Ex parte Vallandigham, 28 F. Cas. 874

Ex parte Vallandigham

28 F. Cas. 874 | U.S. Circuit Court for the District of Southern Ohio | 1863

LEAVITT, District Judge.

This case is before the court on the petition of Clement L. Vallandigham, a citizen of Ohio, alleging that he was unlawfully arrested, at his home in Dayton, in this state, on the night of the 5th of May, instant, by a detachment of soldiers of the army of the United States,*, acting under the orders of Ambrose E. Burnside, a major general in the army of the United States, and brought, against his will, to the city of Cincinnati, where he has been subjected to a trial before a military commission, and is still detained in custody, and restrained of his liberty. The petitioner also avers that he is not in the land or naval service of the United States, and has not been called into active service in the militia of any state, and that his arrest, detention, and trial, as set forth in his petition, are illegal, and in violation of the constitution of the United States. The prayer is that a writ of habeas corpus may issue, requiring General Burnside to produce the body of the petitioner before this court with the cause of his caption and detention.. Accompanying the petition is a statement of the charges and specifications on which he alleges he was tried before the military commission. For the purposes of this decision it is not necessary to notice these charges specially, but it may be stated in brief that they impute to the prisoner the utterance of sundry disloyal opinions and statements in a public speech, at the town of Mt Vernon, in the state of Ohio, on the 1st of May, instant, with the knowledge “that they did aid and comfort and encourage those in arms against the government, and could but induce, in his hearers, a distrust in their own government, and sympathy for those in arms against it, and a disposition to resist the laws of the land.” The petitioner does not state what the judgment of the military commission is, nor is the court informed whether he has been condemned or acquitted on the charges exhibited against him.

*920It is proper to remark here, that, on the presentation of the petition, the court stated, to the counsel for Mr. Vallandigham, that, according to the usages of the court, as well as of other courts of high authority, the writ was not gran table of course, and would only be allowed on a sufficient showing that it. ought to issue. The court is entirely satisfied of the correctness of the course thus indicated. The subject was fully examined by the learned Justice Swayne when present, the presiding judge of this court, on a petition for habeas- corpus, presented at the last October term; a case to which further reference will be made. I shall now only note the authorities on this point, which seem to be entirely conclusive.. In the case of Ex parte Watkins, 3 Pet. [28 U. S.] 193, which was an application to the supreme court for a writ of habeas corpus, Chief Justice Marshall entertained no doubt as to the power of the court to issue the writ, and stated that the only question was, whether it was a case in which the power ought to be exercised. He says, in reference to that case, “the cause of imprisonment is shown as fully by the petitioner as could appear on the return of the writ, consequently, the writ ought not to be awarded, if the court is satisfied the prisoner would be remanded to prison.” The same principle is clearly and ably stated by Chief Justice Shaw in the ease of Ex parte Sims, (before the supreme court of Massachusetts),! Cush. 285. See, also, Hurd, Hab. Corp. 223, et seq. I have no doubt of the power of this court to issue the writ applied for. It is ; clearly conferred by the 14th section of the-judiciary act of 1789 [1 Stat. 81]; but the ruling of this court in the case just referred to, and the authorities just cited, justify the refusal of the writ, if satisfied the petitioner would not be discharged upon a hearing after its return. The court therefore directed General Burnside to be notified of the pendency of the petition to the end that he might appear by counsel or otherwise, to oppose the granting of the writ. That distinguished general has accordingly presented a respectful communication to the court, stating, generally and argumentatively, the reasons of the arrest of Mr. Vallandigham, and has also authorized able counsel to represent him in resistance of the application for the writ. And the case has been argued at great length, and with great ability, on the motion for its allowance.

It is proper to remark, further, that when the petition was presented, the court made a distinct reference to the decision of this court in the Case of Rupert [unreported], at October term, 1862, before noticed, as an authoritative precedent of its action on this application. On full reflection, I do not see how it is possible for me, sitting alone, in the circuit court, to ignore the decision, made upon full consideration by Justice Swayne, with the concurrence of myself, and which, as referable to all cases-involving the same principle, must be regarded as the law of this court until reversed by a higher court. The Case of Rupert was substantially the same as that of the present petitioner. He set out in his petition what he alleged to be an unlawful arrest by the order of a military officer, on a charge imputing to him acts of disloyalty to the government, and sympathy with the Rebellion against it, and an unlawful detention and imprisonment as the result of such order. The application, however, in the Case of Rupert, differed from the one now before the court, in this: that affidavits were exhibited tending to disprove the charge of disloyal conduct imputed to him; and also in this: that there was no pretense or showing by Rupert that there had been any investigation or- trial by any court of the charges against him. The petition in this case is addressed to the judges of the circuit court, and not to a single judge of that court. It occurs, from the absence of Mr. Justice Swayne, that the district judge is now holding the circuit court, as he is authorized to do by law. But, thus sitting, would it not be in violation of all settled rules of judicial practice, as well as of courtesy, for the district judge to reverse a decision of the circuit court, made when both judges were on the bench? It is well known that the district judge, though authorized to sit with the circuit judge in the circuit court, does not occupy the same official position, and that the latter judge, •when present, is, ex officio, the presiding judge. . It is obvious that confusion and uncertainty, which would greatly impair the respect due to the adjudication of the circuit courts of the United States, would result from the assumption of such an exercise of power by the district judge. It would not only be disrespectful to the superior judge, but would evince in the district judge an utter want of appreciation of his true official connection with the circuit court. Now, in passing upon the application of Rupert, Mr. '• Justice Swayne, in.an opinion of some length, though not written, distinctly held that this court would not grant the writ of habeas corpus, where it appeared that the detention or imprisonment was under military authority. It is true, that Rupert was a man in humble position, unknown beyond the narrow circle in which'..he moved, while the present petitioner-has a. widespread fame as a prominent politician and statesman. But no one will insist that there should be any difference in the principles applicable to the two cases. If any distinction were allowable, it would be against him-of admitted intelligence and distinguished talents.

I might, with entire confidence, place the grounds of action I propose in ■ the present case upon the decision of the learned judge in that just referred to. Even if I entertained doubts of the soundness of his views, I see no principle upon wiiich I could be justified *921in treating the decision, as void of authority. But the counsel of Mr. Yallandigham was not restricted in the argument of his motion to this point, but was allowed the widest latitude in the discussion of the principles involved. It seemed due to him that the court ■ should hear what could be urged against the legality of the arrest, and in fávor of the interposition of the court in behalf of the petitioner. And I have been greatly interested in the forcible argument which has been submitted, though unable to concur with the speaker in all his conclusions. If it were my desire to do so, I have not now the physical strength to notice or discuss at length the grounds on which the learned counsel has attempted to prove the illegality of General Burnside’s order for the arrest of Mr. Yal-landigham, and the duty of the court to grant the writ applied for. The basis of the whole argument rests on the assumption that Mr. Yallandigham, not being in the military or naval service of the government, and not, therefore, subject 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 citizen against unlawful arrests and imprisonments, have been cited and urged upon the attention of the court as having a direct bearing on the point. ' It is hardly necessary to quote these excellent guarantees of the rights and liberties of an American citizen, as they are familiar to every reader of the constitution. And it may be conceded that if, by a just construction of the constitutional powers of the government, in the solemn emergency 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 reason that no warrant was issued “upon probable cause, supported by oath or affirmation,” as is required in ordinary arrests for alleged crimes. But are there not other considerations of a controlling character, applicable to the question? Is not the court imperatively bound to re--gard the present state of the country; and, in the light which it throws upon the subject, to decide upon the expediency 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 public danger, and threatening the subversion and destruction of the constitution itself. In- my judgment, when the life of the republic is imperiled, he mistakes his duty and obligation as a patriot who is not willing to concede to the constitution such a capacity- of adaptation to circumstances as may be necessary to meet a great emergency, and save the nation from hopeless ruin. Self-preservation is a paramount law, which a nation, as well as an individual, may find it necessary to invoke. Nothing is hazarded in saying that the great and far-seeing men who framed the constitution of the United States, supposed they were laying the foundation of our national government on an immovable basis-They did not contemplate the existence of the state of things with which the naition is now unhappily confronted, the heavy pressure of which is felt by every true patriot. They did not recognize the right of secession by one state, or any number of states, for the obvious reason that it would have been in direct conflict with the purpose in view in the adoption, of the constitution, and an incorporation of an element in the frame of the government which would inevitably result in' its destruction. In their glowing visions of. futurity there was no foreshadowing of a period when the people of a large geographical section would be guilty of the madness and the crime-of arraying themselves in rebellion against a. government under whose mild and benignant sway there was so much of hope and promise-for the coming ages. We need not be surprised therefore, that, in the organic law which they gave us, they made no specific provision for such a lamentable occurrence. They did, however, distinctly contemplate-the possibility of foreign war, and vested in congress the power to declare its existence,, and “to raise and support armies,” and “provide and maintain a navy.” They also made provision for the suppression .of insurrection and rebellion. They were aware that the grant of these powers implied all. other powers necessary to give them full effect. They also declared that the president of the United; States “shall be commander-in-ehief of the army and navy and of the militia of the several states when called into actual service,” and they placed upon him the solemn obligation “to take care that the laws be faithfully executed.” In reference to a local rebellion, in which the laws of the Union were obstructed, the act of the 28th of February, 1795, was passed, providing, in substance, that whenever, in any state, the civil authorities of the Union were unable to enforce the laws, the president shall be empowered to call out such military force as might be necessary for the emergency. Fortunately for the country this law was in force when several states of the Union repudiated their allegiance to the-national government, and placed themselves-in armed rebellion against it. It was sufficiently comprehensive in its terms to meet such an occurrence, although it was not a case within the contemplation of congress when-the law was enacted. It was under this-statute that the president issued his proclamation of the 15th of April, 1861. From that time the country has been in a state of war, the history and progress of which are familiar to all. More than two years have elapsed, during which the treasure of the nation has been lavishly contributed, and blood has freely flowed, and this formidable rebellion is not yet subdued. The energies of the loyal people of the Union are to be put to-*922further trials, and, in all probability, the enemy is yet to be encountered on many a bloody field.

It is not to be disguised, then, that our country is* in imminent peril and that the crisis demands of every American citizen a 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, it may well be presumed, 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 comparable with the subversion of our chosen government, and the horrors which must follow from such a catastrophe.

I have referred thus briefly to the present crisis of the country as having a bearing on the question, before the court. It is clearly not a time when any one connected with the judicial 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 upon it. Now. the question which 1 am called upon to decide is, whether General Burnside, as an agent of the executive department of the government, has transgressed his authority in ordering the arrest of Mr. Vallandigham. If the theory of his counsel is • sustainable, that there can be no legal arrest except by warrant, based on an affidavit of probable cause, the conclusion would be clear that the arrest was illegal. But I do not think I 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 supervision of the department of the Ohio, composed of the states of Kentucky, Ohio, Indiana. Illinois, and Michigan. The precise extent of his authority, in this responsible position, is not. known to the court. It may, however, be properly assumed, as a fair presumption, that the president has clothed him with all the powers necessary to the efficient discharge of his duties, in 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 constitution, 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 rightfully 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 called into exercise on various occasions during the present rebellion. A memorable instance is seen in the emancipation proclamation, issued by the president as commander in chief, and which he justifies as a military necessity. It is perhaps not easy to define what acts are properly within this designation, but they must undoubtedly be limited to such as are necessary to the protection and preservation of the government and the constitution, which the president has sworn to support and defend.. And in deciding what he may rightfully do under this power where there is no express legislative declaration, the president is guided solely by his own judgment and discretion, and'is only amenable for an abuse of bis authority by impeachment, prosecuted í-.u-eording to the requirements of the cortsti.tution. The occasion which justifies the exercise of this power exists only from the. necessity of the case; and when the necessity exists, there is a clear justification of the act,

If this view of the power of the president is correct, it undoubtedly implies the right to arrest persons who, ’jy their mischievous acts of disloyalty, impede or endanger the military operations of the government And, if the necessity exists, I see no reason why the power does not attach to the officer or general in command of a military department. The only reason why the appointment is made is that the president cannot discharge the duties in person. He, therefore, constitutes an agent to represent him, clothed with the necessary power for the efficient supervision of the military interests of the government throughout the department, and it is not necessary that martial law should be proclaimed or exist, to enable the general in command to perform the duties assigned him. Martial law is well defined by an able jurist to be “the will of a military commander, 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.” It cannot be claimed that this law was in operation in General 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 conferred by the appointment of the president. Under that appointment, General Burnside assumed command of this department. That he was a man eminently fitted for the position, there is no room-for a doubt. He had achieved, during his brief military career, a national reputation as a wise, discreet, 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 has nobly laid his party preferences and predilections upon the altar of his country, and consecrated his life to her service. It was *923known that the widely-extended department, with the military supervision of which he was charged, was one of great importance, and demanded great vigilance and ability in the administration of his military concerns. Kentucky was a border state, in which there was a large element of disaffection toward the national government, and sympathy with those in rebellion against it. Formidable invasions have been attempted, and are now threatened. Four of the states have a river border, and are in perpetual danger of invasion. The enforcement of the late conscription law was foreseen as a positive necessity. In Ohio, Indiana, and Illinois, a class of mischievous politicians had succeeded in poisoning the minds of a portion of the community with the rankest feelings of disloyalty. Artful men, disguising their latent treason under hollow pretentions 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 resolved, if possible, to suppress them. In the exercise of his discretion, he issued the order—No. 38—which has been brought to the notice of the court. I shall not comment on that order or say anything in vindication of its expediency. I refer to it only because General Burnside, in his manly and patriotic communication to the court, has stated fully his motives and reasons for issuing it; and also, that it was for its supposed violation that he ordered the arrest of Mr. Vallandigham. He has done this under his responsibility as the commanding general of this department, and in accordance with what he supposed to be the power vested in him by the appointment of the president. It was virtually the act of the executive department under the power vested in the president by the constitution; and I am unable to perceive on what principle a judicial tribunal can be invoked to annul or reverse it In the judgment of the commanding general, the emergency required it, and whether he acted wisely or discreetly is not properly a subject for judicial review.

It is worthy of remark here that this arrest-was not made by General Burnside under any claim or pretension that he had authority to dispose of or punish the party arrested, according to his own will, without trial and proof of the facts alleged as the ground for the arrest, but with a 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 trial of the charges against Mr. Val-landigham was legally constituted, and had jurisdiction of the case, is not a question before this court There is clearly no authority in this court, on the pending motion, to revise or reverse the proceedings of the military commission, if they were before the court The sole question is whether the arrest was legal; and, as before remarked, its legality depended on the necessity which existed for making it; and of. that necessity-, for the reason stated, this court cannot judicially determine. General Burnside is unquestionably amenable to the executive department for his conduct. If he has acted arbitrarily and upon insufficient reasons, it is within the power, and would be the duty of the president, not only to annul his acts, but to visit him with decisive marks of his disapprobation. To the president, as commander in chief of the army, he must answer for his official conduct. But, under our constitution, which studiously seeks to keep the executive, legislative, and judicial departments of the government from all interference and conflict with each other, it would be an unwarrantable exercise of the judicial power to decide that a coordinate branch of the government, acting under its high responsibilities, had violated the constitution, in its letter or its spirit, by authorizing the arrest in question. Especially in these troublous times, when the national life is in peril, and when union and harmony among the different branches of the government are so imperatively demanded, such interference would And no excuse or vindication. Each department of the government must, to some extent, act on a presumption that a co-ordinate branch knows its powers and duties, and will not transcend them. If the doctrine is to obtain, that every one charged with, and guilty of, acts of mischievous disloyalty, not within the scope of the criminal laws of the land, in custody under the military authority, is to be set free by courts or judges on habeas corpus, and that there is no power by which he may be temporarily placed where he cannot perpetrate mischief, it requires no argument to prove that the most alarming conflicts must follow, and the action of the government be' most seriously impaired. I dare not, in my judicial position, assume the fearful responsibility implied in the sanction of such a doctrine.

And here, without subjecting myself to the charge óf trenching upon the domain of political discussion, I may be indulged in the remark that there is too much of the pestilential leaven of disloyalty in the community. There is a class of men in the loyal states who seem to have no just appreciation of the deep criminality of those who are in arms, avowedly for .the overthrow of the government, and the establishment of a Southern Confederacy. They- have not, I fear, risen to any right estimate of their duties and obligations, as American citizens, to a government which has strewn its blessings with a profuse hand, and is felt only in the benefits it bestows. I may venture the assertion that the *924page of history will be searched in vain for an example of a rebellion so wholly destitute of excuse or vindication, and so dark with crime, as that which our bleeding country is now called upon to confront, and for the suppression of which all her energies are demanded. Its cause is to be found in the unhallowed ambition of political aspirants and agitators, who boldly avow as their aim, not the establishment of a government for the better security of human rights, but one in which all political power is to be concentrated in an odious and despotic oligarchy. It is, indeed, consolatory to know that in most sections of the North those who sympathize with the rebellion are not so numerous or formidable as the apprehension of some would seem to indicate. It may be assumed, I trust, that in most of the Northern states reliable and unswerving patriotism is the rule, and disloyalty and treason the exception. But there should be no division of sentiment upon this momentous question. Men should know, and lay the truth to heart,, that there is a course of conduct not involving overt treason or any offence, technically defined by statute, and not, therefore, subject to punishment aa such, which, nevertheless, implies moral guilt and a gross offence against their country. Those who live under the protection and enjoy the blessings of our benignant government must learn that they cannot stab its vitals with impunity. If they cherish hatred and hostility to it, and desire its subversion, let them withdraw from its jurisdiction, and seek the fellowship and protection of those with whom they are in sympathy. If they remain with us, while they are not of us, they must be subject to such a course of dealing as the great law of self-preservation prescribes and will enforce. And let them not complain, if the stringent doctrine of military necessity should find them to be the legitimate subjects of its action. I have no fears that the recognition of this doctrine will lead to an arbitrary invasion of the personal security or personal liberty of the citizen. It is rare, indeed, that a charge of disloyalty will be made upon insufficient grounds. But, if there should be an occasional mistake, such an occurrence is not to be put in competition with the preservation of the life of the nation. And I confess I am but little moved by the eloquent appeals of those who, while they indignantly denounce violations of personal liberty, look with no horror upon a despotism as unmitigated as the world has ever witnessed.

NOTE 1 [from pamphlet report by Hickey & Carroll, Cincinnati, Ohio, 1863]. The findings, and sentence of the military commission which were in the hands of General Burnside at the-time of the habeas corpus proceedings were as-follows: Finding and Sentence. “The commission, after mature deliberation, on the evidence adduced, and the statement of the accused, find the accused, Clement L. Val-landigham, a citizen of the state of Ohio, as follows: Of the specification (except the words, ‘that propositions by which the Northern states could be won back, and the South guaranteed their rights under the constitution, had been rejected the day before the battle of Fredericks-burg, by Lincoln and his minions,’ meaning thereby the president of the United States, and those under him in authority, and the words, ‘asserting that he firmly believed, as he asserted six months ago, that the men in power are attempting to establish a despotism in this country, more cruel and more oppressive than ever existed before’), guilty. And as to these words, not guilty. Of the charge, guilty. And the commission do, therefore, sentence him. the said Clement L. Vallandigham, a citizen of the state of Ohio, to be placed in close confinement in some fortress of the United States, to-be designated by the commanding officer of this department, there to be kept during the continuance •of the war.

*924But I cannot pursue this subject further. I have been compelled by circumstances to present my view3 in the briefest way. I am aware there are points made by the learned counsel representing Mr. Vallandigham, to which I have not adverted. I have had neither time nor strength for a more elaborate consideration of the questions involved in this application. For the reasons which I have attempted to set forth, I am led clearly to the conclusion that I cannot judicially pronounce the order of General Burnside for the arrest of Mr. Vallandigham as a nullity, and must, therefore, hold that no sufficient ground has been exhibited for granting the writ applied for. In reaching this result I have not found it necessary to refer to the-authorities which have been cited, and which, are not controverted, for. the obvious reason that they do not apply to the theory of this-case, as understood and affirmed by the court. And I may properly add here that I am fortified in my conclusion by the fact just, brought to my notice, that the legislature of Ohio, at its late session, has passed two statutes, in which the validity and legality of arrests in this state under military authority are distinctly sanctioned. This is a clear indication of the opinion of that body that the rights and liberties of the people are not put in jeopardy by the exercise of the power in question, and is, moreover, a concession that the present state of the country requires- and justifies its exercise. It is an intimation that the people of our patriotic state will sanction such a construction of the constitution as, without a clear violation of its letter,, will adapt it to the existing emergency.

There is one other consideration to whichi I may, perhaps, properly refer, not as a reason for refusing the writ applied for, but for the purpose of saying that, if granted, there-is no probability that it would be available-in relieving Mr. Vallandigham from his present position. It is, at least, morally certain it would not be obeyed. And I confess I am somewhat reluctant to authorize a process,, knowing it would not be respected, and that the court is powerless to enforce obedience. Yet, if satisfied there were sufficient grounds-for the allowance of the writ, the consideration to which I have adverted would not be conclusive against it. For these reasons I am constrained to refuse the writ.

“II. The proceedings, findings and sentence in the foregoing case are approved and confirmed, and it is directed that the place of confinement of the prisoner, Clement L. Vallandigham, in accordance with said sentence, be Fort Warren, Boston Harbor. “By command of Major General Burnside. “Lewis Richmond, “Asst. Adjutant General. “Official: W. P. Anderson, “Assist. Adjutant General.” The sentence of :he military commission as above set forth was never executed. The disposition made of the prisoner will appear by the following order issued by the president of the United States, which was fully carried out according to its terms. Order of the President. “U. S. Military Telegraph. (Cipher) May 19, 1863. (By telegraph from Washington, 9.40 p. m., 1863.) To Major-General Burnside, Commanding department of_ the Ohior-Sir: The president directs that, without delay, you send-C. L. Vallandigham. under secure guard, to the headquarters of General Rosecrans, to be put by him beyond our military lines, and that in case of his return within our lines he be arrested and kept in close custody for the term specified in his sentence. “By order of the president. “Ed. M. Canby, “Brig. Gen., and A. A. G. “Please acknowledge receipt of this, and time ■when received, by request of “Brig. Gen. Canby.” [NOTE 2. The counsel for Mr. Vallandig-ham sought to have the proceedings of the military commission reviewed by the supreme court -of the United States, and, for that purpose, filed a petition in that court for a writ of certiorari to be directed to the judge advocate general of the army, to send up the proceedings of that commission. The application was argued on -January 22,1864. and was denied, in accordance with an opinion delivered February 15, 1864, by Mr. Justice Wayne, who held that a military commission is not a court, within the meaning -of the fourteenth section of the judiciary act oí 1789, and that the supreme court had no jurisdiction to issue the writ of certiorari in such a ■case. See 1 Wall. (68 U. S.) 243.]