soldier with rifle american civil warState Of The Union

An American Citizen Speaks Out Publicly Against The Government's Policy, is seized without a warrant By the military And Thrown Into Military Prison.

Ex Parte Vallandigham
28 F.Cas. 874 (U.S. District Court Ohio)
May 16, 1863

On the night of May 5, 1863, as Grant's army was concentrating at Grand Gulf, Mississippi, and Hooker's was about to recross the Rappahannock after Chancellorsville, soldiers of the U.S. Army, acting under orders from Majo-General Ambrose Burnside, barged into the home of Clement L. Vallandigham and dragged him away. The soldiers took Vallandigham to Cincinnati where he was subjected to a "trial" before a military commission on the charge that, on May 1, in a public speech in the town of Mount Vernon, Ohio, he had "induced in his hearers a distrust of their own government and a disposition to resist the laws of the land."

General Burnside's Military Order

The Constitution of the United States

Art III: "The Judicial Power shall be vested in one supreme court."

"The trial of all crimes shall be by jury."

"Treason against the United States shall consist only in levying war against them,

or adhering to their enemies, giving them aid and comfort.

No Person shall be convicted of treason unless on the testimony of two witnesses

 to the same overt act, or on confession in open court."

The Bill of Rights

Art I: "Congress shall make no law abridging the freedom of speech,

Or of the people to peaceably assemble, and to petition the government

For a redress of grievance."

Vallandigham petitioned the United States District Court for the issuance of a writ of Habeas Corpus, arguing that, because he was not in the military service of the Government, but a United States and Ohio citizen, he was not subject "to the rules and articles of war, and was not liable to arrest under or by military power." Vallandigham supported this argument with references to the United States Constitution and the Bill of Rights.

The District Court, Judge Leavitt, presiding, refused to grant the writ on this basis:

"It is hardly necessary to quote these excellent guarantees of the rights and liberties of an American citizen, and it may be conceded that if, in the solemn emergency now existing, they are applicable to and must control the question of the legality of the arrest of the petitioner, it cannot be sustained, for the obvious reason that no warrant was issued `upon probable cause. Supported by oath or affirmation,' as is required for ordinary arrests for alleged crimes.


But are there not other considerations of a controlling character, applicable to the question? Is not the court bound to regard the present state of the country, to decide upon the expediency of interfering with the exercise of the military power as invoked in the pending application. The court cannot shut its eyes to the grave fact that war exists, involving the most imminent public danger, and threatening the destruction of the Constitution itself. In my judgment, when the life of the republic is imperiled. . . self preservation is a paramount law which a nation may find necessary to invoke.


This is not a time when the judiciary should allow itself to embarrass or thwart the executive in his efforts to deliver the country from the dangers which press so heavily upon it. If the theory of Vallandigham's attorney is correct, 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 unlawful. But General Burnside, by order of the President, has been designated and appointed to take the military supervision of the Department of Ohio. The President has clothed him with all the powers necessary to the efficient discharge of his duties. The Constitution does not specify the powers of the President as Commander-in-Chief. No one denies, however, that the President is vested, in this regard, with very high power. An example of this is his recent publication of the Emancipation Proclamation upon the basis of military necessity.


If this view of the power of the President is correct, it undoubtedly implies the right to arrest persons who, by their mischievous acts of disloyalty, impede or endanger the military operations of the government. And, if the necessity exists, I see no reason why the power to arrest does not attach to the general in command of a military department; and it is not necessary that martial law should exist, to enable the general to perform the duties the President has assigned to him.


I shall not comment on the military order (to keep his mouth shut) that Vallandigham is supposed to have violated. The order 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 court can be invoked to reverse it. In the judgment of the commanding general, the emergency required it, and whether he acted properly is not a subject for judicial review.


And here let me say that there is too much of the pestilential leaven of disloyalty in the community. There is a class of men in the loyal states who seem to have no just appreciation of the deep criminality of those who are in arms, avowedly for the overthrow (over them) of the government. I presume that in most sections of the North unswerving patriotism is the rule, and disloyalty and treason the exception. For those like Vallandigham, they must be subject to a course of dealing as the great law of self-preservation prescribes and will enforce. And let them not complain, if the stringent doctrine of military necessity should find them to be the legitimate subjects of its action.


For these reasons I am constrained to refuse the writ."


Vallandigham appealed the district court decision to the United States Supreme Court which reported its decision on February 15, 1864 as Grant arrived in Virginia to take charge of military operations against Lee and Sherman began the siege of Atlanta.

"General Burnside acted as the general commanding the Ohio Department, in conformity with the instructions for the government of the armies of the United States, approved by the President on April 24, 1863. It is affirmed in these instructions that `military offenses that do not come within statute, must be tried and punished under the common law of war.'


Note: The Court cites paragraph 13 at page 6 of the "Instructions:" "Military jurisdiction is of two kinds: First, that conferred by statute; second, that which is derived from the common law of war. Military offenses under the statute must be tried in the manner therein directed; but military offenses which do not come within the statute must be tried and punished by reference to the common law of war. The first class of offense is exercised by courts-martial, while the second class are tried by military commissions."


And at the bottom is this: "Military necessity consists in the necessity of those measures which are indispensable for securing the ends of war."


The appellate powers of the Supreme Court, as granted by the Constitution, are limited and regulated by the acts of Congress, and must be exercised subject to the exceptions and regulations made by Congress. The petition before us we think not to be within the letter or spirit of the grants of appellate jurisdiction to the Supreme Court.


The petition is not in law or equity within the meaning of those terms as used in the 3rd article of the Constitution. Nor is a military commission a court within the meaning of the 14th section of the Judiciary Act of 1789. There is, therefore, no jurisdiction in the Supreme Court to issue a writ of habeas corpus to review or reverse the proceedings of a military commission. The writ of is denied."


Associate Justice Wayne authored the opinion of the Court to which Nelson, Grier, and Field joined. Justice Miller took no part. It is unclear why the names of the remaining justices do not appear in the opinion.


Supreme Court, 1864 


So, then, it is no surprise that 150 years later, exactly the same national mindset is at work in our society. Everything that is happening today, in terms of the President confounding the war power with the police power and the acquiescence of the Congress and the Supreme Court in his conduct, is the product of Abraham Lincoln's reliance on military necessity—the established means by which tyranny can be justified in the American republic known as the United States of America. So much for the silliness that the Constitution is, in fact, the "supreme law of the land."

Joe Ryan