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 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 Mount 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 acquainted on the charges exhibited against him.
It 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 grantable 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 Ex parte Watkins (3 Peters, 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 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 case Ex parte Sims, before the Supreme Court of Massachusetts. (7 Cushing's Rep., 285.) See Also Hurd on habeas corpus, 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 fourteenth section of the judiciary act of 1789; 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 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 district reference to the decision of this court in the case of Bethuel Rupert at October term, 1862, before noticed, as an authoritative precedent for its action on this application. On full
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