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
Page 68 U. S. 244
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.
Page 68 U. S. 246
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
Page 68 U. S. 247
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
Page 68 U. S. 248
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.
MR. JUSTICE WAYNE, after stating the case, much as precedes,
delivered the opinion of the Court:
General Burnside acted in the matter 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 of the United States, and published by the Assistant
Adjutant General, by order of the Secretary of War, on the 24th of
April, 1863. [
Footnote 1]
Page 68 U. S. 249
It is affirmed in these instructions, [
Footnote 2] that military jurisdiction is of two kinds.
First, that which is conferred and defined 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 under the common law
of war. The character of the courts which exercise these
jurisdictions depends upon the local law of each particular
county."
In the armies of the United States, the first is exercised by
courts-martial, while cases which do not come within the "rules and
regulations of war," or the jurisdiction conferred by statute or
court-martial, are tried by
military commissions.
These jurisdictions are applicable, not only to war with foreign
nations, but to a rebellion, when a part of a country wages war
against its legitimate government, seeking to throw off all
allegiance to it, to set up a government of its own.
Our first remark upon
the motion for a certiorari is
that there is no analogy between the power given by the
Constitution and law of the United States to the Supreme Court, and
the other inferior courts of the United States, and to the judges
of them, to issue such processes, and the prerogative power by
which it is done in England. The purposes for which the writ is
issued are alike, but there is no similitude in the origin of the
power to do it. In England, the Court of King's Bench has a
superintendence over all courts of an inferior criminal
jurisdiction, and may, by the plenitude of its power, award a
certiorari to have any indictment removed and brought before it;
and where such certiorari is allowable, it is awarded at the
instance of the King, because every indictment is at the suit of
the King, and he has a prerogative of suing in whatever court he
pleases. The courts of the United States derive authority to issue
such a writ from the Constitution and the legislation of Congress.
To place the two sources of the right to issue the writ in obvious
contrast, and in application to the motion we are considering
Page 68 U. S. 250
for its exercise by this Court, we will cite so much of the
third article of the Constitution as we think will best illustrate
the subject.
"The judicial power of the United States shall be vested in one
Supreme Court, and in such inferior courts as the Congress may,
from time to time, ordain and establish. . . . The judicial power
shall extend to all cases in law and equity, arising under the
Constitution, the laws of the United States, and treaties made or
which shall be made under their authority; to all cases affecting
ambassadors, other public ministers and consuls"
&c., and
"
in all cases affecting ambassadors, other ministers and
consuls, and those in which a state shall be a party, the Supreme
Court shall have original jurisdiction. In all the other cases
before mentioned, the Supreme Court shall have appellate
jurisdiction, both as to law and fact, with such exceptions and
under such regulations as the Congress shall make."
Then Congress passed the act to establish the judicial courts of
the United States, [
Footnote 3]
and in the 13th section of it declared that the Supreme Court shall
have exclusively all such jurisdiction of suits or proceedings
against ambassadors or other public ministers or their domestics or
their domestic servants as a court of law can have or exercise
consistently with the laws of nations, and original, but
not exclusive jurisdiction, of suits brought by ambassadors, or
other public ministers, or in which a consul or vice-consul shall
be a party. In the same section, the Supreme Court is declared to
have appellate jurisdiction in cases hereinafter expressly
provided. In this section, it will be perceived that the
jurisdiction given, besides that which is mentioned in the
preceding part of the section, is an exclusive jurisdiction of
suits or proceedings against ambassadors or other public ministers
or their domestics or domestic servants, as a court of law can have
or exercise consistently with the laws of nations, and original but
not exclusive jurisdiction of all suits
brought by ambassadors
or other public ministers or in which a consul or vice-consul
shall be a party, thus guarding them
Page 68 U. S. 251
from all other judicial interference, and giving to them the
right to prosecute for their own benefit in the courts of the
United States. Thus substantially reaffirming the constitutional
declaration that the Supreme Court had original jurisdiction in all
cases affecting ambassadors and other public ministers and consuls
and those in which a state shall be a party, and that it shall have
appellate jurisdiction in all other cases before mentioned, both as
to law and fact, with such exceptions and under such regulations as
the Congress shall make.
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. [
Footnote 4]
In other words, the petition before us we think not to be within
the letter or spirit of the grants of appellate jurisdiction to the
Supreme Court. It is not in law or equity within the meaning of
those terms as used in the 3d article of the Constitution. Nor is a
military commission a court within the meaning of the 14th section
of the Judiciary Act of 1789. That act is denominated to be one to
establish the judicial courts of the United States, and the 14th
section declares that all the "before-mentioned courts" of the
United States shall have power to issue writs of
scire
facias, habeas corpus, and all other writs not specially
provided for by statute, which may be necessary for the exercise of
their respective jurisdictions, agreeably to the principles and
usages of law. The words in the section "the before-mentioned"
courts can only have reference to such courts as were established
in the preceding part of the act, and excludes the idea that a
court of military commission can be one of them.
Whatever may be the force of Vallandigham's protest, that he was
not triable by a court of military commission, it is certain that
his petition cannot be brought within the 14th section of the act,
and further that the court cannot, without
Page 68 U. S. 252
disregarding its frequent decisions and interpretation of the
Constitution in respect to its judicial power, originate a writ of
certiorari to review or pronounce any opinion upon the proceedings
of a military commission. It was natural, before the sections of
the 3d article of the Constitution had been fully considered in
connection with the legislation of Congress, giving to the courts
of the United States power to issue writs of
scire facias,
habeas corpus, and all other writs not specially provided for by
statute, which might be necessary for the exercise of their
respective jurisdiction, that by some members of the profession it
should have been thought, and some of the early judges of the
Supreme Court also, that the 14th section of the act of 24th
September, 1789, gave to this Court a right to originate processes
of habeas corpus
ad subjiciendum, writs of certiorari to
review the proceedings of the inferior courts as a matter of
original jurisdiction, without being in any way restricted by the
constitutional limitation, that in all cases affecting ambassadors,
other public ministers and consuls, and those in which a state
shall be a party, the Supreme Court shall have original
jurisdiction. This limitation has always been considered
restrictive of any other original jurisdiction.
The rule of
construction of the Constitution being that affirmative words in
the Constitution declaring in what cases the Supreme Court shall
have original jurisdiction must be construed negatively as to all
other cases. [
Footnote 5]
The nature and extent of the court's appellate jurisdiction and its
want of it to issue writs of habeas corpus
ad subjiciendum
have been fully discussed by this Court at different times. We do
not think it necessary, however, to examine or cite many of them at
this time. We will annex a list to this opinion, distinguishing
what this Court's action has been in cases brought to it by appeal
from such applications as have been rejected, when it has been
asked that it would act upon the matter as one of original
jurisdiction.
Page 68 U. S. 253
In the case
Ex Parte Milburn, [
Footnote 6] Chief Justice Marshall said, as the
jurisdiction of the Court is appellate, it must first be shown that
it has the power to award a habeas corpus. In
In re Kaine,
[
Footnote 7] the Court denied
the motion, saying that the Court's jurisdiction to award the writ
was appellative, and that the case had not been so presented to it,
and for the same cause refused to issue a writ of certiorari, which
in the course of the argument was prayed for. In
Ex Parte
Metzger, [
Footnote 8] it
was determined that a writ of certiorari could not be allowed to
examine a commitment by a district judge,\ under the treaty between
the United States and France, for the reason that the judge
exercised a special authority, and that no provision had been made
for the revision of his judgment. So does a court of military
commission exercise a special authority. In the case before us, it
was urged that the decision in
Metzger's Case had been
made upon the ground that the proceeding of the district judge was
not judicial in its character,
but that the proceedings of the
military commission were so, and further it was said that the
ruling in that case had been overruled by a majority of the judges
in
Raines' Case. There is a misapprehension of the report
of the latter case, and as to the judicial character of the
proceedings of the military commission, we cite what was said by
this Court in the case of
United States v. Ferreira.
[
Footnote 9]
"The powers conferred by Congress upon the district judge and
the secretary are judicial in their nature, for judgment and
discretion must be exercised by both of them, but it is not
judicial in either case, in the sense in which judicial power is
granted to the courts of the United States."
Nor can it be said that the authority to be exercised by a
military commission is judicial in that sense. It involves
discretion to examine, to decide and sentence, but there is no
original jurisdiction in the Supreme Court to issue a writ of
habeas corpus
ad subjiciendum to review or reverse its
proceedings, or the writ of certiorari to revise the proceedings of
a military commission.
Page 68 U. S. 254
And as to the President's action in such matters and those
acting in them under his authority, we refer to the opinions
expressed by this Court in the cases of
Martin v. Mott
[
Footnote 10] and
Dynes
v. Hoover. [
Footnote
11]
For the reasons given, our judgment is that the writ of
certiorari prayed for to revise and review the proceedings of the
military commission by which Clement L. Vallandigham was tried,
sentenced, and imprisoned must be denied, and so do we order
accordingly.
Certiorari refused.
NELSON, J., GRIER, J., and FIELD, J., concurred in the result of
this opinion. MILLER, J., was not present at the argument, and took
no part.
[
Footnote 1]
They were prepared by Francis Leiber, LL.D., and were revised by
a board of officers, of which Major General E. A. Hitchcock was
president.
[
Footnote 2]
§ 1, �13.
[
Footnote 3]
1 Stat. at Large 73, chap. 20.
[
Footnote 4]
Durousseau v. United
States, 6 Cranch 314;
Barry
v. Mercein, 5 How. 119;
United
States v. Curry, 6 How. 113;
Forsyth v.
United States, 9 How. 571.
[
Footnote 5]
Marbury v.
Madison, 1 Cranch 137;
State of
New Jersey v. State of New York, 5 Pet. 284;
Kendall v. United
States, 12 Pet. 637;
Cohens
v. Virginia, 6 Wheat. 264.
[
Footnote 6]
34 U. S. 9 Pet.
704.
[
Footnote 7]
55 U. S. 14 How.
103.
[
Footnote 8]
46 U. S. 5 How.
176.
[
Footnote 9]
54 U. S. 13 How.
48.
[
Footnote 10]
12 Wheat. pp.
25 U. S. 28 to
35, inclusive.
[
Footnote 11]
61 U. S. 20 How.
65.
