consider it a more henious crime to kill a king, or even to desire
his death, than it is to assassinate a President. It is of no avail
to tell you that to surround the life of a President of a republic
with safeguards as sacred and powerful as those which, in monarchies,
are thrown about a king, as you have been told in the argument, is a
modern idea, 'entertained only by those whose eyes have been dazzled by
visions of stars and garters, and who are desirous of changing our free
institutions for a monarchical form of government.'
"On the contrary, they can only be opposed to guarding with sacred
vigilance the life of the President of a free people who are themselves
prepared to submit to the rule of a despot. Why should the people
be less proud or less regardful of the life of a ruler selected by
themselves, from among themselves, than they would be of the life of
him who claimed to rule over them of his own right? When this question
can be sensibly answered, I shall be willing to admit that the life
of a President is less worth preserving than that of a king, and that
to destroy the life of a President is a crime of less atrocity than
to merely desire the death of a prince; but not till then; nor do I
believe you will."
The practical legal bearing of this question on the trial was as
to whether the prisoner, being proven to have been a member of the
conspiracy which resulted in the death of President Lincoln by the
hands of a fellow-conspirator, should be held as a principal in the
crime, or only an accessory before the fact. In other words whether
the court and jury could take cognizance of the official position of
Abraham Lincoln without its being alleged in the indictment. If he
could be regarded as a principal and not as an accessory he could be
held equally guilty with Booth although he might not have been present
and assisting in the assassination.
Practically, however, this was not a matter of any consequence in
this trial, because it was proven beyond a doubt that the prisoner
was actually present, acting a conspicuous part in the execution of
the plot. It was also proven by the testimony of one witness whose
testimony was in no way impeached that it was he, and not Spangler,
who prepared and fitted the bar to the door to prevent Booth being
followed into the box at the theatre. The summing up of the evidence by
Judge Pierrepont in his concluding speech is one of the most admirable
and masterly efforts that can be anywhere found. In the first place
it is a model of judicial fairness and honesty. To him the prisoner
was evidently a pure abstraction toward whom he had no feelings. His
only effort was to weigh impartially the evidence in the case, and to
give to it a fair and common sense interpretation. He brushed away all
side issues and every effort of the prisoner's counsel to bring the
trial under the influence of political and of religious prejudices,
and held them strictly to the question of the guilt or innocence of
the prisoner, as shown by the evidence. Again it was a model effort in
its logical ability in bringing the evidence before the jury. He had
so completely analyzed the testimony that he was able to present it in
its logical connection as to time, purpose, and circumstances; tracing
the plot through the evidence before him, from its incipiency to its
completion, step by step, showing the bearing and relation that one
thing sustained to another in a most conclusive and unanswerable way.
He had systematically and logically arranged the testimony, which had
necessarily been presented in a most desultory and unsatisfactory way,
from the fact that the evidence had to be taken just as witnesses were
found to be present. By great care and labor the judge had arranged the
evidence just in the order in which he would have chosen to introduce
it had the witnesses all been at his command at the moment he would
have chosen to use them. Having thus arranged the testimony, he simply
read it to the jury, stopping when necessary to comment on it and
interpret it. His fair, natural, common sense interpretation of the
facts proven could not fail to bring conviction to every intelligent,
and candid mind. That the proof before him had brought to the mind of
this eminent and experienced advocate and jurist the most complete
conviction of the prisoner's guilt, is shown throughout his argument.
He did not, however, leave the matter of his own convictions to be the
subject merely of inference, but left himself on record on this point
as follows:--
"In this case I feel justified in saying, that the prisoner is proved
to be guilty, and in as overwhelming a manner as any man was ever
proven guilty in the history of jurisprudence. I appeal to any judge,
any lawyer, any man who has had experience, if there was ever a case
where the guilt of the party, was more clearly demonstrated. He is
proven guilty not only beyond a reasonable doubt, but beyond the
possibility of any doubt. There is not a man of you who can doubt it.
It has been a strange case. It was a strange providence that brought
the man back here to be tried. And now that he is here, you, the twelve
men who in the providence of God have been selected to try the case,
are to say whether what he has done is right or not right; whether he
is guilty or not guilty.
"That is for you to say, not for me. I know he is proved guilty. About
that there can be no doubt. I do not believe that any of you have any
doubt whatever on that subject."
That the purpose of this conspiracy was to assassinate the heads of
the government from its very first inception, is made clear by the
whole run of the evidence brought out on the two trials. Atzerodt,
in his confession, which he had gotten up to be used in his defence,
claims that he was a member of a conspiracy to kidnap the President,
and carry him to Richmond. John H. Surratt, in his Rockville lecture,
claims the same thing. They both claim that when Booth laid aside this
plan as impracticable, and proposed to change it to a conspiracy to
assassinate, that they withdrew, and would have nothing further to do
with it. It is evident that the statements of both are false, both
as regards the original purpose of the conspiracy, and also their
abandonment of it. Surratt in his confessions to McMillen stated that
he received a letter from Booth in Montreal on the 10th of April. This
letter was written from New York, and summoned him to Washington at
once, as it had become necessary for them to change their plans and to
act quickly.
He left Montreal in obedience to this summons on the 12th of April, and
was in Elmira on the morning of the 13th. In his defense of an _alibi_,
he tried to prove that he remained at Elmira until after the 15th, and
then returned to Montreal, where he arrived on the 18th.
His counsel argued that the plan up to that time had been to capture,
and that it was then for the first time that Booth had determined
to assassinate; that this was the change of plan referred to in his
letter, and that, as Surratt, according to their plea, never saw him
after this change of plan had been determined upon, he knew nothing
about it, and was never a member of a conspiracy to assassinate. He
admitted that he left Montreal in response to Booth's letter, but
claimed that he did not go any further than Elmira, in his defense.
This, also, is his story in his Rockville lecture, in which he admits
that he was a member of the conspiracy to capture the President, but
asserts that he was never a member of the conspiracy to assassinate
him. Why did he obey Booth's summons which required him to come at
once to Washington? Why did he come by way of Elmira? He says in his
lecture that he went to Elmira in the interest of a plan to liberate
the rebel prisoners that were held at that place. He had just been to
Richmond, carrying dispatches from Davis and Benjamin to their agents
in Canada. Active measures were at once resorted to to accomplish
the assassinations that had been planned without delay, and had the
scheme been fully realized it was no doubt a part of this plan to
bring into active service at once all the secret treasonable military
organizations throughout the North, liberate all the rebel prisoners
held in Northern prisons, and inaugurate a new rebellion in the North,
in aid of the existing rebellion in the South. Surratt admits that he
went to Elmira on this business. He went there no doubt to arrange
with other conspirators there for carrying out this purpose when
notified of the success of the assassination plot. No doubt similar
arrangements had been made at Chicago to liberate the prisoners at
Camp Douglass; and perhaps at other places. The partial failure of the
assassination plot, and the signal triumph of our arms, admonished
these Northern traitors that they had better not enter the arena of
actual war, and frustrated all the plans of Jefferson Davis and his
Canada Cabinet. Surratt's admissions are right in the line of our
theory, and tend to prove its correctness; but his claim that he was
only a member of a conspiracy to capture is manifestly untrue. Let us
hear the conclusion of that eminent jurist, Judge Pierrepont, founded
on a careful consideration of all the evidence on this point. "Now you
see gentlemen, what is meant by a change of plan. In the spring of
1864 the plan was to murder Mr. Lincoln. They laid various plans for
its accomplishment. They thought to do it as he went to the Soldiers'
Home, by the telescopic rifle, and they did not intend, in the event of
concluding to carry out that plan, to let his wife or his child stand
in their way. They then thought to do it by having Payne call upon Mr.
Lincoln, get into conversation with him, listen to his stories, seem to
be interested in them, and then, at that moment, to strike the knife
home, deep into his heart. They at another time thought to poison him,
and for this purpose tried the cup; but it seemed that that failed them
once, and, as Booth said, might fail them again. They finally concluded
they would try to kill him in the theatre, instead of on his way to
the Soldiers' Home, and have Payne kill Secretary Seward at his house.
That plan they carried out. But, gentlemen, notwithstanding this change
of plan, never was there for more than a year any other purpose than
to murder. They had long since abandoned the idea of kidnapping, for
that required too much machinery, too many men, and subjected them to
too much danger; and the changes in plan that had taken place recently
were simply as to the mode of killing, and the men who should strike
the fatal blow." Here we have the mature opinion of an eminent jurist,
founded on a thorough and careful examination of all the evidence, and
we feel confident that no candid, intelligent man who studies all the
evidence with care can come to any other.
Having had occasion to follow the history of this sad affair from its
incipiency to its conclusion, as revealed by the evidence produced
before the commission, and that brought out on the civil trial, my
purpose in writing this book has been fulfilled. It was, first, to
correct many grave errors in public opinion that have grown out of
a wilful and ingenious suppression of the truth and an unblushing
publication of falsehoods, in order to cover up from view the fact that
the assassination of President Lincoln was the result of a deep-laid
political scheme to subvert the government of the United States in aid
of the rebellion; that it was not merely the rash act of Booth and his
co-conspirators, to whom the work was intrusted; but that behind these
stood Jefferson Davis and his Canada cabinet; that it was the work of a
great conspiracy.
The second object of the author was to vindicate the government in its
method of dealing with the assassins, and to show that the decisions
of the commission were founded on adequate testimony. And, lastly, to
so gather up and present the truth, as shown by the evidence, that his
work might be of some service to the future historian. He feels that
he has kept faithful to his purpose to present nothing but the truth.
He feels that by this he has not only vindicated the government, but
that also in doing this he has vindicated the commission. He has shown
that a military commission was the only tribunal before which the
conspirators and assassins could properly be tried; that the right of
the government to try offenses of this character is a power inherent
in sovereignty as is the right of personal self-defence a right that
inheres to the individual; that the laws of war recognize this right
and justify its exercise. The wisdom of the government in dealing thus
summarily with these offenders was seen in its effect on the Canada
conspirators, who at first were swearing that "they were not done yet,"
but who were driven to their holes by the prompt and wise action of
the government in dealing thus summarily with their hired assassins as
fast as they were caught. The government thus compelled its enemies to
respect its authority.
And, finally, the result of the trial of one of the conspirators before
a civil court, more than anything else, vindicates its wisdom in
sending these prisoners before a military tribunal for trial.
_Side Lights on the Conspiracy._
John Matthews gives us the substance of a paper put into his hands
by Booth on the afternoon of the assassination, which closed as
follows: "Men who love their country better than their lives--Booth,
Payne, Atzerodt, and Herold."[33] It will be observed that Booth here
identifies Atzerodt with the conspiracy and the evidence shows that he
relied on Atzerodt at that time to perform the part he assigned to him:
to assassinate Vice-President Johnson. He had transferred Atzerodt from
the Pennsylvania House, where he had been boarding, to the Kirkwood
House on the morning of that day, having engaged his room but for one
day, and paying for it in advance. This change was made because the
Vice-President was stopping at the Kirkwood.
That Booth had visited Atzerodt at his room during the day was shown
by the fact that his coat, containing his bank book and handkerchiefs
marked in his name, was found in Atzerodt's room where he had hung it
up and then forgotten to take it again when he left. That the purpose
was a murderous purpose was shown by the fact that a pistol, loaded
and capped, together with a large dagger, were found hid away in the
bed. Booth had been there schooling Atzerodt in his part, and had
had such assurances from Atzerodt that he felt safe in coupling his
name with his own and those of Payne and Herold in the paper referred
to. Matthews stated that whilst he was in conversation with Booth,
General Grant passed rapidly down the Avenue in an open carriage,
having his baggage along with him; that he called Booth's attention to
this fact, when Booth left him abruptly and galloped down the avenue
after General Grant. Why did he do this? What did this mean? When
Atzerodt had made his way into the country, and was eating his dinner
on Sabbath, the 16th, at the house of Hezekiah Metz, he was asked if
it was true, as had been reported, that General Grant had been killed,
answered, "If the man who was to follow him had done so, it was likely
to be true." This explains Booth's purpose in galloping after General
Grant when he saw that he was about to leave the city. He hurried to
inform O'Laughlin of the fact and to have him follow the General and
assassinate him on the road or at the end of his journey, and had
told Atzerodt of this arrangement. We can in this way account for the
fact that Atzerodt knew that a man had had orders to follow him. The
fact that Booth, in the paper referred to, coupled Atzerodt's name
with his own and those of Payne and Herold as "men who loved their
country better than their lives" shows that he fully expected Atzerodt
to perform the part he had assigned him in the tragedy. O'Laughlin
was no doubt the man who had orders to follow the General, but upon
reflection, wisely declined to do so.
Dr. Mudd voluntarily confessed to Captain Dutton, who had charge of
the convicts who were sent to the Dry Tortugas, whilst on their voyage
thither, that he knew Booth when he came to his house on the morning
of the 15th of April; and said that he denied it because he was afraid
of endangering his own life, and the lives of his family. He also
admitted that he went to Washington by appointment to introduce Booth
to Surratt, and that Wiechmann's testimony on this point was true. Why,
if innocent, should he have been afraid to let it be known that Booth
and Herold called at his house on that morning, and what he had done
for them? This fear could only have come from a consciousness of guilt,
and shows that he not only knew what they had done, but, also, that he
was implicated in their guilt by his previous knowledge of what they
were going to do. John H. Surratt, after he had been set at liberty,
delivered a lecture at Rockville, Maryland, in which he denied that
he ever knew of the plot to assassinate, but admitted that he was a
member of a conspiracy to capture President Lincoln and carry him a
prisoner to Richmond. He asserts that this was Booth's purpose whilst
he was co-operating with him, and that they had spent a great deal
of money ($10,000) in preparations to effect their object. He claims
that neither the Richmond government, nor its agents in Canada, knew
anything about their scheme, and that they alone were responsible for
it. Where then did they get their $10,000 to spend on it? They were
both without means of their own, and without employment. The Rockville
lecture is simply a plausible tissue of falsehoods, well put together,
but altogether inconsistent with the whole tenure of the evidence in
the case. It is contradicted at almost every point by the testimony
we have had under review. Yet its admissions are important, as they
establish the theory of the conspiracy which we have maintained. He
admits that he was engaged in the secret service of the Confederate
government almost constantly from the time he left college in the
summer of 1861, and that he enjoyed that service greatly, and was very
active in it. He claims that he was entrusted with dispatches for the
agents of that government in Canada, and that he passed from the one
place to the other frequently. He admits that he reached Montreal on
the 6th of April with dispatches from Davis and Benjamin to Thompson.
Of course he does not say that he also carried Bills of Exchange on
Liverpool at the same time for $70,000, or that he carried funds at
any time; but we have had the proof of this fact. He admits that he
went from Montreal on the 12th of April, to Elmira, New York, and
claims that he remained there until after the assassination.
This we have seen was proven to be a falsehood, yet his purpose in
going to Elmira, as claimed by himself, confirms our theory that the
plan of the conspirators was in connection with the assassinations
which they had planned to get up a Northern rebellion in aid of that
of the South, through the agency of the secret disloyal organizations
with whom they were in correspondence throughout the Northwestern
and Middle States, and to liberate all the rebel prisoners held in
Northern prisons to augment their forces, and in the state of anarchy
and confusion, consequent upon the deprivation of the government of
a civil head, and the army of a lawful commander, they thus intended
inaugurating a reign of terror throughout the North that would make a
further prosecution of the war impossible, and by this means establish
the Southern Confederacy. Surratt says in his lecture that he went
to Elmira for the purpose of preparing for the release of the more
than five thousand rebel prisoners that were held at that place. The
author, after a very careful scrutiny of all the evidence relating
to the question of Surratt's presence in Washington on the night of
the assassination, and of his participation in it, has not hesitated
to express the opinion that this was proven. By all legal rules the
plea of an _alibi_ failed as the vast preponderance of evidence went
to prove his presence as charged. But even if we admit that he was at
Elmira, as claimed, on the night of the assassination, and that he
remained there until the 16th of April, he is not by this admission
disconnected with the conspiracy, but was by his own admission acting
there in the interest of its purposes by setting at large the five
thousand rebel prisoners held there by the government. The effort to
aid the rebellion by this step was contingent upon the accomplishment
of all of the assassinations that had been planned. The failure to do
this rendered his mission there useless. If he was there, he was there
in the interest of the conspiracy. That he had all of its guilt upon
his conscience is shown by the facts of his flight and concealment.
Thompson and his gang claimed, in the fall of 1864, it will be
remembered, that they had eight hundred men hid away in Chicago for
the purpose of liberating the rebel prisoners held in Camp Douglass.
They were only waiting for a safe opportunity, for which they were
planning to secure an opportune moment. Why did Vallandigham break his
parole in the summer of 1864 and return to Ohio to become a candidate
for the governorship of that state? It was no doubt in the interest
of this new rebellion that had been planned, and that he might be in
a position to carry out the details of these nefarious schemes. It
will be remembered that he had been elected Supreme Commander of the
order of American Knights at their annual meeting in February, 1863.
During Vallandigham's enforced absence, Robert Holloway acted as
Lieutenant-General, or Deputy Supreme Commander, and Doctor Massey of
Ohio was Secretary of State. The organization was a military one, of
which Vallandigham was recognized as General, and had a complete army
organization, and was, in 1864, arming, drilling, and preparing for a
Northern rebellion, and the accomplishment of the assassinations that
were planned and arranged for was no doubt to have been the signal for
a general uprising. It may be asked, why, if this theory be correct,
was not this purpose carried out? We answer simply because that God
who planted, and has hitherto watched over our nation, frustrated the
scheme. He so ordered the events of his providence that the carrying
out of this wicked scheme became manifestly impossible. The plan
to deprive the government of a civil head and the army of a lawful
commander failed. The collapse of the rebellion was precipitated so
rapidly that it was manifestly useless to attempt to give it aid. The
valor, prowess, skill, and loyalty of our victorious legions was a
menace to copperheadism. This secret army concluded that discretion was
the better part of valor, and sought safely in seclusion, but not quite
in silence. They still continued to hiss.
To God's over-ruling and protecting care we owe our thanks for the
preservation of our government, and for the peace and prosperity with
which we have been blessed, and it is in Him alone that we can found
our hopes for the future. Let us reverently study and learn the lessons
of our great civil war, that we may learn to avert future judgments by
putting away all our idols, and all the abominations of our national
life, remembering that it is righteousness alone that exalteth a
nation, and gives to it peace and prosperity, and that sin is not only
a reproach to any people, but that national sins, if persisted in,
justified and incorporated into national policy, will inevitably call
down the judgments of a holy, righteous, and just God.
APPENDIX.
PREFACE TO APPENDIX.
In presenting the great argument of the Hon. John A. Bingham, Assistant
Judge-Advocate, on the trial of the assassins, the author feels that he
does not need to offer an apology to his readers, notwithstanding its
length.
In addition to what he has already said by way of commending it to
the careful perusal of his readers, he will add by way of preface,
the following extracts from Barnes's 40th Congress, Vol. 1, showing
the light in which that great effort was viewed by competent judges
at the time; and also giving extracts from his great argument before
the United States Senate on the articles of impeachment found against
Andrew Johnson, President of the United States, for high crimes and
misdemeanors, in vindication of the high encomiums bestowed by him on
this distinguished statesman and advocate.
EXTRACTS FROM "THE FORTIETH CONGRESS OF THE UNITED STATES."
BY WILLIAM H. BARNES:--1ST VOL., 40TH CONGRESS.
Mr. Bingham served as Special Judge Advocate in the great trial of
the conspirators, who were tried for the assassination of Abraham
Lincoln, etc. Immense labor devolved upon him during this difficult and
protracted trial, and for eight weeks his arduous duties allowed him
but brief intervals of rest. He occupied nine hours in the delivery
of the closing arguments, in which he ably elucidated the law and
the testimony in the case, and conclusively proved the guilt of the
conspirators. Mr. Bingham's success in this great trial attracted
general attention, and awakened a wide-spread curiosity to know his
history. Soon after the close of the trial, a correspondent of the
_Philadelphia Press_, having expressed the deep interest he had
felt in arriving at a well founded conclusion as to "the guilt of
the conspirators and the constitutionality of the court," wrote as
follows:--
"Grant me space in your columns to give expression to my
most unqualified admiration of the great arguments, on these
two main points, presented to the court by the Special Judge
Advocate, Gen. John A. Bingham. In the entire range of my
reading, I have known of no productions that have so literally
led me captive. For careful analysis, logical argumentation,
profound and most extensive research; for overwhelming
unravelment of complications that would have involved an
ordinary mind only with inextricable bewilderment, and for a
literal rending to tatters of all the metaphysical subtleties
of the array of legal talent engaged on the other side, I know
of no two productions in the English language superior to
these. They are literally as the spear of Ithuriel, dissolving
the hardest substances at their touch; as the thread of
Dædalus, leading out of the labyrinths of error, no matter
how thick and mazy. Not Locke or Bacon were more profound;
not Daniel Webster was clearer and more penetrating; not
Chillingworth was more logical. I feel sure that the author
of these two unrivalled papers must possess a legal mind
unrivalled in America, and must be, too, one of our rising
statesmen. But who is John A. Bingham, who by his industry and
learning displayed on this wonderful trial, has placed the
country under such a heavy debt of obligation? He may be well
known to others moving in a public sphere, like yourself, but
to me, so absorbed in a different line of duty, he has appeared
so suddenly, and yet with such vividness, that I long to know
some, at least, of his antecedents."
Upon which the editor remarked:--
"The question of our esteemed correspondent is natural to
one who has not, probably, watched the individual actors on
the great stage of public affairs with the interest of the
historical and political student. We are not surprised that
the arguments of Mr. Bingham before the military commission
should have filled him with delight. It was worthy of the
great subject confided to that accomplished statesman by
the Government, and of his own fame. When the assassins of
Mr. Lincoln were sent for trial before the military court
by President Johnson, the Government wisely left the whole
management to Judge Holt and his eloquent associate, Mr.
Bingham, and to the latter was committed the stupendous labor
of sifting the mass of evidence, of replying to the corps
of lawyers for the defence, of setting forth the guilt of
the accused and of vindicating the policy and the duty of
the executive in an exigency so novel and so full of tragic
solemnity. The crime was so enormous, and the trial of those
who committed it so important in all its issues, immediate,
contingent and remote, as to awaken an excitement that embraced
all nations. The murder itself was almost forgotten by those
who wished to screen the murderers, and the most wicked
theories were broached and sown broadcast by men, who, under
cloak of reverence for what they called the law, toiled with
herculean energy to weaken the arm of the Government, extended
in time of war to save the servants of the people from being
slaughtered by assassins in public places, and tracked even to
their firesides by the agents and friends of slavery. These
poisons of plausibility, blunting the sharpest horrors of any
age, and sanctifying the most hellish offenses, required an
antidote as swift to cure. Mr. Bingham's two great arguments,
alluded to by our correspondent, have supplied the remedy.
They are monuments of reflection, research, and argumentation;
and they are presented in the language of a scholar and with
the fervor of an orator. In the great volume of proof and
counter-proof, rhetoric, and controversy that forever preserves
the record of this great trial, the efforts of Mr. Bingham will
ever remain to be first studied with an eager and admiring
interest. That they came, after all that has and can be said
against the Government, is rather an inducement to their more
satisfactory and critical consideration. For from that study
the American student and citizen must, more than ever, realize
how irresistible is Truth when in conflict with Falsehood, and
how poor and puerile are all the professional tricks of the
lawyer when opposed to the moral power of the patriot."
In Congress Mr. Bingham has had a distinguished career, marked by
important services to the country. In the XXXVIIth Congress he was
earnest and successful in advocating many important measures to promote
the vigorous prosecution of the war, which had just begun. Returning
to Congress in 1865, after an absence of two years, he at once took
a prominent position. Upon the formation of the joint committee on
Reconstruction, December 14th, 1865, he was appointed one of the nine
members on the part of the House. He was active in advocating the
great measures of Reconstruction, which were proposed and passed in
the XXXIXth and XLth Congresses. The House of Representatives having
resolved that Andrew Johnson should be impeached for "high crimes and
misdemeanors," Mr. Bingham was appointed on the committee to which was
intrusted the important duty of drawing up the Articles of Impeachment.
This work having been done to the satisfaction of the House, Mr.
Bingham was elected chairman of the managers to conduct the impeachment
of the President before the Senate.
On him devolved the duty of making the closing argument. His speech on
this occasion ranks among the greatest forensic efforts of any age. He
began the delivery of his argument on Monday, May 4th, and occupied the
attention of the Senate, and a vast auditory on the floor and in the
galleries, during three successive days. At the close of his argument,
the immense audience in the galleries, wrought up to the highest pitch
of enthusiasm, gave vent to such an unanimous and continued outburst
of applause as has never before been heard in the Capitol. Ladies and
gentlemen, who could not have been induced deliberately to trespass
on the decorum of the Senate, by whose courtesy they were admitted to
the galleries, overcome by their feelings, joined in the utterance
of applause, knowing that for so doing the Sergeant-at-arms would be
required to expel them from the galleries. The history of the country
records no similar tribute to the oratorial efforts of the ablest
advocates or statesmen. From so long and so well-sustained an argument,
it is impossible to select particular passages which would give an
adequate idea of the whole. The following historical argument for the
supremacy of the law will always be read with interest, whether as an
extract, or in its original setting:--
"Is it not in vain, I ask you, Senators, that the people have thus
vindicated by battle the supremacy of their own Constitution and laws,
if, after all, their President is permitted to suspend their laws and
dispense with the execution thereof at pleasure, and defy the power
of the people to bring him to trial and judgment before the only
tribunal authorized by the Constitution to try him? That is the issue
that is presented before the Senate for decision by these articles
of impeachment. By such acts of usurpation on the part of the ruler
of a people, I need not say to the Senate, the peace of nations is
broken, as it is only by obedience to law that the peace of nations is
maintained, and their existence perpetuated. Law is the voice of God
and the harmony of the world:--
"'It doth preserve the stars from wrong,
Through it the eternal heavens are fresh and strong.'
"All history is but philosophy, teaching by example. God is in history,
and through it teaches to men and nations the profoundest lessons
which they learn. It does not surprise me, Senators, that the learned
counsel for the accused asked the Senate, in the consideration of this
question, to close that volume of instruction, not to look into the
past, and not to listen to its voices. Senators, from that day when the
inscription was written upon the graves of the heroes of Thermopylæ,
'Stranger, go tell the Lacedemonians that we lie here in obedience to
their laws,' to this hour, no profounder lesson than this has come down
to us: that through obedience to law comes the strength of nations and
the safety of men.
"No more fatal provision ever found its way into the Constitutions
of States than that contended for in this defense which recognizes
the right of a single despot or of the many to discriminate in the
administration of justice between the ruler and the citizen, between
the strong and the weak. It was by this unjust discrimination that
Aristides was banished because he was just. It was by this unjust
discrimination that Socrates, the wonder of the Pagan world, was doomed
to drink the hemlock because of his transcendant virtues. It was in
honorable protest against this unjust discriminati that the great Roman
Senator, father of his country, declared that the force of the law
consists in its being made for the whole community. Senators, it is the
pride and boast of that great people from whom we are descended, as it
is the pride and boast of every American, that the law is the supreme
power of the State, that it is for the protection of each, by the
combined power of all. By the Constitution of England the hereditary
monarch is no more above the law than the humblest subject; and by the
Constitution of the United States, the President is no more above the
law than the poorest and most friendless beggar in your streets. The
usurpations of Charles I. inflicted untold injuries upon the people
of England, and finally cost the usurper his life. The subsequent
usurpations of James II., and I only refer to it because there is
between his official conduct and that of this accused President, the
most remarkable parallel that I have ever read in history, filled the
heart and brain of England with conviction that new securities must be
taken to restrain the prerogatives asserted by the crown, if they would
maintain their ancient Constitution and perpetuate their liberties. It
is well said by Hallam that the usurpations of James swept away the
solemn ordinances of the legislature. Out of those usurpations came
the great revolution of 1688, which resulted in the dethronement and
banishment of James, in the elevation of William and Mary, and in the
immortal Declaration of Rights.
"I ask the Senate to notice that these charges against James are
substantially the charges presented against this accused President,
and confessed here of record, that he has suspended the laws, and
dispensed with the execution of laws, and in order to do this has
usurped authority as the executive of the nation, declaring himself
entitled under the Constitution to suspend the laws and dispense with
their execution. He has further, like James, attempted to control the
appropriated money of the people contrary to law. And he has further,
like James, although it is not alleged against him in the Articles of
Impeachment, it is confessed in his answer, and attempted to cause the
question of his responsibility to the people to be tried, not in the
King's Bench, but in the Supreme Court, when that question is alone
cognizable in the Senate of the United States. Surely, Senators, if
these usurpations, if these endeavors on the part of James thus to
subvert the liberties of the people of England, cost him his crown
and kingdom, the like offenses committed by Andrew Johnson ought to
cost him his office, and to subject him to that perpetual disability
pronounced by the people through the Constitution upon him for his high
crimes and misdemeanors.
"I ask you, Senators, how long men would deliberate upon the question
whether a private citizen arraigned at the bar of one of your tribunals
of justice for a criminal violation of the law, should be permitted
to interpose a plea in justification of his criminal act, that his
only purpose was to interpret the Constitution and laws for himself,
that he violated the law in the exercise of his prerogative to test
its validity hereafter at such a day as might suit his own convenience
in the courts of justice. Surely it is as competent for the private
citizen to interpose such justification in answer to crime in one of
your tribunals of justice, as it is for the President to interpose it,
and for the simple reason that the Constitution is no respecter of
persons, and rests neither in the private citizen judicial power.
"Can it be that by your decree you are at last to make this
discrimination between the ruler of the people and the private citizen,
and to allow him to interpose his assumed right to interpret judicially
your Constitution and laws? Are you to solemnly proclaim by your
decree:--
"'Plate sin with gold,
And the strong lance of justice heartless breaks;
Arm it in rags and a pigmy's straw doth pierce it?'
"I put away the possibility that the Senate of the United States,
equal in dignity to any tribunal in the world, is capable of recording
any such decision even upon the petition and prayer of the accused
and guilty President. Can it be that by reason of his great office
the President is to be protected in his high crimes and misdemeanors,
violative alike of his oath, of the Constitution and of the express
letter of your written law, enacted by the legislative department of
the government?
"I ask you, Senators, to consider that I speak before you this day in
behalf of the violated law of a free people, who commission me. I ask
you to remember this, that I speak this day under the obligations of
this my oath. I ask you to consider that I am not insensible to the
significance of the words of which mention was made by the learned
counsel from New York; justice, duty, law, oath. I ask you to remember
that the great principles of constitutional liberty for which I speak
this day, have been taught to men and nations by all the trials and
triumphs, by all the agonies and martyrdoms of the past; that they are
the wisdom of the centuries uttered by the elect of the human race.
"I ask you to consider that we stand this day pleading for the
violated majesty of the law, by the graves of half a million of
martyred hero-patriots who sacrificed themselves for their country,
the Constitution, and the laws, and who by their sublime examples have
taught us that all must obey the law; that none are above the law;
that no man lives for himself alone, but each for all, that some must
die that the State may live; that the citizen is but for to-day, that
the commonwealth is for all time, and that position, however high,
patronage however powerful, cannot be permitted to shelter crime to the
peril of the Republic."
[Illustration]
ARGUMENT OF JOHN A. BINGHAM,
SPECIAL JUDGE ADVOCATE,
IN REPLY TO THE SEVERAL ARGUMENTS IN DEFENCE OF MARY E. SURRATT AND
OTHERS, CHARGED WITH CONSPIRACY AND THE MURDER OF ABRAHAM LINCOLN, LATE
PRESIDENT OF THE UNITED STATES, ETC.
MAY IT PLEASE THE COURT: The conspiracy here charged and specified,
and the acts alleged to have been committed in pursuance thereof, and
with the intent laid, constitute a crime the atrocity of which has
sent a shudder through the civilized world. All that was agreed upon
and attempted by the alleged inciters and instigators of this crime
constitutes a combination of atrocities with scarcely a parallel in the
annals of the human race. Whether the prisoners at your bar are guilty
of the conspiracy and the acts alleged to have been done in pursuance
thereof, as set forth in the charge and specification, is a question
the determination of which rests solely with this honorable court, and
in passing upon which this court are the sole judges of the law and the
fact.
In presenting my views upon the questions of law raised by the several
counsel for the defence, and also on the testimony adduced for and
against the accused, I desire to be just to them, just to you, just to
my country, and just to my own convictions. The issue joined involves
the highest interests of the accused, and, in my judgment, the highest
interests of the whole people of the United States.
It is a matter of great moment to all the people of this country that
the prisoners at your bar be lawfully tried and lawfully convicted or
acquitted. A wrongful and illegal conviction or a wrongful and illegal
acquittal upon this dread issue would impair somewhat the security of
every man's life, and shake the stability of the republic.
The crime charged and specified upon your record is not simply the
crime of murdering a human being, but it is the crime of killing and
murdering on the 14th day of April, A. D. 1865, within the military
department of Washington and the intrenched lines thereof, Abraham
Lincoln, then President of the United States, and Commander-in-Chief of
the army and navy thereof; and then and there assaulting, with intent
to kill and murder, William H. Seward, then Secretary of State of the
United States; and then and there lying in wait to kill and murder
Andrew Johnson, then Vice-President of the United States, and Ulysses
S. Grant, then lieutenant-general and in command of the armies of the
United States, in pursuance of a treasonable conspiracy entered into by
the accused with one John Wilkes Booth, and John H. Surratt, upon the
instigation of Jefferson Davis, Jacob Thompson, and George N. Sanders
and others, with intent thereby to aid the existing rebellion and
subvert the Constitution and laws of the United States.
The rebellion, in aid of which this conspiracy was formed and this
great public crime committed, was prosecuted for the vindication of no
right, for the redress of no wrong, but was itself simply a criminal
conspiracy and gigantic assassination. In resisting and crushing
this rebellion the American people take no step backward and cast no
reproach upon their past history. That people now, as ever, proclaim
the self-evident truth that whenever government becomes subversive
of the ends of its creation, it is the right and duty of the people
to alter or abolish it; but during these four years of conflict they
have as clearly proclaimed, as was their right and duty, both by law
and by arms, that the government of their own choice, humanely and
wisely administered, oppressive of none and just to all, shall not be
overthrown by privy conspiracy or armed rebellion.
What wrong had this government or any of its duly constituted agents
done to any of the guilty actors in this atrocious rebellion? They
themselves being witnesses, the government which they assailed had
done no act, and attempted no act, injurious to them, or in any sense
violative of their rights as citizens and men; and yet for four
years, without cause of complaint or colorable excuse, the inciters
and instigators of the conspiracy charged upon your record have, by
armed rebellion, resisted the lawful authority of the government,
and attempted by force of arms to blot the republic from the map of
nations. Now that their battalions of treason are broken and flying
before the victorious legions of the republic, the chief traitors in
this great crime against your government secretly conspire with their
hired confederates to achieve by assassination, if possible, what
they have in vain attempted by wager of battle--the overthrow of the
government of the United States and the subversion of its Constitution
and laws. It is for this secret conspiracy in the interest of the
rebellion, formed at the instigation of the chiefs in that rebellion,
and in pursuance of which the acts charged and specified are alleged
to have been done and with the intent laid, that the accused are upon
trial.
The government, in preferring this charge, does not indict the whole
people of any State or section, but only the alleged parties to this
unnatural and atrocious conspiracy and crime. The President of the
United States, in the discharge of his duty as Commander-in-Chief of
the army, and by virtue of the power vested in him by the Constitution
and laws of the United States, has constituted you a military court,
to hear and determine the issue joined against the accused, and has
constituted you a court for no other purpose whatever. To this charge
and specification the defendants have pleaded, first, that this court
has no jurisdiction in the premises; and, second, not guilty. As the
court has already overruled the plea to the jurisdiction, it would
be passed over in silence by me but for the fact that a grave and
elaborate argument has been made by counsel for the accused not only
to show the want of jurisdiction, but to arraign the President of
the United States before the country and the world as a usurper of
power over the lives and the liberties of the prisoners. Denying the
authority of the President to constitute this commission is an averment
that this tribunal is not a court of justice, has no legal existence,
and therefore no power to hear and determine the issue joined. The
learned counsel for the accused, when they make this averment by way
of argument, owe it to themselves and to their country to show how the
President could otherwise lawfully and efficiently discharge the duty
enjoined upon him by his oath to protect, preserve, and defend the
Constitution of the United States, and to take care that the laws be
faithfully executed.
An existing rebellion is alleged and not denied. It is charged that
in aid of this existing rebellion a conspiracy was entered into by
the accused, incited and instigated thereto by the chiefs of this
rebellion, to kill and murder the executive officers of the government
and the commander of the armies of the United States, and that this
conspiracy was partly executed by the murder of Abraham Lincoln,
and by a murderous assault upon the Secretary of State; and counsel
reply, by elaborate argument, that although the facts be as charged,
though the conspirators be numerous and at large, able and eager to
complete the horrid work of assassination already begun within your
military encampment, yet the successor of your murdered President
is a usurper if he attempts by military force and martial law, as
Commander-in-Chief, to prevent the consummation of this traitorous
conspiracy in aid of this treasonable rebellion. The civil courts,
say the counsel, are open in the District. I answer, they are closed
throughout half the republic, and were only open in this District
on the day of this confederation and conspiracy, on the day of the
traitorous assassination of your President, and are only open at this
hour by force of the bayonet. Does any man suppose that if the military
forces which garrison the intrenchments of your capital, fifty thousand
strong, were all withdrawn, the rebel bands who this day infest the
mountain passes in your vicinity would allow this court, or any
court, to remain open in this District for the trial of these their
confederates, or would permit your executive officers to discharge the
trust committed to them, for twenty-four hours?
At the time this conspiracy was entered into, and when this court was
convened and entered upon this trial, the country was in a state of
civil war. An army of insurrectionists have, since this trial begun,
shed the blood of Union soldiers in battle. The conspirator, by whose
hand his co-conspirators, whether present or absent, jointly murdered
the President on the 14th of last April, could not be and was not
arrested upon civil process, but was pursued by the military power of
the government, captured, and slain. Was this an act of usurpation?--a
violation of the right guaranteed to that fleeing assassin by the very
Constitution against which and for the subversion of which he had
conspired and murdered the President? Who in all this land is bold
enough or base enough to assert it?
I would be glad to know by what law the President, by a military
force, acting only upon his military orders, is justified in pursuing,
arresting, and killing one of these conspirators, and is condemned
for arresting in like manner, and by his order subjecting to trial,
according to the laws of war, any or all of the other parties to
this same damnable conspiracy and crime, by a military tribunal of
justice--a tribunal, I may be pardoned for saying, whose integrity and
impartiality are above suspicion, and pass unchallenged even by the
accused themselves.
The argument against the jurisdiction of this court rests upon the
assumption that even in time of insurrection and civil war no crimes
are cognizable and punishable by military commission or court-martial,
save crimes committed in the military or naval service of the United
States, or in the militia of the several states when called into the
actual service of the United States. But that is not all the argument:
it affirms that under this plea to the jurisdiction the accused have
the right to demand that this court shall decide that it is not a
judicial tribunal and has no legal existence.
This is a most extraordinary proposition--that the President, under
the Constitution and laws of the United States, was not only not
authorized, but absolutely forbidden, to constitute this court for the
trial of the accused, and, therefore, the act of the President is void,
and the gentlemen who compose the tribunal without judicial authority
or power, and are not in fact or in law a court.
That I do not misstate what is claimed and attempted to be established
on behalf of the accused, I ask the attention of the court to the
following as the gentleman's (Mr. Johnson's) propositions:--
That Congress has not authorized, and, under the Constitution, cannot
authorize the appointment of this commission.
That this commission has, "as a court, no legal existence or
authority," because the President, who alone appointed the commission,
has no such power.
That his act "is a mere nullity--the usurpation of a power not vested
in the Executive, and conferring no authority upon you."
We have had no common exhibition of law learning in this defence,
prepared by a Senator of the United States; but with all his
experience, and all his learning and acknowledged ability, he has
failed, utterly failed, to show how a tribunal constituted and
sworn, as this has been, to duly try and determine the charge and
specification against the accused, and by its commission not authorized
to hear or determine any other issues whatever, can rightfully
entertain, or can by any possibility pass upon, the proposition
presented by this argument of the gentleman for its consideration.
The members of this court are officers in the army of the United
States, and by order of the President, as Commander-in-Chief, are
required to discharge this duty, and are authorized in this capacity
to discharge no other duty, to exercise no other judicial power. Of
course, if the commission of the President constitutes this a court for
the trial of this case only, as such court it is competent to decide
all questions of law and fact arising in the trial of the case. But
this court has no power, as a court, to declare the authority by which
it was constituted null and void, and the act of the President a mere
nullity, a usurpation. Has it been shown by the learned gentleman, who
demands that this court shall so decide, that officers of the army may
lawfully and constitutionally question in this manner the orders of
their Commander-in-Chief, disobey, set them aside, and declare them a
nullity and a usurpation? Even if it be conceded that the officers thus
detailed by order of the Commander-in-Chief may question and utterly
disregard his order and set aside his authority, is it possible, in the
nature of things, that any body of men, constituted and qualified as a
tribunal of justice, can sit in judgment upon the proposition that they
are not a court for any purpose, and finally decide judicially, as a
court, that the government which appointed them was without authority?
Why not crown the absurdity of this proposition by asking the several
members of this court to determine that they are not men--living,
intelligent, responsible men? This would be no more irrational than the
question upon which they are asked to pass. How can any sensible man
entertain it? Before he begins to reason upon the proposition he must
take for granted, and therefore decide in advance, the very question in
dispute, to wit, his actual existence.
So with the question presented in this remarkable argument for the
defence: before this court can enter upon the inquiry of the want of
authority in the President to constitute them a court, they must take
for granted and decide the very point in issue, that the President
had the authority, and that they are in law and in fact a judicial
tribunal; and having assumed this, they are gravely asked, as such
judicial tribunal, to finally and solemnly decide and declare that they
are not in fact or in law a judicial tribunal, but a mere nullity and
nonentity. A most lame and impotent conclusion!
As the learned counsel seems to have great reverence for judicial
authority, and requires precedent for every opinion, I may be pardoned
for saying that the objection which I urge against the possibility
of any judicial tribunal, after being officially qualified as such,
entertaining, much less judicially deciding, the proposition that it
has no legal existence as a court, and that the appointment was a
usurpation and without authority of law, has been solemnly ruled by the
Supreme Court of the United States.
That court says: "The acceptance of the judicial office is a
recognition of the _authority_ from which it is derived. If a court
should enter upon the inquiry (whether the _authority_ of the
government which established it existed), and should come to the
conclusion that the government under which it acted had been put
aside, it would cease to be a court and be _incapable_ of pronouncing
a judicial decision upon the question it undertook to try. If it
decides at all as a court, it necessarily affirms the existence and
_authority_ of the government under which it is exercising judicial
power."--(Luther _vs._ Borden, 7 Howard, 40.)
That is the very question raised by the learned gentleman in his
argument--that there was no _authority_ in the President, by whose act
alone this tribunal was constituted, to vest it with judicial power to
try this issue; and by the order upon your record, as has already been
shown, if you have no power to try this issue for want of authority in
the Commander-in-Chief to constitute you a court, you are no court, and
have no power to try any issue, because his order limits you to this
issue, and this alone.
It requires no very profound legal attainments to apply the ruling
of the highest judicial tribunal of this country, just cited, to the
point raised, not by the pleadings, but by the argument. This court
exists as a judicial tribunal by authority only of the President of
the United States; the acceptance of the office is an acknowledgment
of the validity of the authority conferring it, and if the President
had no authority to order, direct, and constitute this court to try
the accused, and, as is claimed, did, in so constituting it, perform
an unconstitutional and illegal act, it necessarily results that the
order of the President is void and of no effect; that the order did
not and could not constitute this a tribunal of justice, and therefore
its members are incapable of pronouncing a judicial decision upon the
question presented.
There is a marked distinction between the question here presented and
that raised by a plea to the jurisdiction of a tribunal whose existence
as a court is neither questioned nor denied. Here it is argued, through
many pages, by a learned Senator, and a distinguished lawyer, that
the order of the President, by whose authority alone this court is
constituted a tribunal of military justice, is unlawful; if unlawful
it is void and of no effect, and has created no court; therefore this
body, not being a court, can have no more power as a court to decide
any question whatever than have its individual members power to decide
that they as men do not in fact exist.
It is a maxim of the common law--the perfection of human reason--that
what is impossible the law requires of no man.
How can it be possible that a judicial tribunal can decide the question
that it does not exist, any more than that a rational man can decide
that he does not exist?
The absurdity of the proposition so elaborately urged upon the
consideration of this court cannot be saved from the ridicule and
contempt of sensible men by the pretence that the court is not asked
judicially to decide that it is not a court, but only that it has no
jurisdiction; for it is a fact not to be denied that the whole argument
for the defence on this point is that the President had not the lawful
authority to issue the order by which alone this court is constituted,
and that the order for its creation is null and void.
Gentlemen might as well ask the Supreme Court of the United States upon
a plea to the jurisdiction to decide, as a court, that the President
had no lawful authority to nominate the judges thereof severally to
the Senate, and that the Senate had no lawful authority to advise
and consent to their appointment, as to ask this court to decide,
as a court, that the order of the President of the United States,
constituting it a tribunal for the sole purpose of this trial, was not
only without authority of law, but against and in violation of law. If
this court is not a lawful tribunal, it has no existence, and can no
more speak as a court than the dead, much less pronounce the judgment
required at his hands--that it is not a court, and that the President
of the United States, in constituting it such to try the question upon
the charge and specification preferred, has transcended his authority,
and violated his oath of office.
Before passing from the consideration of the proposition of the learned
senator, that this is not a court, it is fit that I should notice that
another of the counsel for the accused (Mr. Ewing) has also advanced
the same opinion, certainly with more directness and candor, and
without any qualification. His statement is, "You," gentlemen, "are no
court under the Constitution." This remark of the gentleman cannot fail
to excite surprise, when it is remembered that the gentleman, not many
months since, was a general in the service of the country, and as such
in his department in the West proclaimed and enforced martial law by
the constitution of military tribunals for the trial of citizens not
in the land or naval forces, but who were guilty of military offences,
for which he deemed them justly punishable before military courts,
and accordingly he punished them. Is the gentleman quite sure, when
that account comes to be rendered for these alleged unconstitutional
assumptions of power, that he will not have to answer for more of
these alleged violations of the rights of citizens by illegal arrests,
convictions, and executions, than any of the members of this court? In
support of his opinion that this is no court, the gentleman cites the
3d article of the Constitution, which provides "that the judicial power
of the United States shall be vested in one supreme court, and such
inferior courts as Congress may establish," the judges whereof "shall
hold their offices during good behavior."
It is a sufficient answer to say to the gentleman, that the power
of this government to try and punish military offences by military
tribunals is no part of the "judicial power of the United States,"
under the 3d article of the Constitution, but a power conferred by
the 8th section of the 1st article, and so it has been ruled by the
Supreme Court in Dyres _vs._ Hoover, 20 Howard, 78. If this power
is so conferred by the 8th section, a military court authorized by
Congress, and constituted as this has been, to try all persons for
military crimes in time of war, though not exercising "the judicial
power" provided for in the 3d article, is nevertheless a court as
constitutional as the Supreme Court itself. The gentleman admits this
to the extent of the trial by courts-martial of persons in the military
or naval service, and by admitting it he gives up the point. There is
no _express_ grant for any such tribunal, and the power to establish
such a court, therefore, is _implied_ from the provisions of the 8th
section, 1st article, that "Congress shall have power to provide and
maintain a navy," and also "to make rules for the government of the
land and naval forces." From these grants the Supreme Court infer the
power to establish courts-martial, and from the grants in the same 8th
section, as I shall notice hereafter, that "Congress shall have power
to declare war," and "to pass all laws necessary and proper to carry
this and all other powers into effect," it is necessarily implied that
in time of war Congress may authorize military commissions, to try
all crimes committed in aid of the public enemy, as such tribunals
are _necessary_ to give effect to the power to make war and suppress
insurrection.
Inasmuch as the gentleman (General Ewing), for whom, personally, I
have a high regard as the military commander of a Western department,
made a liberal exercise, under the order of the Commander-in-Chief
of the army, of this power to arrest and try military offenders not
in the land or naval forces of the United States, and inflicted upon
them, as I am informed, the extreme penalty of the law, by virtue of
his military jurisdiction, I wish to know whether he proposes, by
his proclamation of the personal responsibility awaiting all such
usurpations of judicial authority, that he himself shall be subjected
to the same stern judgment which he invokes against others--that, in
short, he shall be drawn and quartered for inflicting the extreme
penalties of the law upon citizens of the United States in violation
of the Constitution and laws of his country? I trust that his error of
judgment in pronouncing this military jurisdiction a usurpation and
violation of the Constitution may not rise up in judgment to condemn
him, and that he may never be subjected to pains and penalties for
having done his duty heretofore in exercising this rightful authority,
and in bringing to judgment those who conspired against the lives and
liberties of the people.
Here I might leave this question, committing it to the charitable
speeches of men, but for the fact that the learned counsel has been
more careful in his extraordinary argument to denounce the President as
a usurper than to show how the court could possibly decide that it has
no judicial existence, and yet that it has judicial existence.
A representative of the people and of the rights of the people before
this court, by the appointment of the President, and which appointment
was neither sought by me nor desired, I cannot allow all that has been
here said by way of denunciation of the murdered President and his
successor to pass unnoticed. This has been made the occasion by the
learned counsel, Mr. Johnson, to volunteer, not to defend the accused,
Mary E. Surratt, not to make a judicial argument in her behalf, but to
make a political harangue, a partisan speech against his government and
country, and thereby swell the cry of the armed legions of sedition
and rebellion that but yesterday shook the heavens with their infernal
enginery of treason, and filled the habitations of the people with
death. As the law forbids a senator of the United States to receive
compensation or fee for defending, in cases before civil or military
commissions, the gentleman volunteers to make a speech before this
court, in which he denounces the action of the Executive Department in
proclaiming and executing martial law against rebels in arms, their
aiders and abettors, as a usurpation and a tyranny. I deem it my duty
to reply to this denunciation, not for the purpose of presenting
thereby any question for the decision of this court, for I have shown
that the argument of the gentleman presents no question for its
decision as a court, but to repel, as far as I may be able, the unjust
aspersion attempted to be cast upon the memory of our dead President,
and upon the official conduct of his successor.
I propose now to answer fully all that the gentleman (Mr. Johnson) has
said of the want of jurisdiction in this court, and of the alleged
usurpation and tyranny of the Executive, that the enlightened public
opinion to which he appeals may decide whether all this denunciation
is just--whether indeed conspiring against the whole people, and
confederation and agreement, in aid of insurrection to murder all the
executive officers of the government, cannot be checked or arrested
by the Executive power. Let the people decide this question; and in
doing so, let them pass upon the action of the senator as well as upon
the action of those whom he so arrogantly arraigns. His plea in behalf
of an expiring and shattered rebellion is a fit subject for public
consideration and for public condemnation.
Let that people also note that, while the learned gentleman (Mr.
Johnson), as a volunteer, without pay, thus condemns as a usurpation
the means employed so effectually to suppress this gigantic
insurrection, the New York _News_, whose proprietor, Benjamin Wood,
is shown by the testimony upon your record to have received from the
agents of the rebellion twenty-five thousand dollars, rushes into
the lists to champion the cause of the rebellion, its aiders and
abettors, by following to the letter his colleague (Mr. Johnson), and
with greater plainness of speech, and a fervor intensified, doubtless,
by the twenty-five thousand dollars received, and the hope of more,
denounces the court as a usurpation and threatens the members with the
consequences!
The argument of the gentleman, to which the court has listened
so patiently and so long, is but an attempt to show that it is
unconstitutional for the government of the United States to arrest
upon military order and try before military tribunals and punish
upon conviction, in accordance with the laws of war and the usages
of nations, all criminal offenders acting in aid of the existing
rebellion. It does seem to me that the speech in its tone and temper
is the same as that which the country has heard for the last four
years uttered by the armed rebels themselves and by their apologists,
averring that it was unconstitutional for the government of the United
States to defend by arms its own rightful authority and the supremacy
of its laws.
It is as clearly the right of the republic to live and to defend its
life until it forfeits that right by crime, as it is the right of the
individual to live so long as God gives him life, unless he forfeits
that right by crime. I make no argument to support this proposition.
Who is there here or elsewhere to cast the reproach upon my country
that for her crimes she must die? Youngest born of the nations! is she
not immortal by all the dread memories of the past--by that sublime and
voluntary sacrifice of the present, in which the bravest and noblest of
her sons have laid down their lives that she might live, giving their
serene brows to the dust of the grave, and lifting their hands for
the last time amidst the consuming fires of battle? I assume, for the
purposes of this argument, that self-defence is as clearly the right of
nations as it is the acknowledged right of men, and that the American
people may do in the defence and maintenance of their own rightful
authority against organized armed rebels, their aiders and abettors,
whatever free and independent nations anywhere upon this globe, in time
of war, may of right do.
All this is substantially denied by the gentleman in the remarkable
argument which he has here made. There is nothing further from my
purpose than to do injustice to the learned gentleman or to his
elaborate and ingenious argument. To justify what I have already said,
I may be permitted here to remind the court that nothing is said by
the counsel touching the conduct of the accused, Mary E. Surratt, as
shown by the testimony; that he makes confession at the end of his
arraignment of the government and country, that he has not made such
argument, and that he leaves it to be made by her other counsel. He
does take care, however, to arraign the country and the government for
conducting a trial with closed doors and before a secret tribunal, and
compares the proceedings of this court to the Spanish Inquisition,
using the strongest words at his command to intensify the horror which
he supposes his announcement will excite throughout the civilized world.
Was this dealing fairly by this government? Was there anything in the
conduct of the proceedings here that justified any such remark? Has
this been a secret trial? Has it not been conducted in open day in the
presence of the accused, and in the presence of seven gentlemen learned
in the law, who appeared from day to day as their counsel? Were they
not informed of the accusation against them? Were they deprived of the
right of challenge? Was it not secured to them by law, and were they
not asked to exercise it? Has any part of the evidence been suppressed?
Have not all the proceedings been published to the world? What, then,
was done, or intended to be done, by the government, which justifies
this clamor about a Spanish Inquisition?
That a people assailed by organized treason over an extent of territory
half as large as the continent of Europe, and assailed in their very
capital by secret assassins banded together and hired to do the work of
murder by the instigation of these conspirators, may not be permitted
to make inquiry, even with closed doors, touching the nature and extent
of the organization, ought not to be asserted by any gentleman who
makes the least pretensions to any knowledge of the law, either common,
civil, or military. Who does not know that at the common law all
inquisition touching crimes and misdemeanors, preparatory to indictment
by the grand inquest of the state, is made with closed doors?
In this trial no parties accused, nor their counsel, nor the reporters
of this court, were at any time excluded from its deliberations when
any testimony was being taken; nor has there been any testimony taken
in the case with closed doors, save that of a few witnesses, who
testified, not in regard to the accused or either of them, but in
respect to the traitors and conspirators not on trial, who were alleged
to have incited this crime. Who is there to say that the American
people, in time of armed rebellion and civil war, have not the right to
make such an examination as secretly as they may deem necessary, either
in a military or civil court?
I have said this, not by way of apology for anything the government has
done or attempted to do in the progress of this trial, but to expose
the animus of the argument, and to repel the accusation against my
country sent out to the world by the counsel. From anything that he has
said, I have yet to learn that the American people have not the right
to make their inquiries secretly, touching a general conspiracy in aid
of an existing rebellion, which involves their nationality and the
peace and security of all.
The gentleman then enters into a learned argument for the purpose of
showing that, by the Constitution, the people of the United States
cannot, in war or in peace, subject any person to trial before a
military tribunal, whatever may be his crime or offence, unless such
person be in the military or naval service of the United States. The
conduct of this argument is as remarkable as its assaults upon the
government are unwarranted, and its insinuations about the revival
of the Inquisition and secret trials are inexcusable. The court will
notice that the argument, from the beginning almost to its conclusion,
insists that no person is liable to be tried by military or martial law
before a military tribunal, save those in the land and naval service
of the United States. I repeat, the conduct of this argument of the
gentleman is remarkable. As an instance, I ask the attention not only
of this court, but of that public whom he has ventured to address in
this tone and temper, to the authority of the distinguished Chancellor
Kent, whose great name the counsel has endeavored to press into his
service in support of his general proposition, that no person save
those in the military or naval service of the United States is liable
to be tried for any crime whatever, either in peace or in war, before a
military tribunal.
The language of the gentleman, after citing the provision of the
Constitution, "that no person shall be held to answer for a capital or
otherwise infamous crime unless on a presentment or indictment of a
grand jury, except in cases arising in the land or naval forces or in
the militia, when in actual service in time of war or public danger,"
is, "that this exception is designed to leave in force, not to enlarge,
the power vested in Congress by the original Constitution to make
rules for the government and regulation of the land and naval forces;
that the land or naval forces are the terms used in both, have the
same meaning, and until lately have been supposed by every commentator
and judge to exclude from military jurisdiction offences committed by
citizens not belonging to such forces." The learned gentleman then
adds: "Kent, in a note to his 1st Commentaries, 341, states, and with
accuracy, that 'military and naval crimes and offences committed while
the party is attached to and under the immediate authority of the army
and navy of the United States and in actual service, are not cognizable
under the common-law jurisdiction of the courts of the United States.'"
I ask this court to bear in mind that this is the only passage which
he quotes from this note of Kent in his argument, and that no man
possessed of common sense, however destitute he may be of the exact and
varied learning in the law to which the gentleman may rightfully lay
claim, can for a moment entertain the opinion that the distinguished
chancellor of New York, in the passage just cited, intimates any such
thing as the counsel asserts, that the Constitution excludes from
military jurisdiction offences committed by citizens not belonging to
the land or naval forces.
Who can fail to see that Chancellor Kent, by the passage cited, only
decides that military and naval crimes and offences committed by a
party attached to and under the immediate authority of the army and
navy of the United States, and in actual service, are not cognizable
under the common-law jurisdiction of the courts of the United States?
He only says they are not cognizable under its common-law jurisdiction;
but by that he does not say or intimate what is attempted to be said
by the counsel for him, that "all crimes committed by citizens are
by the Constitution excluded from military jurisdiction," and that
the perpetrators of them can under no circumstances be tried before
military tribunals. Yet the counsel ventures to proceed, standing upon
this passage quoted from Kent, to say that, "according to _this_ great
authority, every other class of persons and every other species of
offences are within the jurisdiction of the civil courts, and entitled
to the protection of the proceeding by presentment or indictment and
the public trial in such a court."
Whatever that great authority may have said elsewhere, it is very
doubtful whether any candid man in America will be able to come to the
very learned and astute conclusion that Chancellor Kent has so stated
in the note or any part of the note which the gentleman has just cited.
If he has said it elsewhere, it is for the gentleman, if he relies upon
Kent for authority, to produce the passage. But was it fair treatment
of this "great authority": was it not taking an unwarrantable privilege
with the distinguished chancellor and his great work, the enduring
monument of his learning and genius, to so mutilate the note referred
to as might leave the gentleman at liberty to make his deductions and
assertions under cover of the great name of the New York chancellor,
to suit the emergency of his case by omitting the following passage,
which occurs in the same note, and absolutely excludes the conclusion
so defiantly put forth by the counsel to support his argument? In that
note Chancellor Kent says:--
"_Military_ law is a system of regulations for the government of the
armies in the service of the United States, authorized by the act of
Congress of April 10, 1806, known as the Articles of War, and _naval_
law is a similar system for the government of the navy, under the act
of Congress of April 23, 1800. But _martial_ law is quite a distinct
thing, and is founded upon paramount necessity and proclaimed by a
_military chief_."
However unsuccessful, after this exposure, the gentleman appears in
maintaining his monstrous proposition, that the American people are
by their own Constitution forbidden to try the aiders and abettors of
armed traitors and rebellion before military tribunals, and subject
them, according to the laws of war and the usages of nations, to just
punishment for their great crimes, it has been made clear from what I
have already stated that he has been eminently successful in mutilating
this beautiful production of that great mind; which act of mutilation
every one knows is violative alike of the laws of peace and war. Even
in war the divine creations of art and the immortal productions of
genius and learning are spared.
In the same spirit, and it seems to me with the same unfairness as
that just noted, the learned gentleman has very adroitly pressed into
his service by an extract from the autobiography of the war-worn
veteran and hero, General Scott, the names of the late secretary of
war, Mr. Marcy, and the learned ex-attorney general, Mr. Cushing. This
adroit performance is achieved in this way: after stating the fact
that General Scott in Mexico proclaimed martial law for the trial and
punishment by military tribunals of persons guilty of "assassination,
murder, and poisoning," the gentleman proceeds to quote from the
autobiography, "that this order when handed to the then secretary of
war (Mr. Marcy) for his approval, 'a startle at the title (martial
law order) was the only comment he then or ever made on the subject,'
and that it was 'soon silently returned as too explosive for safe
handling.' 'A little later (he adds) the attorney general (Mr. Cushing)
called and asked for a copy, and the law officer of the government,
whose business it is to speak on all such matters, was stricken with
_legal dumbness_.'" Thereupon the learned gentleman proceeds to say:
"How much more startled and more paralyzed would these great men
have been had they been consulted on such a commission as this! A
commission, not to sit in another country, and to try offences not
provided for in any law of the United States, civil or military, then
in force, but in their own country, and in a part of it where there are
laws providing for their trial and punishment, and civil courts clothed
with ample powers for both, and in the daily and undisturbed exercise
of their jurisdiction."
I think I may safely say, without stopping to make any special
references, that the official career of the late secretary of war
(Mr. Marcy) gave no indication that he ever doubted or denied the
constitutional power of the American people, acting through their duly
constituted agents, to do any act justified by the laws of war for
the suppression of a rebellion or to repel invasion. Certainly there
is nothing in this extract from the autobiography which justifies any
such conclusion. He was startled we are told. It may have been as much
the admiration he had for the boldness and wisdom of the conqueror
of Mexico as any abhorrence he had for the trial and punishment of
"assassins, poisoners, and murderers," according to the laws and usages
of war.
But the official utterances of the ex-attorney general, Cushing, with
which the gentleman doubtless was familiar when he prepared this
argument, by no means justify the attempt here made to quote him as
authority against the proclamation and enforcement of martial law in
time of rebellion and civil war. That distinguished man, not second
in legal attainments to any who have held that position, has left an
official opinion of record touching this subject. Referring to what is
said by Sir Mathew Hale, in his "History of the Common Law," concerning
martial law, wherein he limits it, as the gentleman has seemed by the
whole drift of his argument desirous of doing, and says that it is
"not in truth and in reality law, but something indulged rather than
allowed as a law--the necessity of government, order, and discipline
in an army," Mr. Cushing makes this just criticism: "This proposition
is a mere composite blunder, a total misapprehension of the matter. It
confounds _martial law_ and _law military_; it ascribes to the former
the uses of the latter; it erroneously assumes that the government of
a body of troops is a necessity more than of a body of civilians or
citizens. It confounds and confuses all the relations of the subject,
and is an apt illustration of the incompleteness of the notions of the
common-law jurists of England in regard to matters not comprehended
in that limited branch of legal science.... Military law, it is now
perfectly understood in England, is a branch of the law of the land,
applicable only to certain acts of a particular class of persons and
administered by special tribunals; but neither in that nor in any
other respect essentially differing as to foundation in constitutional
reason from admiralty, ecclesiastical, or indeed chancery and common
law.... It is the system of rules for the government of the army and
navy established by successive acts of Parliament.... Martial law, as
exercised in any country by the commander of a foreign army, is an
element of the _jus belli_.
"It is incidental to the state of solemn war, and appertains to the law
of nations.... Thus, while the armies of the United States occupied
different provinces of the Mexican republic, the respective commanders
were not limited in authority by any local law. They allowed, or rather
required, the magistrates of the country, municipal or judicial, to
continue to administer the laws of the country among their countrymen;
but in subjection always to the military power, which acted summarily
and according to discretion, when the belligerent interests of the
conqueror required it, and which exercised jurisdiction, either
summarily or by means of military commissions for the protection or the
punishment of citizens of the United States in Mexico."--_Opinions of
Attorneys General_, vol. viii., 366-69.
Mr. Cushing says, "That, it would seem, was one of the forms of martial
law"; but he adds that such an example of martial law administered by a
foreign army in the enemy's country "does not enlighten us in regard to
the question of martial law in one's own country, and as administered
by its military commanders. That is a case which the law of nations
does not reach. Its regulation is of the domestic resort of the organic
laws of the country itself, and regarding which, as it happens, there
is no definite or explicit legislation in the United States, as there
is none in England.
"Accordingly, in England, as we have seen, Earl Grey assumes that
when martial law exists it has no legal origin, but is a mere fact of
necessity to be legalized afterwards by a bill of indemnity if there be
occasion. I am not prepared to say that, under existing laws, such may
not also be the case in the United States."--_Ibid._, 370.
After such a statement, wherein ex-Attorney General Cushing very
clearly recognizes the right of this government, as also of England,
to employ martial law as a means of defence in a time of war, whether
domestic or foreign, he will be as much surprised when he reads the
argument of the learned gentleman, wherein he is described as being
struck with _legal dumbness_ at the mere mention of proclaiming martial
law and its enforcement by the commander of our army in Mexico, as the
late secretary of war was startled with even the mention of its title.
Even some of the reasons given, and certainly the power exercised by
the veteran hero himself, would seem to be in direct conflict with the
propositions of the learned gentleman.
The lieutenant-general says he "excludes from his order cases already
cognizable by court-martial, and limits it to cases not provided for in
the act of Congress establishing rules and articles for the government
of the armies of the United States." Has not the gentleman who attempts
to press General Scott into his service argued and insisted upon it
that the commander of the army cannot subject the soldiers under his
command to any control or punishment whatever, save that which is
provided for in the articles?
It will not do, in order to sustain the gentleman's hypothesis, to
say that these provisions of the Constitution, by which he attempts
to fetter the power of the people to punish such offences in time of
war within the territory of the United States, may be disregarded by
an officer of the United States in command of its armies, in the trial
and punishment of its soldiers in a foreign war. The law of the United
States for the government of its own armies follows the flag upon every
sea and in every land.
The truth is, that the right of the people to proclaim and execute
martial law is a necessary incident of war, and this was the right
exercised, and rightfully exercised, by Lieutenant-General Scott
in Mexico. It was what Earl Grey has justly said was a "fact of
necessity," and I may add, an act as clearly authorized as was the act
of fighting the enemy when they appeared before him.
In making this exception, the lieutenant-general followed the rule
recognized by the American authorities on military law, in which it
is declared that "many crimes committed even by military officers,
enlisted men, or camp-retainers, cannot be tried under the rules
and articles of war. Military commissions must be resorted to for
such cases, and these commissions should be ordered by the same
authority, be constituted in a similar manner, and their proceedings
be conducted according to the same general rules as general
courts-martial."--_Benet_, 15.
There remain for me to notice, at present, two other points in this
extraordinary speech: first, that martial law does not warrant a
military commission for the trial of military offences--that is,
offences committed in time of war in the interests of the public enemy
and by concert and agreement with the enemy; and second, that martial
law does not prevail in the United States, and has never been declared
by any competent authority.
It is not necessary, as the gentleman himself has declined to argue
the first point,--whether martial law authorizes the organization of
military commissions by order of the commander-in-chief to try such
offences,--that I should say more than that the authority just cited by
me shows that such commissions are authorized under martial law, and
are created by the commander for the trial of all such offences when
their punishment by court-martial is not provided for by the express
statute law of the country.
The second point,--that martial law has not been declared by any
competent authority,--is an arraignment of the late murdered President
of the United States for his proclamation of September 24, 1862,
declaring martial law throughout the United States, and of which, in
Lawrence's edition of Wheaton on International Law, p. 522, it is said,
"Whatever may be the inference to be deduced either from constitutional
or international law, or from the usages of European governments, as
to the legitimate depository of the power of suspending the writ of
_habeas corpus_, the virtual abrogation of the judiciary in cases
affecting individual liberty, and the establishment as _matter of
fact_ in the United States, by the Executive alone, of martial law,
not merely in the insurrectionary districts or in cases of military
occupancy, but throughout the entire Union, and not temporarily, but as
an institution as permanent as the insurrection on which it professes
to be based, and capable on the same principle of being revived in all
cases of foreign as well as civil war, are placed beyond question by
the President's proclamation of September 24, 1862." That proclamation
is as follows:--
"BY THE PRESIDENT OF THE UNITED STATES OF AMERICA.
"A PROCLAMATION.
"Whereas it has become necessary to call into service not only
volunteers, but also portions of the militia of the states,
by a draft, in order to suppress the insurrection existing in
the United States, and disloyal persons are not adequately
restrained by the ordinary processes of law from hindering
this measure and from giving aid and comfort in various ways
to the insurrection: Now, therefore, be it ordered that,
during the existing insurrection, and as a necessary means
for suppressing the same, all rebels and insurgents, their
aiders and abettors, within the United States, and all persons
discouraging volunteer enlistments, resisting militia drafts,
or guilty of any disloyal practice affording aid and comfort
to rebels, against the authority of the United States, shall be
subject to martial law and liable to trial and punishment by
courts-martial or military commission.
"Second. That the writ of _habeas corpus_ is suspended in
respect to all persons arrested, or who are now, or hereafter
during the rebellion shall be, imprisoned in any fort, camp,
arsenal, military prison, or other place of confinement, by any
military authority or by the sentence of any court-martial or
military commission.
"In witness whereof, I have hereunto set my hand and caused the
seal of the United States to be affixed.
"Done at the city of Washington, this 24th day of September,
A.D. 1862, and of the independence of the United States the
eighty-seventh.
"ABRAHAM LINCOLN.
"By the President:
"WILLIAM H. SEWARD,
"_Secretary of State_." */
This proclamation is duly certified from the War Department to be in
full force and not revoked, and is evidence of record in this case; and
but a few days since a proclamation of the President, of which this
court will take notice, declares that the same remains in full force.
It has been said by another of the counsel for the accused (Mr. Stone)
in his argument, that, admitting its validity, the proclamation
ceases to have effect with the insurrection, and is terminated by
it. It is true the proclamation of martial law only continues during
the insurrection; but inasmuch as the question of the existence
of an insurrection is a political question, the decision of which
belongs exclusively to the political department of the government,
that department alone can declare its existence, and that department
alone can declare its termination, and by the action of the political
department of the government every judicial tribunal in the land is
concluded and bound. That question has been settled for fifty years
in this country by the Supreme Court of the United States: First, in
the case of Brown _vs._ The United States (8 Cranch); also in the
prize cases (2 Black, 641). Nothing more, therefore, need be said upon
this question of an _existing_ insurrection than this: The political
department of the government has heretofore proclaimed an insurrection;
that department has not yet declared the insurrection ended, and the
event on the 14th of April, which robbed the people of their chosen
Executive, and clothed this land in mourning, bore sad but overwhelming
witness to the fact that the rebellion is not ended. The fact of the
insurrection is not an open question to be tried or settled by parol,
either in a military tribunal or in a civil court.
The declaration of the learned gentleman who opened the defence
(Mr. Johnson), that martial law has never been declared by any
competent authority, as I have already said, arraigns Mr. Lincoln for
a usurpation of power. Does the gentleman mean to say that, until
Congress authorizes it, the President cannot proclaim and enforce
martial law in the suppression of armed and organized rebellion? Or
does he only affirm that this act of the late President is a usurpation?
The proclamation of martial law in 1862 a usurpation! though it armed
the people in that dark hour of trial with the means of defence
against traitorous and secret enemies in every state and district of
the country; though by its use some of the guilty were brought to
swift and just judgment, and others deterred from crime or driven
to flight; though by this means the innocent and defenceless were
protected; though by this means the city of the gentleman's residence
was saved from the violence and pillage of the mob and the torch of the
incendiary. But, says the gentleman, it was a usurpation, forbidden by
the laws of the land!
The same was said of the proclamations of blockade issued April 19
and 27, 1861, which declared a blockade of the ports of the insurgent
states, and that all vessels violating the same were subjects of
capture, and, together with the cargo, to be condemned as prize.
Inasmuch as Congress had not then recognized the fact of civil war,
these proclamations were denounced as void. The Supreme Court decided
otherwise, and affirmed the power of the Executive thus to subject
property on the seas to seizure and condemnation. I read from that
decision:--
"The Constitution confers upon the President the whole executive power,
he is bound to take care that the laws be faithfully executed; he is
Commander-in-Chief of the army and navy of the United States, and of
the militia of the several states when called into the actual service
of the United States.... Whether the President, in fulfilling his
duties as Commander-in-Chief in suppressing an insurrection, has met
with such armed hostile resistance and a civil war of such alarming
proportions as will compel him to accord to them the character of
belligerents, is a question to be decided _by him_, and this court must
be governed by the decisions and acts of the political department of
the government to which this power was intrusted. He must determine
what degree of force the crisis demands.
"The proclamation of blockade is itself official and conclusive
evidence to the court that a state of war existed which demanded
and authorized a recourse to such a measure under the circumstances
peculiar to the case." (2 Black, 670.)
It has been solemnly ruled by the same tribunal, in an earlier case,
"that the power is confided to the Executive of the Union to determine
when it is necessary to call out the militia of the states to repel
invasion," as follows: "That he is necessarily constituted the judge
of the existence of the exigency in the first instance, and is bound
to act according to his belief of the facts. If he does so act, and
decides to call forth the militia, his orders for this purpose are in
strict conformity with the provisions of the law; and it would seem to
follow as a necessary consequence, that every act done by a subordinate
officer in obedience to such orders, is equally justifiable. The law
contemplates that, under such circumstances, orders shall be given
to carry the power into effect; and it cannot therefore be a correct
inference that any other person has a just right to disobey them. The
law does not provide for any appeal from the judgment of the President,
or for any right in subordinate officers to review his decision, and in
effect defeat it. Whenever a statute gives a discretionary power to any
person, to be exercised by him upon his own opinion of certain facts,
it is a sound rule of construction that the statute constitutes him the
sole and exclusive judge of the existence of these facts." (12 Wheaton,
31.)
In the light of these decisions, it must be clear to every mind that
the question of the existence of an insurrection, and the necessity of
calling into requisition for its suppression both the militia of the
states and the army and navy of the United States, and of proclaiming
martial law, which is an essential condition of war, whether foreign or
domestic, must rest with the officer of the government who is charged
by the express terms of the Constitution with the performance of this
great duty for the common defence and the execution of the laws of the
Union.
But it is further insisted by the gentleman in this argument, that
Congress has not authorized the establishment of military commissions,
which are essential to the judicial administration of martial law and
the punishment of crimes committed during the existence of a civil
war, and especially that such commissions are not so authorized to
try persons other than those in the military or naval service of the
United States, or in the militia of the several States, when in the
actual service of the United States. The gentleman's argument assuredly
destroys itself, for he insists that the Congress, as the legislative
department of the government, can pass no law which, either in peace or
war, can constitutionally subject any citizen not in the land or naval
forces to trial for crime before a military tribunal, or otherwise than
by a jury in the civil courts.