68 U.S. 243; 17 L. Ed. 589; 1863 U.S. LEXIS 456; 1 Wall.
243
February 15, 1864, Decided; December
1863, Term
PRIOR HISTORY: [***1]
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 Celivered 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 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 [***2] suffer death; and among other acts prohibited, was the
habit of declaring sympathies for the enemy. The order issued by General
Burniside declared that persons committing such offences 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 [***3] 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 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 [***4] 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,
[***5] 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 attened; 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 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 [***6] 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 cour; 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 defence, 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 [***7] the Constitution of the United States. He also alleged
that the offence 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 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 counselled
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 [***8] of the accused, his rights to counsel and to
witnesses for his defence, 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 age,
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 [***9] 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 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 Rosecrans, 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 3d, 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, al
crimes, except in cases of impeachment, were to be tried by [***10]
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 offence
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.
LAWYERS' EDITION HEADNOTES: Military commission, not a court -- proceedings of, not reviewable in
this court. --
Headnote: A military
commission is not a court, within the meaning of the 14th section of the
Judiciary Act of 1789. There is no jurisdiction in this court to
issue a writ of habeas corpus ad subjiciendum, to review or reverse, or the writ
of certiorari to revise the proceedings of a military commission.
SYLLABUS: 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.
OPINIONBY: WAYNE
OPINION: [*248] [**592] 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. n1
n1 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. [***11]
[*249] It is affirmed in these instructions, n2 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 offences, under the statute, must be tried in the manner therein
directed; but military offences, 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."
n2 § 1, P13.
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 [***12] 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
[*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 [***13] 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., &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, n3 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 [**593]
jurisdiction, of suits [***14] 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 [*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 [***15] other cases before mentioned, both as to law and fact,
with such exceptions and under such regulations as the Congress shall make.
n3 1 Stat. at Large, 73, chap.
20.
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. n4 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, [***16] "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.
n4 Durousseau v. The United States, 6 Cranch, 314; Barry
v. Mercein, 5 Howard, 119; United States v. Curry, 6 Id., 113; Forsyth v. United
States, 9 Id., 571.
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
[*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 [***17]
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. n5 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 [***18] 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.
n5 Marbury v. Madison, 1 Cranch, 137; State of New Jersey
v. State of New York, 5 Peters, 284; Kendall v. The United States, 12 Id., 637;
Cohens v. Virginia, 6 Wheaton, 264.
[*253]
In the case Ex parte Milburn, n6 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 re Kaine, n7 the court denied 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, n8 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 [***19] 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 The United States v. Ferreira. n9
n6 9 Peters, 704.
n7
14 Howard, 103.
n8 5 Id., 176.
n9 13 Id., 48.
"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 [**594] 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 [***20] 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.
[*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, n10 and Dynes
v. Hoover. n11
n10 12
Wheaton, pp. 28 to 35, inclusive.
n11 20 Howard, 65.
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.