Year: 1863

If this view of the power of the President is


correct, it undoubtedly implies the right to ar


rest persons, who, by their mischievous acts


OF disloyalty impede or endanger the military


operations of the Government. And, if the


necessity exists, see - reason why the pow


er does not attach to the officer or General in
command of a military department. The on


ly reason why the appointment is made, is
that the President cannot discharge the du-
ties in person. He, therefore, constitutes an
agent TO represent him. clothed with the nee


essary power for the efficient supervision OF
the military interests of the Government
throughout the department. And il is not
necessary that martial law should be proclaim
ed or exist, to enable the General in command
TO perform tn duties assigned 10 him. Mar


tial law is well defined by able jurist to be
'sthe will of military commander, operating
without any restraint, save his Judgment, up
on the lives, upon the persons, upon the en-
tire social and individual condition of all over
whom this law extends.'' II cannot be claimed
that this law was in operation in Gen. Burn
sides 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
conferred BY the appointment of the President.
Under that appointment, Gen. Burnside
sumed the command of this department. That
he was man eminently fitted for the position,
there is no room for a doubt. He had achiev-
ed, during his brief military career a national
reputation wise, discreet, patriotic and
brave General. He not only enjoyed the con-
fidence and respect of the President and Sec
retary of War, but of the whole country. He


had nobly laid his party preferences and pre-
objections upon the altar of his country. and
consecrated his life to her service. 1t was
known that the widely extended department,
with the military supervision of which be was
charged, was one of great Importance, and de-
manded great vigilance and ability in the ad-
ministration of its military concerns. Ken
tucky was border State, in which there was
tional Government, and sympathy with those
in rebellion against it.


Formidable invasions have been attempted,
and are now threatened. Four OF the States
have river border, and are in perpetual dan
ger of invasion. In Ohio, Indiana aud Hi
nois, class OF mischievous politicians had
succeeded in poisoning the minds of portion
of the community with the rankest feelings
of disloya.ty. Artful politicians, Disgusting
their latent treason under hollow preteusions
of. devotion TO the Union, were striving to
disseminate their pestiIent heresies among
the masses of the people. The evil was one
of alarming magnitude, and threatened seri
ously to impede the military operations of the
Government. and greatly to protract the sup
preston of the rebellion. Gen. Burnside was
not slow to perceive the dangerous consequen-
ces of these disloya efforts, and resolved, if
possible, to suppress them. In the exercise
of his discretion. he issued the order-No.
3S-which has been brought TO the notice of
the Court. l shall not comment on that order
or say anything more in vindication of its ex-
pediency. l refer to it only because General
Burnside, in his manly and patriotic commu-
nication to the Court, has stated fully his mo-
tives and reasons for issuing it, and also that
it was for its supposed violation that he order
ed the arrest of Mr.. VaIandigham. He has
done this under his responsibility as the COM
mandng General of this department, and in
accordance with what he supposed 10 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 l
am unable to perceive on what principle this
judicial tribunal can be invoked to annul or
reverse it. In the Judgment of the command
ing General, the emergency required it, and
whether he acted wisely or indiscreetIv, is not
properly subject for Judicial review.


1T is worthy of remark here that this arrest
was not made by Gen. Burnside under any
claim or pretension that he had authority TO
dispose of punish the party arrested, &C
cording to his own will, without trial and
proof of the facts alleged as the ground for
the arrest, but with view to an investigation
by a military court or commission. Such an
investigation has taken place, the result of
which has not been made known to this Court.
Whether the Military Commission for the tri-
al OF the charges against Mr.. Vallsndigham
was legally constituted and had jurisdiction of
the case is not question before this Court.
There is clearly no authority in his Court, on
the pending motion, to revise or reverse the
of the Military Commission, if
they were before the Court. The sole ques-
tion is whether the arrest was legal; and, as
before remarked, its legalit depends on the
necessity which existed for making it j; and of
that necessity, for the reason stated, this
Court cannot judicially determine.


Cen burnside is uDouestIopabIy ameuabIe
to the executive Department for bis conduct.