from the
necessity Of the case; and when ,ha,
necessity exists. there is clear jus,iii
caion Of the act"
Judge Leavit,. taking this view OF
the power OF the President, says il
undoubtedly implies the righ. to ar
rest persons. who by their .mi,chsvous
acts oi disloyal,y. impede or endanger
the operations CT the Government" -
Speaking Of the reasons which Induced
Gen. Burnside to issue Order No.
38. sfier mentioning the widespread
disaHection in Kentucky toward the
National Government. that formidable
invasions have been attempted and are
now threatened. and that four Of the
States OF Gen. Curnside's Department
have river border and are ia perpetu-
al danger Of invasion. the Judge says
In Ohio. Indiana and Illinois. class
of mischievous politicians had succeed
I'd in poisoning the minds Of portion
OF the community wita tie rankesi feel
lngs Of disloyalty. Ar.fui politicians.
Disgusting their latent treason under
hollow prctentions Of devotion 10 the
Union, were striving to disseminate
their pesiilent beresies among the mass
esof the people. The evil was one of
alarming magnitude, ami threatened Sc
'iousiy TO impede the military opera
lions of the government, and greatly |
to pro;ract the suppression Of the re-
bellion. Gen. Burnside was not slow
10 perceive the dangerous conseQuen-
ces Of these disloyal efforts, and resolv.
ed. II possible, to suppress them. In
the exercise of his discretion. he issu.
ed his order-No 38-which has been
brought to the notice Of the Court
The Judge says he is "unable 10 per-
celve on what principal this jcdicial
tribunal can be invoked 10 annui or re-
verse it. In the judgmrn, of the Com
mandIns General the emergency requir-
ed it. aud whether he acted wisely or
d'screetly is not a subjec, for judicial
review t-
Judge Lea,ilt, at the close OF his
opinion, states some plain truths, which
We commend especially to the careful
consideration OF those 10 whom they
apply:
"Ihere is too much of the pes.ilen.
'iai leavtn OF disloyalty in the commu-
.iity. There Is a class Of men in the
loyal States who seem to have no iustl
appreciation of the deep criminaiily Of
those who are in arms avov edly for
the overthrow Of The Government, and
me establishment OF Southern Con- I
federacy. They have not. fear. risen I,
10 any right estimate of their du,iss !
and obligations as American citizens, /
70 Government which has strewn is
blessings with profuse hand. l may I
venture the assertion tia, the page OF
History will be searched in vain for an 5
Example Of arebcllion SO wholly desti- S
ute OF excuse or vindication. and SO l
lark with crime. as that which our 7
bleeding country is now called on to I
and for the suppression of u
'h'ch all her energies are demanded. il
ts cause is TO be found in the unhal- Z
owed ambition Of political aspirants z
nd as'tators. who boldly avow their u
I'm, not the establishment of a Govern a
lent Tor the better security Of human G
'sHts' but one in which all political b
over IS to be concentrated in an obi Il
US and despoiic oligarci,y. l. is in
eed c"nsolItory TO know that in mos.l
ectluns oil the North those rho src,