War of the Rebellion: Serial 118 Page 0578 PRISONERS OF WAR AND STATE, ETC.

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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 petition. 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 Ruper 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 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 adjudications of the circuit courts of the United States 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 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 when 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 wide-spread 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 which I could be justified in treating the decision as void of authority. But the counsel of Mr. Vallandigham was not restricted in the argument of this 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 favor 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