Chapter VII: Questions Preliminary to the Trial

_What Sort of Trial should be given, Civil or Military?_

The first question that presented itself to the government in regard to these prisoners was, as to what kind of a trial should be given them, whether civil or military? The civil courts were open in the District of Columbia at the time, and had been all through the war. There was no question that a form of trial could be had in the civil courts; but there was at the same time as little question that, under existing circumstances, such a trial would only result in a miscarriage of justice. The great crime had been committed during the existence of a state of war, and the courts were only able to carry on their functions under the protection of the arms of the government.

This ægis being withdrawn, the administration of justice through the civil courts would have been an impossibility, even in the capital of the nation; and with this protection it was equally impossible to secure the demands of justice through the civil courts in cases involving the issues of the war, as a jury of partisans could not be expected to decide impartially if all belonged to one party, and if divided on party lines, they could not be expected to decide at all. The latter alternative was the only one on which a jury could have been impaneled, under the rules of law, at that time, in the District of Columbia. Outside of the soldiery there were as many enemies as friends of the government in the population of the district, to say the least, and many of these enemies were passing under the guise of friends. In this state of things it was obvious that it would be futile to send these prisoners before a civil tribunal for trial. The government had evidence that a great conspiracy existed, the purpose of which was to aid the rebel cause by a series of assassinations, and that what had happened was in pursuance of that plan, but only its partial accomplishment. The extent of this conspiracy had not been fully revealed, but its spirit and purpose were known, and both wisdom and good policy required that it should be met with the utmost promptitude and suppressed with no faltering hand. These persons had been arrested by the military police, and were held as prisoners in military custody. They were held not as prisoners of war, but as _secret active enemies_ of the government, guilty of a crime the purpose of which was to aid the rebellion, and this being their purpose, it took them out of the realm of _civil_, into the realm of _martial_, law. Their crime was regarded as an act of war, inasmuch as its purpose was to aid the existing armed rebellion. The means by which they thus sought to give it aid were morally reprehensible, and such as had long been rejected by the enlightened sentiment of the civilized and Christian nations of the earth. The crime was a blow at the life of the nation, in the person of its chosen head, and was committed in the nation's capital, and within the intrenched lines and fortifications thereof; and so it was decided that the prisoners were properly subject to a trial by a military commission.

President Lincoln's order of September 25th, 1862, had not been rescinded and was still in force, and under this order the prisoners were, from the purpose of their crime, subject to a military trial. They could not, under the articles of war, be sent before a court-martial for trial, but could, _under martial law, which is only the common law in a state of war_, be tried by a military commission.

The chief conspirators, on whom rested the responsibility of the plot, were still at large, and in an attitude of desperate hostility towards the government. The extent of their plans, and the means at their command for their execution, could not be known, and so it was a matter of the utmost importance to deal with the prisoners in the most summary manner consistent with the ends of justice. The President requested the attorney general, Hon. James A. Speed, a Kentuckian by birth, to give his official opinion as to whether these persons implicated in this crime could be tried before a military tribunal, or must be tried before a civil court. As the reply of the Attorney General furnishes an exhaustive discussion of the different conditions existing under a state of peace and a state of war, and shows that whilst in a state of peace the Constitution throws its shield of protection over the life, liberty, and property of the citizen, even the humblest, its provisions cannot afford protection to these in a state of war, and that martial law, or the common law of war comes in in the place of the Constitution to ameliorate as much as possible the miseries of war, and secure, as far as possible, the ends of justice and mercy; and as it constitutes a most important and interesting document worthy of the careful study of every young man who desires to become well informed on the most important questions of our national life, I shall give it a place entire, and commend it to careful perusal and study.

_Opinion of the Attorney General._

The President was assassinated at a theatre in the city
of Washington. At the time of the assassination a civil
war was flagrant,--the city of Washington was defended by
fortifications regularly and constantly manned, the principal
police of the city was by federal soldiers, the public offices
and property in the city were all guarded by soldiers, and the
President's house and person were, or should have been, under
the guard of soldiers. Martial law had been declared in the
District of Columbia, but the civil courts were open and held
their regular sessions, and transacted business as in times
of peace. Such being the facts, the question is one of great
importance,--important because it involves the constitutional
guarantees thrown about the rights of the citizen, and because
the security of the army and government in time of war is
involved; important, as it involves a seeming conflict between
the laws of peace and war. Having given the question propounded
the patient and earnest consideration its magnitude and
importance require, I will proceed to give the reasons why I am
of the opinion that the conspirators not only may but ought to
be tried by a military tribunal. A civil court of the United
States is created by a law of Congress, under and according
to the Constitution. To the Constitution and the law we must
look to ascertain how the court is constituted, the limits of
its jurisdiction, and what its mode of procedure. A military
tribunal exists under and according to the Constitution in
time of war. Congress may prescribe how all such tribunals are
to be constituted, what shall be their jurisdiction and mode
of procedure. Should Congress fail to create such tribunals,
then, under the Constitution, they must be constituted
according to the laws and usages of civilized warfare. They may
take cognizance of such offences as the laws of war permit;
they must proceed according to the customary usages of such
tribunals in time of war, and inflict such punishments as are
sanctioned by the practice of civilized nations in time of war.
In time of peace, neither Congress nor the military can create
any military tribunals, except such as are made in pursuance
of that clause of the Constitution which gives to Congress the
power "to make rules for the government of the land and naval
forces." I do not think that Congress can, in time of war or
peace, under this clause of the Constitution, create military
tribunals for the adjudication of offenses committed by persons
not engaged in, or belonging to, such forces.

This is a proposition too plain for argument. But it does not
follow that because such military tribunals cannot be created
by Congress under this clause that they cannot be created at
all. Is there no other power conferred by the Constitution
upon Congress or the military under which such tribunals may
be created in time of war? That the law of nations constitutes
a part of the law of the land must be admitted. The laws of
nations are expressly made laws of the land by the Constitution
when it says that "Congress shall have power to define and
punish piracies and felonies committed on the high seas, and
offences against the law of nations." To define is to give the
limits or precise meaning of a word or thing in being; to make
is to call into being. Congress has power to define, not to
make, the laws of nations; but Congress has power to make rules
for the government of the army and navy. From the very face of
the Constitution, then, it is evident that the laws of nations
do constitute a part of the laws of the land. But very soon
after the organization of the federal government, Mr. Randolph,
then attorney general, said: "The law of nations, although not
specifically adopted by the Constitution, is essentially a
part of the law of the land. Its obligation commences and runs
with the existence of a nation, subject to some modifications
on points of indifference." The framers of the Constitution
knew that a nation could not maintain an honorable place among
the nations of the world that does not regard the great and
essential principles of the law of nations as a part of the law
of the land. Hence Congress may define those laws but cannot
abrogate them, or, as Mr. Randolph says, may "modify on some
points of indifference."

That the laws of nations constitute a part of the laws of the
land, is established from the face of the Constitution upon
principle and by authority. But the laws of war constitute
much the greater part of the law of nations. Like the other
laws of nations, they exist and are of binding force upon the
departments and citizens of the government, though not defined
by any law of Congress. No one that has ever glanced at the
many treatises that have been published in different ages of
the world by great, good, and learned men, can fail to know
that the laws of war constitute a part of the law of nations,
and that those laws have been prescribed with tolerable
accuracy. Congress can declare war. When war is declared it
must be under the Constitution, carried on according to the
known usages and laws of war among civilized nations. Under the
power to define these laws, Congress cannot abrogate them, or
authorize their infraction.

The Constitution does not permit this government to prosecute a
war as an uncivilized and barbarous people. As war is required
by the frame-work of our government to be prosecuted according
to the known usages of war among the civilized nations of the
earth, it is important to understand what are the obligations,
duties, and responsibilities imposed by war upon the military.
Congress, not having defined, as under the Constitution it
might have done, the laws of war, we must look to the usage
of nations to ascertain the powers conferred in war, on whom
the exercise of these powers devolve, over whom, and to what
extent do these powers reach, and in how far the citizen and
the soldier are bound by the legitimate use thereof. The power
conferred by war is, of course, adequate to the end to be
accomplished, and not greater than what is necessary to be
accomplished. The law of war, like every other code of laws,
declares what shall not be done, and does not say what may be
done.

The legitimate use of the great power of war, or rather the
prohibitions upon the use of that power, increase or diminish
as the necessity of the case demands. When a city is besieged
and hard pressed the commander may exert an authority over the
non-combatants which he may not when no enemy is near. All wars
against a domestic enemy, or to repel invasions, are prosecuted
to preserve the government. If the invading force can be
overcome by the ordinary civil police of a country, it should
be done without bringing upon the country the terrible scourge
of war; if a commotion or insurrection can be put down by the
ordinary process of law, the military should not be called out.
A defensive foreign war is declared and carried on because the
civil police is inadequate to repel it; a civil war is waged
because the laws cannot be peacefully enforced by the ordinary
tribunals of the country through civil process and by civil
officers. Because of the utter inability to keep the peace and
maintain order by customary officers and agencies in time of
peace, armies are organized and put into the field. They are
called out and invested with the powers of war to prevent total
anarchy and to preserve the government.

Peace is the normal condition of a country, and war abnormal,
neither being without law, but each having laws appropriate to
the condition of society. The maxim _enter arma silent leges_
is never wholly true. The object of war is to bring society out
of its abnormal condition; and the laws of war aim to have that
done with the least possible injury to persons and property.
Anciently, when two nations were at war the conqueror had, or
asserted, the right to take from his enemy his life, liberty,
and property: if either was spared it was a favor, or act of
mercy. By the laws of nations, and of war as a part thereof,
the conqueror was deprived of this right.

When two governments, foreign to each other, are at war, or
when a civil war becomes territorial, all of the people of
the respective belligerents become by the law of nations the
enemies of each other. As enemies they cannot hold intercourse,
but neither can kill or injure the other except under a
commission from their respective governments. So humanizing
have been, and are, the laws of war, that it is a high offense
against them to kill an enemy without such commission. The laws
of war demand that a man shall not take human life except under
a license from his government; and under the Constitution of
the United States no license can be given by any department of
the government to take human life in war, except according to
the law and usages of war. Soldiers regularly in the service
have the license of the government to deprive men, the active
enemies of their government, of their liberty and lives: their
commission so to act is as perfect and as legal as that of a
judge to adjudicate; but the soldier must act in obedience to
the laws of war, as the judge must in obedience to the civil
law. A civil judge must try criminals in the mode prescribed
in the Constitution and the law; so, soldiers must kill or
capture according to the laws of war. Non-combatants are not to
be disturbed or interfered with by the armies of either party
except in extreme cases.

Armies are called out and organized to meet and overcome the
active acting public enemies. But enemies with which armies
have to deal are of two classes. 1. Open, active participants
in hostilities, as soldiers who wear the uniform, move under
the flag, and hold the appropriate commission from their
government, openly assuming to discharge the duties and
meet the responsibilities and dangers of soldiers, they are
entitled to all belligerent rights, and should receive all
the courtesies due to soldiers. The true soldier is proud to
acknowledge and respect those rights, and ever cheerfully
extends these courtesies. 2. Secret, but active participants,
as spies, brigands, bushwhackers, jayhawkers, war-rebels, and
assassins. In all wars, and especially civil wars, such secret,
active enemies rise up to annoy and attack an army, and must
be met and put down by the army. When lawless wretches become
so impudent and powerful as not to be controlled and governed
by the ordinary tribunals of a country, armies are called out
and the laws of war invoked. War has never been and can never
be conducted on the principle that an army is but a _posse
comitatus_ of a civil magistrate. An army, like all other
organized bodies, has a right, and its first duty is to protect
its own existence, and the existence of all its parts, by the
means and in the mode usual among civilized nations when at
war. The question arises, then, do the laws of war authorize
a different mode of proceeding and the use of different means
against secret active enemies from those used against open
active enemies? As has been said, the open enemy or soldier in
time of war may be met in battle and killed, wounded, or taken
prisoner, or so placed by the lawful strategy of war as that he
is powerless. Unless the law of self-preservation absolutely
demands it, the life of a wounded enemy or a prisoner must be
spared.

Unless pressed thereto by the extremest necessity, the laws
of war condemn and punish with great severity harsh or
cruel treatment to a wounded enemy or a prisoner. Certain
stipulations and agreements, tacit or express, betwixt the
open belligerent parties are permitted by the laws of war,
and are held to be of a very high and sacred character. Such
is the tacit understanding, or it may be usage of war, in
regard to flags of truce. Flags of truce are resorted to as a
means of saving human life, or alleviating human suffering.
When not used with perfidy, the laws of war require that they
should be respected. The Romans regarded embassadors betwixt
belligerents as persons to be treated with consideration and
respect. Plutarch, in his life of Cæsar, tells us that the
barbarians in Gaul, having sent some embassadors to Cæsar, he
detained them, charging fraudulent practices, and led his army
to battle, obtaining a great victory. When the senate decreed
festivals and sacrifices for the victory, Cato declared it to
be his opinion that Cæsar ought to be given into the hands
of the barbarians, that so the guilt which this breach of
faith might otherwise bring upon the state might be expiated
by transferring the curse on him who was the occasion of it.
Under the Constitution and laws of the United States, should a
commander be guilty of such a flagrant breach of law as Cato
charged upon Cæsar, he would not be delivered to the enemy, but
would be punished after a military trial.

The many honorable gentlemen who hold commissions in the army
of the United States, and have been deputed to conduct war
according to the laws of war, would keenly feel it as an insult
to their profession of arms for any one to say they could not
or would not punish a fellow soldier who was wantonly guilty of
cruelty to a prisoner, or perfidy towards the bearer of a flag
of truce. The laws of war permit capitulations of surrender and
paroles. They are agreements betwixt belligerents, and should
be scrupulously observed and performed. They are contracts
wholly unknown to civil tribunals. Parties to such contracts
must answer any breaches thereof to the customary military
tribunals in time of war. If an officer of rank, possessing
the pride that becomes a soldier and a gentleman, who should
capitulate to surrender his forces and property under his
command and control, be charged with a fraudulent breach of
the terms of surrender, the laws of war do not permit that he
should be punished without a trial, or, if innocent, that he
should have no means of wiping out the foul imputation. If a
paroled prisoner is charged with a breach of his parole, he may
be punished, if guilty, but not without a trial. He should be
tried by a military tribunal, constituted and proceeding as the
laws and usages of war prescribe.

The law and usage of war contemplate that soldiers have a high
sense of personal honor. The true soldier is proud to feel and
know that his enemy possesses personal honor, and will conform
and be obedient to the laws of war. In a spirit of justice,
and with a wise appreciation of such feelings, the laws of war
protect the honor and character of an open enemy. When, by the
fortunes of war, one open enemy is thrown into the hands and
power of another, and is charged with dishonorable conduct
and a breach of the laws of war, he must be tried according
to the usages of war. Justice and fairness say that an open
enemy to whom dishonorable conduct is imputed has a right to
demand a trial. If such a demand can be rightfully made, surely
it cannot be rightfully refused. It is to be hoped that the
military authorities of this country will never refuse such
a demand because there is no act of Congress that authorizes
it. In time of war the law and usages of war authorize it,
and they are a part of the law of the land. One belligerent
may request the other to punish for breaches of the laws of
war, and, regularly, such a request should be made before
retaliatory measures are taken. Whether the laws of war
have been infringed or not is, of necessity, a question to
be decided by the laws and usages of war, and is cognizable
before a military tribunal. When prisoners of war conspire to
escape, or are guilty of a breach of appropriate and necessary
rules of prison discipline, they may be punished, but not
without trial. The commander who should order every prisoner
charged with improper conduct to be shot or hung would be
guilty of a high offense against the laws of war, and should
be punished therefor after a military trial. If the culprit
should be condemned and executed, the commander would be as
free from guilt as if the man had been killed in battle. It
is manifest from what has been said, that military tribunals
exist under and according to the laws of war, in the interest
of justice and mercy. They are established to save human life
and to prevent cruelty as far as possible. The commander of an
army in time of war has the same power to organize military
tribunals and to execute their judgments that he has to set
his squadrons in the field and fight battles. His authority
in each case is from the laws and usages of war. Having seen
that there must be military tribunals to decide questions
arising in time of war betwixt belligerents who are open and
active enemies, let us next see whether the laws of war do
not authorize such tribunals to determine the fate of those
who are active but secret participants in the hostilities. In
Mr. Wharton's "Elements of International Law," he says: "The
effect of a state of war, lawfully declared to exist, is to
place all the subjects of each belligerent power in a state of
natural hostility. The usage of nations has modified this maxim
by legalizing such acts of hostility only as are committed by
those who are authorized by the express or implied command
of the State, such as the regularly commissioned naval and
military forces of the nation, and all others called out in
its defense, or spontaneously defending themselves in case of
necessity, without any express authority for that purpose."
Cicero tells us in his offices, that by the Roman feudal law no
person could lawfully engage in battle with the public enemy
without being regularly enrolled, and taking the military oath.
This was a regulation sanctioned both by policy and religion.
The horrors of war would indeed be greatly aggravated if every
individual of the belligerent States were allowed to plunder
and slay indiscriminately the enemies' subjects without being
in any manner accountable for his conduct. _Hence, it is in
land-wars irregular bands of marauders are liable to be treated
as lawless banditti, not entitled to the protection of the
mitigated usages of war as practiced by civilized nations._

In speaking upon the subject of banditti, Patrick Henry said
in the Virginia Convention: "The honorable gentleman has
given you an elaborate account of what he judges tyrannical
legislation, and an _ex-post facto_ law (in the case of Josiah
Philips); he has misinterpreted the facts. That man was
not executed by a tyrannical stroke of power, nor was he a
Socrates; he was a fugitive murderer and an outlaw; a man who
commanded an _infamous banditti_, and _at a time when the war
was at the most perilous stage_ he committed the most cruel
and shocking barbarities; he was an enemy to the human name.
Those who declare war against the human race may be struck
out of existence as soon as apprehended. He was not executed
according to those beautiful legal ceremonies which are pointed
out by the law in criminal cases. The enormity of his crime
did not entitle him to it. I am truly a friend to legal forms
and methods; but, sir, the occasion warranted the measure. A
pirate, an outlaw, or a common enemy to all mankind may be
put to death at any time. It is justified by the law of war
and of nations." No reader, not to say student, of the law of
nations can doubt that Mr. Wheaton and Mr. Henry have fairly
stated the laws of war. Let it be constantly borne in mind that
they are talking of the law in a state of war. These banditti
that spring up in time of war are respecters of no law, human
or divine, of peace or of war, are _hostes humani generis_,
and may be hunted down like wolves. Thoroughly desperate and
perfectly lawless, no man can be required to peril his life in
venturing to take them prisoners; as prisoners no trust can
be reposed in them. But they are occasionally made prisoners.
Being prisoners, what is to be done with them? If they are
public enemies, assuming and exercising the right to kill, and
are not regularly authorized to do so, they must be apprehended
and dealt with by the military. No man can doubt the right
and duty of the military to make prisoners of them, and being
public enemies it is the duty of the military to punish them
for any infractions of the laws of war.

But the military cannot ascertain whether they are guilty
or not without the aid of a military tribunal. In all wars,
and especially in civil wars, secret but active enemies are
almost as numerous as open ones. That fact has contributed to
make civil wars such scourges to the countries in which they
rage. In nearly all foreign wars the contending parties speak
different languages and have different habits and manners,
but in most civil wars that is not the case; hence there is
a security in participating secretly in hostilities that
induces many to thus engage. War prosecuted according to the
most civilized usage is horrible, but its horrors are greatly
aggravated by the immemorial habits of plunder, rape, and
murder practiced by secret but active participants. Certain
laws and usages have been adopted by the civilized world in
wars between nations that are not of kin to one another, for
the purpose and to the effect of arresting or softening many
of the necessary cruel consequences of war. How strongly bound
are we, then, in the midst of a great war where brother and
personal friend are fighting against brother and friend, to
adopt and be governed by these usages. A public enemy must or
should be dealt with in all wars by the same laws. The fact
they are public enemies being the same, they should deal with
each other according to those laws of war that are contemplated
by the Constitution.

Whatever rules have been adopted and practiced by the
civilized nations of the world in war to soften its hardships
and severity should be adopted and practiced by us in this
war. That the laws of war authorize commanders to create and
establish military commissions, courts or tribunals for the
trial of offenders against the laws of war, whether they be
open or secret participants in the hostilities, cannot be
denied. That the judgments of such tribunals may have been
sometimes harsh, and sometimes even tyrannical, does not
prove that they ought not to exist, nor does it prove that
they are not constituted in the interest of justice and mercy.
Considering the power that the laws of war give over secret
participants in hostilities, such as banditti, guerrillas,
spies, etc., the position of a commander would be miserable
indeed if he could not call to his aid the judgments of such
tribunals; he would become a mere butcher of men without the
power to ascertain justice, and there can be no mercy where
there is no justice. War in its mildest form is horrible; but
take away from the contending armies the ability and right to
organize what is now known as a Bureau of Military Justice,
they would soon become monster savages unrestrained by any and
all ideas of law and justice. Surely no lover of mankind, no
one that respects law and order, no one that has the instinct
of justice or that can be softened by mercy, would in time
of war take away from the commanders the right to organize
military tribunals of justice, and especially such tribunals
for the protection of persons charged or suspected of being
secret foes and participants in hostilities. It would be a
miracle if the records and history of this war do not show
occasional cases in which those tribunals have erred; but they
will show many, very many cases in which human life would have
been taken but for the interposition and judgments of these
tribunals. Every student of the laws of war must acknowledge
that such tribunals exert a kindly and benign influence in time
of war. Impartial history will record the fact that the Bureau
of Military Justice, regularly organized during this war, has
saved human life and prevented human suffering. The greatest
suffering patiently endured by soldiers, and the hardest
battles gallantly fought during this protracted struggle,
are not more creditable to the American character than the
establishment of this bureau.

This people have such an educated and profound respect for
law and justice, such a love of mercy, that they have in the
midst of this greatest of civil wars systematized and brought
into regular order tribunals that before this war existed
under the law of war, but without general rule. To condemn the
tribunals that have been established under this bureau is to
condemn and denounce the war itself, or, justifying the war, to
insist that it shall be prosecuted according to the harshest
rules, and without the aid of laws, usages, and customary
agencies for mitigating those rules. If such tribunals had not
existed before, under the laws and usages of war, the American
citizen might as proudly point to their establishment as to our
inimitable and inestimable Constitutions. It must be constantly
borne in mind that such tribunals and such a bureau cannot
exist except in time of war, and cannot then take cognizance
of offenders and offenses where the civil courts are open,
except offenders and offenses against the laws of war. But it
is insisted by some, and doubtless with honesty, and with a
zeal commensurate with their honesty, that such tribunals can
have no constitutional existence. The argument against their
constitutionality may be shortly, and I think, fairly stated
thus: Congress alone can establish military or civil judicial
tribunals. As Congress has not established military tribunals,
except such as have been created under the articles of war,
and which articles are made in pursuance of that clause in the
Constitution which gives to Congress the power to make rules
for the government of the army and navy, any other tribunal is
and must be plainly unconstitutional, and all its acts void.
This objection, thus stated, or stated in any form, begs the
question. It assumes that Congress alone can establish military
judicial tribunals. Is that assumption true?

We have seen that when war comes, the laws and usages of war
come with it, and that during the war they are a part of the
laws of the land. Under the Constitution, Congress may define
and punish offenses against those laws, but in default of
Congress defining those laws and prescribing punishment for
their infraction, and the mode of proceeding to ascertain
whether an offense has been committed, and what punishment is
to be inflicted, the army must be governed by the laws and
usages of war as understood and practiced by the civilized
nations of the world. It has been abundantly shown that these
tribunals are constituted by the army in the interest of
justice and mercy, and for the purpose and to the effect of
mitigating the horrors of war.

But it may be insisted that though the law of war, being part
of the law of nations, constitute a part of the laws of the
land, that those laws must be regarded as modified so far, and
whenever they come in direct conflict with plain constitutional
provisions. The following clauses of the constitution are
principally relied upon to show the conflict betwixt the laws
of war and the Constitution. "The trial of all crimes, except
in cases of impeachment, shall be by the jury, and such trial
shall be held in the State where the said crime shall have
been committed; but when not committed within any State, the
trial shall be at such place or places as the Congress may by
law have directed." "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; nor shall any person
be subject for the same offense to be twice put in jeopardy of
life or limb; nor shall be compelled in any criminal case to be
witness against himself, nor be deprived of life, liberty or
property without due process of law, nor shall private property
be taken for public use without just compensation" (Article V.
of the amendments). "In all criminal prosecutions the accused
shall enjoy the right of a speedy and public trial by an
impartial jury of the State and district wherein the crime
shall have been committed, which district shall have previously
been ascertained by law, and be informed of the nature and
cause of the accusation; to be confronted with witnesses
against him, to have compulsory process for obtaining witnesses
in his favor, and to have the assistance of counsel for his
defense" (Article VI. of the amendments). These provisions of
the Constitution are intended to fling around the life, liberty
and property of a citizen all the guarantees of a jury trial.

These constitutional guarantees cannot be estimated too highly,
or protected too sacredly. The reader of history knows that for
many weary ages the people suffered for the want of them; it
would not only be stupidity but madness in us not to preserve
them. No man has a deeper conviction of their value, or a
more sincere desire to preserve and perpetuate them, than I
have. Nevertheless, these sacred and exalted provisions of the
Constitution must not be read alone and by themselves, but must
be read and taken in connection with other provisions. The
Constitution was framed by great men--men of learning and large
experience, and it is a wonderful monument of their wisdom.
Well versed in the history of the world, they knew that the
nation for which they were framing a government would, unless
all history were false, have wars foreign and domestic. Hence
the government framed by them is clothed with the power to make
and carry on a war. As has been shown, when war comes the laws
of war come with it. Infractions of the laws of nations are
not denominated _crimes_, but _offenses_. Hence the expression
in the Constitution that Congress shall have power to define
and punish offenses against the law of nations. Many of the
_offenses_ against the law of nations for which a man may lose
his life, his liberty, or his property are not crimes. It is an
offense against the law of nations to break a lawful blockade,
and for which a forfeiture of the property is the penalty,
and yet the running of a blockade has never been considered a
crime; to hold communication or intercourse with the enemy is a
high offense against the laws of war, and for which those laws
prescribe punishment, and yet it is not a _crime_; to act as a
spy is an offense against the laws of war, and the penalty for
which, in all ages, has been death, and yet it is not a crime;
to violate a flag of truce is an offense against the laws of
war, and yet it is not a crime of which a civil court can take
cognizance; to unite with banditti, jayhawkers, guerrillas,
or any other unauthorized marauders is a high offense against
the laws of war; the offense is complete when the band is
organized or joined. The atrocities committed by such a band
do not constitute the offenses, but make the reasons, and
sufficient reasons they are, why such banditti are denounced by
the laws of war. Some of the offenses against the laws of war
are crimes, and some are not. Because they are crimes they do
not cease to be offenses against the laws of war; nor because
they are not crimes or misdemeanors do they fail to be offenses
against the laws of war. Murder is a crime, and the murderer,
as such, must be proceeded against in the form and manner
prescribed by the Constitution. In committing the murder an
offense may also have been committed against the laws of war;
for that offense he must answer to the laws of war, and the
tribunals legalized by that law. There is, then, an apparent
but no real conflict in the constitutional provisions.

Offenses against the laws of war must be dealt with and
punished under the Constitution, as the laws of war, they being
a part of the law of nations, direct; crimes must be dealt with
and punished as the Constitution, and laws made in pursuance
thereof, may direct. Congress has not undertaken to define the
code of war nor to punish offenses against it. In the case of a
spy, Congress has undertaken to say who shall be deemed a spy
and how he shall be punished. But every lawyer knows that a
spy was a well known offender under the laws of war, and that
under, and according, to these laws he could have been tried
and punished without an act of Congress. This is admitted by
the act of Congress when it says that he shall suffer death
"according to the laws and usages of war." The act is simply
declaratory of the law. That portion of the Constitution
which declares that no "person shall be deprived of his life,
liberty or property without due process of law" has such
direct reference to and connection with trials for _crime_ and
_criminal_ prosecutions, that comment upon it would seem to be
unnecessary. Trials for offenses against the laws of war are
not embraced nor intended to be embraced in these provisions.
If this is not so, then every man who kills another in battle
is a murderer, for he deprived a "person of life without that
due process of law" contemplated by this provision; every
soldier that marches across a field in battle array is liable
to an action for trespass, because he does so without that
due process of law. The argument that flings around offenders
against the laws of war these guarantees of the Constitution
would convict all the soldiers of our army of murder; no
prisoners could be taken and held; the army could not move.

The absurd consequences that would of necessity flow from such
an argument show that it cannot be the true construction--it
cannot be what was intended by the framers of that instrument.
One of the prime motives for the Union and a federal government
was to confer the powers of war. If any provisions of the
Constitution are so in conflict with the power to carry on
war as to destroy and make it valueless, then the instrument,
instead of being a great and wise one, is a miserable failure,
a _felo de se_. If any man should sue out a writ of _habeas
corpus_, and the returns show that he belonged to the army
or navy, and was held to be tried for some offense against
the rules and articles of war, the writ should be dismissed,
and the party remanded to answer to the charges. So, in time
of war, if a man should sue out a writ of _habeas corpus_,
and it is made appear that he is in the hands of the military
as a prisoner of war, the writ should be dismissed, and the
prisoner remanded to be disposed of as the laws and usages of
war require. If the prisoner be a regular unoffending soldier
of the opposing party to the war, he should be treated with
all the courtesy and kindness consistent with safe custody; if
he has offended against the laws of war he should have such
a trial, and be punished as the laws of war require. A spy,
though a prisoner of war, may be tried, condemned, and executed
by a military tribunal without a breach of the Constitution. A
bushwhacker, a jayhawker, a bandit, a war rebel, an assassin,
being public enemies, may be tried, condemned, and executed as
offenders against the laws of war.

The soldier that would fail to try a spy or a bandit after his
capture would be as derelict in duty as if he were to fail to
capture; he is as much bound to try and execute, if guilty, as
he is to arrest; the same law that makes it his duty to pursue
and kill or capture makes it his duty to try according to the
usages of war. The judge of a civil court is not more strongly
bound, under the Constitution and the law, to try a criminal,
than is the military to try an offender against the laws of
war. The fact that the civil courts are open does not affect
the right of the military tribunal to hold as a prisoner and
to try. The civil courts have no more right to prevent the
military, in time of war, from trying an offender against the
laws of war than they have a right to interfere and prevent a
battle. A battle may be lawfully fought in the very presence of
the court; so a spy, a bandit, or other offender against the
law of war, may be tried, and tried lawfully, when and where
the civil courts are open and transacting business. The law of
war authorizes human life to be taken without legal process;
or that legal process contemplated by those provisions of
the Constitution that are relied upon to show that military
judicial tribunals are unconstitutional.

Wars should be prosecuted justly as well as bravely. One enemy
in the power of another, whether he be an open or a secret
one, should not be punished or executed without a trial. If
the question be one concerning the laws of war, he should
be tried by those engaged in the war; they, and they only,
are his peers. The military must decide whether he is, or is
not, an active participant in hostilities. If he is an active
participant in the hostilities it is the duty of the military
to take him, without warrant or other judicial process, and
dispose of him as the laws of war direct. It is curious to see
one and the same mind justify the killing of thousands of men
in battle because it is done according to the laws of war, and
yet condemning that same law when, out of regard for justice,
and with the hope of saving life, it orders a military trial
before the enemy are killed. The love of law, of justice, and
the wish to save life and suffering should impel all good men
in time of war to uphold and sustain the existence and actions
of such tribunals. The object of such tribunals is obviously
intended to save life, and when their jurisdiction is confined
to offenses against the laws of war, that is their effect. They
prevent indiscriminate slaughter; they prevent men from being
punished or killed on mere suspicion. The law of nations, which
is the result of the wisdom and experience of ages, has decided
that jayhawkers, banditti, etc., are offenders against the laws
of nature and of war, and as such amenable to the military. Our
Constitution has made those laws a part of the law of the land.
Obedience to the Constitution and the law, then, requires that
the military should do their whole duty; they must not only
meet and fight the enemies of the country in open battle, but
they must kill or take the secret enemies of the country and
try and execute them according to the laws of war.

The civil tribunals of the country cannot rightfully interfere
with the military in the performance of their high, arduous,
and perilous but lawful duties. That Booth and his associates
were secret active public enemies no mind that contemplates
the facts can doubt. The exclamation used by him when he
escaped from the box onto the stage, after he fired the fatal
shot, _sic semper tyrannis_, and his dying message, "Say to my
mother that I died for my country," show that he was not an
assassin from private malice, but that he acted as a public
foe. Such a deed is expressly laid down in Vattel, in his work
on the law of nations, as an offense against the laws of war
and a great crime: "I give then the name of assassination to
a treacherous murder, whether the perpetrators of the deed be
the subjects of the party whom we cause to be assassinated
or of our own sovereign, or that it be executed by any other
emissary introducing himself as a suppliant, a refugee, or a
deserter, or in fine as a stranger" (Vattel, 339.) Neither the
civil nor the military department of the government should
regard itself as wiser and better than the Constitution and
the laws that exist under or are made in pursuance thereof.
Each department should, in peace and in war, confining itself
to its own proper sphere of action, diligently and fearlessly
perform its legitimate functions, and in the mode prescribed by
the Constitution and the law. Such obedience to and observance
of law will maintain peace when it exists, and will soonest
relieve the country from the abnormal state of war.

My conclusion, therefore, is, that if the persons who are
charged with the assassination of the President committed the
deed as public enemies, as I believe they did, and whether
they did or not is a question to be decided by the tribunal
before which they are tried, they not only can, but ought to be
tried before a military tribunal. If the persons charged have
offended against the laws of war, it would be especially wrong
for the military to hand them over to the civil courts, as it
would be wrong in a civil court to convict a man of murder who
had in time of war killed another in battle.

JAMES SPEED,
_Attorney General_.

The foregoing discussion of the constitutional aspects of the question will no doubt be regarded by most people as somewhat tedious, and perhaps outside of the legal profession will be read, much less carefully studied, by but few. Yet by those who study it, it will be found to be a most profound and masterly analysis of the questions involved, viz., those of military and civil jurisdiction as provided for in the Constitution, and to fully justify the opinion given as the conclusion of the argument.

We cannot too highly revere the Constitution, as it is that which gives permanence, security, and prosperity to our national life; yet there is a power greater than the Constitution--a power that by authority expressed or understood reserves the right to amend, alter, or abolish its provisions. That power is the sovereignty that resides in the people. Self preservation is a national, as much as an individual instinct, and self preservation is the first law of nature.

A government that has a right to live has a right to the use of all the means that may be found indispensable to the perpetuation of its existence. When war comes the laws of war come with it as a matter of necessity; because war, being an abnormal state of society, brings with it conditions that render inoperative and useless the means provided for the safety and security of the life, liberty, and property of the citizen, as guaranteed by the Constitution and laws. These interests are too sacred to be left wholly unprotected; and so the civilized nations of the world have adopted those rules which the wisdom and experience of mankind have found necessary for their protection in time of war. These rules, or laws, we denominate the laws of war. If the experience of mankind should dictate modifications of, or additions to, those rules for the better protection of these sacred interests of life, liberty, and property, it would be as proper to amend these as it is proper and competent to amend statute law, or to alter, amend, or abolish constitutions. Such additions or alterations, if wisely made, receive the sanction of mankind, and thus become a part of the unwritten law, having in them the authority of this sanction.

In dealing with this question, however, it was not found necessary that anything new should be devised, as the laws of war were found to authorize all that was necessary to the adjudication of the question, and to furnish the means and appliances for securing the ends of justice.

The nature of the offense charged against these prisoners placed them under the domain of martial law, as they were shown by their own acts and declarations to be secret, active enemies of the government, the purpose of their crime being to give aid to the existing rebellion. For this reason the government left them in the hands of the military to be dealt with according to the laws of war; and the President, being _ex-officio_ Commander-in-Chief of the army and navy, ordered the Assistant Adjutant General of the army to detail a military commission, and send the accuse before it for a speedy trial.