Why does the learned gentleman now tell us that Congress has not

authorized this to be done, after declaring just as stoutly that by

the fifth and sixth amendments to the Constitution no such military

tribunals can be established for the trial of any person not in the

military or naval service of the United States, or in the militia when

in actual service, for the commission of any crime whatever in time of

war or insurrection? It ought to have occurred to the gentleman when

commenting upon the exception in the fifth article of the Constitution,

that there was a reason for it very different from that which he

saw fit to assign, and that reason manifestly upon the face of the

Constitution itself, was, that by the eighth section of the first

article, it is expressly provided that Congress shall have power to

make rules for the government of the land and naval forces, and to

provide for organizing, arming, and disciplining the militia, and for

_governing_ such part of them as may be employed in the service of the

United States, and that, inasmuch as military discipline and order are

as essential in an army in time of peace as in time of war, if the

Constitution would leave this power to Congress in peace, it must make

the exception, so that rules and regulations for the government of the

army and navy should be operative in time of peace as well as in time

of war; because the provisions of the Constitution give the right of

trial by jury IN TIME OF PEACE, in all criminal prosecutions

by indictment, in terms embracing every human being that may be held

to answer for crime in the United States; and therefore if the eighth

section of the first article was to remain in full force IN TIME

OF PEACE, the exception must be made; and, accordingly, the

exception was made. But by the argument we have listened to, this court

is told, and the country is told, that IN TIME OF WAR--a

war which involves in its dread issue the lives and interests of us

all--the guarantees of the Constitution are in full force for the

benefit of those who conspire with the enemy, creep into your camps,

murder in cold blood, in the interest of the invader or insurgent, the

Commander-in-Chief of your army, and secure to him the slow and weak

provisions of the civil law, while the soldier, who may, when overcome

by the demands of exhausted nature which cannot be resisted, have

slept at his post, is subject to be tried upon the spot by a military

tribunal and shot. The argument amounts to this: that as military

courts and military trials of civilians in time of war are a usurpation

and tyranny, and as soldiers are liable to such arrests and trial,

Sergeant Corbett, who shot Booth, should be tried and executed by

sentence of a military court; while Booth's co-conspirators and aiders

should be saved from any such indignity as a military trial! I confess

that I am too dull to comprehend the logic, the reason, or the sense

of such a conclusion! If there is any one _entitled_ to this privilege

of a civil trial at a remote period, and by a jury of the district,

IN TIME OF CIVIL WAR, when the foundations of the republic are

rocking beneath the earthquake tread of armed rebellion, that man is

the defender of the republic. It will never do to say, as has been said

in this argument, that the soldier is not liable to be tried in time of

war by a military tribunal for any other offence than those prescribed

in the rules and articles of war. To my mind, nothing can be clearer

than that citizen and soldier alike, in time of civil or foreign war,

after a proclamation of martial law, are triable by military tribunals

for all offences of which they may be guilty, in the interests of, or

in concert with the enemy.

These provisions, therefore, of your Constitution for indictment and

trial by jury in civil courts of _all crimes_ are, as I shall hereafter

show, silent and inoperative in time of war when the public safety

requires it.

The argument to which I have thus been replying, as the court will not

fail to perceive, nor that public to which the argument is addressed,

is a labored attempt to establish the proposition, that, by the

Constitution of the United States, the American people cannot, even

in a civil war the greatest the world has ever seen, employ martial

law and military tribunals as a means of successfully asserting their

authority, preserving their nationality, and securing protection

to the lives and property of all, and especially to the persons of

those to whom they have committed, officially, the great trust of

maintaining the national authority. The gentleman says, with an air

of perfect confidence, that he denies the jurisdiction of military

tribunals for the trial of civilians in time of war, because neither

the Constitution nor laws justify, but on the contrary repudiate them,

and that all the experience of the past is against it. I might content

myself with saying that the practice of all nations is against the

gentleman's conclusion. The struggle for our national independence

was aided and prosecuted by military tribunals and martial law, as

well as by arms. The contest for American nationality began with the

establishment, very soon after the firing of the first gun at Lexington

on the 19th day of April, 1775, of military tribunals and martial law.

On the 30th of June, 1775, the Continental Congress provided that

"whosoever, _belonging to the continental army_, shall be convicted

of holding correspondence with, or giving intelligence to the enemy,

either indirectly or directly, shall suffer such punishment as by

a court-martial shall be ordered." This was found not sufficient,

inasmuch as it did not reach those _civilians_ who, like certain

civilians of our day, claim the protection of the civil law in time of

war against military arrests and military trials for military crimes.

Therefore the same Congress, on the 7th of November, 1775, amended

this provision by striking out the words "belonging to the continental

army," and adopting the article as follows:--

"_All persons_ convicted of holding a treacherous

correspondence with, or giving intelligence to the enemy,

shall suffer death or such other punishment as a general

court-martial shall think proper."

And on the 17th of June, 1776, the Congress added an additional rule--

"That all persons not members of, nor owing allegiance to,

any of the United States of America, who should be found

lurking as spies in or about the fortifications or encampments

of the armies of the United States, or any of them, shall

suffer death, according to the law and usage of nations, by

the sentence of a court-martial or such other punishment as a

court-martial shall direct."

Comprehensive as was this legislation, embracing as it did soldiers,

citizens, and aliens, subjecting all alike to trial for their military

tribunals of justice, according to the law and the usage of nations, it

was found to be insufficient to meet that most dangerous of all crimes

committed in the interests of the enemy by citizens in time of war--the

crime of conspiring together to assassinate or seize and carry away

the soldiers and citizens who were loyal to the cause of the country.

Therefore, on the 27th of February, 1778, the Congress adopted the

following resolution:--

"_Resolved_, That whatever inhabitant of these states shall

kill, or seize, or take any loyal citizen or citizens thereof

and convey him, her, or them to any place within the power of

the enemy, or shall ENTER INTO ANY COMBINATION for

such purpose, or attempt to carry the same into execution, or

hath assisted or shall assist therein; or shall, by giving

intelligence, acting as a guide, or in any manner whatever, aid

the enemy in the perpetration thereof, he shall suffer death

by the judgment of a court-martial as a traitor, assassin, or

spy, if the offence be committed within seventy miles of the

headquarters of the grand or other armies of these states where

a general officer commands."--_Journals of Congress_, vol. ii,

pp. 459, 460.

So stood the law until the adoption of the Constitution of the United

States. Every well-informed man knows that at the time of the passage

of these acts the courts of justice, having cognizance of all crimes

against persons, were open in many of the states, and that by their

several constitutions and charters, which were then the supreme law for

the punishment of crimes committed within their respective territorial

limits, no man was liable to conviction but by the verdict of a

jury. Take, for example, the provisions of the constitution of North

Carolina, adopted on the 10th of November, 1776, and in full force at

the time of the passage of the last resolution by Congress above cited,

which provisions are as follows:--

"That no freeman shall be put to answer any criminal charge but

by indictment, presentment or impeachment."

"That no freeman shall be convicted of any crime but by the

unanimous verdict of a jury of good and lawful men in open

court, as heretofore used."

This was the law in 1778 in all the states, and the provision for a

trial by jury every one knows meant a jury of twelve men, impanelled

and qualified to try the issue in a civil court. The conclusion is

not to be avoided, that these enactments of the Congress under the

Confederation set aside the trial by jury within the several states,

and expressly provided for the trial by court-martial of "any of

the inhabitants" who, during the revolution, might, contrary to the

provisions of said law, and in aid of the public enemy, give them

intelligence, or kill any loyal citizens of the United States, or enter

into any combination to kill or carry them away. How comes it, if the

argument of the counsel be true, that this enactment was passed by the

Congress of 1778, when the constitutions of the several states at that

day as fully guaranteed trial by jury to every person held to answer

for a crime as does the Constitution of the United States at this hour?

Notwithstanding this fact, I have yet to learn that any loyal man ever

challenged, during all the period of our conflict for independence

and nationality, the validity of that law for the trial, for military

offences, by military tribunals, of all offenders, as the law, not of

peace, but of war, and absolutely essential to the prosecution of war.

I may be pardoned for saying that it is the accepted common law of

nations, that martial law is, at all times and everywhere, essential to

the successful prosecution of war, whether it be a civil or a foreign

war. The validity of these acts of the Continental and Confederate

Congress I know was challenged, but only by men charged with the guilt

of their country's blood.

Washington, the peerless, the stainless, and the just, with whom God

walked through the night of that great trial, enforced this just and

wise enactment upon all occasions. On the 30th of September, 1780,

Joshua H. Smith, by the order of General Washington, was put upon his

trial before a court-martial, convened in the State of New York, on the

charge of there aiding and assisting Benedict Arnold, in a combination

with the enemy, to _take_, _kill_, and _seize_ such loyal citizens or

soldiers of the United States as were in garrison at West Point. Smith

objected to the jurisdiction, averring that he was a private citizen,

not in the military or naval service, and therefore was only amenable

to the civil authority of the State, whose constitution had guaranteed

the right of trial by jury to all persons held to answer for crime.

("Chandler's Criminal Trials," vol. 2, p. 187.) The constitution of

New York then in force had so provided; but, notwithstanding that, the

court overruled the plea, held him to answer, and tried him. I repeat,

that when Smith was thus tried by court-martial the constitution of

New York as fully guaranteed trial by jury in the civil courts to all

civilians charged and held to answer for crimes within the limits of

that State as does the Constitution of the United States guarantee such

trial within the limits of the District of Columbia. By the second of

the Articles of Confederation each State retained "its sovereignty,"

and every power, jurisdiction, and right not _expressly_ delegated to

the United States in Congress assembled. By those articles there was no

express delegation of judicial power; therefore the States retained it

fully.

If the military courts, constituted by the commander of the army of

the United States under the Confederation, who was appointed only by

a resolution of the Congress, without any _express_ grant of power to

authorize it--his office not being created by the act of the people in

their fundamental law--had jurisdiction in every State to try and put

to death "any inhabitant" thereof who should _kill_ any loyal citizen

or enter into "any combination" for any such purpose therein in time

of war, notwithstanding the provisions of the constitution and laws

of such States, how can any man conceive that under the Constitution

of the United States, which is the supreme law over every State,

anything in the constitution and laws of such State to the contrary

notwithstanding, and the supreme law over every territory of the

republic as well, the Commander-in-Chief of the army of the United

States, who is made such by the Constitution, and by its supreme

authority clothed with the power and charged with the duty of directing

and controlling the whole military power of the United States in time

of rebellion or invasion, has not that authority?

I need not remind the court that one of the marked differences between

the Articles of Confederation and the Constitution of the United States

was, that under the Confederation the Congress was the sole depository

of all federal power. The Congress of the Confederation, said Madison,

held "the command of the army." (Fed., No. 38.) Has the Constitution,

which was ordained by the people the better "to insure domestic

tranquillity and to provide for the common defence," so fettered the

great power of self-defence against armed insurrection or invasion

that martial law, so essential in war, is forbidden by that great

instrument? I will yield to no man in reverence for or obedience to the

Constitution of my country, esteeming it, as I do, a new evangel to the

nations, embodying the democracy of the New Testament--the absolute

equality of all men before the law, in respect of those rights of human

nature which are the gift of God, and therefore as universal as the

material structure of man. Can it be that this Constitution of ours, so

divine in its spirit of justice, so beneficent in its results, so full

of wisdom and goodness and truth, under which we became one people, a

great and powerful nationality, has in terms or by implication denied

to this people the power to crush armed rebellion by war, and to arrest

and punish, during the existence of such rebellion, according to the

laws of war and the usages of nations, secret conspirators who aid and

abet the public enemy?

Here is a conspiracy, organized and prosecuted by armed traitors and

hired assassins, receiving the moral support of thousands in every

State and district, who pronounced the war for the Union a failure, and

your now murdered but immortal Commander-in-Chief a tyrant; the object

of which conspiracy, as the testimony shows, was to aid the tottering

rebellion which struck at the nation's life. It is in evidence that

Davis, Thompson, and others, chiefs in this rebellion, in aid of the

same, agreed and conspired with others to poison the fountains of

water which supply your commercial metropolis, and thereby murder its

inhabitants; to secretly deposit in the habitations of the people and

in the ships in your harbors inflammable materials, and thereby destroy

them by fire; to murder by the slow and consuming torture of famine

your soldiers, captive in their hands; to import pestilence in infected

clothes to be distributed in your capital and camps, and thereby murder

the surviving heroes and defenders of the republic, who, standing

by the holy graves of your unreturning brave, proudly and defiantly

challenge to honorable combat and open battle all public enemies, that

their country may live; and finally, to crown this horrid catalogue

of crime, this sum of all human atrocities, conspired, as charged

upon your record, with the accused and John Wilkes Booth and John H.

Surratt, to kill and murder in your capital the executive officers of

your government and the commander of your armies. When this conspiracy,

entered into by these traitors, is revealed by its attempted execution,

and the foul and brutal murder of your President in the capital, you

are told that it is unconstitutional, in order to arrest the further

execution of the conspiracy, to interpose the military power of this

government for the arrest, without civil process, of any of the parties

thereto, and for their trial by a military tribunal of justice. If any

such rule had obtained during our struggle for independence we never

would have been a nation. If any such rule had been adopted and acted

upon now, during the fierce struggle of the past four years no man can

say that our nationality would have thus long survived.

The whole people of the United States by their Constitution

have created the office of President of the United States and

Commander-in-Chief of the army and navy, and have vested, by the

terms of that Constitution, in the person of the President and

Commander-in-Chief, the power to enforce the execution of the laws, and

preserve, protect, and defend the Constitution.

The question may well be asked: If, as Commander-in-Chief, the

President may not, in time of insurrection or war, proclaim and

execute martial law, according to the usages of nations, how he can

successfully perform the duties of his office--execute the laws,

preserve the Constitution, suppress insurrection, and repel invasion?

Martial law and military tribunals are as essential to the successful

prosecution of war as are men and arms and munitions. The Constitution

of the United States has vested the power to declare war and raise

armies and navies exclusively in the Congress, and the power to

prosecute the war and command the army and navy exclusively in the

President of the United States. As, under the Confederation, the

commander of the army, appointed only by the Congress, was by the

resolution of that Congress empowered to act as he might think

proper for the good and welfare of the service, subject only to

such restraints or orders as the Congress might give, so, under the

Constitution, the President is, by the people who ordained that

Constitution and declared him Commander-in-Chief of the army and navy,

vested with full power to direct and control the army and navy of

the United States, and employ all the forces necessary to preserve,

protect, and defend the Constitution and execute the laws, as enjoined

by his oath and the very letter of the Constitution, subject to no

restriction or direction save such as Congress may from time to time

prescribe.

That these powers for the common defence, intrusted by the Constitution

exclusively to the Congress and the President, are, in time of civil

war or foreign invasion, to be exercised without limitation or

restraint, to the extent of the public necessity, and without any

intervention of the federal judiciary or of State constitutions or

State laws, are facts in our history not open to question.

The position is not to be answered by saying you make the American

Congress thereby omnipotent, and clothe the American Executive with the

asserted attribute of hereditary monarchy--the king can do no wrong.

Let the position be fairly stated--that the Congress and President,

in war as in peace, are but the agents of the whole people, and that

this unlimited power for the common defence against armed rebellion or

foreign invasion is but the power of the people intrusted exclusively

to the legislative and executive departments as their agents, for any

and every abuse of which these agents are directly responsible to

the people--and the demagogue cry of an omnipotent Congress, and an

Executive invested with royal prerogatives, vanishes like the baseless

fabric of a vision. If the Congress, corruptly or oppressively, or

wantonly abuse this great trust, the people, by the irresistible

power of the ballot, hurl them from place. If the President so abuse

the trust, the people by their Congress withhold supplies, or by

impeachment transfer the trust to better hands, strip him of the

franchises of citizenship and of office, and declare him forever

disqualified to hold any position of honor, trust, or power, under the

government of his country.

I can understand very well why men should tremble at the exercise

of this great power by a monarch whose person, by the constitution

of his realm, is inviolable, but I cannot conceive how any American

citizen, who has faith in the capacity of the whole people to govern

themselves, should give himself any concern on the subject. Mr. Hallam,

the distinguished author of the Constitutional History of England, has

said:--

"Kings love to display the divinity with which their flatterers

invest them in nothing so much as in the instantaneous

execution of their will, and to stand revealed, as it were,

in the storm and thunderbolt when their power breaks through

the operation of secondary causes and awes a prostate nation

without the intervention of law."

How just are such words when applied to an irresponsible monarch!

how absurd when applied to a whole people, acting through their duly

appointed agents, whose will, thus declared, is the supreme law, to awe

into submission and peace and obedience, not a prostrate nation, but a

prostrate rebellion! The same great author utters the fact which all

history attests, when he says:--

"It has been usual for all governments during actual

rebellion to proclaim martial law for the suspension of civil

jurisdiction; and this anomaly, I must admit," he adds, "is

very far from being less indispensable at such unhappy seasons

where the ordinary mode of trial is by jury than where the

right of decision resides in the court."--_Const. Hist._, vol.

i, ch. 5, p. 326.

That the power to proclaim martial law and fully or partially suspend

the civil jurisdiction, federal and state, in time of rebellion or

civil war, and punish by military tribunals all offences committed in

aid of the public enemy, is conferred upon Congress and the Executive,

necessarily results from the unlimited grants of power for the common

defence to which I have already briefly referred. I may be pardoned for

saying that this position is not assumed by me for the purposes of this

occasion, but that early in the first year of this great struggle for

our national life I proclaimed it as a representative of the people,

under the obligation of my oath, and, as I then believed and still

believe, upon the authority of the great men who formed and fashioned

the wise and majestic fabric of American government.

Some of the citations which I deemed it my duty at that time to make,

and some of which I now reproduce, have, I am pleased to say, found a

wider circulation in books that have since been published by others.

When the Constitution was on trial for its deliverance before the

people of the several States, its ratification was opposed on the

ground that it conferred upon Congress and the Executive unlimited

power for the common defence. To all such objectors--and they were

numerous in every State--that great man, Alexander Hamilton, whose

words will live as long as our language lives, speaking to the

listening people of all the States and urging them not to reject that

matchless instrument which bore the name of Washington, said:--

"The authorities essential to the care of the common defence

are these: To raise armies; to build and equip fleets; to

prescribe rules for the government of both; to direct their

operations; to provide for their support. These powers ought

to exist WITHOUT LIMITATION; because it is impossible

to foresee or define the extent and variety of national

exigencies, and the correspondent extent and variety of the

means which may be necessary to satisfy them.

"The circumstances that endanger the safety of nations are

infinite; and for this reason no constitutional shackles can

wisely be imposed on the power to which the care of it is

committed.... This power ought to be under the direction of the

same councils which are appointed to preside over the common

defence.... It must be admitted, as a necessary consequence,

that there can be no limitation of that authority which is to

provide for the defence and protection of the community in

any manner essential to its efficacy; that is, in any matter

essential to the formation, direction, or support of the

national forces."

He adds the further remark: "This is one of those truths which,

to a correct and unprejudiced mind, carries its own evidence

along with it; and may be obscured, but cannot be made plainer

by argument or reasoning. It rests upon axioms as simple as

they are universal--the _means_ ought to be proportioned to

the _end_; the persons from whose agency the attainment of any

_end_ is expected ought to possess the means by which it is to

be attained."--_Federalist_, No. 23.

In the same great contest for the adoption of the Constitution,

Madison, sometimes called the "Father of the Constitution," said:--

"Is the power of declaring war necessary? No man will answer

this question in the negative.... Is the power of raising

armies and equipping fleets necessary?... It is involved in

the power of self-defence.... With what color of propriety

could the force necessary for defence be limited by those who

cannot limit the force of offence?... The means of security can

only be regulated by the means and the danger of attack.... It

is in vain to oppose constitutional barriers to the impulse

of self-preservation. It is worse than in vain, because it

plants in the Constitution itself necessary usurpations of

power."--_Federalist_, No. 41.

With this construction, proclaimed both by the advocates and opponents

of its ratification, the Constitution of the United States was accepted

and adopted, and that construction has been followed and acted upon by

every department of the government to this day.

It was as well understood then in theory as it has since been

illustrated in practice, that the judicial power, both federal and

State, had no voice and could exercise no authority in the conduct

and prosecution of a war, except in subordination to the political

department of the government. The Constitution contains the significant

provision, "The privilege of the writ of _habeas corpus_ shall not be

suspended, unless when in cases of rebellion or invasion the public

safety may require it."

What was this but a declaration, that in time of rebellion or invasion

the public safety is the highest law?--that so far as necessary the

civil courts (of which the Commander-in-Chief, under the direction of

Congress, shall be the sole judge) must be silent, and the rights of

each citizen, as secured in time of peace, must yield to the wants,

interests, and necessities of the nation? Yet we have been gravely

told by the gentleman in his argument, that the maxim, _salus populi

suprema est lex_, is but fit for a tyrant's use. Those grand men, whom

God taught to build the fabric of empire, thought otherwise when they

put that maxim into the Constitution of their country. It is very clear

that the Constitution recognizes the great principle which underlies

the structure of society and of all civil government; that no man

lives for himself alone, but each for all; that, if need be, some must

die that the State may live, because at test the individual is but

for to-day, while the commonwealth is for all time. I agree with the

gentleman in the maxim which he borrows from Aristotle, "Let the public

weal be under the protection of the law"; but I claim that in war, as

in peace, by the very terms of the Constitution of the country, the

public safety is under the protection of the law; that the Constitution

itself has provided for the declaration of war for the common defense,

to suppress rebellion, to repel invasion, and, by express terms, has

declared that whatever is necessary to make the prosecution of the

war successful, may be done, and ought to be done, and is therefore

constitutionally lawful.

Who will dare to say that in time of civil war "no person shall be

deprived of life, liberty, and property without due process of law"?

This is a provision of your Constitution than which there is none more

just or sacred in it; it is, however, only the law of peace, not of

war. In peace, that wise provision of the Constitution must be, and

is, enforced by the civil courts; in war it must be, and is, to a

great extent, inoperative and disregarded. The thousands slain by your

armies in battle were deprived of life "without due process of law."

All spies arrested, convicted, and executed by your military tribunals

in time of war are deprived of liberty and life "without due process of

law "; all enemies captured and held as prisoners of war are deprived

of liberty "without due process of law"; all owners whose property is

forcibly seized and appropriated in war are deprived of their property

"without due process of law." The Constitution recognizes the principle

of common law, that every man's house is his castle; that his home, the

shelter of his wife and children, is his most sacred possession; and

has therefore specially provided, "that no soldier shall _in time of

peace_ be quartered in any house without the consent of its owner, nor

in time of war, but in a manner to be prescribed by law [III Amend.];

thereby declaring that, in time of war, Congress may by law authorize,

as it has done, that without the consent and against the consent of

the owner, the soldier may be quartered in any man's house and upon

any man's hearth. What I have said illustrates the proposition, that

in time of war the civil tribunals of justice are wholly or partially

silent, as the public safety may require; that the limitations and

provisions of the Constitution in favor of life, liberty, and property

are therefore wholly or partially suspended. In this I am sustained by

an authority second to none with intelligent American citizens. Mr.

John Quincy Adams, than whom a purer man or a wiser statesman never

ascended the chair of the chief magistracy in America, said in his

place in the House of Representatives, in 1836, that:--

"In the authority given to Congress by the Constitution of the

United States to declare war, all the powers incident to war

are by necessary implication conferred upon the government

of the United States. Now the powers incidental to war are

derived, not from their internal municipal source, but from the

laws and usages of nations. There are, then, in the authority

of Congress and the Executive, two classes of powers altogether

different in their nature and often incompatible with each

other--the war power and the peace power. The peace power is

limited by regulations and restricted by provisions prescribed

within the Constitution itself. The war power is limited only

by the laws and usage of nations. This power is tremendous; it

is strictly constitutional, but it breaks down every barrier so

anxiously erected for the protection of liberty, of property,

and of life."

If this be so, how can there be trial by jury for military offenses

in time of civil war? If you cannot, and do not, try the armed enemy

before you shoot him, or the captured enemy before you imprison him,

why should you be held to open the civil courts and try the spy, the

conspirator, and the assassin, in the secret service of the public

enemy, by jury, before you convict and punish him? Why not clamor

against holding imprisoned the captured armed rebels, deprived of their

liberty without due process of law? Are they not citizens? Why not

clamor against slaying for their crime of treason, which is cognizable

in the civil courts, by your rifled ordnance and the leaden hail of

your musketry in battle, these public enemies, without trial by jury?

Are they not citizens? Why is the clamor confined exclusively to the

trial by military tribunals of justice of traitorous spies, traitorous

conspirators, and assassins hired to do secretly what the armed rebel

attempts to do openly--murder your nationality by assassinating its

defenders and its executive officers? Nothing can be clearer than that

the rebel captured prisoner, being a citizen of the republic, is as

much entitled to trial by jury before he is committed to prison, as

the spy, or the aider and abetter of the treason by conspiracy and

assassination, being a citizen, is entitled to such trial by jury,

before he is subjected to the just punishment of the law for his

great crime. I think that in time of war the remark of Montesquieu,

touching the civil judiciary is true: that "it is next to nothing."

Hamilton well said, "The Executive holds the sword of the community;

the judiciary has no direction of the strength of society; it has

neither force nor will; it has judgment alone, and is dependent for the

execution of that upon the arm of the Executive." The people of these

States so understood the Constitution and adopted it, and intended

thereby, without limitation or restraint, to empower their Congress

and Executive to authorize by law, and execute by force, whatever the

public safety might require to suppress rebellion or repel invasion.

Notwithstanding all that has been said by the counsel for the accused

to the contrary, the Constitution has received this construction from

the day of its adoption to this hour. The Supreme Court of the United

States has solemnly decided that the Constitution has conferred upon

the government authority to employ all the means necessary to the

faithful execution of all the powers which that Constitution enjoins

upon the government of the United States, and upon every department and

every officer thereof. Speaking of that provision of the Constitution

which provides that "Congress shall have power to make all laws that

may be necessary and proper to carry into effect all powers granted to

the government of the United States, or to any department or officer

thereof," Chief Justice Marshall, in his great decision in the case of

McCulloch _vs._ State of Maryland, says:--

"The powers given to the government imply the ordinary means

of execution, and the government, in all sound reason and fair

interpretation, must have the choice of the means which it

deems the most convenient and appropriate to the execution of

the power.... The powers of the government were given for the

welfare of the nation; they were intended to endure for ages to

come, and to be adapted to the various crises in human affairs.

To prescribe the specific means by which government should, in

all future time, execute its power, and to confine the choice

of means to such narrow limits as should not leave it in the

power of Congress to adopt any which might be appropriate and

conducive to the end, would be most unwise and pernicious."--4

Wheaton, 420.

Words fitly spoken! which illustrated at the time of their utterance

the wisdom of the Constitution in providing this general grant of

power to meet every possible exigency which the fortunes of war might

cast upon the country, and the wisdom of which words, in turn, has

been illustrated to-day by the gigantic and triumphant struggle

of the people during the last four years for the supremacy of the

Constitution, and in exact accordance with its provisions. In the light

of these wonderful events, the words of Pinckney, uttered when the

illustrious Chief Justice had concluded this opinion, "The Constitution

of my country is immortal!" seem to have become words of prophecy. Has

not this great tribunal, through the chief of all its judges, by this

luminous and profound reasoning, declared that the government may by

law authorize the Executive to employ, in the prosecution of war, the

ordinary means, and all the means necessary and adapted to the end? And

in the other decision before referred to, in the 8th of Cranch, arising

during the late war with Great Britain, Mr. Justice Story said:--

"When the legislative authority, to whom the right to declare

war is confided, has declared war in its most unlimited

manner, the executive authority, to whom the execution of the

war is confided, is bound to carry it into effect. He has a

discretion vested in him as to the manner and extent, but he

cannot lawfully transcend the rules of warfare established

among civilized nations. He cannot lawfully exercise powers or

authorize proceedings which the civilized world repudiates and

disclaims. The sovereignty, as to declaring war and limiting

its effects, rests with the legislature. The sovereignty as to

its execution rests with the President."--Brown _vs._ United

States, 8 Cranch, 153.

Has the Congress, to whom is committed the sovereignty of the whole

people to declare war, by legislation restricted the President,

or attempted to restrict him, in the prosecution of this war for

the Union, from exercising all the "powers" and adopting all the

"proceedings" usually approved and employed by the civilized world? He

would, in my judgment, be a bold man who asserted that Congress has so

legislated; and the Congress which should by law fetter the executive

arm when raised for the common defense would, in my opinion, be false

to their oath. That Congress may prescribe rules for the government of

the army and navy and the militia when in actual service, by articles

of war, is an express grant of power in the Constitution which Congress

has rightfully exercised, and which the Executive must and does obey.

That Congress may aid the Executive by legislation in the prosecution

of a war, civil or foreign, is admitted. That Congress may restrain

the Executive, and arraign, try, and condemn him for wantonly abusing

the great trust, is expressly declared in the Constitution. That

Congress shall pass all laws NECESSARY to enable the Executive

to execute the laws of the Union, suppress insurrection, and repel

invasion, is one of the express requirements of the Constitution, for

the performance of which the Congress is bound by an oath.

What was the legislation of Congress when treason fired its first

gun on Sumter? By the act of 1795 it is provided that whenever the

laws of the United States shall be opposed, or the execution thereof

obstructed, in any State, by combinations too powerful to be suppressed

by the ordinary course of judicial proceeding or by the powers vested

in the marshals, it shall be lawful by this act for the President to

call forth the militia of such State, or of any other State or States,

as may be necessary to suppress such combinations and to cause the laws

to be executed (1st Statutes at Large, 424). By the act of 1807 it

is provided that in case of insurrection or obstruction to the laws,

either of the United States or of any individual State or territory,

where it is lawful for the President of the United States to call forth

the militia for the purpose of suppressing such insurrection or of

causing the laws to be duly executed, it shall be lawful for him to

employ for such purpose such part of the land or naval forces of the

United States as shall be judged necessary (2d Statutes at Large, 443).

Can any one doubt that by these acts the President is clothed with

full power to determine whether armed insurrection exists in any State

or territory of the Union; and if so, to make war upon it with all

the force he may deem necessary or be able to command? By the simple

exercise of this great power it necessarily results that he may, in

the prosecution of the war for the suppression of such insurrection,

suspend as far as may be necessary the civil administration of justice

by substituting in its stead martial law, which is simply the common

law of war. If in such a moment the President may make no arrests

without civil warrant, and may inflict no violence or penalties on

persons (as is claimed here for the accused), without first obtaining

the verdict of juries and the judgment of civil courts, then is this

legislation a mockery, and the Constitution, which not only authorized

but enjoined its enactment, but a glittering generality and a splendid

bauble. Happily, the Supreme Court has settled all controversy on this

question. In speaking of the Rhode Island insurrection, the court say:--

"The Constitution of the United States, as far as it has

provided for an emergency of this kind and authorized the

general government to interfere in the domestic concerns of a

State, has treated the subject as political in its nature and

placed the power in the hands of that department." ... "By the

act of 1795 the power of deciding whether the exigency has

arisen upon which the government of the United States is bound

to interfere is given to the President."

The court add:--

"When the President has acted and called out the militia, is

a circuit court of the United States authorized to inquire

whether his decision was right? If it could, then it would

become the duty of the court, provided it came to the

conclusion that the President had decided incorrectly, to

discharge those who were arrested or detained by the troops in

the service of the United States." ... "If the judicial power

extends so far, the guarantee contained in the Constitution

of the United States is a guarantee of anarchy and not of

order." ... "Yet if this right does not reside in the courts

when the conflict is raging, if the judicial power is at that

time bound to follow the decision of the political, it must

be equally bound when the contest is over. It cannot, when

peace is restored, punish as offenses and crimes the acts

which it before recognized and was bound to recognize as

lawful."--Luther _vs._ Borden, 7 Howard, 42, 43.

If this be law, what becomes of the volunteer advice of the volunteer

counsel, by him given without money and without price, to this court,

of their responsibility--their _personal_ responsibility, for obeying

the orders of the President of the United States in trying persons

accused of the murder of the Chief Magistrate and Commander-in-Chief

of the army and navy of the United States in time of rebellion, and in

pursuance of a conspiracy entered into with the public enemy? I may be

pardoned for asking the attention of the court to a further citation

from this important decision, in which the court say, the employment

of military power to put down an armed insurrection "is essential to

the existence of every government, and is as necessary to the States

of this Union as to any other government; and if the government of the

State deem the armed opposition so formidable as to require the use of

military force and the declaration of MARTIAL LAW, we see no

ground upon which this court can question its authority" (_Ibid_). This

decision in terms declared that under the act of 1795 the President

had power to decide and did decide the question so as to exclude

further inquiry whether the State government which thus employed

force and proclaimed martial law was the government of the State, and

therefore was permitted to act. If a State may do this to put down

armed insurrection, may not the federal government as well? The reason

of the man who doubts it may justly be questioned. I but quote the

language of that tribunal, in another case before cited, when I say the

Constitution confers upon the President the whole executive power.

We have seen that the proclamation of blockade made by the President

was affirmed by the Supreme Court as a lawful and valid act, although

its direct effect was to dispose of the property of whoever violated

it, whether citizen or stranger. It is difficult to perceive what

course of reasoning can be adopted, in the light of that decision,

which will justify any man in saying that the President had not the

like power to proclaim martial law in time of insurrection against the

United States, and to establish, according to the customs of war among

civilized nations, military tribunals of justice for its enforcement

and for the punishment of all crimes committed in the interests of the

public enemy.

These acts of the President have, however, all been legalized by the

subsequent legislation of Congress, although the Supreme Court decided,

in relation to the proclamation of blockade, that no such legislation

was necessary. By the act of August 6, 1861, ch. 63, sec. 3, it is

enacted that--

"All the acts, proclamations, and orders of the President of

the United States, after the 4th of March, 1861, respecting

the army and navy of the United States, and calling out, or

relating to, the militia or volunteers from the States, are

hereby approved in all respects, legalized, and made valid

to the same extent and with the same effect as if they had

been issued and done under the previous express authority and

direction of the Congress of the United States."--12 Statutes

at Large, 326.

This act legalized, if any such legalization was necessary, all that

the President had done from the day of his inauguration to that hour,

in the prosecution of the war for the Union. He had suspended the

privilege of the writ of _habeas corpus_, and resisted its execution

when issued by the Chief Justice of the United States; he had called

out and accepted the services of a large body of volunteers for a

period not previously authorized by law; he had declared a blockade

of the Southern ports; he had declared the Southern States in

insurrection; he had ordered the armies to invade them and suppress it;

thus exercising, in accordance with the laws of war, power over the

life, the liberty, and the property of the citizens. Congress ratified

it and affirmed it.

In like manner and by subsequent legislation did the Congress ratify

and affirm the proclamation of martial law of September 25, 1862. That

proclamation, as the court will have observed, declares that during

the existing insurrection all rebels and insurgents, their aiders

and abettors within the United States, and all persons guilty of any

disloyal practice affording aid and comfort to the 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_; and 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, etc., by any military

authority, or by the sentence of any court-martial or _military

commission_.

One would suppose that it needed no argument to satisfy an intelligent

and patriotic citizen of the United States that, by the ruling of the

Supreme Court cited, so much of this proclamation as declares that all

rebels and insurgents, their aiders and abettors, shall be subject to

martial law and be liable to trial and punishment by court-martial or

military commission, needed no ratification by Congress. Every step

that the President took against rebels and insurgents was taken in

pursuance of the rules of war and was an exercise of martial law. Who

says that he should not deprive them, by the authority of this law,

of life and liberty? Are the aiders and abettors of these insurgents

entitled to any higher consideration than the armed insurgents

themselves? It is against these that the President proclaimed martial

law, and against all others who were guilty of any disloyal practice

affording aid and comfort to rebels against the authority of the United

States. Against these he suspended the privilege of the writ of _habeas

corpus_; and these, and only such as these, were by that proclamation

subjected to trial and punishment by court-martial or military

commission.

That the Proclamation covers the offense charged here, no man will,

or dare, for a moment deny. Was it not a disloyal practice? Was it

not aiding and abetting the insurgents and rebels to enter into a

conspiracy with them to kill and murder, within your capital and your

intrenched camp, the Commander-in-Chief of our army, your Lieutenant

General, and the Vice-President, and the Secretary of State, with

intent thereby to aid the rebellion, and subvert the Constitution and

laws of the United States? But it is said that the President could not

establish a court for their trial, and therefore Congress must ratify

and affirm this Proclamation. I have said before that such an argument

comes with ill grace from the lips of him who declared as solemnly

that neither by the Congress nor by the President could either the

rebel himself or his aider or abettor be lawfully and constitutionally

subjected to trial by any military tribunal, whether court-martial

or military commission. But the Congress did ratify, in the exercise

of the power vested in them, every part of this Proclamation. I have

said, upon the authority of the fathers of the Constitution, and of

its judicial interpreters, that Congress has power by legislation to

aid the Executive in the suppression of rebellion, in executing the

laws of the Union when resisted by armed insurrection, and in repelling

invasion.

By the act of March 3, 1863, the Congress of the United States, by the

first section thereof, declared that during the present rebellion the

President of the United States, whenever in his judgment the public

safety may require it, is authorized to suspend the writ of _habeas

corpus_ in any case throughout the United States or any part thereof.

By the fourth section of the same act it is declared that any order

of the President, or under his authority, made at any time during the

existence of the present rebellion, shall be a defense in all courts

to any action or prosecution, civil or criminal, pending or to be

commenced, for any search, seizure, arrest, or imprisonment, made,

done, or committed, or acts omitted to be done, under and by virtue

of such order. By the fifth section it is provided that, if any suit

or prosecution, civil or criminal, has been or shall be commenced in

any State court against any officer, civil or military, or against any

other person, for any arrest or imprisonment made, or other trespasses

or wrongs done or committed, or any act omitted to be done at any

time during the present rebellion, by virtue of or under color of any

authority derived from or exercised by or under the President of the

United States, if the defendant shall, upon appearance in such court,

file a petition stating the facts upon affidavit, etc., as aforesaid,

for the removal of the cause for trial to the circuit court of the

United States, it shall be the duty of the State court, upon his giving

security, to proceed no further in the cause or prosecution; thus

declaring that all orders of the President, made at any time during

the existence of the present rebellion, and all acts done in pursuance

thereof, shall be held valid in the courts of justice. Without further

inquiry, these provisions of this statute embrace Order 141, which is

the proclamation of martial law, and necessarily legalize every act

done under it, either before the passage of the act of 1863 or since.

Inasmuch as that Proclamation ordered that all rebels, insurgents,

their aiders and abettors, and persons guilty of any disloyal practice

affording aid and comfort to rebels against the authority of the

United States, at any time during the existing insurrection, should

be subject to martial law, and liable to trial and punishment by a

_military commission_, the sections of the law just cited declaring

lawful all acts done in pursuance of such order, including, of course,

the trial and punishment by military commission of all such offenders,

as directly legalized this order of the President as it is possible

for Congress to legalize or authorize any executive act whatever.--12

Statutes at Large, 755, 756.

But after assuming and declaring with great earnestness in his

argument that no person could be tried and convicted for such crimes

by any military tribunal, whether a court-martial or a military

commission, save those in the land or naval service in time of war,

the gentleman makes the extraordinary statement that the creation of a

military commission must be authorized by the legislative department,

and demands, if there be any such legislation, "let the statute be

produced." The statute has been produced. The power so to try, says the

gentleman, must be authorized by Congress, when the demand is made for

such authority. Does not the gentleman thereby give up his argument,

and admit, that if the Congress has so authorized the trial of all

aiders and abettors of rebels or insurgents for whatever they do in aid

of such rebels and insurgents during the insurrection, the statute and

proceedings under it are lawful and valid? I have already shown that

the Congress have so legislated by expressly legalizing Order No. 141,

which directed the trial of all rebels, their aiders and abettors, by

military commission. Did not Congress expressly legalize this order by

declaring that the order shall be a defense in all courts to any action

or prosecution, civil or criminal, for acts done in pursuance of it?

No amount of argument could make this point clearer than the language

of the statute itself. But, says the gentleman, if there be a statute

authorizing trials by military commission, "let it be produced."

By the act of March 3, 1863, it is provided in section thirty that in

time of war, insurrection, or rebellion, murder and assault with intent

to kill, etc., when committed by persons in the military service,

shall be punishable by the sentence of a court-martial or _military

commission_, and the punishment of such offenses shall never be less

than those inflicted by the laws of the State or district in which

they may have been committed. By the thirty-eighth section of the same

act it is provided that all persons who, in time of war or rebellion

against the United States, shall be found lurking or acting as spies

in or about the camps, etc., of the United States, or elsewhere, shall

be triable by a _military commission_, and shall, upon conviction,

suffer death. Here is a statute which expressly declares that all

persons, whether citizens or strangers, who in time of rebellion shall

be found acting as spies, shall suffer death upon conviction by a

military commission. Why did not the gentleman give us some argument

upon this law? We have seen that it was the existing law of the United

States under the Confederation. Then, and since, men not in the land

or naval forces of the United States have suffered death for this

offense upon conviction by courts-martial. If it was competent for

Congress to authorize their trial by courts-martial, it was equally

competent for Congress to authorize their trial by military commission,

and accordingly they have done so. By the same authority the Congress

may extend the jurisdiction of military commissions over all military

offenses or crimes committed in time of rebellion or war in aid of

the public enemy; and it certainly stands with right reason, that

if it were just to subject to death, by the sentence of a military

commission, all persons who should be guilty merely of lurking as

spies in the interests of the public enemy in time of rebellion, though

they obtained no information, though they inflicted no personal injury,

but were simply overtaken and detected in the endeavor to obtain

intelligence for the enemy, those who enter into conspiracy with the

enemy, not only to lurk as spies in your camp, but to lurk there as

murderers and assassins, and who, in pursuance of that conspiracy,

commit assassination and murder upon the Commander-in-Chief of your

army within your camp and in aid of rebellion, should be subject in

like manner to trial by military commission.--Statutes at Large 12,

736, 737, ch. 8.

Accordingly, the President having so declared, the Congress, as we

have stated, have affirmed that his order was valid, and that all

persons acting by authority, and consequently as a court pronouncing

such sentence upon the offender as the usage of war requires, are

justified by the law of the land. With all respect, permit me to say

that the learned gentleman has manifested more acumen and ability in

his elaborate argument by what he has omitted to say than by anything

which he has said. By the act of July 2, 1864, cap. 215, it is

provided that the commanding general in the field, or the commander

of the department, as the case may be, shall have power to carry into

execution all sentences against guerilla marauders for robbery, arson,

burglary, etc., and for violation of the laws and customs of war, as

well as sentences against spies, mutineers, deserters, and murderers.

From the legislation I have cited, it is apparent that military

commissions are expressly recognized by the law-making power; that they

are authorized to try capital offenses against citizens not in the

service of the United States, and to pronounce the sentence of death

upon them; and that the commander of a department, or the commanding

general in the field, may carry such sentence into execution. But,

says the gentleman, grant all this to be so; Congress has not declared

in what manner the court shall be constituted. The answer to that

objection has already been anticipated in the citation from Benèt,

wherein it appeared to be the rule of the law martial that in the

punishment of all military offenses not provided for by the written

law of the land, military commissions are constituted for that purpose

by the authority of the commanding officer or the Commander-in-Chief,

as the case may be, who selects the officers of a court-martial;

that they are similarly constituted, and their proceedings conducted

according to the same general rules. That is a part of the very law

martial which the President proclaimed, and which the Congress has

legalized. The Proclamation has declared that all such offenders shall

be tried by military commissions. The Congress has legalized the same

by the act which I have cited; and by every intendment it must be taken

that, as martial law is by the Proclamation declared to be the rule

by which they shall be tried, the Congress, in affirming the act of

the President, simply declared that they should be tried according to

the customs of martial law; that the commission should be constituted

by the Commander-in-Chief according to the rule of procedure known as

martial law; and that the penalties inflicted should be in accordance

with the laws of war and the usages of nations. Legislation no more

definite than this has been upon your statute-book since the beginning

of the century, and has been held by the Supreme Court of the United

States valid for the punishment of offenders.

By the thirty-second article of the act of 23d April, 1800, it is

provided that "all crimes committed by persons belonging to the navy

which are not specified in the foregoing articles shall be punished

according to the laws and customs in such cases at sea." Of this

article the Supreme Court of the United States say, that when offences

and crimes are not given in terms or by definition, the want of it may

be supplied by a comprehensive enactment such as the thirty-second

article of the rules for the government of the navy; which means that

courts-martial have jurisdiction of such crimes as are not specified,

but which have been recognized to be crimes and offenses by the usages

in the navies of all nations, and that they shall be punished according

to the laws and customs of the sea.--Dynes _vs._ Hoover, 20 Howard, 82.

But it is a fact that must not be omitted in the reply which I make to

the gentleman's argument, that an effort was made by himself and others

in the Senate of the United States, on the 3d of March last, to condemn

the arrests, imprisonments, etc., made by order of the President of the

United States in pursuance of his Proclamation, and to reverse, by the

judgment of that body, the law which had been before passed affirming

his action, which effort most signally failed.

Thus we see that the body which by the Constitution, if the President

had been guilty of the misdemeanors alleged against him in this

argument of the gentleman, would, upon presentation of such charge

in legal form against the President, constitute the high court of

impeachment for his trial and condemnation, has decided the question

in advance, and declared upon the occasion referred to, as they had

before declared by solemn enactment, that this order of the President

declaring martial law and the punishment of all rebels and insurgents,

their aiders and abettors, by military commission, should be enforced

during the insurrection, as the law of the land, and that the offenders

should be tried, as directed, by military commission. It may be said

that this subsequent legislation of Congress, ratifying and affirming

what had been done by the President, can have no validity. Of course

it cannot if neither the Congress nor the Executive can authorize

the proclamation and enforcement of martial law in the suppression

of rebellion for the punishment of all persons committing military

offenses in aid of that rebellion. Assuming, however, as the gentleman

seemed to assume, by asking for the legislation of Congress, that there

is such power in Congress, the Supreme Court of the United States has

solemnly affirmed that such ratification is valid.--2 Black, 671.

The gentleman's argument is full of citations of English precedent.

There is a late English precedent bearing upon this point--the power of

the legislature, by subsequent enactment, to legalize executive orders,

arrests, and imprisonment of citizens--that I beg leave to commend to

his consideration. I refer to the statute of 11 and 12 Victoria, ch.

35, entitled "An act to empower the lord lieutenant, or other chief

governor or governors of Ireland, to apprehend and detain until the

first day of March, 1849, such persons as he or they shall _suspect_ of

conspiring against her Majesty's person and government," passed July

25, 1848, which statute in terms declares that all and every person and

persons who is, are, or shall be, within that period, within that part

of the United Kingdom of England and Ireland called Ireland at or on

the day the act shall receive her Majesty's royal assent, or after, by

warrant for high treason or treasonable practices, or _suspicion_ of

high treason or treasonable practices, signed by the lord lieutenant,

or other chief governor or governors of Ireland for the time being,

or his or their chief secretary, for such causes as aforesaid, may be

detained in safe custody without bail or main prize, until the first

day of March, 1849; and that no judge or justice shall bail or try any

such person or persons so committed, without order from her Majesty's

privy council, until the said first day of March, 1849, any law or

statute to the contrary notwithstanding. The second section of this

act provides that, in cases where any persons have been, _before_ the

passing of the act, arrested, committed, or detained for such cause by

warrant or warrants signed by the officers aforesaid, or either of

them, it may be lawful for the person or persons to whom such warrants

have been or shall be directed, to detain such person or persons in his

or their custody in any place whatever in Ireland; and that such person

or persons to whom such warrants have been or shall be directed shall

be deemed and taken, to all intents and purposes, lawfully authorized

to take into safe custody and be the lawful jailers and keepers of such

persons so arrested, committed, or detained.

Here the power of arrest is given by the act of Parliament to the

governor or his secretary; the process of the civil courts was wholly

suspended; bail was denied and the parties imprisoned, and this not

by process of the courts, but by warrant of a chief governor or his

secretary; not for crimes charged to have been committed, but for being

_suspected_ of treasonable practices. Magna Charta, it seems, opposes

no restraint, notwithstanding the parade that is made about it in this

argument, upon the power of the Parliament of England to legalize

arrests and imprisonments made before the passage of the act upon an

executive order, and without colorable authority of statute law, and

to authorize like arrests and imprisonments of so many of six million

of people as such executive officers might _suspect_ of treasonable

practices.

But, says the gentleman, whatever may be the precedents, English

or American, whatever may be the provisions of the Constitution,

whatever may be the legislation of Congress, whatever may be the

proclamations and orders of the President as Commander-in-Chief,

it is a usurpation and a tyranny in time of rebellion and civil

war to subject any citizen to trial for any crime before military

tribunals, save such citizens as are in the land or naval forces, and

against this usurpation, which he asks this court to rebuke by solemn

decision, he appeals to public opinion. I trust that I set as high

value upon enlightened public opinion as any man. I recognize it as

the reserved power of the people which creates and dissolves armies,

which creates and dissolves legislative assemblies, which enacts and

repeals fundamental laws, the better to provide for personal security

by the due administration of justice. To that public opinion upon this

very question of the usurpation of authority, of unlawful arrests,

and unlawful imprisonments, and unlawful trials, condemnations, and

executions by the late President of the United States, an appeal has

already been taken. On this very issue the President was tried before

the tribunal of the people, that great nation of freemen who cover

this continent, looking out upon Europe from their eastern and upon

Asia from their western homes. That people came to the consideration

of this issue not unmindful of the fact that the first struggle for

the establishment of our nationality could not have been, and was

not, successfully prosecuted without the proclamation and enforcement

of martial law, declaring, as we have seen, that any inhabitant who,

during that war, should kill any loyal citizen, or enter into any

combination for that purpose, should, upon trial and conviction before

a military tribunal, be sentenced as an assassin, traitor, or spy, and

should suffer death, and that in this last struggle for the maintenance

of American nationality the President but followed the example of the

illustrious Father of his Country. Upon that issue the people passed

judgment on the 8th day of last November, and declared that the charge

of usurpation was false.

From this decision of the people there lies no appeal on this earth.

Who can rightfully challenge the authority of the American people to

decide such questions for themselves? The voice of the people, thus

solemnly proclaimed, by the omnipotence of the ballot in favor of the

righteous order of their murdered President, issued by him for the

common defense, for the preservation of the Constitution, and for the

enforcement of the laws of the Union, ought to be accepted, and will be

accepted, I trust, by all just men, as the voice of God.

MAY IT PLEASE THE COURT: I have said thus much touching the

right of the people, under their Constitution, in time of civil war and

rebellion, to proclaim through their Executive, with the sanction and

approval of their Congress, martial law, and enforce the same according

to the usage of nations.

I submit that it has been shown that, by the letter and spirit of

the Constitution, as well as by its contemporaneous construction,

followed and approved by every department of the government, this right

is in the people; that it is inseparable from the condition of war,

whether civil or foreign, and absolutely essential to its vigorous and

successful prosecution; that according to the highest authority upon

constitutional law, the proclamation and enforcement of martial law

are "usual under all governments in time of rebellion"; that our own

highest judicial tribunal has declared this, and solemnly ruled that

the question of the necessity for its exercise rests exclusively with

Congress and the President; and that the decision of the political

departments of the government, that there is an armed rebellion and a

necessity for the employment of military force and martial law in its

suppression concludes the judiciary.

In submitting what I have said in support of the jurisdiction of

this honorable court, and of its constitutional power to hear and

determine this issue, I have uttered my own convictions; and for their

utterance in defense of my country, and its right to employ all the

means necessary for the common defense against armed rebellion and

secret treasonable conspiracy in aid of such rebellion, I shall neither

ask pardon nor offer apology. I find no words with which more fitly

to conclude all I have to say upon the question of the jurisdiction

and constitutional authority of this court than those employed by the

illustrious Lord Brougham to the House of Peers in the support of

the bill before referred to, which empowered the lord lieutenant of

Ireland, and his deputies, to apprehend and detain, for the period

of seven months or more, all such persons within that island as they

should _suspect_ of conspiracy against her Majesty's person and

government. Said that illustrious man: "A friend of liberty I have

lived, and such will I die; nor care I how soon the latter event may

happen, if I cannot be a friend of liberty without being a friend of

traitors at the same time--a protector of criminals of the deepest

dye--an accomplice of foul rebellion and of its concomitant, civil war,

with all its atrocities and all its fearful consequences."--Hansard's

Debates, 3d series, vol. 100, p. 635.

MAY IT PLEASE THE COURT: It only remains for me to sum up the

evidence and present my views of the law arising upon the facts in the

case on trial. The questions of fact involved in the issue are:--

First, did the accused, or any two of them, confederate and conspire

together as charged? and--

Second, did the accused, or any of them, in pursuance of such

conspiracy, and with the intent alleged, commit either or all of the

several acts specified?

If the conspiracy be established, as laid, it results that whatever

was said or done by either of the parties thereto, in the furtherance

or execution of the common design, is the declaration or act of all

the other parties to the conspiracy; and this, whether the other

parties, at the time such words were uttered or such acts done by their

confederates, were present or absent--here, within the intrenched lines

of your capital, or crouching behind the intrenched lines of Richmond,

or awaiting the results of their murderous plot against their country,

its Constitution and laws, across the border, under the shelter of the

British flag.

The declared and accepted rule of law in cases of conspiracy is that--

"In prosecutions for conspiracy it is an established rule that where

several persons are proved to have combined together for the same

illegal purpose, any act done by one of the party, in pursuance of

the original concerted plan, and in reference to the common object,

is, in the contemplation of law as well as in sound reason, the act

of the whole party; and, therefore, the proof of the act will be

evidence against any of the others who were engaged in the same general

conspiracy, without regard to the question whether the prisoner is

proved to have been concerned in the particular transaction."--Phillips

on Evidence, p. 210.

The same rule obtains in cases of treason: "If several persons agree

to levy war, some in one place and some in another, and one party do

actually appear in arms, this is a levying of war by all, as well those

who were not in arms as those who were, if it were done in pursuance of

the original concert, for those who made the attempt were emboldened

by the confidence inspired by the general concert, and therefore these

particular acts are in justice imputable to all the rest."--1 East.,

Pleas of the Crown, p. 97; Roscoe, 84.

In _Ex parte Bollman and Swartwout_, 4 Cranch, 126, Marshall, Chief

Justice, rules: "If war be actually levied,--that is, if a body of

men be actually assembled, for the purpose of effecting, by force, a

treasonable purpose,--all those who perform any part, _however minute,

or however remote from the scene of action_, and who are actually

leagued in the general conspiracy, are to be considered as traitors."

In United States _vs._ Cole _et al_, 5 McLean, 601, Mr. Justice

McLean says: "A conspiracy is rarely, if ever, proved by positive

testimony. When a crime of high magnitude is about to be perpetrated

by a combination of individuals, they do not act openly but covertly

and secretly. The purpose formed is known only to those who enter into

it. Unless one of the original conspirators betray his companions

and give evidence against them, their guilt can be proved only by

circumstantial evidence.... It is said by some writers on evidence that

such circumstances are stronger than positive proof. A witness swearing

positively, it is said, may misapprehend the facts or swear falsely,

but that circumstances cannot lie.

"The common design is the essence of the charge; and this may be made

to appear when the defendants steadily pursue the same object, whether

acting separately or together, by common or different means, all

leading to the same unlawful result. And where _prima facie_ evidence

has been given of a combination, the acts or confessions of one are

evidence against all.... It is reasonable that where a body of men

assume the attribute of individuality, whether for commercial business

or for the commission of a crime, that the association should be bound

by the acts of one of its members in carrying out the design."

It is a rule of the law, not to be overlooked in this connection, that

the conspiracy or agreement of the parties, or some of them, to act

in concert to accomplish the unlawful act charged, may be established

either by direct evidence of a meeting or consultation for the illegal

purpose charged, or more usually, from the very nature of the case, by

circumstantial evidence.--2 Starkie, 232.

Lord Mansfield ruled that it was not necessary to prove the actual

fact of a conspiracy, but that it might be collected from collateral

circumstances.--Parson's Case, 1 W. Blackstone, 392.

"If," says a great authority on the law of evidence, "on a charge of

conspiracy, it appear that two persons by their acts are pursuing the

same object, and often by the same means, or one performing part of

the act and the other completing it, for the attainment of the same

object, the jury may draw the conclusion there is a conspiracy. If a

conspiracy be formed, and a person join in it afterwards, he is equally

guilty with the original conspirators."--Roscoe, 415.

"The rule of the admissibility of the acts and declarations of any

one of the conspirators, said or done in furtherance of the common

design, applies in cases as well where only part of the conspirators

are indicted or upon trial as where all are indicted and upon trial.

Thus, upon an indictment for murder, if it appear that others, together

with the prisoner, conspired to commit the crime, the act of one, done

in pursuance of that intention, will be evidence against the rest."--2d

Starkie, 237.

They are all alike guilty as principals.--Commonwealth _vs._ Knapp, 9

Pickering, 496; 10 Pickering, 477; 6 Term Reports, 528; 11 East., 584.

What is the evidence, direct and circumstantial, that the accused,

or either of them, together with John H. Surratt, John Wilkes Booth,

Jefferson Davis, George N. Sanders, Beverly Tucker, Jacob Thompson,

William C. Cleary, Clement C. Clay, George Harper, and George Young,

did combine, confederate, and conspire, in aid of the existing

rebellion, as charged, to kill and murder, within the military

department of Washington, and within the fortified and intrenched

lines thereof, Abraham Lincoln, late, and at the time of the said

combining, confederating, and conspiring, President of the United

States of America and Commander-in-Chief of the army and navy thereof;

Andrew Johnson, Vice-President of the United States; William H.

Seward, Secretary of State of the United States; and Ulysses S. Grant,

Lieutenant General of the armies thereof, and then in command, under

the direction of the President?

The time, as laid in the charge and specification, when this conspiracy

was entered into, is immaterial, so that it appear by the evidence

that the criminal combination and agreement were formed before the

commission of the acts alleged. That Jefferson Davis, one of the

conspirators named, was the acknowledged chief and leader of the

existing rebellion against the government of the United States, and

that Jacob Thompson, George N. Sanders, Clement C. Clay, Beverly

Tucker, and others named in the specification, were his duly accredited

and authorized agents to act in the interests of said rebellion, are

facts established by the testimony in this case beyond all question.

That Davis, as the leader of said rebellion, gave to those agents,

then in Canada, commissions in blank, bearing the official signature

of his war minister, James A. Seddon, to be by them filled up and

delivered to such agents as they might employ to act in the interests

of the rebellion within the United States, and intended to be a cover

and protection for any crimes they might therein commit in the service

of the rebellion, is also a fact established here, and which no man

can gainsay. Who doubts that Kennedy, whose confession made in view of

immediate death, as proved here, was commissioned by those accredited

agents of Davis to burn the city of New York?--that he was to have

attempted it on the night of the presidential election, and that he

did, in combination with his confederates, set fire to four hotels in

the city of New York on the night of the 25th of November last? Who

doubts that, in like manner, in the interests of the rebellion and by

the authority of Davis, these his agents also commissioned Bennett H.

Young to commit arson, robbery, and the murder of unarmed citizens,

in St. Albans, Vt.? Who doubts, upon the testimony shown, that Davis,

by his agents, deliberately adopted the system of starvation for the

murder of our captive soldiers in his hands; or that, as shown by the

testimony, he sanctioned the burning of hospitals and steamboats, the

property of private persons, and paid therefor from his stolen treasure

the sum of thirty-five thousand dollars in gold? By the evidence

of Joseph Godfrey Hyams it is proved that Thompson, the agent of

Jefferson Davis, paid him money for the service he rendered in the

infamous and fiendish project of importing pestilence into our camps

and cities to destroy the lives of citizens and soldiers alike, and

into the house of the President for the purpose of destroying his life.

It may be said, and doubtless will be said, by the pensioned advocates

of this rebellion, that Hyams, being infamous, is not to be believed.

It is admitted that he is infamous, as it must be conceded that any man

is infamous who either participates in such a crime or attempts in any

wise to extenuate it. But it will be observed that Hyams is supported

by the testimony of Mr. Sanford Conover, who heard Blackburn and the

other rebel agents in Canada speak of this infernal project, and by

the testimony of Mr. Wall, the well-known auctioneer of this city,

whose character is unquestioned, that he received this importation of

pestilence (of course without any knowledge of the purpose), and that

Hyams consigned the goods to him in the name of J. W. Harris, a fact

in itself an acknowledgment of guilt; and that he received afterwards

a letter from Harris, dated Toronto, Canada West, December 1, 1864,

wherein Harris stated that he had not been able to come to the States

since his return to Canada, and asked for an account of the sale. He

identifies the Godfrey Joseph Hyams who testified in court as the J.

W. Harris who imported the pestilence. The very transaction shows

that Hyams's statement is truthful. He gives the names of the parties

connected with this infamy (Clement C. Clay, Dr. Blackburn, Rev. Dr.

Stuart Robinson, J. C. Holcombe--all refugees from the Confederacy

in Canada), and states that he gave Thompson a receipt for the fifty

dollars paid to him, and that he was by occupation a shoemaker; in none

of which facts is there an attempt to discredit him. It is not probable

that a man in his position in life would be able to buy five trunks

of clothing, ship them all the way from Halifax to Washington, and

then order them to be sold at auction, without regard to price, solely

upon his own account. It is a matter of notoriety that a part of his

statement is verified by the results at New Berne, N.C., to which point

he says a portion of the infected goods were shipped, through a sutler;

the result of which was, that nearly two thousand citizens and soldiers

died there about that time with yellow fever.

That the rebel chief, Jefferson Davis, sanctioned these crimes,

committed and attempted through the instrumentality of his accredited

agents in Canada--Thompson, Clay, Tucker, Sanders, Cleary, etc.,--upon

the persons and property of the people of the North, their is positive

proof on your record. The letter brought from Richmond, and taken from

the archives of his late pretended government there, dated February

11, 1865, and addressed to him by the late rebel senator from Texas,

W. S. Oldham, contains the following significant words: "When Senator

Johnson, of Missouri, and myself waited on you a few days since, in

relation to the project of annoying and harassing the enemy by means

of burning their shipping, towns, etc., etc., there were several

remarks made by you upon the subject which I was not fully prepared to

answer, but which, upon subsequent conference with parties proposing

the enterprise, I find cannot apply as objections to the scheme.

First, the 'combustible materials' consist of several preparations,

and not one alone, and can be used without exposing the party using

them to the least danger of detection whatever.... Second, there is no

necessity for sending persons in the military service into the enemy's

country, but the work may be done by agents.... I have seen enough of

the effects that can be produced to satisfy me that in most cases,

without any danger to the parties engaged, and in others but very

slight, we can, first, burn every vessel that leaves a foreign port

for the United States; second, we can burn every transport that leaves

the harbor of New York, or other Northern port, with supplies for

the armies of the enemy in the South; third, burn every transport and

gunboat on the Mississippi River, as well as devastate the country of

the enemy and fill his people with terror and consternation.... For the

purpose of satisfying your mind upon the subject, I respectfully, but

earnestly, request that you will give an interview with General Harris,

formerly a member of Congress from Missouri, who, I think, is able,

from conclusive proofs, to convince you that what I have suggested is

perfectly feasible and practicable."

No one can doubt, from the tenure of this letter, that the rebel Davis

only wanted to be satisfied that this system of arson and murder

could be carried on by his agents in the North successfully and

without detection. With him it was not a crime to do these acts, but

only a crime to be detected in them. But Davis, by his indorsement

on this letter, dated the 20th of February, 1865, bears witness

to his own complicity and his own infamy in this proposed work of

destruction and crime for the future, as well as to his complicity

in what had before been attempted without complete success. Kennedy,

with his confederates, had failed to burn the city of New York. "The

combustibles" which Kennedy had employed were, it seems, defective.

This was "a difficulty to be overcome." Neither had he been able to

consummate the dreadful work without subjecting himself _to detection_.

This was another "_difficulty_ to be overcome." Davis, on the 20th of

February, 1865, indorsed upon this letter these words: "Secretary of

State, at his convenience, see General Harris and learn what plan he

has for _overcoming the difficulties heretofore experienced_. _J. D._"

This indorsement is unquestionably proved to be the handwriting of

Jefferson Davis, and it bears witness on its face that the monstrous

proposition met his approval, and that he desired his rebel Secretary

of State, Benjamin, to see General Harris and learn how to overcome

_the difficulty heretofore experienced_, to wit: the inefficiency

of "the combustible materials" that had been employed, and the

liability of his agents to detection. After this, who will doubt

that he had endeavored, by the hand of incendiaries, to destroy by

fire the property and lives of the people of the North, and thereby

"fill them with terror and consternation"; that he knew his agents

had been unsuccessful; that he knew his agents had been detected in

their villainy and punished for their crime; that he desired through

a more perfect "chemical-preparation," by the science and skill of

Professor McCulloch, to accomplish successfully what had before been

unsuccessfully attempted?

The intercepted letter of his agent, Clement C. Clay, dated St.

Catherine's, Canada West, November 1, 1864, is an acknowledgment and

confession of what they had attempted, and a suggestion made through

J. P. Benjamin, rebel Secretary of State, of what remained to be done

in order to make the "chemical preparations" efficient. Speaking of

this Bennett H. Young, he says: "You have doubtless learned through

the press of the United States of the raid on St. Albans by about

twenty-five Confederate soldiers, led by Lieut. Bennett H. Young; of

their attempt and failure to burn the town; of their robbery of three

banks there of the aggregate amount of about two hundred thousand

dollars; of their arrest in Canada by United States forces; of their

commitment and the pending preliminary trial." He makes application, in

aid of Young and his associates, for additional documents, showing that

they acted upon the authority of the Confederate States government,

taking care to say, however, that he held such authority at the time,

but that it ought to be more explicit so far as regards the particular

acts complained of. He states that he met Young at Halifax in May,

1864, who developed his plans for retaliation on the enemy; that he,

Clay, recommended him to the rebel Secretary of War; that after this

"Young was sent back by the Secretary of War with a commission as

second lieutenant to execute his plans and purposes, but to report

to Hon. ---- and myself." Young afterwards "proposed passing through

New England, burning some towns and robbing them of whatever he could

convert to the use of the Confederate government. This I approved as

justifiable retaliation. He attempted to burn the town of St. Albans,

Vt., and would have succeeded but for the failure of the _chemical

preparation_ with which he was armed. He then robbed the banks of

funds amounting to over two hundred thousand dollars. That he was not

prompted by selfish or mercenary motives I am as well satisfied as I am

that he is an honest man. He assured me before going that his effort

would be to destroy towns and farm-houses, but not to plunder or rob;

but he said if, after firing a town, he saw he could take _funds_

from a bank or any house, and thereby might inflict injury upon the

enemy and benefit his own government, he would do so. He added most

emphatically, that _whatever_ he took should be turned over to the

government or _its representatives in foreign lands_. My instructions

to him were to destroy whatever was valuable; not to stop to rob, but

if, after firing a town, he could seize and carry off money or treasury

or bank notes, he might do so upon condition that they were delivered

to the proper authorities of the Confederate States"--that is, to Clay

himself.

When he wrote this letter it seems that this accredited agent of

Jefferson Davis was as strongly impressed with the _usurpation and

despotism_ of Mr. Lincoln's administration as some of _the advocates_

of his aiders and abettors seem to be at this day; and he indulges in

the following statement: "All that a large portion of the Northern

people, especially in the northwest, want to resist the _oppressions_

of the _despotism_ at Washington is a _leader_. They are ripe for

resistance, _and it may come soon after the presidential election_. At

all events, it must come if our armies are not overcome, or destroyed,

or dispersed. No people of the Anglo-Saxon blood can long endure

_the usurpations and tyrannies of Lincoln_." Clay does not sign the

despatch, but indorses the bearer of it as a person who can identify

him and give his name. The bearer of that letter was the witness

Richard Montgomery, who saw Clay write a portion of the letter, and

received it from his hands, and subsequently delivered it to the

Assistant Secretary of War of the United States, Mr. Dana. That the

letter is in Clay's handwriting is clearly proved by those familiar

with it. Mr. Montgomery testifies that he was instructed by Clay to

deliver this letter to Benjamin, the rebel Secretary of State, if he

could get through to Richmond, and to tell him what names to put in the

blanks.

This letter leaves no doubt, if any before existed in the mind of any

one who had read the letter of Oldham and Davis's indorsement thereon,

that "the chemical preparations" and "combustible materials" had been

tried and had failed, and it had become a matter of great moment and

concern that they should be so prepared as, in the words of Davis, "to

overcome the difficulties heretofore experienced"; that is to say,

complete the work of destruction, and secure the perpetrators against

personal injury or detection in the performance of it.

It only remains to be seen whether Davis, the procurer of arson and of

the indiscriminate murder of the innocent and unoffending necessarily

resultant therefrom, was capable also of endeavoring to procure, and in

fact did procure, the murder, by direct assassination, of the President

of the United States and others charged with the duty of maintaining

the government of the United States, and of suppressing the rebellion

in which this arch-traitor and conspirator was engaged.

The official papers of Davis, captured under the guns of our victorious

army in his rebel capital, identified beyond question or shadow of

doubt, and placed upon your record, together with the declaration and

acts of his co-conspirators and agents, proclaim to all the world that

he was capable of attempting to accomplish his treasonable procuration

of the murder of the late President, and other chief officers of the

United States, by the hands of hired assassins.

In the fall of 1864 Lieutenant W. Alston addresses to "his excellency"

a letter now before the court, which contains the following words:--

"I now offer you my services, and if you will favor _me in my

designs_ I will proceed, as soon as my health will permit, to

rid _my_ country of some of her deadliest enemies, by striking

at the very _hearts' blood_ of those who seek to enchain her

in slavery. I consider nothing _dishonorable_ having such a

tendency. All I ask of you is, to favor me by granting me

the necessary papers, etc., to travel on.... _I am perfectly

familiar with the North_, and feel confident that I can

_execute_ anything I undertake. I was in the raid last June in

Kentucky, under General John H. Morgan; ... was taken prisoner;

... escaped from them by dressing myself in the garb of a

citizen.... I went through to the Canadas, from whence, by the

assistance of _Colonel J. P. Holcomb_, I succeeded in working

my way around and through the blockade.... I should like to

have a _personal_ interview with you in order to perfect the

arrangements before starting."

Is there any room to doubt that this was a proposition to

_assassinate_, by the hand of this man and his associates, such persons

in the North as he deemed the "deadliest enemies" of the rebellion?

The weakness of the man who for a moment can doubt that such was

the proposition of the writer of this letter is certainly an object

of commiseration. What had Jefferson Davis to say to this proposed

assassination of the "deadliest enemies" in the North of his great

treason? Did the atrocious suggestion kindle in him indignation against

the villain who offered, with his own hand, to strike the blow? Not at

all. On the contrary, he ordered his private secretary, on the 29th of

November, 1864, to endorse upon the letter these words: "Lieutenant W.

Alston; accompanied raid into Kentucky, and was captured, but escaped

into _Canada_, from whence he found his way back. Now offers his

services to rid the country of some of its _deadliest enemies_; asks

for papers, etc. Respectfully referred, by direction of the President,

to the honorable Secretary of War." It is also indorsed, for attention,

"by order. (Signed) J. A. Campbell, Assistant Secretary of War."

Note the fact in this connection, that Jefferson Davis himself, as

well as his subordinates, had, before the date of this indorsement,

concluded that Abraham Lincoln was "the deadliest enemy" of the

rebellion. You hear it in the rebel camp in Virginia, in 1863,

declared by Booth, then and there present, and assented to by rebel

officers, that "Abraham Lincoln must be killed." You hear it in that

slaughter-pen in Georgia--Andersonville--proclaimed among rebel

officers, who, by the slow torture of starvation, inflicted cruel

and untimely death on ten thousand of your defenders, captives in

their hands--whispering, like demons, their horrid purpose, "Abraham

Lincoln must be killed." And in Canada, the accredited agents of

Jefferson Davis, as early as October, 1864, and afterwards, declared

that "Abraham Lincoln must be killed" if his re-election could not

be prevented. These agents in Canada, on the 13th of October, 1864,

delivered, in cipher, to be transmitted to Richmond by Richard

Montgomery, the witness, whose reputation is unchallenged, the

following communication:--

"October 13, 1864.

"We again urge the immense necessity of our gaining immediate

advantages. Strain every nerve for victory. We now look upon

the re-election of _Lincoln_ in November as almost certain,

and we need to whip his hirelings to prevent it. Besides, with

_Lincoln_ re-elected, and his armies victorious, we need not

hope even for recognition, much less the help mentioned in our

last. Holcomb will explain this. Those figures of the Yankee

armies are correct to a unit. _Our friends shall be immediately

set to work as you direct._"

To which an official reply, in cipher, was delivered to Montgomery by

an agent of the state department in Richmond, dated October 19, 1864,

as follows:--

"Your letter of the 13th instant is at hand. There is yet

time enough to colonize many _voters_ before November. A blow

will shortly be stricken here. It is not quite time. General

Longstreet is to attack Sheridan without delay, and then

move north as far as practicable toward unprotected points.

This will be made instead of movement before mentioned. He

will endeavor to assist the _republicans in collecting their

ballots_. Be watchful and assist him."

On the very day of the date of this Richmond despatch, Sheridan was

attacked, with what success history will declare. The court will

not fail to notice that the _re-election of Mr. Lincoln_ is to be

prevented, if possible, by any and every means. Nor will they fail to

notice that _Holcombe_ is to "explain this"--the same person who, in

Canada, was the friend and advisor of _Alston_, who proposed to Davis

the assassination of the "deadliest enemies" of the rebellion.

In the despatch of the 13th of October, which was borne by Montgomery,

and transmitted to Richmond in October last, you will find these

words: "Our friends shall be immediately set to work as you direct."

Mr. Lincoln is the subject of that despatch. Davis is therein notified

that his agents in Canada look upon the re-election of Mr. Lincoln in

November as almost certain. In this connection he is assured by those

agents that the _friends_ of their cause are to be set to work as Davis

_had directed_. The conversations, which are proved by witnesses whose

character stands unimpeached, disclose what "work" the "friends" were

to do under the _direction_ of Davis himself. Who were these "friends,"

and what was "the work" which his agents, Thompson, Clay, Tucker, and

Sanders, had been directed to set them at? Let Thompson answer for

himself. In a conversation with Richard Montgomery in the summer of

1864, Thompson said that he "_had his friends_, confederates, all over

the Northern States, who were ready and willing to go any lengths for

the good of the cause of the South, and he could at any time have the

_tyrant Lincoln_ or _any other of his advisers_ that he chose _put out

of his way_; that they would not consider it _a crime_ when done for

the cause of the Confederacy." This conversation was repeated by the

witness in the summer of 1864, to Clement C. Clay, who immediately

stated: "That is so; we are all devoted to our cause and ready to go

any length--to do anything under the sun."

At and about the time that these declarations of Clay and Thompson were

made, _Alston_, who made the proposition, as we have seen, to Davis

to be furnished with papers _to go north_ and rid the Confederacy of

some of its "deadliest enemies," was in Canada. He was doubtless one of

the "friends" referred to. As appears by the testimony of Montgomery,

Payne, the prisoner at your bar, was about that time in Canada, and

was seen standing by Thompson's door, engaged in a conversation with

Clay, between whom and the witness some words were interchanged, when

Clay stated he (Payne) was one of _their friends_--"we trust him." It

is proved beyond a shadow of doubt that in October last John Wilkes

Booth, the assassin of the President, was also in Canada, and upon

intimate terms with Thompson, Clay, Sanders, and other rebel agents.

Who can doubt, in the light of the events which have since transpired,

that he was one of the "friends" to be "set to work," as Davis had

already directed--not, perhaps, as yet to assassinate the President,

but to do that other work which is suggested in the letter of Oldham,

indorsed by Davis in his own hand, and spread upon your record--the

work of a secret incendiary, which was to "fill the people of the

North with terror and consternation." The other "work" spoken of by

Thompson--putting the _tyrant Lincoln and any of his advisers out of

the way_--was work doubtless to be commenced only after the re-election

of Mr. Lincoln, which they had already declared in their despatch to

their employer, Davis, was with them a foregone conclusion. At all

events, it was not until after the presidential election in November

that Alston proposed to Davis to go north on the work of assassination;

nor was it until after that election that Booth was found in possession

of the letter which is in evidence, and which discloses the purpose

to assassinate the President. Being assured, however, when Booth was

with them in Canada, as they had already declared in their despatch,

that the re-election of Mr. Lincoln was certain, in which event there

would be no hope for the Confederacy, they doubtless entered into the

arrangement with Booth as one of their "friends," that as soon as that

fact was determined he should go to "work," and as soon as might be

"rid the Confederacy of the tyrant Lincoln and of his advisers."

That these persons named upon your record,--Thompson, Sanders, Clay,

Cleary, and Tucker,--were the agents of Jefferson Davis, is another

fact established in this case beyond a doubt. They made affidavit of

it themselves, of record here, upon the examination of their "friends"

charged with the raid upon St. Albans, before Judge Smith, in Canada.

It is in evidence also by the letter of Clay, before referred to.

The testimony to which I have thus briefly referred shows, by the

letter of his agents of the 13th of October, that Davis had before

directed those agents to set his _friends to work_. By the letter of

Clay it seems that his direction had been obeyed, and his friends

had been set to work in the burning and robbery and murder at St.

Albans, in the attempt to burn the city of New York, and in the

attempt to introduce pestilence into this capital and into the house

of the President. It having appeared, by the letter of Alston, and

the indorsement thereon, that Davis had in November entertained the

proposition of sending agents, that is to say "friends," to the North

to not only "spread terror and consternation among the people" by

means of his "chemical preparations," but also, in the words of that

letter, to "strike," by the hands of assassins, "at the heart's blood"

of the deadliest enemies in the North to the Confederacy of traitors;

it has also appeared by the testimony of many respectable witnesses,

among others the attorneys who represented the people of the United

States and the State of Vermont, in the preliminary trial of the

raiders in Canada, that Clay, Thompson, Tucker, Sanders, and Cleary

declared themselves the agents of the Confederacy. It also clearly

appears by the correspondence referred to, and the letter of Clay, that

they were holding, and at any time able to command, blank commissions

from Jefferson Davis to authorize _their friends_ to do whatever work

they appointed them to do in the interests of the rebellion, by the

destruction of life and property in the North.

If a _prima facie_ case justifies, as we have seen by the law of

evidence it does, the introduction of all declarations and acts of any

of the parties to a conspiracy, uttered or done in the prosecution of

the common design, as evidence against all the rest, it results that

whatever was said or done in furtherance of the common design, after

this month of October, 1864, by either of these agents in Canada, is

evidence not only against themselves, but against Davis as well, of his

complicity with them in the conspiracy.

Mr. Montgomery testifies that he met Jacob Thompson in January at

Montreal, when he said that "a proposition had been made to him to

rid the world of the tyrant Lincoln, Stanton, Grant, and some others;

that he knew the men who had made the proposition were bold, daring

men, able to execute what they undertook; that he himself was in favor

of the proposition, but had determined to defer his answer until he had

consulted his government at Richmond; that he was then only awaiting

their approval." This was about the middle of January, and consequently

more than a month after Alston had made his proposition direct to

Davis, in writing, to go north and rid their Confederacy of some of

its "deadliest enemies." It was at the time of this conversation that.

Payne, the prisoner, was seen by the witness standing at Thompson's

door in conversation with Clay. This witness also shows the intimacy

between Thompson, Clay, Cleary, Tucker, and Sanders.

A few days after the assassination of the President, Beverly Tucker

said to this witness "that President Lincoln deserved his death long

ago; that it was a pity he didn't have it long ago, and it was too bad

that the boys had not been allowed to act when they wanted to."

This remark undoubtedly had reference to the propositions made in the

fall to Thompson, and also to Davis, to rid the South of its deadliest

enemies by their assassination. Cleary, who was accredited by Thompson

as his confidential agent, also stated to this witness that Booth was

one of the party to whom Thompson had referred in the conversation in

January, in which he said he knew the men who were ready to rid the

world of the tyrant Lincoln, and of Stanton and Grant. Cleary also

said, speaking of the assassination, "that it was a pity that the whole

work had not been done," and added, "they had better look out--we

are not done yet"; manifestly referring to the statement made by his

employer, Thompson, before in the summer, that not only the tyrant

Lincoln, but Stanton and Grant, and others of his advisers, should be

put out of the way. Cleary also stated to this witness that Booth had

visited Thompson twice in the winter, the last time in December, and

had also been there in the summer.

Sanford Conover testified that he had been for some time a clerk in

the war department at Richmond; that in Canada he knew Thompson,

Sanders, Cleary, Tucker, Clay, and other rebel agents; that he knew

John H. Surratt and John Wilkes Booth; that he saw Booth there upon

one occasion, and Surratt upon several successive days; that he saw

Surratt (whom he describes) in April last in Thompson's room, and

also in company with Sanders; that about the 6th or 7th of April,

Surratt delivered to Jacob Thompson a despatch brought by him from

Benjamin at Richmond, enclosing one in cipher from Davis. Thompson had

before this proposed to Conover to engage in a plot to assassinate

President Lincoln and his cabinet, and on this occasion he laid his

hand upon these despatches and said, "This makes the thing all right,"

referring to the assent of the rebel authorities, and stated that the

rebel authorities had consented to the plot to assassinate Lincoln,

Johnson, the Secretary of War, Secretary of State, Judge Chase, and

General Grant. Thompson remarked further that the assassination of

these parties would leave the government of the United States entirely

without a head; that there was no provision in the Constitution of the

United States by which they could elect another President if these men

were put out of the way.