War of the Rebellion: Serial 118 Page 0580 PRISONERS OF WAR AND STATE, ETC.

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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 enforce 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 further 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 the 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 I 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