Chapter XXV: Preface: To Appendix (1)

In presenting the great argument of the Hon. John A. Bingham, Assistant Judge-Advocate, on the trial of the assassins, the author feels that he does not need to offer an apology to his readers, notwithstanding its length.

In addition to what he has already said by way of commending it to the careful perusal of his readers, he will add by way of preface, the following extracts from Barnes's 40th Congress, Vol. 1, showing the light in which that great effort was viewed by competent judges at the time; and also giving extracts from his great argument before the United States Senate on the articles of impeachment found against Andrew Johnson, President of the United States, for high crimes and misdemeanors, in vindication of the high encomiums bestowed by him on this distinguished statesman and advocate.

EXTRACTS FROM "THE FORTIETH CONGRESS OF THE UNITED STATES."

BY WILLIAM H. BARNES:--1ST VOL., 40TH CONGRESS.

Mr. Bingham served as Special Judge Advocate in the great trial of the conspirators, who were tried for the assassination of Abraham Lincoln, etc. Immense labor devolved upon him during this difficult and protracted trial, and for eight weeks his arduous duties allowed him but brief intervals of rest. He occupied nine hours in the delivery of the closing arguments, in which he ably elucidated the law and the testimony in the case, and conclusively proved the guilt of the conspirators. Mr. Bingham's success in this great trial attracted general attention, and awakened a wide-spread curiosity to know his history. Soon after the close of the trial, a correspondent of the _Philadelphia Press_, having expressed the deep interest he had felt in arriving at a well founded conclusion as to "the guilt of the conspirators and the constitutionality of the court," wrote as follows:--

"Grant me space in your columns to give expression to my
most unqualified admiration of the great arguments, on these
two main points, presented to the court by the Special Judge
Advocate, Gen. John A. Bingham. In the entire range of my
reading, I have known of no productions that have so literally
led me captive. For careful analysis, logical argumentation,
profound and most extensive research; for overwhelming
unravelment of complications that would have involved an
ordinary mind only with inextricable bewilderment, and for a
literal rending to tatters of all the metaphysical subtleties
of the array of legal talent engaged on the other side, I know
of no two productions in the English language superior to
these. They are literally as the spear of Ithuriel, dissolving
the hardest substances at their touch; as the thread of
Dædalus, leading out of the labyrinths of error, no matter
how thick and mazy. Not Locke or Bacon were more profound;
not Daniel Webster was clearer and more penetrating; not
Chillingworth was more logical. I feel sure that the author
of these two unrivalled papers must possess a legal mind
unrivalled in America, and must be, too, one of our rising
statesmen. But who is John A. Bingham, who by his industry and
learning displayed on this wonderful trial, has placed the
country under such a heavy debt of obligation? He may be well
known to others moving in a public sphere, like yourself, but
to me, so absorbed in a different line of duty, he has appeared
so suddenly, and yet with such vividness, that I long to know
some, at least, of his antecedents."

Upon which the editor remarked:--

"The question of our esteemed correspondent is natural to
one who has not, probably, watched the individual actors on
the great stage of public affairs with the interest of the
historical and political student. We are not surprised that
the arguments of Mr. Bingham before the military commission
should have filled him with delight. It was worthy of the
great subject confided to that accomplished statesman by
the Government, and of his own fame. When the assassins of
Mr. Lincoln were sent for trial before the military court
by President Johnson, the Government wisely left the whole
management to Judge Holt and his eloquent associate, Mr.
Bingham, and to the latter was committed the stupendous labor
of sifting the mass of evidence, of replying to the corps
of lawyers for the defence, of setting forth the guilt of
the accused and of vindicating the policy and the duty of
the executive in an exigency so novel and so full of tragic
solemnity. The crime was so enormous, and the trial of those
who committed it so important in all its issues, immediate,
contingent and remote, as to awaken an excitement that embraced
all nations. The murder itself was almost forgotten by those
who wished to screen the murderers, and the most wicked
theories were broached and sown broadcast by men, who, under
cloak of reverence for what they called the law, toiled with
herculean energy to weaken the arm of the Government, extended
in time of war to save the servants of the people from being
slaughtered by assassins in public places, and tracked even to
their firesides by the agents and friends of slavery. These
poisons of plausibility, blunting the sharpest horrors of any
age, and sanctifying the most hellish offenses, required an
antidote as swift to cure. Mr. Bingham's two great arguments,
alluded to by our correspondent, have supplied the remedy.
They are monuments of reflection, research, and argumentation;
and they are presented in the language of a scholar and with
the fervor of an orator. In the great volume of proof and
counter-proof, rhetoric, and controversy that forever preserves
the record of this great trial, the efforts of Mr. Bingham will
ever remain to be first studied with an eager and admiring
interest. That they came, after all that has and can be said
against the Government, is rather an inducement to their more
satisfactory and critical consideration. For from that study
the American student and citizen must, more than ever, realize
how irresistible is Truth when in conflict with Falsehood, and
how poor and puerile are all the professional tricks of the
lawyer when opposed to the moral power of the patriot."

In Congress Mr. Bingham has had a distinguished career, marked by important services to the country. In the XXXVIIth Congress he was earnest and successful in advocating many important measures to promote the vigorous prosecution of the war, which had just begun. Returning to Congress in 1865, after an absence of two years, he at once took a prominent position. Upon the formation of the joint committee on Reconstruction, December 14th, 1865, he was appointed one of the nine members on the part of the House. He was active in advocating the great measures of Reconstruction, which were proposed and passed in the XXXIXth and XLth Congresses. The House of Representatives having resolved that Andrew Johnson should be impeached for "high crimes and misdemeanors," Mr. Bingham was appointed on the committee to which was intrusted the important duty of drawing up the Articles of Impeachment. This work having been done to the satisfaction of the House, Mr. Bingham was elected chairman of the managers to conduct the impeachment of the President before the Senate.

On him devolved the duty of making the closing argument. His speech on this occasion ranks among the greatest forensic efforts of any age. He began the delivery of his argument on Monday, May 4th, and occupied the attention of the Senate, and a vast auditory on the floor and in the galleries, during three successive days. At the close of his argument, the immense audience in the galleries, wrought up to the highest pitch of enthusiasm, gave vent to such an unanimous and continued outburst of applause as has never before been heard in the Capitol. Ladies and gentlemen, who could not have been induced deliberately to trespass on the decorum of the Senate, by whose courtesy they were admitted to the galleries, overcome by their feelings, joined in the utterance of applause, knowing that for so doing the Sergeant-at-arms would be required to expel them from the galleries. The history of the country records no similar tribute to the oratorial efforts of the ablest advocates or statesmen. From so long and so well-sustained an argument, it is impossible to select particular passages which would give an adequate idea of the whole. The following historical argument for the supremacy of the law will always be read with interest, whether as an extract, or in its original setting:--

"Is it not in vain, I ask you, Senators, that the people have thus vindicated by battle the supremacy of their own Constitution and laws, if, after all, their President is permitted to suspend their laws and dispense with the execution thereof at pleasure, and defy the power of the people to bring him to trial and judgment before the only tribunal authorized by the Constitution to try him? That is the issue that is presented before the Senate for decision by these articles of impeachment. By such acts of usurpation on the part of the ruler of a people, I need not say to the Senate, the peace of nations is broken, as it is only by obedience to law that the peace of nations is maintained, and their existence perpetuated. Law is the voice of God and the harmony of the world:--

"'It doth preserve the stars from wrong,
Through it the eternal heavens are fresh and strong.'

"All history is but philosophy, teaching by example. God is in history, and through it teaches to men and nations the profoundest lessons which they learn. It does not surprise me, Senators, that the learned counsel for the accused asked the Senate, in the consideration of this question, to close that volume of instruction, not to look into the past, and not to listen to its voices. Senators, from that day when the inscription was written upon the graves of the heroes of Thermopylæ, 'Stranger, go tell the Lacedemonians that we lie here in obedience to their laws,' to this hour, no profounder lesson than this has come down to us: that through obedience to law comes the strength of nations and the safety of men.

"No more fatal provision ever found its way into the Constitutions of States than that contended for in this defense which recognizes the right of a single despot or of the many to discriminate in the administration of justice between the ruler and the citizen, between the strong and the weak. It was by this unjust discrimination that Aristides was banished because he was just. It was by this unjust discrimination that Socrates, the wonder of the Pagan world, was doomed to drink the hemlock because of his transcendant virtues. It was in honorable protest against this unjust discriminati that the great Roman Senator, father of his country, declared that the force of the law consists in its being made for the whole community. Senators, it is the pride and boast of that great people from whom we are descended, as it is the pride and boast of every American, that the law is the supreme power of the State, that it is for the protection of each, by the combined power of all. By the Constitution of England the hereditary monarch is no more above the law than the humblest subject; and by the Constitution of the United States, the President is no more above the law than the poorest and most friendless beggar in your streets. The usurpations of Charles I. inflicted untold injuries upon the people of England, and finally cost the usurper his life. The subsequent usurpations of James II., and I only refer to it because there is between his official conduct and that of this accused President, the most remarkable parallel that I have ever read in history, filled the heart and brain of England with conviction that new securities must be taken to restrain the prerogatives asserted by the crown, if they would maintain their ancient Constitution and perpetuate their liberties. It is well said by Hallam that the usurpations of James swept away the solemn ordinances of the legislature. Out of those usurpations came the great revolution of 1688, which resulted in the dethronement and banishment of James, in the elevation of William and Mary, and in the immortal Declaration of Rights.

"I ask the Senate to notice that these charges against James are substantially the charges presented against this accused President, and confessed here of record, that he has suspended the laws, and dispensed with the execution of laws, and in order to do this has usurped authority as the executive of the nation, declaring himself entitled under the Constitution to suspend the laws and dispense with their execution. He has further, like James, attempted to control the appropriated money of the people contrary to law. And he has further, like James, although it is not alleged against him in the Articles of Impeachment, it is confessed in his answer, and attempted to cause the question of his responsibility to the people to be tried, not in the King's Bench, but in the Supreme Court, when that question is alone cognizable in the Senate of the United States. Surely, Senators, if these usurpations, if these endeavors on the part of James thus to subvert the liberties of the people of England, cost him his crown and kingdom, the like offenses committed by Andrew Johnson ought to cost him his office, and to subject him to that perpetual disability pronounced by the people through the Constitution upon him for his high crimes and misdemeanors.

"I ask you, Senators, how long men would deliberate upon the question whether a private citizen arraigned at the bar of one of your tribunals of justice for a criminal violation of the law, should be permitted to interpose a plea in justification of his criminal act, that his only purpose was to interpret the Constitution and laws for himself, that he violated the law in the exercise of his prerogative to test its validity hereafter at such a day as might suit his own convenience in the courts of justice. Surely it is as competent for the private citizen to interpose such justification in answer to crime in one of your tribunals of justice, as it is for the President to interpose it, and for the simple reason that the Constitution is no respecter of persons, and rests neither in the private citizen judicial power.

"Can it be that by your decree you are at last to make this discrimination between the ruler of the people and the private citizen, and to allow him to interpose his assumed right to interpret judicially your Constitution and laws? Are you to solemnly proclaim by your decree:--

"'Plate sin with gold,
And the strong lance of justice heartless breaks;
Arm it in rags and a pigmy's straw doth pierce it?'

"I put away the possibility that the Senate of the United States, equal in dignity to any tribunal in the world, is capable of recording any such decision even upon the petition and prayer of the accused and guilty President. Can it be that by reason of his great office the President is to be protected in his high crimes and misdemeanors, violative alike of his oath, of the Constitution and of the express letter of your written law, enacted by the legislative department of the government?

"I ask you, Senators, to consider that I speak before you this day in behalf of the violated law of a free people, who commission me. I ask you to remember this, that I speak this day under the obligations of this my oath. I ask you to consider that I am not insensible to the significance of the words of which mention was made by the learned counsel from New York; justice, duty, law, oath. I ask you to remember that the great principles of constitutional liberty for which I speak this day, have been taught to men and nations by all the trials and triumphs, by all the agonies and martyrdoms of the past; that they are the wisdom of the centuries uttered by the elect of the human race.

"I ask you to consider that we stand this day pleading for the violated majesty of the law, by the graves of half a million of martyred hero-patriots who sacrificed themselves for their country, the Constitution, and the laws, and who by their sublime examples have taught us that all must obey the law; that none are above the law; that no man lives for himself alone, but each for all, that some must die that the State may live; that the citizen is but for to-day, that the commonwealth is for all time, and that position, however high, patronage however powerful, cannot be permitted to shelter crime to the peril of the Republic."

ARGUMENT OF JOHN A. BINGHAM,

SPECIAL JUDGE ADVOCATE,

IN REPLY TO THE SEVERAL ARGUMENTS IN DEFENCE OF MARY E. SURRATT AND OTHERS, CHARGED WITH CONSPIRACY AND THE MURDER OF ABRAHAM LINCOLN, LATE PRESIDENT OF THE UNITED STATES, ETC.

MAY IT PLEASE THE COURT: The conspiracy here charged and specified, and the acts alleged to have been committed in pursuance thereof, and with the intent laid, constitute a crime the atrocity of which has sent a shudder through the civilized world. All that was agreed upon and attempted by the alleged inciters and instigators of this crime constitutes a combination of atrocities with scarcely a parallel in the annals of the human race. Whether the prisoners at your bar are guilty of the conspiracy and the acts alleged to have been done in pursuance thereof, as set forth in the charge and specification, is a question the determination of which rests solely with this honorable court, and in passing upon which this court are the sole judges of the law and the fact.

In presenting my views upon the questions of law raised by the several counsel for the defence, and also on the testimony adduced for and against the accused, I desire to be just to them, just to you, just to my country, and just to my own convictions. The issue joined involves the highest interests of the accused, and, in my judgment, the highest interests of the whole people of the United States.

It is a matter of great moment to all the people of this country that the prisoners at your bar be lawfully tried and lawfully convicted or acquitted. A wrongful and illegal conviction or a wrongful and illegal acquittal upon this dread issue would impair somewhat the security of every man's life, and shake the stability of the republic.

The crime charged and specified upon your record is not simply the crime of murdering a human being, but it is the crime of killing and murdering on the 14th day of April, A. D. 1865, within the military department of Washington and the intrenched lines thereof, Abraham Lincoln, then President of the United States, and Commander-in-Chief of the army and navy thereof; and then and there assaulting, with intent to kill and murder, William H. Seward, then Secretary of State of the United States; and then and there lying in wait to kill and murder Andrew Johnson, then Vice-President of the United States, and Ulysses S. Grant, then lieutenant-general and in command of the armies of the United States, in pursuance of a treasonable conspiracy entered into by the accused with one John Wilkes Booth, and John H. Surratt, upon the instigation of Jefferson Davis, Jacob Thompson, and George N. Sanders and others, with intent thereby to aid the existing rebellion and subvert the Constitution and laws of the United States.

The rebellion, in aid of which this conspiracy was formed and this great public crime committed, was prosecuted for the vindication of no right, for the redress of no wrong, but was itself simply a criminal conspiracy and gigantic assassination. In resisting and crushing this rebellion the American people take no step backward and cast no reproach upon their past history. That people now, as ever, proclaim the self-evident truth that whenever government becomes subversive of the ends of its creation, it is the right and duty of the people to alter or abolish it; but during these four years of conflict they have as clearly proclaimed, as was their right and duty, both by law and by arms, that the government of their own choice, humanely and wisely administered, oppressive of none and just to all, shall not be overthrown by privy conspiracy or armed rebellion.

What wrong had this government or any of its duly constituted agents done to any of the guilty actors in this atrocious rebellion? They themselves being witnesses, the government which they assailed had done no act, and attempted no act, injurious to them, or in any sense violative of their rights as citizens and men; and yet for four years, without cause of complaint or colorable excuse, the inciters and instigators of the conspiracy charged upon your record have, by armed rebellion, resisted the lawful authority of the government, and attempted by force of arms to blot the republic from the map of nations. Now that their battalions of treason are broken and flying before the victorious legions of the republic, the chief traitors in this great crime against your government secretly conspire with their hired confederates to achieve by assassination, if possible, what they have in vain attempted by wager of battle--the overthrow of the government of the United States and the subversion of its Constitution and laws. It is for this secret conspiracy in the interest of the rebellion, formed at the instigation of the chiefs in that rebellion, and in pursuance of which the acts charged and specified are alleged to have been done and with the intent laid, that the accused are upon trial.

The government, in preferring this charge, does not indict the whole people of any State or section, but only the alleged parties to this unnatural and atrocious conspiracy and crime. The President of the United States, in the discharge of his duty as Commander-in-Chief of the army, and by virtue of the power vested in him by the Constitution and laws of the United States, has constituted you a military court, to hear and determine the issue joined against the accused, and has constituted you a court for no other purpose whatever. To this charge and specification the defendants have pleaded, first, that this court has no jurisdiction in the premises; and, second, not guilty. As the court has already overruled the plea to the jurisdiction, it would be passed over in silence by me but for the fact that a grave and elaborate argument has been made by counsel for the accused not only to show the want of jurisdiction, but to arraign the President of the United States before the country and the world as a usurper of power over the lives and the liberties of the prisoners. Denying the authority of the President to constitute this commission is an averment that this tribunal is not a court of justice, has no legal existence, and therefore no power to hear and determine the issue joined. The learned counsel for the accused, when they make this averment by way of argument, owe it to themselves and to their country to show how the President could otherwise lawfully and efficiently discharge the duty enjoined upon him by his oath to protect, preserve, and defend the Constitution of the United States, and to take care that the laws be faithfully executed.

An existing rebellion is alleged and not denied. It is charged that in aid of this existing rebellion a conspiracy was entered into by the accused, incited and instigated thereto by the chiefs of this rebellion, to kill and murder the executive officers of the government and the commander of the armies of the United States, and that this conspiracy was partly executed by the murder of Abraham Lincoln, and by a murderous assault upon the Secretary of State; and counsel reply, by elaborate argument, that although the facts be as charged, though the conspirators be numerous and at large, able and eager to complete the horrid work of assassination already begun within your military encampment, yet the successor of your murdered President is a usurper if he attempts by military force and martial law, as Commander-in-Chief, to prevent the consummation of this traitorous conspiracy in aid of this treasonable rebellion. The civil courts, say the counsel, are open in the District. I answer, they are closed throughout half the republic, and were only open in this District on the day of this confederation and conspiracy, on the day of the traitorous assassination of your President, and are only open at this hour by force of the bayonet. Does any man suppose that if the military forces which garrison the intrenchments of your capital, fifty thousand strong, were all withdrawn, the rebel bands who this day infest the mountain passes in your vicinity would allow this court, or any court, to remain open in this District for the trial of these their confederates, or would permit your executive officers to discharge the trust committed to them, for twenty-four hours?

At the time this conspiracy was entered into, and when this court was convened and entered upon this trial, the country was in a state of civil war. An army of insurrectionists have, since this trial begun, shed the blood of Union soldiers in battle. The conspirator, by whose hand his co-conspirators, whether present or absent, jointly murdered the President on the 14th of last April, could not be and was not arrested upon civil process, but was pursued by the military power of the government, captured, and slain. Was this an act of usurpation?--a violation of the right guaranteed to that fleeing assassin by the very Constitution against which and for the subversion of which he had conspired and murdered the President? Who in all this land is bold enough or base enough to assert it?

I would be glad to know by what law the President, by a military force, acting only upon his military orders, is justified in pursuing, arresting, and killing one of these conspirators, and is condemned for arresting in like manner, and by his order subjecting to trial, according to the laws of war, any or all of the other parties to this same damnable conspiracy and crime, by a military tribunal of justice--a tribunal, I may be pardoned for saying, whose integrity and impartiality are above suspicion, and pass unchallenged even by the accused themselves.

The argument against the jurisdiction of this court rests upon the assumption that even in time of insurrection and civil war no crimes are cognizable and punishable by military commission or court-martial, save crimes committed in the military or naval service of the United States, or in the militia of the several states when called into the actual service of the United States. But that is not all the argument: it affirms that under this plea to the jurisdiction the accused have the right to demand that this court shall decide that it is not a judicial tribunal and has no legal existence.

This is a most extraordinary proposition--that the President, under the Constitution and laws of the United States, was not only not authorized, but absolutely forbidden, to constitute this court for the trial of the accused, and, therefore, the act of the President is void, and the gentlemen who compose the tribunal without judicial authority or power, and are not in fact or in law a court.

That I do not misstate what is claimed and attempted to be established on behalf of the accused, I ask the attention of the court to the following as the gentleman's (Mr. Johnson's) propositions:--

That Congress has not authorized, and, under the Constitution, cannot authorize the appointment of this commission.

That this commission has, "as a court, no legal existence or authority," because the President, who alone appointed the commission, has no such power.

That his act "is a mere nullity--the usurpation of a power not vested in the Executive, and conferring no authority upon you."

We have had no common exhibition of law learning in this defence, prepared by a Senator of the United States; but with all his experience, and all his learning and acknowledged ability, he has failed, utterly failed, to show how a tribunal constituted and sworn, as this has been, to duly try and determine the charge and specification against the accused, and by its commission not authorized to hear or determine any other issues whatever, can rightfully entertain, or can by any possibility pass upon, the proposition presented by this argument of the gentleman for its consideration.

The members of this court are officers in the army of the United States, and by order of the President, as Commander-in-Chief, are required to discharge this duty, and are authorized in this capacity to discharge no other duty, to exercise no other judicial power. Of course, if the commission of the President constitutes this a court for the trial of this case only, as such court it is competent to decide all questions of law and fact arising in the trial of the case. But this court has no power, as a court, to declare the authority by which it was constituted null and void, and the act of the President a mere nullity, a usurpation. Has it been shown by the learned gentleman, who demands that this court shall so decide, that officers of the army may lawfully and constitutionally question in this manner the orders of their Commander-in-Chief, disobey, set them aside, and declare them a nullity and a usurpation? Even if it be conceded that the officers thus detailed by order of the Commander-in-Chief may question and utterly disregard his order and set aside his authority, is it possible, in the nature of things, that any body of men, constituted and qualified as a tribunal of justice, can sit in judgment upon the proposition that they are not a court for any purpose, and finally decide judicially, as a court, that the government which appointed them was without authority? Why not crown the absurdity of this proposition by asking the several members of this court to determine that they are not men--living, intelligent, responsible men? This would be no more irrational than the question upon which they are asked to pass. How can any sensible man entertain it? Before he begins to reason upon the proposition he must take for granted, and therefore decide in advance, the very question in dispute, to wit, his actual existence.

So with the question presented in this remarkable argument for the defence: before this court can enter upon the inquiry of the want of authority in the President to constitute them a court, they must take for granted and decide the very point in issue, that the President had the authority, and that they are in law and in fact a judicial tribunal; and having assumed this, they are gravely asked, as such judicial tribunal, to finally and solemnly decide and declare that they are not in fact or in law a judicial tribunal, but a mere nullity and nonentity. A most lame and impotent conclusion!

As the learned counsel seems to have great reverence for judicial authority, and requires precedent for every opinion, I may be pardoned for saying that the objection which I urge against the possibility of any judicial tribunal, after being officially qualified as such, entertaining, much less judicially deciding, the proposition that it has no legal existence as a court, and that the appointment was a usurpation and without authority of law, has been solemnly ruled by the Supreme Court of the United States.

That court says: "The acceptance of the judicial office is a recognition of the _authority_ from which it is derived. If a court should enter upon the inquiry (whether the _authority_ of the government which established it existed), and should come to the conclusion that the government under which it acted had been put aside, it would cease to be a court and be _incapable_ of pronouncing a judicial decision upon the question it undertook to try. If it decides at all as a court, it necessarily affirms the existence and _authority_ of the government under which it is exercising judicial power."--(Luther _vs._ Borden, 7 Howard, 40.)

That is the very question raised by the learned gentleman in his argument--that there was no _authority_ in the President, by whose act alone this tribunal was constituted, to vest it with judicial power to try this issue; and by the order upon your record, as has already been shown, if you have no power to try this issue for want of authority in the Commander-in-Chief to constitute you a court, you are no court, and have no power to try any issue, because his order limits you to this issue, and this alone.

It requires no very profound legal attainments to apply the ruling of the highest judicial tribunal of this country, just cited, to the point raised, not by the pleadings, but by the argument. This court exists as a judicial tribunal by authority only of the President of the United States; the acceptance of the office is an acknowledgment of the validity of the authority conferring it, and if the President had no authority to order, direct, and constitute this court to try the accused, and, as is claimed, did, in so constituting it, perform an unconstitutional and illegal act, it necessarily results that the order of the President is void and of no effect; that the order did not and could not constitute this a tribunal of justice, and therefore its members are incapable of pronouncing a judicial decision upon the question presented.

There is a marked distinction between the question here presented and that raised by a plea to the jurisdiction of a tribunal whose existence as a court is neither questioned nor denied. Here it is argued, through many pages, by a learned Senator, and a distinguished lawyer, that the order of the President, by whose authority alone this court is constituted a tribunal of military justice, is unlawful; if unlawful it is void and of no effect, and has created no court; therefore this body, not being a court, can have no more power as a court to decide any question whatever than have its individual members power to decide that they as men do not in fact exist.

It is a maxim of the common law--the perfection of human reason--that what is impossible the law requires of no man.

How can it be possible that a judicial tribunal can decide the question that it does not exist, any more than that a rational man can decide that he does not exist?

The absurdity of the proposition so elaborately urged upon the consideration of this court cannot be saved from the ridicule and contempt of sensible men by the pretence that the court is not asked judicially to decide that it is not a court, but only that it has no jurisdiction; for it is a fact not to be denied that the whole argument for the defence on this point is that the President had not the lawful authority to issue the order by which alone this court is constituted, and that the order for its creation is null and void.

Gentlemen might as well ask the Supreme Court of the United States upon a plea to the jurisdiction to decide, as a court, that the President had no lawful authority to nominate the judges thereof severally to the Senate, and that the Senate had no lawful authority to advise and consent to their appointment, as to ask this court to decide, as a court, that the order of the President of the United States, constituting it a tribunal for the sole purpose of this trial, was not only without authority of law, but against and in violation of law. If this court is not a lawful tribunal, it has no existence, and can no more speak as a court than the dead, much less pronounce the judgment required at his hands--that it is not a court, and that the President of the United States, in constituting it such to try the question upon the charge and specification preferred, has transcended his authority, and violated his oath of office.

Before passing from the consideration of the proposition of the learned senator, that this is not a court, it is fit that I should notice that another of the counsel for the accused (Mr. Ewing) has also advanced the same opinion, certainly with more directness and candor, and without any qualification. His statement is, "You," gentlemen, "are no court under the Constitution." This remark of the gentleman cannot fail to excite surprise, when it is remembered that the gentleman, not many months since, was a general in the service of the country, and as such in his department in the West proclaimed and enforced martial law by the constitution of military tribunals for the trial of citizens not in the land or naval forces, but who were guilty of military offences, for which he deemed them justly punishable before military courts, and accordingly he punished them. Is the gentleman quite sure, when that account comes to be rendered for these alleged unconstitutional assumptions of power, that he will not have to answer for more of these alleged violations of the rights of citizens by illegal arrests, convictions, and executions, than any of the members of this court? In support of his opinion that this is no court, the gentleman cites the 3d article of the Constitution, which provides "that the judicial power of the United States shall be vested in one supreme court, and such inferior courts as Congress may establish," the judges whereof "shall hold their offices during good behavior."

It is a sufficient answer to say to the gentleman, that the power of this government to try and punish military offences by military tribunals is no part of the "judicial power of the United States," under the 3d article of the Constitution, but a power conferred by the 8th section of the 1st article, and so it has been ruled by the Supreme Court in Dyres _vs._ Hoover, 20 Howard, 78. If this power is so conferred by the 8th section, a military court authorized by Congress, and constituted as this has been, to try all persons for military crimes in time of war, though not exercising "the judicial power" provided for in the 3d article, is nevertheless a court as constitutional as the Supreme Court itself. The gentleman admits this to the extent of the trial by courts-martial of persons in the military or naval service, and by admitting it he gives up the point. There is no _express_ grant for any such tribunal, and the power to establish such a court, therefore, is _implied_ from the provisions of the 8th section, 1st article, that "Congress shall have power to provide and maintain a navy," and also "to make rules for the government of the land and naval forces." From these grants the Supreme Court infer the power to establish courts-martial, and from the grants in the same 8th section, as I shall notice hereafter, that "Congress shall have power to declare war," and "to pass all laws necessary and proper to carry this and all other powers into effect," it is necessarily implied that in time of war Congress may authorize military commissions, to try all crimes committed in aid of the public enemy, as such tribunals are _necessary_ to give effect to the power to make war and suppress insurrection.

Inasmuch as the gentleman (General Ewing), for whom, personally, I have a high regard as the military commander of a Western department, made a liberal exercise, under the order of the Commander-in-Chief of the army, of this power to arrest and try military offenders not in the land or naval forces of the United States, and inflicted upon them, as I am informed, the extreme penalty of the law, by virtue of his military jurisdiction, I wish to know whether he proposes, by his proclamation of the personal responsibility awaiting all such usurpations of judicial authority, that he himself shall be subjected to the same stern judgment which he invokes against others--that, in short, he shall be drawn and quartered for inflicting the extreme penalties of the law upon citizens of the United States in violation of the Constitution and laws of his country? I trust that his error of judgment in pronouncing this military jurisdiction a usurpation and violation of the Constitution may not rise up in judgment to condemn him, and that he may never be subjected to pains and penalties for having done his duty heretofore in exercising this rightful authority, and in bringing to judgment those who conspired against the lives and liberties of the people.

Here I might leave this question, committing it to the charitable speeches of men, but for the fact that the learned counsel has been more careful in his extraordinary argument to denounce the President as a usurper than to show how the court could possibly decide that it has no judicial existence, and yet that it has judicial existence.

A representative of the people and of the rights of the people before this court, by the appointment of the President, and which appointment was neither sought by me nor desired, I cannot allow all that has been here said by way of denunciation of the murdered President and his successor to pass unnoticed. This has been made the occasion by the learned counsel, Mr. Johnson, to volunteer, not to defend the accused, Mary E. Surratt, not to make a judicial argument in her behalf, but to make a political harangue, a partisan speech against his government and country, and thereby swell the cry of the armed legions of sedition and rebellion that but yesterday shook the heavens with their infernal enginery of treason, and filled the habitations of the people with death. As the law forbids a senator of the United States to receive compensation or fee for defending, in cases before civil or military commissions, the gentleman volunteers to make a speech before this court, in which he denounces the action of the Executive Department in proclaiming and executing martial law against rebels in arms, their aiders and abettors, as a usurpation and a tyranny. I deem it my duty to reply to this denunciation, not for the purpose of presenting thereby any question for the decision of this court, for I have shown that the argument of the gentleman presents no question for its decision as a court, but to repel, as far as I may be able, the unjust aspersion attempted to be cast upon the memory of our dead President, and upon the official conduct of his successor.

I propose now to answer fully all that the gentleman (Mr. Johnson) has said of the want of jurisdiction in this court, and of the alleged usurpation and tyranny of the Executive, that the enlightened public opinion to which he appeals may decide whether all this denunciation is just--whether indeed conspiring against the whole people, and confederation and agreement, in aid of insurrection to murder all the executive officers of the government, cannot be checked or arrested by the Executive power. Let the people decide this question; and in doing so, let them pass upon the action of the senator as well as upon the action of those whom he so arrogantly arraigns. His plea in behalf of an expiring and shattered rebellion is a fit subject for public consideration and for public condemnation.

Let that people also note that, while the learned gentleman (Mr. Johnson), as a volunteer, without pay, thus condemns as a usurpation the means employed so effectually to suppress this gigantic insurrection, the New York _News_, whose proprietor, Benjamin Wood, is shown by the testimony upon your record to have received from the agents of the rebellion twenty-five thousand dollars, rushes into the lists to champion the cause of the rebellion, its aiders and abettors, by following to the letter his colleague (Mr. Johnson), and with greater plainness of speech, and a fervor intensified, doubtless, by the twenty-five thousand dollars received, and the hope of more, denounces the court as a usurpation and threatens the members with the consequences!

The argument of the gentleman, to which the court has listened so patiently and so long, is but an attempt to show that it is unconstitutional for the government of the United States to arrest upon military order and try before military tribunals and punish upon conviction, in accordance with the laws of war and the usages of nations, all criminal offenders acting in aid of the existing rebellion. It does seem to me that the speech in its tone and temper is the same as that which the country has heard for the last four years uttered by the armed rebels themselves and by their apologists, averring that it was unconstitutional for the government of the United States to defend by arms its own rightful authority and the supremacy of its laws.

It is as clearly the right of the republic to live and to defend its life until it forfeits that right by crime, as it is the right of the individual to live so long as God gives him life, unless he forfeits that right by crime. I make no argument to support this proposition. Who is there here or elsewhere to cast the reproach upon my country that for her crimes she must die? Youngest born of the nations! is she not immortal by all the dread memories of the past--by that sublime and voluntary sacrifice of the present, in which the bravest and noblest of her sons have laid down their lives that she might live, giving their serene brows to the dust of the grave, and lifting their hands for the last time amidst the consuming fires of battle? I assume, for the purposes of this argument, that self-defence is as clearly the right of nations as it is the acknowledged right of men, and that the American people may do in the defence and maintenance of their own rightful authority against organized armed rebels, their aiders and abettors, whatever free and independent nations anywhere upon this globe, in time of war, may of right do.

All this is substantially denied by the gentleman in the remarkable argument which he has here made. There is nothing further from my purpose than to do injustice to the learned gentleman or to his elaborate and ingenious argument. To justify what I have already said, I may be permitted here to remind the court that nothing is said by the counsel touching the conduct of the accused, Mary E. Surratt, as shown by the testimony; that he makes confession at the end of his arraignment of the government and country, that he has not made such argument, and that he leaves it to be made by her other counsel. He does take care, however, to arraign the country and the government for conducting a trial with closed doors and before a secret tribunal, and compares the proceedings of this court to the Spanish Inquisition, using the strongest words at his command to intensify the horror which he supposes his announcement will excite throughout the civilized world.

Was this dealing fairly by this government? Was there anything in the conduct of the proceedings here that justified any such remark? Has this been a secret trial? Has it not been conducted in open day in the presence of the accused, and in the presence of seven gentlemen learned in the law, who appeared from day to day as their counsel? Were they not informed of the accusation against them? Were they deprived of the right of challenge? Was it not secured to them by law, and were they not asked to exercise it? Has any part of the evidence been suppressed? Have not all the proceedings been published to the world? What, then, was done, or intended to be done, by the government, which justifies this clamor about a Spanish Inquisition?

That a people assailed by organized treason over an extent of territory half as large as the continent of Europe, and assailed in their very capital by secret assassins banded together and hired to do the work of murder by the instigation of these conspirators, may not be permitted to make inquiry, even with closed doors, touching the nature and extent of the organization, ought not to be asserted by any gentleman who makes the least pretensions to any knowledge of the law, either common, civil, or military. Who does not know that at the common law all inquisition touching crimes and misdemeanors, preparatory to indictment by the grand inquest of the state, is made with closed doors?

In this trial no parties accused, nor their counsel, nor the reporters of this court, were at any time excluded from its deliberations when any testimony was being taken; nor has there been any testimony taken in the case with closed doors, save that of a few witnesses, who testified, not in regard to the accused or either of them, but in respect to the traitors and conspirators not on trial, who were alleged to have incited this crime. Who is there to say that the American people, in time of armed rebellion and civil war, have not the right to make such an examination as secretly as they may deem necessary, either in a military or civil court?

I have said this, not by way of apology for anything the government has done or attempted to do in the progress of this trial, but to expose the animus of the argument, and to repel the accusation against my country sent out to the world by the counsel. From anything that he has said, I have yet to learn that the American people have not the right to make their inquiries secretly, touching a general conspiracy in aid of an existing rebellion, which involves their nationality and the peace and security of all.

The gentleman then enters into a learned argument for the purpose of showing that, by the Constitution, the people of the United States cannot, in war or in peace, subject any person to trial before a military tribunal, whatever may be his crime or offence, unless such person be in the military or naval service of the United States. The conduct of this argument is as remarkable as its assaults upon the government are unwarranted, and its insinuations about the revival of the Inquisition and secret trials are inexcusable. The court will notice that the argument, from the beginning almost to its conclusion, insists that no person is liable to be tried by military or martial law before a military tribunal, save those in the land and naval service of the United States. I repeat, the conduct of this argument of the gentleman is remarkable. As an instance, I ask the attention not only of this court, but of that public whom he has ventured to address in this tone and temper, to the authority of the distinguished Chancellor Kent, whose great name the counsel has endeavored to press into his service in support of his general proposition, that no person save those in the military or naval service of the United States is liable to be tried for any crime whatever, either in peace or in war, before a military tribunal.

The language of the gentleman, after citing the provision of the Constitution, "that no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces or in the militia, when in actual service in time of war or public danger," is, "that this exception is designed to leave in force, not to enlarge, the power vested in Congress by the original Constitution to make rules for the government and regulation of the land and naval forces; that the land or naval forces are the terms used in both, have the same meaning, and until lately have been supposed by every commentator and judge to exclude from military jurisdiction offences committed by citizens not belonging to such forces." The learned gentleman then adds: "Kent, in a note to his 1st Commentaries, 341, states, and with accuracy, that 'military and naval crimes and offences committed while the party is attached to and under the immediate authority of the army and navy of the United States and in actual service, are not cognizable under the common-law jurisdiction of the courts of the United States.'" I ask this court to bear in mind that this is the only passage which he quotes from this note of Kent in his argument, and that no man possessed of common sense, however destitute he may be of the exact and varied learning in the law to which the gentleman may rightfully lay claim, can for a moment entertain the opinion that the distinguished chancellor of New York, in the passage just cited, intimates any such thing as the counsel asserts, that the Constitution excludes from military jurisdiction offences committed by citizens not belonging to the land or naval forces.