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