War of the Rebellion: Serial 118 Page 0582 PRISONERS OF WAR AND STATE, ETC.

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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 pretensions 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 (Numbers 38) which has been brought to the native of the courtment on that order or say anything more 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. Vallandigham 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 depends 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 ions 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 co-ordinate 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 find 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