proceedings of said commission, and to whom it is asked that said writ shall be directed, submits, by direction of the Secretary of War, the following reasons why writ of certiorari should not be allowed:
The commission was organized for this trial on the 6th of May, 1863. The General Order, Numbers 38, was issued and published by Major-General Burnside on the 13th of April, 1863. The order, among other things, declared that the "habit of declaring sympathies for the enemy will not allowed" in the Department of the Ohio, and that persons so offending, or "who in any way aid the enemy," should be at once arrested and tried by a military commission. Upon the trial Vallandigham was charged and tried for violation the above order by "expressing public sympathy for those in arms against the Government, and declaring disloyal sentiments and opinions, with the object and purpose of weakening the power of the Government in its efforts to suppress an unlawful rebellion. " Upon this charge there was a full specification preferred, which was sufficient in form and substance. On the 16th of May, 1863, the military commission, seven of whom were present and tried the case in due form, unanimously reported and found the prisoners guilty of the charge and specification, upon a plea of not guilty entered by the court, as the prisoners denied the jurisdiction of the commission and refused to plead as directed by the commission. The court, upon their finding, sentenced the prisoner to close confinement in some fortress of the United States, to be designated by the commanding officers, there to be kept during the war. The proceedings, findings, and sentences were, on the 16th of May, 1863, duly approved and confirmed by Major-General Burnside, and Fort Warren designated as the place of imprisonment. On the 19th of May, 1863, the President, in communication of the sentence thus pronounced, directed Major-General Burnside, without delay, to send Vallandigham to the headquarters of General Rosecrans, to be him put beyond our military lines, which order of the President was executed. On the 9th of May, 1863, the prisoners made application, by Honorable George E. Pught, to the circuit court of the United States for the southern district of Ohio, for the allowance of a writ of habeas corpus, to be directed to Major-General Burnside, to command him to bring the prisoner before said court. After a full and patient hearing of the application, the Honorable H. H. Leavit, presiding, refused the writ, declaring, in his opinion, that he "could not judicially pronounce the order of General Burnside for the arrest of Mr. Vallandigham a nullity," and that the Legislature of Ohio had passed two statutes at its last session in which the validity and legality of arrests in said State under military authority and distantly sanctioned.
It will barely be contended that the Supreme Court has jurisdiction by any proceeding to review the refusal of the circuit court to grant the application for the writ. This point is settled in the case of Kaine, who had been arrested and committed upon a warrant from a U. S. commissioner under the treaty of 1842. Application was made in his behalf to the circuit court for the southern district of New York, the district judge presiding, for a writ of habeas corpus. The court refused the writ, and therefore application was made to the Supreme Court for writs of habeas corpus and certiorari. the court, per Justice Catron, refused to take jurisdiction (In re Kaine, 14 Howard, 116), and in the same case Justice Curtis, assenting to the decision of the court, said:
Not only has the law made no provision for the revision of the acts of the commissioner by this court, but he does not exercise any part of the judicial power of the United States.