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