Foremost among the opponents of the government in the State of Ohio was Mr. Clement L. Vallandigham, recently a member of Congress and a politician of some note belonging to the Democratic party. On more than one occasion, he had seen fit to declaim with great vehemence against the Government, and boldly defied its power. He delivered an address at Mount Vernon, Knox County, on or about the 1st of May, in which he was more than usually violent. The President, the army, General Burnside and the orders of the Department received a large share of his vituperations. His language was such as to induce General Burnside to adopt measures for his trial and punishment. Orders were accordingly issued, on the 4th of May, to Captain Charles G. Hutton, Aide de Camp, to proceed to Dayton, Mr. Vallandigham's place of residence, arrest the offender, and bring him to Cincinnati for trial. Captain Hutton went immediately to Dayton with a sufficient force to prevent resistance, and, on the night of the 4th, succeeded in taking Mr. Vallandigham without any disturbance, and returned to Cincinnati with his prisoner. On the 5th a charge was preferred, in which it was specified, that Mr. Vallandigham had declared the war to be "wicked, cruel and unnecessary," "for the purpose of crushing out liberty and erecting a despotism," "for the freedom of the blacks and the enslavement of the whites;" had stated that "if the Administration had so wished, the war could have been honorably terminated months ago;" had characterized General Orders No. 38 as a "base usurpation of arbitrary authority;" had invited his hearers "to resist the same by saying, the sooner the people inform the minions of usurped power, that they will not submit to such restrictions upon their liberties, the better;'" and had affirmed that he was at all times and upon all occasions, resolved to do what he could to defeat the attempts now being made to build up a monarchy upon the ruins of our free government." These words were considered as tending to "aid, comfort and encourage those in arms against the Government," and to "induce in his hearers a distrust of their own government, sympathy

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for those in arms against it, and a disposition to resist the laws of the land"—as Mr. Vallandigham "well knew." The exact words of the charge upon which the prisoner was tried were as follows: "Publicly expressing, in violation of General Orders, No. 38, from Headquarters Department of the Ohio, sympathy for those in arms against the Government of the United States, 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.”

A Military Commission was immediately convened for trial. Brigadier General Robert B. Potter was assigned as President and the following gentlemen constituted the court: Colonel John F. De Courcy, 16th Ohio infantry; Lieutenant Colonel E. R. Goodrich, Commissary of Subsistence; Major J. M. Brown, 10th Kentucky Cavalry; Major J. L. Van Buren, Aide de Camp ; Major A. H. Fitch, 115th Ohio infantry; Captain P. M. Lydig, Aide de Camp. Captain J. M. Cutts, 11th United States infantry, was appointed Judge Advocate. The trial at once proceeded. It continued through the 5th and 6th days of May. Witnesses were examined on both sides. Mr. Vallandigham protested against the jurisdiction of the Commission, declaring that, as a citizen of the United States not in either the land or naval forces of the United States, nor in the militia in the actual service of the United States, he was not triable for any such cause as the charge alleged. He also declared that he was subject to arrest only by due process of law, and demanded to be tried, if tried at all, by a civil court according to the ordinary methods adopted in the State of Ohio. The case was submitted without argument. The Commission examined the prisoner's protest, refused to admit its validity, found Mr. Vallandigham guilty of the charge, and the chief portion of the specification, and sentenced him "to be placed in close confinement in some fortress of the United States to be designated by the commanding officer of this Department, there to be left during the continuance of the war." General Burnside, on the 16th of May, reviewed the proceedings, approved

and confirmed them, and ordered the prisoner to be confined in Fort Warren, Boston Harbor.

In the meantime, Mr. Vallandigham, through Hon. George E. Pugh, made application to the Circuit Court of the United States for the Southern District of Ohio, for the allowance of a writ of habeas corpus. The Court met and received the application on the 9th of May. The case was argued on the 11th, before Hon. Humphrey H. Leavitt, Judge of the Court, an old, experienced and able lawyer, who had held the office which he adorned for nearly thirty years. General Burnside submitted a brief statement of his case, basing the authority of his action upon the fact of the existence of a civil war, and the necessity in times of public peril, for "the operation of some power that moves more quickly than the civil," and affirming that his duty to the government required him to "stop license and intemperate discussion which tends to weaken the authority of the government and the army." He deprecated the violence of the public addresses to which the people in their assemblies were accustomed to listen. He fixed upon the public orators the responsibility of attempting to undermine the authority of the government by passionate and inconsiderate appeals. "They must not use license," he says with emphasis, “and plead that they are exercising liberty. In this Department, it cannot be done. I shall use all the power I have to break down such license, and I am sure I will be sustained in this course by all honest men. At all events, I will have the consciousness, before God, of having done my duty to my country; and when I am swerved from the performance of that duty by any pressure, public or private, or by any prejudice, I will no longer be a man or a patriot. Mr. Pugh ap

*It is a curious fact, when viewed in the light of recent events, that, at the time General Burnside prepared this paper, Mr. Andrew Johnson, now President of the United States, was in Cincinnati, and heard this statement read by General Burnside before it was submitted to the Court. He not only approved the language and spirit of the paper, but he also condemned Mr. Vallandigham's course, without mercy. The only objection that he expressed in regard to General Burnside's action was that it was too lenient.

peared for the petitioner, and made an able argument in his behalf, based upon the allegation of his being a citizen and not under the authority of martial law, and therefore not liable to be tried and condemned for "offences alike unknown to the articles of war and to the ordinary laws of the land." If Mr. Vallandigham was to be tried, it must be before a jury of his peers, and not by courts or commissions composed of military officers.

The District Attorney, Flamen Ball, Esq., assisted by Hon. Aaron F. Perry, appeared for General Burnside. Mr. Perry replied to Mr. Pugh, and based his reasoning, as an advocate for the legitimacy of Mr. Vallandigham's trial, upon "the obligations, duties and responsibilities of General Burnside as a Major General in command of an army of the United States in the field of military operations, for the purposes of war and in the presence of the enemy." Under the laws of war, arrests of a certain kind, by military officers, are certainly justifiable. The arrest of Mr. Vallandigham was a legal and justifiable act. In a state of civil war, all persons take sides. Those who favor the government are the supporters of the means required for carrying on the war. Those who oppose the government and embarrass its operations, intended to save the nation from utter destruction, are enemies to the country, for they aid the public enemy. Mr. Vallandigham came within this category, and consequently his arrest was imperative. Being lawfully held by the authority of the United States, there was no occasion for the exercise of the power contained in the writ of habeas corpus. Individual rights may, in such cases, be sometimes abridged. But the public safety requires such abridgement, and, according to the laws of war, when the country itself is in peril, "everything may be done which the necessities of war require."

The District Attorney followed on the same side, giving a very clear and compact statement of the legislation of Congress respecting the writ of habeas corpus from the beginning. He argued that, under such legislation, Mr. Vallandigham was ex

cluded from the privilege which it conferred, and that General Burnside not only had the right to make the arrest, but that he would also be obliged, in case the writ should issue, to make return that he was acting under the authority of the President of the United States, who, in a state of civil war, was the judge of the necessity which required an extraordinary exercise of power.

Mr. Pugh replied to the arguments of the counsel appearing for General Burnside, quoting authorities both foreign and domestic, to make good the points which he had before argued, and to show that "a military officer has no right to arrest and detain a person not subject to the Rules and Articles of War, for an offence against the laws of the United States, except in aid of the judicial authority, and subject to its control; and if the party is arrested by the military, it is the duty of the officer to deliver him over immediately to the civil authority, to be dealt with according to law."

Judge Leavitt, after a most patient hearing of the case, gave his decision, refusing the writ. Besides considering the necessity of the case and the exigency which demanded the action of General Burnside, the Court referred to a decision which had already been given by the Circuit Judge, Mr. Justice Swayne, in a similar case. Judge Swayne "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 clearly not a time," says Judge Leavitt, "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." It was not necessary that martial law should have been in force to justify General Burnside in making the arrest. "The power vested by virtue of the authority conferred by the appointment of the President," under which General Burnside became the commander of the Department of the Ohio. Occupying such a position, General