The Hancock Jeffersonian. [volume] (Findlay, Ohio) 1857-1870, 1863-05-29


his brief military career national re-
putation as a wise, discreet, patriotic
and brave General. Henot only en-.
joyed the confidence and respect of
the President and Secretary of War.
but Of the whole country. lie had
molly laid his party preferences and
predictions on the altar of his coun.
try, and consecrated his life to her
service. 1t -was known that the
.widely-extended Department., with
the military supervision Of which he
was charged, was one of great impor.
tance, and demanded great vigilance
and ability in the administration of
its military concerns.
Kentucky was border state in
which there was q large element of
disafcction toward the National Gov
ernment, and sympathy with those in
rebellion against it. Formidable in
vasions have been attempted and are
now threatened. Four of of the States
have river border, and are in per-
petual danger of invasion. In Ohio
Indiana and Illinois, a class of mis-
chievons politicians had succeeded in
poisoning the minds of portion of
the community with the rankest feel
ing of disloyalty. Artful politicians
Disgusting their latent treason under
hollow prctensions of devotion to the
Union, were striving to disseminate
their pestilent heresies among the
masses of the people. The evil was
one of alarming magnitude, and
threatened seriously to impede the
military operations ofthe government
and greatly to protract the suppress
ion of the rebellion. Gen. Burnside
was not slow to perceive the danger
GUS consequences of these disloyal
efforts, and resolved, if possible, to
suppress them. In the exercise of
his discretion, he issued the order
No. 3S-which has bceu brought to
the notice of the Court. | shall not
comment on that order. or say any
thing more in vindication of its expe-
dicncy. | refer to it only because
Gen. Burnside, in his manly and pa
triotic communication to the Court,
has stated fully his motives and rea-
sons for issuing it, and also that it
was for its supposed violation that he
ordered the arrest of Mr.. Nallandig-
ham. He has done this under his res
possibility rs the Commanding Cen
eral of this Department, and in accor-
dance with what he supposed to be
the power vested in him by the ap-
pointment OF. the President. 1t was
virtually the act of the Executive De
partmcnt under the power vested in
in the President by the Constitution,
and ain unable to perceive on what
principle this judicial tribunal can he
invoked to annul or reverse it. In
the judgement of the commanding
General, the emergency required it,
and whether he acted wisely or dis
crcetly is not properly subject for
judicial review.
1t is worthy of remark here, that
this arrest was not made by General
Burnside under any claim or preten-
sion that he had authority to dispose
of or punish the party arrested. ac-
cording to his own will. without trial
and proof of the facts alleged as the
rronud for the arrest, but with view
+, Nn investigation by military court
ar 90, omission. Such an investiga-
tion has :, 'kau place, the result of
which has no, been made known to
th;s rnm.t W.. ,ther the Military
Commission for the t.'h % , sne eilar- %
ger against Mr.. yallan,, Su'ni w''S W,
legally constituted and had ''i'oie Nv
tion of the case, is not question w
fore this Court. There is clearly n.
authority in this Court, on the pend
ing motion, to revise or reverse the
proceedings Of the Military Com
if they were before the Court.
The sole question is, whether the ar
rest was legal; and as before remark
ell its legality depends on the neces.
sity which existed for making it: and
of that necessity, for the reason sta,
ted this Court cannot judically de-
termine. General Burnside Is un-
questionably amenable TO the Execu-
tive Department for his conduct. If
he has acted arbitrarily and upon in
reasons, it Is within the pow
or, and would be the duty of the
President, not only to annul his acts,
but to visit him with decisive marks
of his disapprobation. To the Pres
ident, in his capacity Of Commander
in Chief of the Army, he must an
swer for his official conduct. But
under our Constitution, which studi-
ously seeks to keep the executive,
legislative and judicial departments
of the Government from all interter-
ence and conflict with each other, it
would be an llnwarrantabls exercise
Of the judicial power to decide that a
coordinate branch ofthe Government
acting under its high responsibilities
had violated the Constitution, in its
letter or its spirit, by authorizing the
arrest in question. Especially in
these troublous times, when the ma,
tional life is in peril, and when union
and harmony among the different
branches of the Government are so
imperatively demanded, such interfer-
ence would find no excuse or vindi-
cation. If the doctrine is to obtain,
that every one charged with and guilty
of acts Of mischievous disloyalty, not
within the scope Of the criminal laws
of the land, in custody under military
authority, is to be set free by courts
orjudges on habeas corpus, it requires
no argument to prove that the most
alarming conflicts must follow and the