Year: 1863

the necessary power for the efficient
supervision Of the military interests Of
the Government throughout the depart
ment. And Il Is not necessary that
martial law should be proclaimed or e&.
ist, to enable the General in command
to perform the duties assigned to him.
Martial law is well defined by an able
jurist to be "the will of military com.
mnnder operating without any restraint,
save his judgment, upon the lives, upon
the persons, upon the entire social and
individual condition Of all over whom
this law extends" 1t cannot be claimed
that this law was in operation in Gen
eral Burnside's Department, when Mr..
Vallandigham was arrested.


Nor is it necessary that it should have
been in force to justify the arrest. The
power vested by virtue of the authority
was conferred by the appointment Of the
President. Under that appointments
General Burnside assumed the com
mand of this Department. That he was
man eminently fitted for the position
there is no room for o doubt. He had
achieved during his brief military ca.
rser national reputation as wise, dis
Greet, 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 ndpredileetions upon the altar Of bis
country, and censecrated his life to her
service. 1t was known that tho widely
extended Department, with the military
supervision of which he was charged,
was one of great Importance, and de-
manded great vigilance and ability in
the administration Of its military con-
Germs. Kentucky was a border State,
in which there was a large element of
disaffection 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 the States
have river border, and arc in perpetual
danger oeinvasion. In Ohio, Indiana
and Illinois class Of mischievous poll
iticians had succeeded in poisoning the
minds Of a portion Of the community
with the rankest feelings of disloyalty.
Artful politicians, Disgusting their la
tent treason under hollow pretepsions
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 Of the Government,
and greatly to protract the suppression
of the rebellion. General Burnside
was not slow to perceive the dangerous
consequences Of these disloyal efforts,
and resolve if possible, to suppress
them: In the exercise of his discre ton,
he issued the order-No. 3S-which
has been brought to the notice Of the
Court. 1 shall not comment on that
order, or say anything more in vindi-
cation of its expediency. l refer to it
only because General Burnside, Ia his
manly and patriotic Communication 10
the Court, has stated fully his motives
and reasons for issuing it, and also that
it was for it's supposed violation that he
ordered the arrest of Mr.. Vallaudigham.
He has done this under his responsil
bility as the Commanding General Of
this Department, aud ia accordance
with what he supposed to be the power
vested in him by the appointment Of
the President. 1t was virtually the
act Ofthe Executive Department under
the power vested in the President By
the Constitution and I am uuablo to
perceive on what principle this judicial
tribunal can be invoked to annul or re-
verse it. In the judgment Of the Com
man ding General, tho emergency rO-
quired it,and whether he acted wisely ar
discreetly is not properly subject to iu'
dicial review. 'ta' f't h'
l


II is worthy of remark here, that this
arrest was not made by General Burn.
side under any claim or pretension that
be had authority to dispose Of or punish
the party arrested, according to his own
will, Without trial aud proof Of the fact
alleged as the ground for the arrest, bun


with ttew to an Investigation by a
1 military court or commission. Such ah


investigation has taken place, the resul'


Of which has not been made known 4


this Court. Whether the Military CON


mission for the trial Of the charge
against Mr. Nallandigham was legall,


constituted aud had jurisdiction Of n,
case. ia not question bsFore this Couet


There is clearly NO authority ia lhi'