He had achieved, during his brief military career, a national reputation as a wise, discreet, patriotic, and brave General. He not only enjoyed the confidence and respect of the President and Secretary of War, but of the whole country. He has nobly laid his party preferences and predilections upon the altar of his country, and consecrated his life to her service. It was known that the widely-extended Department, with the military supervision of which he was charged, was one of great importance, and demanded great vigilance and ability in the administration of its military concerns. Kentucky was a border State, in which there was a large element of disaffection toward the National Government, and sympathy with those in rebellion against it. Formidable invasions have been attempted, and are now threatened. Four of the States have a river border, and are in perpetual danger of invasion. The enforcement of the late conscription law was foreseen as a positive necessity. In Ohio, Indiana, and Illinois a class 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-No. 38-which has been brought to the notice of the Court. I shall not comment 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 can not judicially determine. General Burnside is unquestionably amenable to the executive department for his conduct. If he has acted arbitrarily and upon insufficient reasons, 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 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 mischievous disloyalty, not within the scope of criminal laws of the land, in custody under the military authority, is to be set free by courts or judges on habeas corpus, and that there is no power by which he may be temporarily placed where he can not perpetrate

mischief, it requires no argument to prove that the most alarming conflicts must follow, and the action of the Government be most seriously impaired. I dare not, in my judicial position, assume the fearful responsibility implied in the sanction of such a doctrine.

“And here, without subjecting myself to the charge of trenching upon the domain of political discussion, I may be indulged in the remark, 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 of the Government, and the establishment of a Southern Confederacy. They have not, I fear, risen to any right estimate of their duties and obligations, as American citizens, to a Government which has strewn its blessings with a profuse hand, and is felt only in the benefits it bestows. I may venture the assertion that the page of history will be searched in vain for an example of a rebellion so wholly destitute of excuse or vindication, and so dark with crime, as that which our bleeding country is now called upon to confront, and for the suppression of which all her energies are demanded. Its cause is to be found in the unhallowed ambition of political aspirants and agitators, who boldly avow as their aim, not the establishment of a government for the better security of human rights, but one in which all political power is to be concentrated in an odious and despotic oligarchy. It is, indeed, consolatory to know that in most sections of the North those who sympathize with the rebellion are not so numerous or formidable as the apprehensions of some would seem to indicate. It may be assumed, I trust, that in most of the Northern States reliable and unswerving patriotism is the rule, and disloyalty and treason the exception. But there should be no division of sentiment upon this momentous question. Men should know, and lay the truth to heart, that there is a course of conduct not involving overt treason, or any offense technically defined by statute, and not, therefore, subject to punishment as such, which, nevertheless, implies moral guilt and gross offense against their country. Those who live under the protection and enjoy the blessings of our benignant Government, must learn that they can not stab its vitals with impunity. If they cherish hatred and hostility to it, and desire its subversion, let them withdraw from its jurisdiction, and seek the fellowship and protection of those with whom they are in sympathy. If they remain with us, while they are not of us, they must be subject to such 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. I have no fears that the recognition of this doctrine will lead to an arbitrary invasion of the personal security or personal liberty of the citizen. It is rare, indeed, that a charge of disloyalty will be made upon insufficient grounds. But if there should be an occasional mistake, such an occurrence is not to be put in competition with the preservation of the life of the nation. And I confess I am but little moved by the eloquent appeals of those who, while they indignantly denounce violations of personal liberty, look with no horror upon a despotism as unmitigated as the world has ever witnessed.

"But I can not pursue this subject further. I have been compelled by circumstances to present my views in the briefest way. I am aware 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 attempted to set forth, I am led clearly to the conclusion that I can not judically 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 fact, just brought to my notice, that the Legislature of Ohio, at its last session, has passed two statutes, in which the validity and legality of arrests in this State under military authority are distinctly sanctioned. This is a clear indication 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 is 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. Vallandingham 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."

The Democratic party assailed this judicial decision with unwonted bitterness; and the correctness of parts of the opinion was doubted by many earnest supporters of the Government. It stood however as the law of the land; and under its influence the utterance of the sentiments to which Mr. Vallandigham had given so free expression, became much more guarded. A strong popular reaction set in in favor of the Government, and the soldiers had thenceforward less reason to complain of the "fire in the rear."

Since the war a subject similar in some of its features has been brought before the Supreme Court of the United States, in the case of the Indiana Conspirators. The decision was adverse to some of the positions assumed by Judge Leavitt; and, freed from technical terms, was substantially that, in States not in rebellion, where the civil courts were in session and the territory was not the actual theater of war, such cases should be tried, not before military commissions, but in the ordinary tribunals, and with the accustomed forms of law.

*The above opinion, and the extracts from the speeches and other documents, have all been carefully revised by their respective authors. We are indebted to the courtesy of Mr. R. W. Carroll, whose publishing house brought them out in book form, for permission to use them here.

CHAPTER X.

ARMED RESISTANCE TO THE AUTHORITIES.

TH

HE excited feeling among the Peace Democrats, of which Mr. Vallandigham's inflammatory speech at Mount Vernon was an exponent, continued for some months. One outbreak that threatened for a little time to prove serious had occurred in Noble County, before his arrest. Two occurred afterward; one, that in Dayton, growing immediately from it; the other arising in Holmes County out of resistance to the enrollment for a draft.

None of these were so serious or so wide-spread as the similar movements about the same time, in Indiana on the West, or in Pennsylvania and New York on the East; but they nevertheless rose to the importance of organized and armed efforts to resist the authorities; and no regard for the fair fame of the State should now lead to their concealment.

It was near the middle of March, 1863, that what the newspapers of the day called "the speck of war in Noble County" made its appearance. This county, in the south-eastern part of the State near the Virginia line, is rough, hilly, and sparsely peopled-in great part by an uneducated community of Virginia and Kentucky origin. Peace Democracy was the general political faith at that time, and the citizens had been not a little excited by seditious teachings, by their hostility to a draft, and by the indications that the fortune of war was going steadily against the Government.

Mr. Flamen Ball, then the United States District-Attorney for Southern Ohio, came into possession in February, of a letter written by F. W. Brown, a school-teacher in the village of Hoskinsville, Noble County, to Wesley McFarren, a private soldier of company G, Seventy-Eighth Ohio Infantry, denouncing the Administration, expressing opposition to the war, and urging McFarren to desert. The soldier did desert, and found harbor and concealment near Hoskinsville.

A Deputy United States Marshal and a corporal's guard from the One Hundred and Fifteenth Ohio, were thereupon dispatched from Cincinnati to arrest the deserter and the instigator of desertion. This force presently returned with the report that, at Hoskinsville, they had found the men they sought under the protection of nearly a hundred citizens, armed with shot guns, rifles, and muskets, and regularly organized and officered. The Captain pleasantly

proposed to the Deputy United States Marshal and squad, that they surrender and be paroled as prisoners of the Southern Confederacy!

On the 16th of March an order was thereupon issued by the post commandant at Cincinnati to Captain L. T. Hake, to report with companies B and H, One Hundred and Fifteenth Ohio, with ten days' rations and forty rounds of ammunition, to United States Marshal A. C. Sands, to serve as his posse in making arrests in Noble County. On the evening of the 18th they reached Cambridge, the seat of justice of the adjoining county, where they received all possible aid and information from the inhabitants. Leaving the railroad, they now marched across the country to Hoskinsville. On the way word was received that the people were still in arms, and were determined to continue their resistance to the officers. But, on their arrival on the afternoon of the 20th, they found no force to meet them. The men had secreted themselves in the woods, and only a few frightened women and children were to be found. The business of searching for and arresting the parties concerned in the previous resistance to the Deputy Marshal was then begun, on the strength of an affidavit, before United States Commissioner Halliday, by Moses D. Hardy, giving names of some of them, as follows:

"William McCune, James McCune, Joseph McCune, Mahlon Belford, Absalom Willey, Wiliiam Willey, Curtis Willey, Wesley Willey, Asher Willey, Milton Willey, Edmund G. Brown, William Campbell, Henry Campbell, William Pitcher, Joshua Pitcher, Joseph Pitcher, Andrew Coyle, John Coyle, Thomas Racey, John Racey, George A. Racey, Peter Racey, William Cain, Samuel Cain, Abel Cain, A. G. Stoneking, Samuel McFarren, Richard McFarren, Joel McFarren, David McFarren, Lewis Fisher, Milvin M. Fisher, James McKee, Benton McKee, William Archer, James Harkens, George Ziler, Peter Rodgers, William Lowe, Andrew Lowe, Samuel Marquis, Arthur Marquis, John Marquis, M. Norwood, Robert Boggs, Elisha Fogle, Abner Davis, William Davis, Taylor Burns, John Manifold, George Manifold, Henry Engle, Joshua Hillyer, Benton Thorle, Richard Burlingame, George Willey, H. Jones, Joseph Jones, Gordon Westcoll, G. E. Gaddis, William Engle, Jacob Trimble, Charles Brown, Andrew J. Brown, William Barnhouse."

The expedition remained, making arrests and searching for the guilty parties through the 20th, 21st, and 22d. It then marched to Sharon, then to Caldwell, the county seat, and thence to Point Pleasant-halting for the night and making arrests at each place. After thus marching over nearly the entire district in which the disaffection had been fomented, the command returned with its prisoners to Cambridge, where they were welcomed at a public banquet. Messrs. F. Clatworthy and E. Henderson acted as aids to the Marshal throughout.

Subsequently the following prisoners, thus arrested, were brought before the United States Court in Cincinnati, Judges Swayne and Leavitt presiding:

"Andrew Coyle, George Willey, Henry Engle, Lewis Fisher, Charles Brown, Andrew Brown, William Barnhouse, Gordon Westcoll, William Engle, Jacob Trimble, Samuel Marquis, William McCune, Joseph McCune, James McCune, Joshua Hillyer, Benton Thorle, Richard Burlingame, Samuel Cain, John Racey, William Norwood, Robert Boggs, Richard McFarren, Thomas Racey, George A. Racey, William Campbell, Henry Campbell, Harrison Jones, Joel McFarren, G E. Gaddis, William Lowe, John Willey, James McKee, James Harkens, Mahlon Belford, Samuel McFarren."

# Then Lieutenant-Colonel Eastman.