Ex Parte Vallandigham,
68 U.S. 243 (1863)

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U.S. Supreme Court

Ex Parte Vallandigham, 68 U.S. 1 Wall. 243 243 (1863)

Ex Parte Vallandigham

68 U.S. (1 Wall.) 243


The Supreme Court of the United States has no power to review by certiorari the proceedings of a military commission ordered by a general officer of the United States Army, commanding a military department.

This case arose on the petition of Clement L. Vallandigham for a certiorari, to be directed to the Judge Advocate General of the Army of the United States, to send up to this Court, for its review, the proceedings of a military commission, by which the said Vallandigham had been tried and sentenced to imprisonment; the facts of the case, as derived from the statement of the learned Justice (WAYNE) who delivered the opinion of the Court, having been as follows:

Major General Burnside, commanding the Military Department of Ohio, issued a special order, No. 135, on the 21st April, 1863, by which a military commission was appointed to meet at Cincinnati, Ohio, on the 22d of April, or as soon thereafter as practicable, for the trial of such persons as might be brought before it. There was a detail of officers to constitute it, and a judge advocate appointed.

The same general had, previously, on the 13th of April, 1863, issued a General Order, No. 38, declaring, for the information of all persons concerned, that thereafter all persons

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found within his lines who should commit acts for the benefit of the enemies of our country, should be tried as spies or traitors, and if convicted should suffer death; and among other acts prohibited, was the habit of declaring sympathies for the enemy. The order issued by General Burnside declared that persons committing such offenses would be at once arrested, with a view to being tried as above stated, or to be sent beyond his lines into the lines of their friends; that it must be distinctly understood that treason, expressed or implied, would not be tolerated in his department.

On the 5th of May, 1863, Vallandigham, a resident of the State of Ohio and a citizen of the United States, was arrested at his residence and taken to Cincinnati, and there imprisoned. On the following day, he was arraigned before a military commission on a charge of having expressed sympathies for those in arms against the government of the United States, and for having uttered, in a speech at a public meeting, disloyal sentiments and opinions, with the object and purpose of weakening the power of the government in its efforts for the suppression of an unlawful rebellion.

The specification under the charge was that he, the said Vallandigham, a citizen of Ohio, on the 1st of May, 1863, at Mount Vernon in Knox County, Ohio, did publicly address a large meeting of persons, and did utter sentiments, in words or to the effect,

"that the present war was a wicked, cruel, and unnecessary war, one not waged for the preservation of the Union, but for the purpose of crushing out liberty and to erect a despotism; a war for the freedom of the blacks and the enslavement of the whites; and that if the administration had not wished otherwise, that the war could have been honorably terminated long ago; that peace might have been honorably made by listening to the proposed intermediation of France; that propositions, by which the Southern states could be won back, and the South guaranteed their rights under the Constitution, had been rejected the day before the late battle of Fredericksburg by Lincoln and his minions, meaning the President of the United States, and those under him in authority. Also charging that the

Page 68 U. S. 245

government of the United States was about to appoint military marshals in every district to restrain the people of their liberties, and to deprive them of their rights and privileges, characterizing General Order No. 38, from headquarters of the Department of the Ohio, as a base usurpation of arbitrary authority, inviting 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 adding, 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, and asserting that he firmly believed, as he had said six months ago, that the men in power are attempting to establish a despotism in this country, more cruel and oppressive than ever existed before."

The prisoner, on being arraigned, denied the jurisdiction of the military commission, and refused to plead either to the charge or specification. Thereon, the members of the commission, after private consultation, directed the judge advocate to enter a plea of Not Guilty, and to proceed with the trial, with an allowance to the petitioner to call witnesses to rebut the evidence which might be introduced against him to establish the charge. The next day the commission proceeded with the trial. Seven members of it were present, and tried the charge in due form of military law. The prisoner exercised his right to call witnesses, and to cross-examine those who were sworn for the prosecution. At his request he had the aid of counsel, and the court adjourned to enable him to procure it. Three gentlemen of his own choice attended; but for some cause only known to themselves and their client, they remained in an adjoining room during the trial, without having been introduced before the commission, though it expressly authorized it to be done, saying that it had adjourned to permit the prisoner to obtain their presence. The prisoner was informed by the judge advocate, when he closed his evidence, that no other witnesses would be introduced. He then offered the Hon. S. S.

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Cox as a witness in his behalf. This gentleman was interrogated in chief, without being cross-examined, and it was admitted by the judge advocate, that if three other persons who had been summoned to appear as witnesses for the prisoner had appeared, but who were not in court, that their evidence would have been substantially the same as Mr. Cox had given. Here the accused closed his testimony, and then read to the commission a statement, which, with the other proceedings of the trial, was forwarded to the judge advocate general, and was inserted in the record.

It began with the declaration, that he had been arrested without due process of law, without a warrant from any judicial officer; that he was then in a military prison, and had been served with a charge and specifications, as in a court-martial or military commission; that he was not either in the land or naval forces of the United States, nor in the militia in the actual service of the United States, and, therefore, not triable for any cause by any such court; that he was subject, by the express terms of the Constitution, to arrest only by due process of law or judicial warrant, regularly issued upon affidavit by some officer or court of competent jurisdiction for the trial of citizens; that he was entitled to be tried on an indictment or presentment of a grand jury of such court, to a speedy and public trial, and also by an impartial jury of the state of Ohio, to be confronted with witnesses against him, to have compulsory process for witnesses in his behalf, the assistance of counsel for his defense, by evidence and argument according to the common law and the usages of judicial courts -- all those he demanded as his right as a citizen of the United States, under the Constitution of the United States. He also alleged that the offense of which he is charged is not known to the Constitution of the United States, nor to any law thereof; that they were words spoken to the people of Ohio, in an open and public political meeting, lawfully and peaceably assembled under the Constitution, and upon full notice; that they were words of criticism upon the policy of the public servants of the people, by which policy it was alleged that the welfare

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of the country was not promoted. That they were used as an appeal to the people to change that policy, not by force, but by free elections and the ballot box; that it is not pretended that he counseled disobedience to the Constitution or resistance to the law or lawful authority; that he had never done so, and that beyond this protest he had nothing further to submit.

The judge advocate replied, that so far as the statement called in question the jurisdiction of the commission, that had been decided by the authority convening and ordering the trial, nor had the commission, at any time, been willing to entertain the objection; that as far as any implications or inferences designed or contemplated by the statement of the accused, his rights to counsel and to witnesses for his defense, he had enjoyed the allowance of both, and process for his witnesses, which had been issued; and that as to the facts charged in the specification, they were to be determined by the evidence -- that his criminality was a question peculiarly for the commission, and that he had submitted the case to its consideration. The commission was then cleared for consideration.

The finding and sentence were, that Vallandigham was guilty of the charge and specification, except so much of the latter,

"as that propositions by which the Southern states could be won back and guaranteed in their rights under the Constitution had been rejected the day before the battle of Fredericksburg, by Lincoln and his minions, meaning the President of the United States, and those under him in authority,"

and the words,

"asserting that he firmly believed, as he had asserted six months ago, that the men in power are attempting to establish a despotism in this country more oppressive than ever existed before."

As to those words the prisoner was not guilty, but of the charge he was guilty, and the commission therefore 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 kept during the war.

The finding and sentence were approved and confirmed

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by General Burnside, in an order bearing date the 16th of May, 1863, and Fort Warren was designated as the place of imprisonment. On the 19th of May, 1863, the President, in commutation of the sentence, directed Major General Burnside to send the prisoner, without delay, to the headquarters of General Rescans, then in Tennessee, to be by him put beyond our military lines; which order was executed.

In support of the motion for the certiorari, and against the jurisdiction of the military commission, it was urged that the latter was prohibited by the Act of March 3, 1863, for enrolling and calling out the national forces (§ 30, 12 Stat. at Large 736), as the crimes punishable in it by the sentence of a court-martial or military commission, applied only to persons who are in the military service of the United States, and subject to the articles of war. And also, that by the Constitution itself, § 3, art. 3, all crimes, except in cases of impeachment, were to be tried by juries in the state where the crime had been committed, and when not committed within any state, at such place as Congress may by law have directed; and that the military commission could have no jurisdiction to try the petitioner, as neither the charge against him nor its specifications imputed to him any offense known to the law of the land, and that General Burnside had no authority to enlarge the jurisdiction of a military commission by the General Order No. 38, or otherwise.

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