War of the Rebellion: Serial 118 Page 0584 PRISONERS OF WAR AND STATE, ETC.

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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 attempt 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 facts just brought to my native 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 on 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 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 which 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.



Washington, May 9, 1863.

I. The following officers and men have been declared duly exchanged as prisoners of war since the announcement in General Orders, Numbers 10, of January 10, 1863:

1. All officers and enlisted men and all persons whatever may have been their classification who have been delivered at City Point, Va., up to May 6, 1863.

2. All officers who have been captured and releases on parole up to April 1, 1863, wherever they may have been captured.

3. All enlisted men who have been captured in North Carolina and Virginia and released on parole up to March 1, 1863.

II. The paroled troops herein declared to be exchanged will be without delay equipped for the field and forwarded to the armies to which they belong from posts or camps wherever they may be collected.

All officers and enlisted men absent in virtue of being on parole will now that they are exchanged immediately return to duty with their proper commands.

By order of the Secretary of War:


Assistant Adjutant-General.