Year: 1863







1t was announced several days ago that the
Circuit Court of the United States had de-
clined TO grant a writ of ha6eas corpus in the
case OF the Hon. G. L. VALLANDIGHAA. Judge
LE4vITT's opinion IN the case has been pub
Iished in full, and We subjoin as large an ex-
tract from il space will warrant. After
arguing at length. and with great ability. the
more strictly legal and constitutional points
involved in the case, he proceeds:


SIT is not to be disguised that our 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 de-
voted 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 ab-
solve 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
comparable with the subversion OF our chosen
Government, and the horrors which must fol-
low from such a catastrophe


| have referred thus briefly to the present
crisis of the country as having some bearing
on the question before the Court IL is clear
ly not time when any one connected with
the Judicial Department of the Government
should allow himself, except from the most
stringent obligations of duty to embsrrass or
the country from the dangers which press so
heavily upon it. Now, the question which
am called upon to decide is, whether General
Burnside, agent OF the Executive De-
partment OF the Government, had transgressed
his authority in ordering the arrest of Mr.
Valandigham. II the theory of his counsel
is sustainable, that there can be no legal ar
rest except by warrant based on an affidavit of
probable cause, the conclusion would be clear
that the arrest was illegal. But do not think
l am bound to regard the inquiry as occupy
ing this narrow base. General Burnside. by
the order of the President, has been designa-
ted and appointed to take the military super
vision of the Department of the Ohio, COM
posed of the States of Kentucky, Ohio, Indi-
ana, Illinois and Michigan. The precise ex-
tent of his authority in this responsible posi-
tion are not known to the Court.


1t may, however, be properly assumed, as
fair presumption, that the President has cloth
ed him with all the powers necessary to the
efficient discharge of his duties, in the station
ls. I'D 10 is <ba
resentative and agent of the President, with
in the limits of his department. In time of
war the President is not above the Constitu
ton, 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 speci-
fy the powers he may rightfully exercise in
this character, nor are they defined by legis-
Iation. 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 occasions during
the present rebellion. A memorable instance
of it's exercise is seen in the Emancipation
Proclamation, ,issued by the President as Com
in Chief, and which be justifes
military necessity.


Il is, perhaps, not easy to define what acts
are properly within this designation, but they
must, doubredly, be limited to such as are
deemed essential to the protection and pres
erration OF the Government and the Consti-
tuition, which the President has sworn to sup
port and defend. And in deciding what be
may rightfully do under this power, where
there is no express legislative declaration. the
President is guided solely by bis own judg
ment and discretion, and is only amenable for
an abuse of his authority by impeachment,
prosecuted according to the requirements OF
The Constitution. The occasion which calls
for the exercise of this power exists only from
the necessity of the case and when the ne