Chapter XXVI: Preface: To Appendix (2)

Who can fail to see that Chancellor Kent, by the passage cited, only decides that military and naval crimes and offences committed by a party attached to and under the immediate authority of the army and navy of the United States, and in actual service, are not cognizable under the common-law jurisdiction of the courts of the United States? He only says they are not cognizable under its common-law jurisdiction; but by that he does not say or intimate what is attempted to be said by the counsel for him, that "all crimes committed by citizens are by the Constitution excluded from military jurisdiction," and that the perpetrators of them can under no circumstances be tried before military tribunals. Yet the counsel ventures to proceed, standing upon this passage quoted from Kent, to say that, "according to _this_ great authority, every other class of persons and every other species of offences are within the jurisdiction of the civil courts, and entitled to the protection of the proceeding by presentment or indictment and the public trial in such a court."

Whatever that great authority may have said elsewhere, it is very doubtful whether any candid man in America will be able to come to the very learned and astute conclusion that Chancellor Kent has so stated in the note or any part of the note which the gentleman has just cited. If he has said it elsewhere, it is for the gentleman, if he relies upon Kent for authority, to produce the passage. But was it fair treatment of this "great authority": was it not taking an unwarrantable privilege with the distinguished chancellor and his great work, the enduring monument of his learning and genius, to so mutilate the note referred to as might leave the gentleman at liberty to make his deductions and assertions under cover of the great name of the New York chancellor, to suit the emergency of his case by omitting the following passage, which occurs in the same note, and absolutely excludes the conclusion so defiantly put forth by the counsel to support his argument? In that note Chancellor Kent says:--

"_Military_ law is a system of regulations for the government of the armies in the service of the United States, authorized by the act of Congress of April 10, 1806, known as the Articles of War, and _naval_ law is a similar system for the government of the navy, under the act of Congress of April 23, 1800. But _martial_ law is quite a distinct thing, and is founded upon paramount necessity and proclaimed by a _military chief_."

However unsuccessful, after this exposure, the gentleman appears in maintaining his monstrous proposition, that the American people are by their own Constitution forbidden to try the aiders and abettors of armed traitors and rebellion before military tribunals, and subject them, according to the laws of war and the usages of nations, to just punishment for their great crimes, it has been made clear from what I have already stated that he has been eminently successful in mutilating this beautiful production of that great mind; which act of mutilation every one knows is violative alike of the laws of peace and war. Even in war the divine creations of art and the immortal productions of genius and learning are spared.

In the same spirit, and it seems to me with the same unfairness as that just noted, the learned gentleman has very adroitly pressed into his service by an extract from the autobiography of the war-worn veteran and hero, General Scott, the names of the late secretary of war, Mr. Marcy, and the learned ex-attorney general, Mr. Cushing. This adroit performance is achieved in this way: after stating the fact that General Scott in Mexico proclaimed martial law for the trial and punishment by military tribunals of persons guilty of "assassination, murder, and poisoning," the gentleman proceeds to quote from the autobiography, "that this order when handed to the then secretary of war (Mr. Marcy) for his approval, 'a startle at the title (martial law order) was the only comment he then or ever made on the subject,' and that it was 'soon silently returned as too explosive for safe handling.' 'A little later (he adds) the attorney general (Mr. Cushing) called and asked for a copy, and the law officer of the government, whose business it is to speak on all such matters, was stricken with _legal dumbness_.'" Thereupon the learned gentleman proceeds to say: "How much more startled and more paralyzed would these great men have been had they been consulted on such a commission as this! A commission, not to sit in another country, and to try offences not provided for in any law of the United States, civil or military, then in force, but in their own country, and in a part of it where there are laws providing for their trial and punishment, and civil courts clothed with ample powers for both, and in the daily and undisturbed exercise of their jurisdiction."

I think I may safely say, without stopping to make any special references, that the official career of the late secretary of war (Mr. Marcy) gave no indication that he ever doubted or denied the constitutional power of the American people, acting through their duly constituted agents, to do any act justified by the laws of war for the suppression of a rebellion or to repel invasion. Certainly there is nothing in this extract from the autobiography which justifies any such conclusion. He was startled we are told. It may have been as much the admiration he had for the boldness and wisdom of the conqueror of Mexico as any abhorrence he had for the trial and punishment of "assassins, poisoners, and murderers," according to the laws and usages of war.

But the official utterances of the ex-attorney general, Cushing, with which the gentleman doubtless was familiar when he prepared this argument, by no means justify the attempt here made to quote him as authority against the proclamation and enforcement of martial law in time of rebellion and civil war. That distinguished man, not second in legal attainments to any who have held that position, has left an official opinion of record touching this subject. Referring to what is said by Sir Mathew Hale, in his "History of the Common Law," concerning martial law, wherein he limits it, as the gentleman has seemed by the whole drift of his argument desirous of doing, and says that it is "not in truth and in reality law, but something indulged rather than allowed as a law--the necessity of government, order, and discipline in an army," Mr. Cushing makes this just criticism: "This proposition is a mere composite blunder, a total misapprehension of the matter. It confounds _martial law_ and _law military_; it ascribes to the former the uses of the latter; it erroneously assumes that the government of a body of troops is a necessity more than of a body of civilians or citizens. It confounds and confuses all the relations of the subject, and is an apt illustration of the incompleteness of the notions of the common-law jurists of England in regard to matters not comprehended in that limited branch of legal science.... Military law, it is now perfectly understood in England, is a branch of the law of the land, applicable only to certain acts of a particular class of persons and administered by special tribunals; but neither in that nor in any other respect essentially differing as to foundation in constitutional reason from admiralty, ecclesiastical, or indeed chancery and common law.... It is the system of rules for the government of the army and navy established by successive acts of Parliament.... Martial law, as exercised in any country by the commander of a foreign army, is an element of the _jus belli_.

"It is incidental to the state of solemn war, and appertains to the law of nations.... Thus, while the armies of the United States occupied different provinces of the Mexican republic, the respective commanders were not limited in authority by any local law. They allowed, or rather required, the magistrates of the country, municipal or judicial, to continue to administer the laws of the country among their countrymen; but in subjection always to the military power, which acted summarily and according to discretion, when the belligerent interests of the conqueror required it, and which exercised jurisdiction, either summarily or by means of military commissions for the protection or the punishment of citizens of the United States in Mexico."--_Opinions of Attorneys General_, vol. viii., 366-69.

Mr. Cushing says, "That, it would seem, was one of the forms of martial law"; but he adds that such an example of martial law administered by a foreign army in the enemy's country "does not enlighten us in regard to the question of martial law in one's own country, and as administered by its military commanders. That is a case which the law of nations does not reach. Its regulation is of the domestic resort of the organic laws of the country itself, and regarding which, as it happens, there is no definite or explicit legislation in the United States, as there is none in England.

"Accordingly, in England, as we have seen, Earl Grey assumes that when martial law exists it has no legal origin, but is a mere fact of necessity to be legalized afterwards by a bill of indemnity if there be occasion. I am not prepared to say that, under existing laws, such may not also be the case in the United States."--_Ibid._, 370.

After such a statement, wherein ex-Attorney General Cushing very clearly recognizes the right of this government, as also of England, to employ martial law as a means of defence in a time of war, whether domestic or foreign, he will be as much surprised when he reads the argument of the learned gentleman, wherein he is described as being struck with _legal dumbness_ at the mere mention of proclaiming martial law and its enforcement by the commander of our army in Mexico, as the late secretary of war was startled with even the mention of its title.

Even some of the reasons given, and certainly the power exercised by the veteran hero himself, would seem to be in direct conflict with the propositions of the learned gentleman.

The lieutenant-general says he "excludes from his order cases already cognizable by court-martial, and limits it to cases not provided for in the act of Congress establishing rules and articles for the government of the armies of the United States." Has not the gentleman who attempts to press General Scott into his service argued and insisted upon it that the commander of the army cannot subject the soldiers under his command to any control or punishment whatever, save that which is provided for in the articles?

It will not do, in order to sustain the gentleman's hypothesis, to say that these provisions of the Constitution, by which he attempts to fetter the power of the people to punish such offences in time of war within the territory of the United States, may be disregarded by an officer of the United States in command of its armies, in the trial and punishment of its soldiers in a foreign war. The law of the United States for the government of its own armies follows the flag upon every sea and in every land.

The truth is, that the right of the people to proclaim and execute martial law is a necessary incident of war, and this was the right exercised, and rightfully exercised, by Lieutenant-General Scott in Mexico. It was what Earl Grey has justly said was a "fact of necessity," and I may add, an act as clearly authorized as was the act of fighting the enemy when they appeared before him.

In making this exception, the lieutenant-general followed the rule recognized by the American authorities on military law, in which it is declared that "many crimes committed even by military officers, enlisted men, or camp-retainers, cannot be tried under the rules and articles of war. Military commissions must be resorted to for such cases, and these commissions should be ordered by the same authority, be constituted in a similar manner, and their proceedings be conducted according to the same general rules as general courts-martial."--_Benet_, 15.

There remain for me to notice, at present, two other points in this extraordinary speech: first, that martial law does not warrant a military commission for the trial of military offences--that is, offences committed in time of war in the interests of the public enemy and by concert and agreement with the enemy; and second, that martial law does not prevail in the United States, and has never been declared by any competent authority.

It is not necessary, as the gentleman himself has declined to argue the first point,--whether martial law authorizes the organization of military commissions by order of the commander-in-chief to try such offences,--that I should say more than that the authority just cited by me shows that such commissions are authorized under martial law, and are created by the commander for the trial of all such offences when their punishment by court-martial is not provided for by the express statute law of the country.

The second point,--that martial law has not been declared by any competent authority,--is an arraignment of the late murdered President of the United States for his proclamation of September 24, 1862, declaring martial law throughout the United States, and of which, in Lawrence's edition of Wheaton on International Law, p. 522, it is said, "Whatever may be the inference to be deduced either from constitutional or international law, or from the usages of European governments, as to the legitimate depository of the power of suspending the writ of _habeas corpus_, the virtual abrogation of the judiciary in cases affecting individual liberty, and the establishment as _matter of fact_ in the United States, by the Executive alone, of martial law, not merely in the insurrectionary districts or in cases of military occupancy, but throughout the entire Union, and not temporarily, but as an institution as permanent as the insurrection on which it professes to be based, and capable on the same principle of being revived in all cases of foreign as well as civil war, are placed beyond question by the President's proclamation of September 24, 1862." That proclamation is as follows:--

"BY THE PRESIDENT OF THE UNITED STATES OF AMERICA.

"A PROCLAMATION.

"Whereas it has become necessary to call into service not only
volunteers, but also portions of the militia of the states,
by a draft, in order to suppress the insurrection existing in
the United States, and disloyal persons are not adequately
restrained by the ordinary processes of law from hindering
this measure and from giving aid and comfort in various ways
to the insurrection: Now, therefore, be it ordered that,
during the existing insurrection, and as a necessary means
for suppressing the same, all rebels and insurgents, their
aiders and abettors, within the United States, and all persons
discouraging volunteer enlistments, resisting militia drafts,
or guilty of any disloyal practice affording aid and comfort
to rebels, against the authority of the United States, shall be
subject to martial law and liable to trial and punishment by
courts-martial or military commission.

"Second. That the writ of _habeas corpus_ is suspended in
respect to all persons arrested, or who are now, or hereafter
during the rebellion shall be, imprisoned in any fort, camp,
arsenal, military prison, or other place of confinement, by any
military authority or by the sentence of any court-martial or
military commission.

"In witness whereof, I have hereunto set my hand and caused the
seal of the United States to be affixed.

"Done at the city of Washington, this 24th day of September,
A.D. 1862, and of the independence of the United States the
eighty-seventh.

"ABRAHAM LINCOLN.

"By the President:
"WILLIAM H. SEWARD,
"_Secretary of State_." */

This proclamation is duly certified from the War Department to be in full force and not revoked, and is evidence of record in this case; and but a few days since a proclamation of the President, of which this court will take notice, declares that the same remains in full force.

It has been said by another of the counsel for the accused (Mr. Stone) in his argument, that, admitting its validity, the proclamation ceases to have effect with the insurrection, and is terminated by it. It is true the proclamation of martial law only continues during the insurrection; but inasmuch as the question of the existence of an insurrection is a political question, the decision of which belongs exclusively to the political department of the government, that department alone can declare its existence, and that department alone can declare its termination, and by the action of the political department of the government every judicial tribunal in the land is concluded and bound. That question has been settled for fifty years in this country by the Supreme Court of the United States: First, in the case of Brown _vs._ The United States (8 Cranch); also in the prize cases (2 Black, 641). Nothing more, therefore, need be said upon this question of an _existing_ insurrection than this: The political department of the government has heretofore proclaimed an insurrection; that department has not yet declared the insurrection ended, and the event on the 14th of April, which robbed the people of their chosen Executive, and clothed this land in mourning, bore sad but overwhelming witness to the fact that the rebellion is not ended. The fact of the insurrection is not an open question to be tried or settled by parol, either in a military tribunal or in a civil court.

The declaration of the learned gentleman who opened the defence (Mr. Johnson), that martial law has never been declared by any competent authority, as I have already said, arraigns Mr. Lincoln for a usurpation of power. Does the gentleman mean to say that, until Congress authorizes it, the President cannot proclaim and enforce martial law in the suppression of armed and organized rebellion? Or does he only affirm that this act of the late President is a usurpation?

The proclamation of martial law in 1862 a usurpation! though it armed the people in that dark hour of trial with the means of defence against traitorous and secret enemies in every state and district of the country; though by its use some of the guilty were brought to swift and just judgment, and others deterred from crime or driven to flight; though by this means the innocent and defenceless were protected; though by this means the city of the gentleman's residence was saved from the violence and pillage of the mob and the torch of the incendiary. But, says the gentleman, it was a usurpation, forbidden by the laws of the land!

The same was said of the proclamations of blockade issued April 19 and 27, 1861, which declared a blockade of the ports of the insurgent states, and that all vessels violating the same were subjects of capture, and, together with the cargo, to be condemned as prize. Inasmuch as Congress had not then recognized the fact of civil war, these proclamations were denounced as void. The Supreme Court decided otherwise, and affirmed the power of the Executive thus to subject property on the seas to seizure and condemnation. I read from that decision:--

"The Constitution confers upon the President the whole executive power, he is bound to take care that the laws be faithfully executed; he is Commander-in-Chief of the army and navy of the United States, and of the militia of the several states when called into the actual service of the United States.... Whether the President, in fulfilling his duties as Commander-in-Chief in suppressing an insurrection, has met with such armed hostile resistance and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents, is a question to be decided _by him_, and this court must be governed by the decisions and acts of the political department of the government to which this power was intrusted. He must determine what degree of force the crisis demands.

"The proclamation of blockade is itself official and conclusive evidence to the court that a state of war existed which demanded and authorized a recourse to such a measure under the circumstances peculiar to the case." (2 Black, 670.)

It has been solemnly ruled by the same tribunal, in an earlier case, "that the power is confided to the Executive of the Union to determine when it is necessary to call out the militia of the states to repel invasion," as follows: "That he is necessarily constituted the judge of the existence of the exigency in the first instance, and is bound to act according to his belief of the facts. If he does so act, and decides to call forth the militia, his orders for this purpose are in strict conformity with the provisions of the law; and it would seem to follow as a necessary consequence, that every act done by a subordinate officer in obedience to such orders, is equally justifiable. The law contemplates that, under such circumstances, orders shall be given to carry the power into effect; and it cannot therefore be a correct inference that any other person has a just right to disobey them. The law does not provide for any appeal from the judgment of the President, or for any right in subordinate officers to review his decision, and in effect defeat it. Whenever a statute gives a discretionary power to any person, to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction that the statute constitutes him the sole and exclusive judge of the existence of these facts." (12 Wheaton, 31.)

In the light of these decisions, it must be clear to every mind that the question of the existence of an insurrection, and the necessity of calling into requisition for its suppression both the militia of the states and the army and navy of the United States, and of proclaiming martial law, which is an essential condition of war, whether foreign or domestic, must rest with the officer of the government who is charged by the express terms of the Constitution with the performance of this great duty for the common defence and the execution of the laws of the Union.

But it is further insisted by the gentleman in this argument, that Congress has not authorized the establishment of military commissions, which are essential to the judicial administration of martial law and the punishment of crimes committed during the existence of a civil war, and especially that such commissions are not so authorized to try persons other than those in the military or naval service of the United States, or in the militia of the several States, when in the actual service of the United States. The gentleman's argument assuredly destroys itself, for he insists that the Congress, as the legislative department of the government, can pass no law which, either in peace or war, can constitutionally subject any citizen not in the land or naval forces to trial for crime before a military tribunal, or otherwise than by a jury in the civil courts.

Why does the learned gentleman now tell us that Congress has not authorized this to be done, after declaring just as stoutly that by the fifth and sixth amendments to the Constitution no such military tribunals can be established for the trial of any person not in the military or naval service of the United States, or in the militia when in actual service, for the commission of any crime whatever in time of war or insurrection? It ought to have occurred to the gentleman when commenting upon the exception in the fifth article of the Constitution, that there was a reason for it very different from that which he saw fit to assign, and that reason manifestly upon the face of the Constitution itself, was, that by the eighth section of the first article, it is expressly provided that Congress shall have power to make rules for the government of the land and naval forces, and to provide for organizing, arming, and disciplining the militia, and for _governing_ such part of them as may be employed in the service of the United States, and that, inasmuch as military discipline and order are as essential in an army in time of peace as in time of war, if the Constitution would leave this power to Congress in peace, it must make the exception, so that rules and regulations for the government of the army and navy should be operative in time of peace as well as in time of war; because the provisions of the Constitution give the right of trial by jury IN TIME OF PEACE, in all criminal prosecutions by indictment, in terms embracing every human being that may be held to answer for crime in the United States; and therefore if the eighth section of the first article was to remain in full force IN TIME OF PEACE, the exception must be made; and, accordingly, the exception was made. But by the argument we have listened to, this court is told, and the country is told, that IN TIME OF WAR--a war which involves in its dread issue the lives and interests of us all--the guarantees of the Constitution are in full force for the benefit of those who conspire with the enemy, creep into your camps, murder in cold blood, in the interest of the invader or insurgent, the Commander-in-Chief of your army, and secure to him the slow and weak provisions of the civil law, while the soldier, who may, when overcome by the demands of exhausted nature which cannot be resisted, have slept at his post, is subject to be tried upon the spot by a military tribunal and shot. The argument amounts to this: that as military courts and military trials of civilians in time of war are a usurpation and tyranny, and as soldiers are liable to such arrests and trial, Sergeant Corbett, who shot Booth, should be tried and executed by sentence of a military court; while Booth's co-conspirators and aiders should be saved from any such indignity as a military trial! I confess that I am too dull to comprehend the logic, the reason, or the sense of such a conclusion! If there is any one _entitled_ to this privilege of a civil trial at a remote period, and by a jury of the district, IN TIME OF CIVIL WAR, when the foundations of the republic are rocking beneath the earthquake tread of armed rebellion, that man is the defender of the republic. It will never do to say, as has been said in this argument, that the soldier is not liable to be tried in time of war by a military tribunal for any other offence than those prescribed in the rules and articles of war. To my mind, nothing can be clearer than that citizen and soldier alike, in time of civil or foreign war, after a proclamation of martial law, are triable by military tribunals for all offences of which they may be guilty, in the interests of, or in concert with the enemy.

These provisions, therefore, of your Constitution for indictment and trial by jury in civil courts of _all crimes_ are, as I shall hereafter show, silent and inoperative in time of war when the public safety requires it.

The argument to which I have thus been replying, as the court will not fail to perceive, nor that public to which the argument is addressed, is a labored attempt to establish the proposition, that, by the Constitution of the United States, the American people cannot, even in a civil war the greatest the world has ever seen, employ martial law and military tribunals as a means of successfully asserting their authority, preserving their nationality, and securing protection to the lives and property of all, and especially to the persons of those to whom they have committed, officially, the great trust of maintaining the national authority. The gentleman says, with an air of perfect confidence, that he denies the jurisdiction of military tribunals for the trial of civilians in time of war, because neither the Constitution nor laws justify, but on the contrary repudiate them, and that all the experience of the past is against it. I might content myself with saying that the practice of all nations is against the gentleman's conclusion. The struggle for our national independence was aided and prosecuted by military tribunals and martial law, as well as by arms. The contest for American nationality began with the establishment, very soon after the firing of the first gun at Lexington on the 19th day of April, 1775, of military tribunals and martial law. On the 30th of June, 1775, the Continental Congress provided that "whosoever, _belonging to the continental army_, shall be convicted of holding correspondence with, or giving intelligence to the enemy, either indirectly or directly, shall suffer such punishment as by a court-martial shall be ordered." This was found not sufficient, inasmuch as it did not reach those _civilians_ who, like certain civilians of our day, claim the protection of the civil law in time of war against military arrests and military trials for military crimes. Therefore the same Congress, on the 7th of November, 1775, amended this provision by striking out the words "belonging to the continental army," and adopting the article as follows:--

"_All persons_ convicted of holding a treacherous
correspondence with, or giving intelligence to the enemy,
shall suffer death or such other punishment as a general
court-martial shall think proper."

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

"That all persons not members of, nor owing allegiance to,
any of the United States of America, who should be found
lurking as spies in or about the fortifications or encampments
of the armies of the United States, or any of them, shall
suffer death, according to the law and usage of nations, by
the sentence of a court-martial or such other punishment as a
court-martial shall direct."

Comprehensive as was this legislation, embracing as it did soldiers, citizens, and aliens, subjecting all alike to trial for their military tribunals of justice, according to the law and the usage of nations, it was found to be insufficient to meet that most dangerous of all crimes committed in the interests of the enemy by citizens in time of war--the crime of conspiring together to assassinate or seize and carry away the soldiers and citizens who were loyal to the cause of the country. Therefore, on the 27th of February, 1778, the Congress adopted the following resolution:--

"_Resolved_, That whatever inhabitant of these states shall
kill, or seize, or take any loyal citizen or citizens thereof
and convey him, her, or them to any place within the power of
the enemy, or shall ENTER INTO ANY COMBINATION for
such purpose, or attempt to carry the same into execution, or
hath assisted or shall assist therein; or shall, by giving
intelligence, acting as a guide, or in any manner whatever, aid
the enemy in the perpetration thereof, he shall suffer death
by the judgment of a court-martial as a traitor, assassin, or
spy, if the offence be committed within seventy miles of the
headquarters of the grand or other armies of these states where
a general officer commands."--_Journals of Congress_, vol. ii,
pp. 459, 460.

So stood the law until the adoption of the Constitution of the United States. Every well-informed man knows that at the time of the passage of these acts the courts of justice, having cognizance of all crimes against persons, were open in many of the states, and that by their several constitutions and charters, which were then the supreme law for the punishment of crimes committed within their respective territorial limits, no man was liable to conviction but by the verdict of a jury. Take, for example, the provisions of the constitution of North Carolina, adopted on the 10th of November, 1776, and in full force at the time of the passage of the last resolution by Congress above cited, which provisions are as follows:--

"That no freeman shall be put to answer any criminal charge but
by indictment, presentment or impeachment."

"That no freeman shall be convicted of any crime but by the
unanimous verdict of a jury of good and lawful men in open
court, as heretofore used."

This was the law in 1778 in all the states, and the provision for a trial by jury every one knows meant a jury of twelve men, impanelled and qualified to try the issue in a civil court. The conclusion is not to be avoided, that these enactments of the Congress under the Confederation set aside the trial by jury within the several states, and expressly provided for the trial by court-martial of "any of the inhabitants" who, during the revolution, might, contrary to the provisions of said law, and in aid of the public enemy, give them intelligence, or kill any loyal citizens of the United States, or enter into any combination to kill or carry them away. How comes it, if the argument of the counsel be true, that this enactment was passed by the Congress of 1778, when the constitutions of the several states at that day as fully guaranteed trial by jury to every person held to answer for a crime as does the Constitution of the United States at this hour? Notwithstanding this fact, I have yet to learn that any loyal man ever challenged, during all the period of our conflict for independence and nationality, the validity of that law for the trial, for military offences, by military tribunals, of all offenders, as the law, not of peace, but of war, and absolutely essential to the prosecution of war. I may be pardoned for saying that it is the accepted common law of nations, that martial law is, at all times and everywhere, essential to the successful prosecution of war, whether it be a civil or a foreign war. The validity of these acts of the Continental and Confederate Congress I know was challenged, but only by men charged with the guilt of their country's blood.

Washington, the peerless, the stainless, and the just, with whom God walked through the night of that great trial, enforced this just and wise enactment upon all occasions. On the 30th of September, 1780, Joshua H. Smith, by the order of General Washington, was put upon his trial before a court-martial, convened in the State of New York, on the charge of there aiding and assisting Benedict Arnold, in a combination with the enemy, to _take_, _kill_, and _seize_ such loyal citizens or soldiers of the United States as were in garrison at West Point. Smith objected to the jurisdiction, averring that he was a private citizen, not in the military or naval service, and therefore was only amenable to the civil authority of the State, whose constitution had guaranteed the right of trial by jury to all persons held to answer for crime. ("Chandler's Criminal Trials," vol. 2, p. 187.) The constitution of New York then in force had so provided; but, notwithstanding that, the court overruled the plea, held him to answer, and tried him. I repeat, that when Smith was thus tried by court-martial the constitution of New York as fully guaranteed trial by jury in the civil courts to all civilians charged and held to answer for crimes within the limits of that State as does the Constitution of the United States guarantee such trial within the limits of the District of Columbia. By the second of the Articles of Confederation each State retained "its sovereignty," and every power, jurisdiction, and right not _expressly_ delegated to the United States in Congress assembled. By those articles there was no express delegation of judicial power; therefore the States retained it fully.

If the military courts, constituted by the commander of the army of the United States under the Confederation, who was appointed only by a resolution of the Congress, without any _express_ grant of power to authorize it--his office not being created by the act of the people in their fundamental law--had jurisdiction in every State to try and put to death "any inhabitant" thereof who should _kill_ any loyal citizen or enter into "any combination" for any such purpose therein in time of war, notwithstanding the provisions of the constitution and laws of such States, how can any man conceive that under the Constitution of the United States, which is the supreme law over every State, anything in the constitution and laws of such State to the contrary notwithstanding, and the supreme law over every territory of the republic as well, the Commander-in-Chief of the army of the United States, who is made such by the Constitution, and by its supreme authority clothed with the power and charged with the duty of directing and controlling the whole military power of the United States in time of rebellion or invasion, has not that authority?

I need not remind the court that one of the marked differences between the Articles of Confederation and the Constitution of the United States was, that under the Confederation the Congress was the sole depository of all federal power. The Congress of the Confederation, said Madison, held "the command of the army." (Fed., No. 38.) Has the Constitution, which was ordained by the people the better "to insure domestic tranquillity and to provide for the common defence," so fettered the great power of self-defence against armed insurrection or invasion that martial law, so essential in war, is forbidden by that great instrument? I will yield to no man in reverence for or obedience to the Constitution of my country, esteeming it, as I do, a new evangel to the nations, embodying the democracy of the New Testament--the absolute equality of all men before the law, in respect of those rights of human nature which are the gift of God, and therefore as universal as the material structure of man. Can it be that this Constitution of ours, so divine in its spirit of justice, so beneficent in its results, so full of wisdom and goodness and truth, under which we became one people, a great and powerful nationality, has in terms or by implication denied to this people the power to crush armed rebellion by war, and to arrest and punish, during the existence of such rebellion, according to the laws of war and the usages of nations, secret conspirators who aid and abet the public enemy?

Here is a conspiracy, organized and prosecuted by armed traitors and hired assassins, receiving the moral support of thousands in every State and district, who pronounced the war for the Union a failure, and your now murdered but immortal Commander-in-Chief a tyrant; the object of which conspiracy, as the testimony shows, was to aid the tottering rebellion which struck at the nation's life. It is in evidence that Davis, Thompson, and others, chiefs in this rebellion, in aid of the same, agreed and conspired with others to poison the fountains of water which supply your commercial metropolis, and thereby murder its inhabitants; to secretly deposit in the habitations of the people and in the ships in your harbors inflammable materials, and thereby destroy them by fire; to murder by the slow and consuming torture of famine your soldiers, captive in their hands; to import pestilence in infected clothes to be distributed in your capital and camps, and thereby murder the surviving heroes and defenders of the republic, who, standing by the holy graves of your unreturning brave, proudly and defiantly challenge to honorable combat and open battle all public enemies, that their country may live; and finally, to crown this horrid catalogue of crime, this sum of all human atrocities, conspired, as charged upon your record, with the accused and John Wilkes Booth and John H. Surratt, to kill and murder in your capital the executive officers of your government and the commander of your armies. When this conspiracy, entered into by these traitors, is revealed by its attempted execution, and the foul and brutal murder of your President in the capital, you are told that it is unconstitutional, in order to arrest the further execution of the conspiracy, to interpose the military power of this government for the arrest, without civil process, of any of the parties thereto, and for their trial by a military tribunal of justice. If any such rule had obtained during our struggle for independence we never would have been a nation. If any such rule had been adopted and acted upon now, during the fierce struggle of the past four years no man can say that our nationality would have thus long survived.

The whole people of the United States by their Constitution have created the office of President of the United States and Commander-in-Chief of the army and navy, and have vested, by the terms of that Constitution, in the person of the President and Commander-in-Chief, the power to enforce the execution of the laws, and preserve, protect, and defend the Constitution.

The question may well be asked: If, as Commander-in-Chief, the President may not, in time of insurrection or war, proclaim and execute martial law, according to the usages of nations, how he can successfully perform the duties of his office--execute the laws, preserve the Constitution, suppress insurrection, and repel invasion?

Martial law and military tribunals are as essential to the successful prosecution of war as are men and arms and munitions. The Constitution of the United States has vested the power to declare war and raise armies and navies exclusively in the Congress, and the power to prosecute the war and command the army and navy exclusively in the President of the United States. As, under the Confederation, the commander of the army, appointed only by the Congress, was by the resolution of that Congress empowered to act as he might think proper for the good and welfare of the service, subject only to such restraints or orders as the Congress might give, so, under the Constitution, the President is, by the people who ordained that Constitution and declared him Commander-in-Chief of the army and navy, vested with full power to direct and control the army and navy of the United States, and employ all the forces necessary to preserve, protect, and defend the Constitution and execute the laws, as enjoined by his oath and the very letter of the Constitution, subject to no restriction or direction save such as Congress may from time to time prescribe.

That these powers for the common defence, intrusted by the Constitution exclusively to the Congress and the President, are, in time of civil war or foreign invasion, to be exercised without limitation or restraint, to the extent of the public necessity, and without any intervention of the federal judiciary or of State constitutions or State laws, are facts in our history not open to question.

The position is not to be answered by saying you make the American Congress thereby omnipotent, and clothe the American Executive with the asserted attribute of hereditary monarchy--the king can do no wrong. Let the position be fairly stated--that the Congress and President, in war as in peace, are but the agents of the whole people, and that this unlimited power for the common defence against armed rebellion or foreign invasion is but the power of the people intrusted exclusively to the legislative and executive departments as their agents, for any and every abuse of which these agents are directly responsible to the people--and the demagogue cry of an omnipotent Congress, and an Executive invested with royal prerogatives, vanishes like the baseless fabric of a vision. If the Congress, corruptly or oppressively, or wantonly abuse this great trust, the people, by the irresistible power of the ballot, hurl them from place. If the President so abuse the trust, the people by their Congress withhold supplies, or by impeachment transfer the trust to better hands, strip him of the franchises of citizenship and of office, and declare him forever disqualified to hold any position of honor, trust, or power, under the government of his country.

I can understand very well why men should tremble at the exercise of this great power by a monarch whose person, by the constitution of his realm, is inviolable, but I cannot conceive how any American citizen, who has faith in the capacity of the whole people to govern themselves, should give himself any concern on the subject. Mr. Hallam, the distinguished author of the Constitutional History of England, has said:--

"Kings love to display the divinity with which their flatterers
invest them in nothing so much as in the instantaneous
execution of their will, and to stand revealed, as it were,
in the storm and thunderbolt when their power breaks through
the operation of secondary causes and awes a prostate nation
without the intervention of law."

How just are such words when applied to an irresponsible monarch! how absurd when applied to a whole people, acting through their duly appointed agents, whose will, thus declared, is the supreme law, to awe into submission and peace and obedience, not a prostrate nation, but a prostrate rebellion! The same great author utters the fact which all history attests, when he says:--

"It has been usual for all governments during actual
rebellion to proclaim martial law for the suspension of civil
jurisdiction; and this anomaly, I must admit," he adds, "is
very far from being less indispensable at such unhappy seasons
where the ordinary mode of trial is by jury than where the
right of decision resides in the court."--_Const. Hist._, vol.
i, ch. 5, p. 326.

That the power to proclaim martial law and fully or partially suspend the civil jurisdiction, federal and state, in time of rebellion or civil war, and punish by military tribunals all offences committed in aid of the public enemy, is conferred upon Congress and the Executive, necessarily results from the unlimited grants of power for the common defence to which I have already briefly referred. I may be pardoned for saying that this position is not assumed by me for the purposes of this occasion, but that early in the first year of this great struggle for our national life I proclaimed it as a representative of the people, under the obligation of my oath, and, as I then believed and still believe, upon the authority of the great men who formed and fashioned the wise and majestic fabric of American government.

Some of the citations which I deemed it my duty at that time to make, and some of which I now reproduce, have, I am pleased to say, found a wider circulation in books that have since been published by others.

When the Constitution was on trial for its deliverance before the people of the several States, its ratification was opposed on the ground that it conferred upon Congress and the Executive unlimited power for the common defence. To all such objectors--and they were numerous in every State--that great man, Alexander Hamilton, whose words will live as long as our language lives, speaking to the listening people of all the States and urging them not to reject that matchless instrument which bore the name of Washington, said:--

"The authorities essential to the care of the common defence
are these: To raise armies; to build and equip fleets; to
prescribe rules for the government of both; to direct their
operations; to provide for their support. These powers ought
to exist WITHOUT LIMITATION; because it is impossible
to foresee or define the extent and variety of national
exigencies, and the correspondent extent and variety of the
means which may be necessary to satisfy them.

"The circumstances that endanger the safety of nations are
infinite; and for this reason no constitutional shackles can
wisely be imposed on the power to which the care of it is
committed.... This power ought to be under the direction of the
same councils which are appointed to preside over the common
defence.... It must be admitted, as a necessary consequence,
that there can be no limitation of that authority which is to
provide for the defence and protection of the community in
any manner essential to its efficacy; that is, in any matter
essential to the formation, direction, or support of the
national forces."

He adds the further remark: "This is one of those truths which,
to a correct and unprejudiced mind, carries its own evidence
along with it; and may be obscured, but cannot be made plainer
by argument or reasoning. It rests upon axioms as simple as
they are universal--the _means_ ought to be proportioned to
the _end_; the persons from whose agency the attainment of any
_end_ is expected ought to possess the means by which it is to
be attained."--_Federalist_, No. 23.

In the same great contest for the adoption of the Constitution, Madison, sometimes called the "Father of the Constitution," said:--

"Is the power of declaring war necessary? No man will answer
this question in the negative.... Is the power of raising
armies and equipping fleets necessary?... It is involved in
the power of self-defence.... With what color of propriety
could the force necessary for defence be limited by those who
cannot limit the force of offence?... The means of security can
only be regulated by the means and the danger of attack.... It
is in vain to oppose constitutional barriers to the impulse
of self-preservation. It is worse than in vain, because it
plants in the Constitution itself necessary usurpations of
power."--_Federalist_, No. 41.

With this construction, proclaimed both by the advocates and opponents of its ratification, the Constitution of the United States was accepted and adopted, and that construction has been followed and acted upon by every department of the government to this day.

It was as well understood then in theory as it has since been illustrated in practice, that the judicial power, both federal and State, had no voice and could exercise no authority in the conduct and prosecution of a war, except in subordination to the political department of the government. The Constitution contains the significant provision, "The privilege of the writ of _habeas corpus_ shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

What was this but a declaration, that in time of rebellion or invasion the public safety is the highest law?--that so far as necessary the civil courts (of which the Commander-in-Chief, under the direction of Congress, shall be the sole judge) must be silent, and the rights of each citizen, as secured in time of peace, must yield to the wants, interests, and necessities of the nation? Yet we have been gravely told by the gentleman in his argument, that the maxim, _salus populi suprema est lex_, is but fit for a tyrant's use. Those grand men, whom God taught to build the fabric of empire, thought otherwise when they put that maxim into the Constitution of their country. It is very clear that the Constitution recognizes the great principle which underlies the structure of society and of all civil government; that no man lives for himself alone, but each for all; that, if need be, some must die that the State may live, because at test the individual is but for to-day, while the commonwealth is for all time. I agree with the gentleman in the maxim which he borrows from Aristotle, "Let the public weal be under the protection of the law"; but I claim that in war, as in peace, by the very terms of the Constitution of the country, the public safety is under the protection of the law; that the Constitution itself has provided for the declaration of war for the common defense, to suppress rebellion, to repel invasion, and, by express terms, has declared that whatever is necessary to make the prosecution of the war successful, may be done, and ought to be done, and is therefore constitutionally lawful.