Download - Dec. 1863.] Ex parte Vallandigham. 243
parte Vallandigham. 243ExDec. 1863.]
case.Statement of the
441; R. v. 24 DoubtCole, Vt.,1 Rutland R. Co. 33.Fairf.,inarise in this case that the named the notecannot person
the because the factbank,was fact the cashier ofin plaintiffit that theis and is also admitted canadmitted, plaintiff
andnote he acted as the cashierthat in theprove takingisof the the evidenceprovidedcorporation, legallyagent
that evidence is admissiOur conclusion theis,admissible.the in the name ofble, and that suit wTasproperly brought
the The of the Court is thereforebank. Circuitjudgmentaffirmed with costs.
Judgment accordingly.
parte Vallandigham.Ex
power byof has no to review certio-The Court the United StatesSupremeby amilitary generalof a commission orderedproceedingsrari the
commanding military depart-aArmy,of the United Statesofficerment.
ofon Clement L.This case arose the petition Vallandig-Advocatedirected to thecertiorari,ham a to befor Judge
to send to thisStates,of the of the United upGeneral Armyaof commis-thereview, militaryfor itscourt, proceedings
had andbeen triedthe saidwhichsion, Vallandighambyas derivedcase,facts of theto thesentenced imprisonment;
learned Justice whostatement of thefrom the (Wayne)been as :followscourt,the of thedelivered havingopinion
theBurnside, commanding military depart-Major-GeneralNo. on the135, 21storder,issued aOhio,of specialment
commission waswhich a1863, appointedmilitaiyApril, byor as soonthe 22d ofOhio,at onCincinnati, April,comeet
asfor the trial of such personsthereafter as practicable,a of officersit. was detailbefore Therebe broughtmight
and a advocateto it, appointed.constitute judgethe ofon 13thhad,The same previously, April,general
for the infor-order, 38,a No.issued1863, general declaring,all'of all that thereafterconcerned, personsmation persons
Ct.[Sup.VALLANDIGHAM.PARTEEX244
the case.ofStatement
for the benefitcommit actsshouldlines whohiswithinfoundorasshould be tried spiesof our country,enemiesof the
death; and othersufferif should amongand convictedtraitors,forofhabit sympathieswas the declaringacts prohibited,de-Burnsideissued Generalorder byThethe enemy;
would be atsuch offencescommittingclared that personsorstated,astried abovea view towitharrested, beingonce
friends;their thatthe lines oflines intohisto sentbe beyondorthat treason,understood expressedmust be distinctlyit
hisinnot toleratedwould be department.implied,a resident of the1868,of Vallandigham,the 5th May,On
arrestedwasStates,of the Unitedand a citizenOhio,ofStateand there im-to Cincinnati,and takenresidencehisat
ahe was beforeOn the day,following arraignedprisoned.a ofon expressed sym-commission havingchargemilitary
the of thein arms Governmentfor those againstpathiesin a at auttered, publicand forStates, speechhavingUnited
and thewith objectsentiments opinions,disloyalmeeting,thethe of Government inof powerand purpose weakening
anof unlawful rebellion.its efforts for the suppressionthewas,under the that saidhe,The chargespecification
1stOhio, 1863,a of on the of atcitizen May,Vallandigham,did addressOhio,in KnoxVernon, County, publiclyMount
and did utter insentiments,ofa persons,large meeting“ war athe waseffect, wicked,the that presentwords or to
theone not forwar,and preserva-cruel, unnecessary wagedof outfor theUnion,of the but purposetion crushing liberty
a war for the freedom of the blacksand erect ato despotism;whites; and if theof the that adminis-enslavementand the
that the war could haveotherwise,not wishedtration hadthat haveterminated peacebeen long ago; mighthonorablythemade to interme-proposedbeen honorably by listening
which the SouthernFranco; thatdiation of propositions, bytheand South theirback,be wonStates could guaranteedhadConstitution, been theunder the rejected dayrights
Lincolnof and hiethe late battle bybefore Fredericksburgof the United States,the President andminions, meaning
in Alsohim that theunder authority.those charging
Vallandigham.parte 245ExDec. 1863.]
of the ease.Statement
was toStates about appointthe UnitedGovernment ofrestrain the ofdistrict toin peoplemarshals everymilitary
andthem of theirto pri-their andliberties, rightsdeprivehead-Order No. from38,Generalcharacterizingvileges,
as aOhio,the base usurpationofof thequarters Departmenthearers to resist thehisof invitingarbitrary authority,
the inform the minionspeoplethe soonersame, by saying,will submit such restric-that not toof power theyusurped
better; and that hetheliberties,their adding,tions uponresolved to do whatall occasionsat all times and uponwas
now made to buildhe the upcould to defeat attempts beingof free anda the ruins our government,monarchy upon
had six monthsbelieved, as he saidthat he firmlyassertingain are to establishthat the men powerago, attempting
more cruel and thanin this oppressivedespotism country,existedever before.”
deniedThe on the jurisdictionprisoner, arraigned,beingand refused to either tocommission,of the military plead
the ofThereon, members thethe or specification.chargetheconsultation,after directedcommission, private judge
anda of Not to withadvocate to enter plea proceedGuilty,allowance to the to call witnessesthe with antrial, petitioner
the evidence be introducedto rebut which againstmightThe next thethe commissionhim to establish daycharge.
weremembers of itwith the trial. Seven pre-proceededdue law. Thein ofand tried the form militarysent, charge
and towitnesses,his to call cross-exercisedprisoner righthiswere for the Atthose who sworn prosecution.examine
counsel,aid and the court adjournedhe had the ofrequestit. Three his ownto him to ofenable procure gentlemen
attended; known to them-cause,but somefor onlychoicein anclient,and remained roomtheir they adjoiningselves
been introduced thewithout beforetrial,the havingduringit authorized it to be done,commission, expresslythough
to the to obtainthat it had permitadjourned prisonersayingThe informed thewas bytheir prisoner judgepresence.
his that no other wit-evidence,when he closedadvocate,He then offered the Hon. Sintroduced. S.nesses would be
Ex PARTE246 Ct.YaLLANDIGHAM. [Sap.
of theStatement case.
as a in Ms This waswitness behalf. interro-Cox gentlemanandcross-examined,in without it waschief,gated being
that if three otheradvocate,admitted theby personsjudgeas witnesses forwho had been summoned to theappear
inhad who were not that theircourt,butprisoner appeared,the same as Mr.evidence would have been Coxsubstantially
had andHere the accused closed his thentestimony,given.which, with thestatement,read to the commission a other
was forwarded to thetrial,of the advo-judgeproceedingsin thecate and was inserted record.general,
that he had beendeclaration,It with the arrestedbeganof without a warrant fromlaw,without due process any
officer; he was then in athat andprison,judicial militarya andhad served with as inbeen aspecifications,charge
commission; that he wasor not eithercourt-martial militaryof the United nor inStates,in the land or naval forces the
service of States, and,in the actual the United there-militiacourt;such thatfore, not triable for cause he wasany by any
terms of the toConstitution,the arrestsubject, expressbyof or warrant,due law judicialby processonly regularly
or ofissued affidavit some officer courtupon by competentcitizens; he wastbe trial of that entitled tojurisdiction for
of abe tried on an indictment or ofpresentment grand jurytrial,a and also ansuch to and im-court, public byspeedy
of the of to be confronted with wit-Ohio,Statepartial juryto have forhim,nesses witnessescompulsory processagainst
of for his defence,in his the assistance counselbehalf, byto the common andevidence and lawargument according
courts; hethe of those demanded as hisjudicialusages —allas a citizen of the United under the Constitu-States,right
tion of the United States. He also that the offenceallegedhe is towhich is not known the Constitution ofof charged
thereof;nor law wereStates,United to thatthe any theyin an andOhio,to the ofwords people open publicspoken
and assembled underpeaceablylawfullypolitical meeting,notice; wereand full thatConstitution, upon theythe
criticism the of the servants ofof policy publicwords uponthewhich it was that welfarethe by policy allegedpeople,
Vallandigham.parteDec. Ex 2471868.]
of the case.Statement
was not That were used asof the theypromoted.countryto that not force,an to the policy,change byappeal people
ballot-box; itand the that is notbut free electionsbydisobedience to the Constitu-he counselledthatpretended
to law or lawful that he hadtion or resistance the authority;he hadthat thisso,never done and protestbeyond nothing
to submit.furtherthat so far as theThe advocate statementreplied,judge
of the commission,in the thatcalled jurisdictionquestionandthe order-had decided by authoritybeen convening
commission,nor had the at beentrial, time,the anyingthat as far asentertain the anyto objection; impli-willing
or the state-or inferences contemplatedcations designed by■ to andhis counsel to witnessesaccused,theof rightsment
thehe had allowance of anddefence, both,enjoyedfor hisissued;hadwitnesses,his which been andfor thatprocess
in the were tofacts betheyas to the charged specification,evidence; his wasthe acriminalitydetermined by —that
commission,for the and that he hadpeculiarlyquestionitscase to consideration. Thethe commissionsubmitted
for consideration.clearedthenwasthat waswere,and sentenceThe finding Vallandigham
so muchand of thetheof specification, exceptchargeguilty“ which thethat Southern States couldbyas propositionslatter,
in their under theand Constitutionbach rightsbewon guaranteedthe the battleday FredericJcsburg,bybeen rejectedhad ofbefore
Presidentthe of theminions,his meaningandLincolnandunder him in theand thoseStates, authority;”United
“ as he had sixbelieved,that he assertedfirmlywords, assertingare to establishainthe men power attemptingthatmonthsago,
ever existedbe-more thancountry oppressivethisindespotismwaswords the not butthose prisoner guilty;As tofore.”
and the commission, therefore,he was guilty,theof chargein somein close confinementhim to be placedsentenced
to be the com-States,of the United designated byfortressthis there to beof keptofficer department, duringmanding
Ihe war.andwereand sentence confirmedapprovedThe finding
OtPARTE VALLANDIGHAM.248 Ex [Sup.
ofOpinion the court.
date ofin an order the 16thBurnside,General bearingbyofWarren was as theand Eort1863, placeMay, designated
1863, President,19th theOn the of May,imprisonment.directedsentence,in commutation of the Major-General
head-without to theto send the delay,Burnside prisoner,in beof then toBosecrans, Tennessee,General byquarters
lines; was exe-him which orderour militaryput beyondcuted.
andcertiorari,for theIn the motion thesupport againstofwas that thecommission, itof thejurisdiction military urged
for3d, 1863,the act March enroll-latter was ofprohibited byat30,12national forces Stat.and out the Large,ing (§calling
sentence ain it the of court-as the crimes bypunishable736),to whocommission,martial or only personsappliedmilitary
States,of the United andare in the service subjectmilitarytheAnd that Constitutionalso,to of war.the articles byofin casescrimes,art.itself, 3, all3, except impeachment,§
in the where the crime hadbe Statewere to tried juriesbyState,not committed withinand whencommitted, anybeen
directed;law have andat such as may byplace Congresshave no tocould jurisdictionthe commissionthat military
the him nor itsas neitherthe charge againsttry petitioner,himto offence known to the lawimputed anyspecifications
Burnside had noland, and that General toof the authorityof athe commission thejurisdiction military byenlarge
or38,Order No.General otherwise.
WAYNE, after the case,Mr. Justice much as pre-statingdelivered of the court:thecedes, opinion
acted in the as theBurnside matter comGeneral generalinthe inOhio with theDepartment, conformitymanding
for armies ofthe of the the Unitedstructions governmentStates,the President of theStates, United andapproved by
the Assistant theAdjutanf>General, order ofby bypublishedon the 24thWar,of of 1863.*Secretary April,
* Leiber, LL.D.,byThey prepared bywere Francis and wore revised aofficers, Major-Generalof of which E. A. Hitchcock presidentboard was
parte Vallandigham. 249ExDec. 1863.]
of the court.Opinion
thatinstructions,*is affirmed in these jurisdicIt militaryis and deof that which conferredFirst,tion is two kinds.
thestatute; is derived from comsecond, that whichfined bystatute,theoffences, undermon law of war. “Military
directed; buttried in the manner therein militarymust bebe triedstatute,the mustnot withinoffences,which do come
characterlaw of war. Theand under commonthepunishedof these jurisdictionsthe courts which exercise depends upon
ofthe local law each county.”particular 'the first is exercisedStates,In the the Unitedarmies of
withinwhich do not come thewhile casescourts-martial,by“ or conferredthewar,” jurisdictionrules and ofregulations
commissions.triedcourt-martial, militaryarestatute or bybywarnot to withare onlyThese jurisdictions applicable,
awhen of arebellion,to anations, countrybut partforeigntowar its seekingagainst legitimate government,wages
of itsset a own.it,off all to to up governmentthrow allegianceis,motion a certiorari thatthefirst remarkOur upon for
the Consti-is between thebythere no power givenanalogyto Court,law of the Supremetution and the United States
andStates,inferior courts of the United to theand the otherand theto issue suchthem,of prerogativeprocesses,judges
foris Thewhich it done in purposespower by England.is no similitudeare but therealike,which the writ is issued
theto it. In Courtin the of the dopower England,originanover all courts ofof aBench hasKing’s superintendenceoftheinferior criminal and plenitudebyjurisdiction, may,
its a have indictment removedaward certiorari topower, anyiscertiorari allowa-it;and and where suchbeforebrought
it is of becauseawarded at the instance theble, everyking,has ais the of and heindictment at suit the preroga-king,
he The courts oftive of in whatever courtsuing pleases.writ fromthe to issue such aUnited States derive authorityTothe and the of placeConstitution legislation Congress.
inissue the writ obvious con-the two sourcés of the torightwe areand in to the motiontrast, consideringapplication
* is.i,§ ¶
Ct.VaLLANDIGHAM. [Sup.Ex PARTE250
of the court.Opinion
much of thewe will cite sothis court,for its exercise bywill illus-as we think bestthethird article of Constitution
trate the subject.“ shall be vestedStatesThe of the Unitedpowerjudicial
courts as the Conin such inferiorCourt,in one andSupreme“ Theand establish.”time,from time to ordainmay,gress
in law andshall extend to all cases equity,judicial powerStates,theunder the laws of UnitedConstitution,thearising
made undertreaties made or which shall their auand be; otherambassadors,to all cases minpublicthority affecting
“in casesconsuls,” &c.,and and all ambas&c.,isters affectingthosein Whichaministersand and shallsadors, consuls,other State
a the shall have Inbe jurisdiction.Courtparty, Supreme originalmentioned, theall the other cases before CourtSupreme
both as to law and fact,haveshall withjurisdiction,appellateand under such as thesuch exceptions regulations Congress
the actshall make.” Then to establish thepassedCongressStates,*the and in thecourts of United 13th secjudicial
the Court shall haveit declared that excluSupremetion ofof suits orall such jurisdictionsively proceedings againstministers or theiror other domesticsambassadors orpublic
as a court of law can havetheir domestic servants or exerwith thelaws andnations, but exconsistentlycise notoriginal,of
suitsof ambassadors,clusive or otherbrought byjurisdiction,in which a consul orministers, or vice-consul shall bepublic
thesection,In the same Supremea Coui’t is departy.in caseshave jurisdictionclared to hereinafter exappellate
In this it willsection, beprovided. perceived thatpresslythat whichbesides is mentioned inthe thegiven,jurisdiction
ansection, is exclusiveof thepart jurisdiction ofprecedingambassadors or othersuits or proceedings against public
ordomestics domesticor their servants, as aministers courtexercisehave or with thelaw consistentlyof laws of nacanbut not exclusive jurisdictionand oftions, alloriginal suits
ambassadorsor other publicministers,by or in which abroughtshall be aor vice-consul thusconsul party, themguarding
* 73,Large,1 Stat. at chap. 20.
parte Vallandigham. 253ExDec. 1863-3
of the court.Opinion
theto themandinterference,from all other givingjudicialthein the courts offor their own benefitto prosecuteright
the consti-ThusUnited States. substantially reaffirminghadCourttutional thedeclaration, that Supreme original
and.ambassadors otherin casesalljurisdiction affectinga shallconsuls, and those in which Stateandministerspublic
in allhave jurisdictionit shall appellatea and thatbe party,fact,as to law and withbothmentioned,beforeother cases
thesuch asand under regulations Congresssuch exceptionsmake.shall
asCourt,of the grantedSupremeThe powersappellateand the acts ofare limitedConstitution, bythe regulatedby
to theand be exercisedmust subject exceptionsCongress,In other thewords,madeand by Congress.*regulations
to within the orus we think not be letterbeforepetitiontheof tothe appellate jurisdiction Supremeofspirit grants
ofin law or within theIt is notCourt. equity meaningtheused in the article of Constitution.as 3dthose terms
a court within the ofcommissionis aNor military meaningofthe Act That act issection of 1789.Judiciarythe 14th
theone to establish courts of theto be judicialdenominated“the 14th section declares that all theand beUnited States,
of thecourts” United States shall havefore-mentionedwrits of scire habeasissue and allfacias, corpus,topower
for statute,not whichprovided byother writs specially mayof theirthe exercisefor respective jurisdictions,be necessary
and of law. Theto the wordsusagesprinciplesagreeably”“ the before-mentioned cancourts,in the havesection, only
as were established incourts thereference to such precedingexcludes the idea aand that court ofact,of the militarypart
be one of them.cancommissionbe the force ofWhatever may Vallandigham’s protest,
a oftriable courthe was not itmilitary commission,that bybehis cannot withinis that the 14thpetitioncertain brought
act; and that thefurther, cannot,the court with-section of
* Cranch,States, 314; Mercein,6 Barry v. 5v. The UnitedDurousseauId., ;Howard, 119; States,Curry, Forsyth6 113 v.States v.United United
Id.,9 571.
Ct.[Sup.Ex PARTE VALLANDIGHAM.252
of court.Opinion the
ofand interpretationits decisionsout frequentdisregardingatoConstitution in itsthe respect judicial power, originate
review or uponto opinionwrit of certiorari anypronouncenatural,It wasaof commission.the militaryproceedings
hadthe article of the Constitutionthe sections of 3dbeforeofin with theconsidered connectionbeen fully legislationtocourts the United Statesto the of powerCongress, giving
and all writshabeas otherwrits of scire corpus,issue facias,necesfor which bestatute,not specially by mightprovided
thatthe theirfor exercise of jurisdiction, byrespectivesaryhave beenmembers of the it shouldsome profession thought,
thatof the Court also,and of thesome Supremeearly judgesact of 24th to1789,14th section of thethe September, gave
a of habeas adto corpusthis court processesoriginaterightofwrits of certiorari to review the proceedingssubjiciendum,
a matter of withthe inferior courts as jurisdiction,originallimitain restricted the constitutionalout bybeing any way
that in all other minambassadors,casestion, affecting publica aand and those in which State shall beconsuls,isters
the Court shall have jurisdiction.Supreme originalparty,limitation has been considered restrictive ofThis always any
The rule construction theother original jurisdiction. of ofthat words in the deConstitution,Constitutionbeing, affirmative
thein what cases shall haveSupreme Court jurisclaring originalmust beconstrued as to all othercases.* Thediction, negativelyand of thenature extent court’s andjurisdictionappellate
adof issue writs of habeas corpuswant it toits subjiciendumdiscussed atbeen this courthave different times.byfullyit however,do not think toWe examine or citenecessary,
them at this time. will annex aof We list to thismanywhat this court’s action inhas been-opinion, distinguishing
to it suchcases from asby appeal applications havebroughthaswhen it been asked that itbeen would actrejected, upon
matter as one of jurisdiction.the original
* Madison, Cranch, 137;1Marbury v. ofState New Jersey v. State ofYork, Peters, 284; States, Id., 637;5 Kendall v. 12TheNew United Co
Wheaton,Virginia, 6 264.v.hens
parte Vallandigham.ExDee. 2581868.]
of court.Opinion the
Justice MarshallMilburn,*In Ex Chiefparte said,the caseis it must first beof the courtas the appellate,jurisdiction
to award a habeas Incorpus.that it hasshown the powerthemotion,the denied the court’sre court thatKaine,† saying
andthe writ was that theto award appellative,jurisdictionand forto the same causeit,had so presentedcase not beenwhich ina of the course ofcertiorari,writrefused to issue
Ex it waspartefor. Inthe Metzger,‡prayedwasargumentbea could not allowed todetermined that writ of certiorari
under thea districtexamine a commitment treatyby judge,the reason thatStates and France,between the United for
and thatthe a noexercised authority, provisionspecialjudgedoeshad the revision his So abeen made for of judgment.
of commission exercise acourt specialmilitary authority.init that decision Metzus,In the case before was theurgedthecase had been made the thatupon progroundger’s
inthe was not its character,of district judicialjudgeceeding;the commissionwere so andbut that the militaryproceedingsof
the in case had been overit was said that thatfurther, rulingThere isof in Names’ case.ruled a theby majority judges
latter and ascase,of the toa of themisapprehension reportof the comcharacter of the militarythe judicial proceedings
court in the casesaid this ofwe cite what wasmission,, byv.The States Ferreira.§United
“ the districtconferred uponThe bypowers Congressin their fornature,areand the judicialsecretary judg-judge
exercised both of butthem,and discretion must bement byin the in whichcase,in either sense judicialis notit judicial
the United States.” Northe courts ofis tograntedpowerato exercisedthe be militarybe said that authority bycan it
in that sense. It involves discretioncommission is judicialisthere noexamine, sentence,decide and butto originalto
a writ of habeasto issuein the CourtSupremejurisdictionitsreview or reversead to proceedings,corpus subjiciendum
to of a mili-of certiorari revise theor the writ proceedingscommission.tary
‡* Id., Id.,Howard, 13 48Peters, 5 176.9 14 103.704. §†
Railway Company. Ct.[Sup.v.Dunham254
of the case.Statement
thosein andmatters,action suchAnd as to the President’swe refer to the opinionshisin them under authority,acting
Mott,*in cases of Martin v. andthecourt,thisbyexpressedv.Dynes Hoover.†
the writ ofis, thatreasons ourFor the judgmentgiven,and review the offor to revisecertiorari proceedingsprayed
L.which Clementcommission,the by Yallandighammilitarymust be anddenied,andsentenced,tried, imprisoned,was
so do we order accordingly.Certiorari refused.
and FIELD, J., concurred inGRIER, J.,NELSON, J.,notMILLER, J., wasresult of this presentthe opinion.
and noat the took part.argument,
Railway Company.Peru, &c.,Dunham The Cincinnati,v.
’‘‘ ’—road, built,ofrailway company1. A a their built and to bemortgage bymortgage, havingat the date of their built a ofcompany, partthe their
residue,road, precedence, regardsnot the even asbut built the—haswho,a in inabilityof the claim of contractor the of thepartunbuilt
road, had himself finished it under an agreementto finish thecompany"of the road andpossession applyhe should retain its earningsthat tohim, andthe debt due who had neverliquidationthe of surrendered
Davis, J.,company.of the road to thepossession dissenting.railwaygiven by company2. a to secure amortgagea numberWhere of
in of a sale or otherprovides proceedingsthat case to pay-bonds coerceprincipal,or all bonds and the interestment of interest accrued shall be
therewith, and the interestin common accrued thereona lien shall beproentitled to a ratapayable,due and and dividend ofequally pro-the
declaration,sale, however, wit,superaddedceeds of this to “but—withany bond consideredasprincipalin no case shall the of be due until twenty
being the termyears the date which the(this bonds onthereof”fromerror, sale,is after a under therun)had to mortgage,their faces —it
to theyears, give precedenceto overduetwentythewithin interestbe interpreted onlyclause will assuperaddedThe excludingwarrants.
anmight bring action for theinference that a bondholder principalanterms.bydue itsbefore it became
a decree of the Circuitan from CourtThis was ofappealDistrict of made inIndiana,the aStates for casethe United
* 35, Howard,beatón, 20inclusive.12 28 to 65.pp. †W