Year: 1863

Decision in the Vallan,iiyham Habeas
! Corpus Case.


The opinion of Judge Leavitt on the


application of Nalandigham for the writ


OF hobc"s corpus, attracts much attention
as judicial decision on the constitu-


t'onal power of military authority in time


OF war. The application is denied on


the ground that military arrest in time


OF war is legal arrest, if the necessity


exists, and, therefore, military arrest is
not OF itself sufficient showing for the


writ OF hdtcds corpus, and the practice
OF the court Is not to issue it without


sufficient showing. Also that the mill


tary power is co ordinate branch of the


Government, with its just constitutional


responsibilities, and that the Court would


not be warranted in assuming that its


acts were illegal, and ia interfering to


revise and reverse them.


We make few extracts from this able


decision, and hope all cur readers who


have any doubts as to the position taken


by Judge Leavitt will ponder them well:


The basis of the whole argument is


the fact that Mr. Na!laud igham, not be-
ing in the military or naval service of


the Government, and not therefore sub.
ject to the rules and articles of war. was
not liable to arrest under or by military
power And the various provisions Of
the Constitution, intended to guard the
citizens against unlawful arrests and i'm.
prlsonments, have been cited and urged
upon the attention of the Courts as hay.
ing direct bearing on the point. 1t is
hardly necessary to quote these excellent
guarantees Of the rights aud liberties of
an American citizen, as they are familiar
to every reader Of the Constitution. And
1t may be conceded that if, by a just con-
struction of the constitutional powers of
the Government, in the solemn emereen.
cy now existing, they are applicable to,
and must control, the question of the
legality of the arrest Of the petitioner, it
cannot be sustained for the obvious rea.
son that no warrant was issued "upon
probable cause, supported by oath or
afllrmatlon, as is required in ordinary
arrests for alleged crimes. But are there
not other considerations of a controllino
a h arnotn applicable 20 tho question?
Is not the Court impcratively bound to
regard the present state of the country,
and, in the light which it throws upon
the subject, to decide upon the expedi-
ency of interfering with the exercise of
the military power as invoked in the
pending application ? The Court cannot
shut its eyes to the grave fact that war
exists, involving the most imminent
danger, and threatening the subyersion
and destruction of the Constitution it.
self In my judgment, when the life of
the Republic is imperiled, he mistakes
his duty aud obligation as patriot who
is not willing to conccdc to the Consti-
tuition such capacity of adaptation to
circumstances as may be necessary to
meet great emergency, and save the
nation from hopeless ruin. Selfpreser.
vation is a paramount law, which a ma
ton, as we'll as an individual, may find it
necessary to invoke.


Nothing is hazarded 10 saying that the
great and far-seeing men who framed
the Constitution of the United States,
supposed they were laying the founda.
tions of our National Government on an
lmmovable basis. They did not contem-
plate the existence of the state Of things
with which the nation is now unhappily
confronted, the heavy pressure of which
IS felt by every true patriot They did
not recognize the right Of secession BY