Year: 1863

country is in imminent peril, and that
the crisis demands Of every American
citizen, hearty support Of all proper
means for the restoration Of the Union,
and the return Of an honorable peace.
Those placed by the people at the head
Of the Government, are earnestly and
sincerely devoted to its preservation
and perpetuity. The President may
not be the man of our choice, and the
measures of his Administration may
not be such as all can fully approve
But these are minor considerations, and
can absolve no man from the paramount
obligation of lending his aid for the
salvation.Of his country. All should
feel that no evil they can be called on
to endure as the result of war, is com.
parable with the subversion of our
chosen Government, and the horrors
which must follow from such catss-
.trophe. f.r.a a75 .ssaol.
IL have referred thus briefly to the
present crisis of the country as having
some bearing on the question before
the Court. 1t is clearly not a time
when any one connected with the Ju-
dicial Department Of the Government,
should allow himself, except from the
most stringent obligations of duty, to
embarrass or thwart the Executive in
his efforts to deliver the country from
the dangers which press so heavily up.
on it. Now, the question which I am
called upon to decide is, whether Gen.
Burnside, ns an agent of the Executive
Department of the Government, has
transgressed his authority in ordering
the arrest of Mr.. Vallandigham. Iftho
theory of his counsel is sustainable,
that there can be no legal arrest except
by warrant based on an affidavit of prob
able cause, the conclusion would be
clear, that the arrest was illegal. But
1 do not think am bound to regard
the inquiry as occupying this narrow
base. General Burnside, by the order
of the President has been designated
and appointed to take the military su-
pervision of the Department of the



Ohio, composed of the States of Ken.
tucky, Ohio, Indiana, Illinois, and
Michigan. The precise extent of his
authority in this responsible position
is not known by the court. 1t may,
however, be properly assumed as fair
presumption, that the President has
clothed him with all the powers Deces-
sary to the efficient dischargeSof- his
duties lin the station to which he has
been called. He is the representative
and agent Of the President, within the
limits of his Department. In time OF
war, the President is not above the Con
stitution, but derives his power
expressly from the provision of that
instrument, declaring that he shall be
COmmander-in-Chief of the Army and
Navy. The Constitution does not
specify the powers he may rightfuIly
exercise in this character, nor are they
defined by legislation. No one denies
however, that the President, in this
character, is invested with very high
powers, which it is well known have
been exercised on various oecasie MS
during the present rebellion. A mem
orable instance ofits exercise is seen in
the Emancipation Proclamation issued
by the President as Commander in
Chief, and which he justiies as a mil,
itary necessity Itis, perhaps, not easy
to define what acts are properly within
this designation, but they must un
doubtedly be limited to such as are
deemed essential to the protection ant
preservation of the Government and the
Constitution, which the Presideat has
sworn to suppert aud defend. And Il
deciding what he may rightfully do IN
der this power, where there is no ex
press legislative declaration, the Presi
dent is guided solely by his own judg
ment and discretion, and is onl,
amenable for an abuse ofhis authorit,
by impeachment, prosecuted according
to the requirement of the Constitution
The occasion which calls for the exer.
else arises only from tho necessity Of tn,
case; and when the necessity exists
there isa clear Justification of the act


If this view ofthe power Of the Pres
ideut is correct IL undoubtedly implie
the right to arrest persons, who, b


their mischisvous acts Of disloyalty, i'm
i pede or endaogsr the military opera
tions Of the Government And, if th


necessity exists, see no reason VII


the power does not attach 10 the Office


or General 10 command Ofgs militar


department. The only reason Why tn


appointment is made, iS tha. the Pres