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'WEDNESDAY, JUNE 28, 1865
THE NEWS.
`We print this morning the reply of Judge Mtn
oste m o os,. to Hon. ReVerdy Johnson's argument
against site trial of the coneph - ators by eourt.mar-
Hal instead of the civil courts. It was delivered
yesterday, and is a most exhaustive andthorough
;oat amt. Sanford COMM! was again brought
01579 rd, end testified that the paper he signed over
too signature of J. W. Wallace, and which denim'
a ll the testimony he gave before the military com
mssin, was extorted from him by throats against
his me. The testimony is very damaging against
,srnars, Beverly Theater, and °there, and shows
some of the recent doings of this Camino band or
rebels.
The steamer Cuba, with London advises to the
11th, strived at New York yesterday. The British
Ocvernicent has given our Government further
a pology for the insult to our flag at Honolulu. The
Tads papers generally endorse Lord Brougham's
speech on Aelerlean affairs. Consuls were quoted
at SOVINKIi, and 5-205 at soyMeem.
The Vermont Democratic State Convention of
yesterday nominated C. N. Davenport for Governor,
D. O. LinsJoy for Lieutenant Governor, and L. H.
Noyes tor Treasurer. Resolutions endorsing Presi
dent .Tohnson's plan of reconatrinitlen were adopted.
The nardOning power of the President wee yes
terday extended to a number of Virginians and
yontucklans, who had been engaged in the re
bellion.
The convention which meets in Detroit, on the
Nth o f July, embraces only Boards of Trade and
Chambers of Commerce.
A riot occurred at Portsmouth, Virginia, on San.
day, between white and colored troops. Two or
GOVelrer Curtin has signed the bill inoorperatinfr
se Gray Reserve Drtgarm, or Philadelphia.
A. destructive fire otmurred In Buffalo yesterday,
deetroyitg property to the amount of $160,000.
There is very little demand for flour, and prices
STD Verettled. Wheat le dull at former rates. Cora
and Oats have advanced. cotton is more active,
and prises have advanced 2fj3o 10 lb. Sugar Is In
demand et fell prime. 'Whisky is rather firmer,
but the sales are in small lots only.
The Stock market was moderately active
yester
day. Government loans were slightly lower. State
and City Securities were unchanged. The railroad
shares showed considerable firmness, with an ad
vance in Camden and Amboy, Philadelphia and
NllO, and Pennsylvania Railroad.
Gold Hosed in New Yolk lad night at DION, and
after call at 141.
The Indian Tribes.
It is stated that Commissioner Doug, of
the Indian Bureau, has recently been
despatched upon an extended mission
among the aboriginal tribes, to make trea
ties for their removal from the numerous
points where their depredations continue
to present a serious obstacle to the tide of
advancing civilization. The difficulties and
struggles of the early colonies are almost
constantly being re-enacted in some of our
trans-Mississippi possessions. At one time
'we hear of terrible massacres upon the
borders of Minnesota ; at another, of de
predations along the great overland route
to the Pacific ; at another, of outbreaks
in Nevada, California, Oregon, or New
Mexico. There is always the same final
issue to these strifes. The white man
eventually triumphs, whether his antago
nist he King PIC= or TEcumsnu - , Bracts
RAM or Horn-us.THE-Disz. But, mean
while, much time is lost, many valuable
lives destroyed, and our frontiers kept in a
chronic state of insecurity. It is deeply to
be regretted that the efforts to reconcile the
progress of our race with the elevation and
preservation of the aborigines have been
attended with little success. No labor and
expense have been spared by the Govern
ment. We are forced to the conclusion,
either that the system it has adopted has
been practically an erroneous one, or
that it is utterly impossible to civilize
our Indian tribes. There is little time
or opportunity left for further experi•
ments. The "settlements" are advancing
in both directions. The old fate of being
crowded into the Pacific, which was tradi
tionallyreserved _for ros
easam lie is being driven east
ward from his far western homes as ...sadly
as he is being driven westward from the
frontiers of the Atlantic States. He must
choose between civilization or speedy ex
tirpation. We have room still for many
millions who are willing to work and think,
but will not much longer have room for
those who persist in devotion to the habits
and manners of barbarism, and whose ex
istence is made up of hunting wild beasts,
reckless debauchery, sottish indolence,
and cruel and treacherous warfare upon
the pioneers of civilization. It is sad that
a whole race should be swept away, but
sadder still that the progress of a great
nation, involving the welfare of many
Millions, should be arrested. We can
never submit to such ravages as have
driven back the tide of advancement in
Mexico, and compelled the abandontaent
of mines of inexhaustible wealth, and the
desertion of villages and plantations that
once teemed with prosperity. Our whole
territorial area is being carved up into
flourishing States ; and as it is the impera
tive duty of the Government to protect their
citizens, the savages must behave peaceably
or perish.
Tan ronurou COMMERCE of the United
'States, great as it is. is of very little im
portance when compared with the im
mense internal trade of our country. The
best, surest, and infinitely the most exten
sive markets for all our products are at
home and in those non-manufacturing
countries, which exchange coffee, sugar,
spices, girm, for our breadstuffs, provisions,
and manufacture& England takes from us
a great cotton crop, when we raise it, but
she sends much of this back to us at an
enhanced price, and we go on repeating
the old folly of selling skins for a sixpence
and buying back the tails for a - shilling.
.Nothing tends so much to increase na
tional wealth and power as a proper di
versification of industry. In the recent
contest the North gained incalculable ad-
Vantages over the South by her industrial
superiority. It was this which enabled us
to improvise a navy to blockade the South
ern coast . ; to construct arms as fast as they
were required ; to make the best rifles and
the largest cannon, and to supply all the
munitions of war more rapidly than they
Could be consumed. In the South, on the
contrary, their main and almost sole re
liance was the ' blockade-runners. They
had to depend upon the covert
. aid of
foreign nations for the means of prolonging
the conflict, and to employ agents to
stealthily prowl around foreign ports, to
Loy privateers, sine° make illicit arrange
ments for smuggling guns, cannon, powder,
lead, medicines clothing, shoes, &c., to t i ar
shores. Manufacturing skill becomes an
indispensable requisite for success and for
the preservation of independence in time
of war ; the nation that neglects it, and
devotes all its energies to agriculture, is
forced to depend upon the aid of treacherous
and uncertain allies, and, sooner or later,
is compelled to succumb. The arts that
thus protect and strengthen in periods of
national peril, adorn and enrich in time of
peace ; and there thus is a double necessity
for supporting and encouraging them. We
are sending hundreds of millions of dollars
abroad every year that could be spent with
Much better advantage in rewarding the
labors of artisans at home. We should
constantly endeavor to destroy the re•
tnaining vestiges of industrial vassalage
that still make us in part dependent
upon European workshops for fabrics
that can be made upon our own shores.
It would be better to import here skilled
workmen to establish new industries,
when necessary, than to be constantly ship_
Ping our gold abroad to enrich foreign trea
suries,.
. 4 There is no good reason why Eng
land shottld permanently excel us in a'sin
gle manufacture ; but many reasons why,
most articles, we should speedily out
strip her in the quality and extent of our
productions, We abound in superior raw
material, intro; coal, timber cotton wool
°a; and hemp, and ifwe- entered upon a
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VOL. 8.-NO. 284
struggle for industrial victory with half the
zeal and determination we displayed in our
contest for the Union, we Would soon ren
der America the greatest manufacturing
country in the world, supply all our own
wants, and have a surplus left for foreign
markets.
Maximilian's Next Move.
What is called "the city article" in the
London Times, (corresponding with the
money article in Tan Pune and other
daily American papers,) has great influ.
ence among political as well as among
business people across the Atlantic. Ever
and anon a paragraph appears in it, as a
feeler, which prepares the public mind for
Et strong " leader," to follow in the same
paper, with full editorial weight, with the
intent of inftuericing those who pin their
faith in that weather-cock journal. In the
Times of June 13th, for instance, the money
article has this paragraph :
" Monsieur Eloin, the special envoy of the Eat
noror Pdaximillen, arrived yesterday in Paris from
Vienna, where, it is geld, with the aid of King Leo
polo he succeeded in prevailing on the Emperor of
Austria to reinstate his mother Maximilian in all
his egnatio rights in the event of Ado returning to
that country."
It would not surprise us in a few days to
receive a Times with a significant leader
arguing that it was useless for MAxtartomi
to continue the attempt to reign as Empe
ror in Mexico, and announcing that, in all
probability, he would finally return to Eu
rope in a month or two. Of course, the
pretext will be that he wants to look after il _
hie rights — in Atlbialm. -- ranee - " rights,
provided that he has been reinstated in
them by his brother, the Emperor. FRAN
CIS Joanna, mean his chances of suc
cession, in the event of his outliving
the said elder brother and the little
Archduke Rol:ions.; a charming little
cherub of six years old, the only son of
the reigning Emperor. The poor child's
brain has been overworked by a multipli
city of tutors—think of his learning five
languages at once, that infant of six years 1
—and country air, constant exercise, plain
and nourishing food, and total abstinence
from study can alone save him from be
coming feeble in mind and body. We no
tice, too, that the semi-official Paris papers
positively declare that no reinforcements
of French troops are to be sent from
France to Mexico. Putting all these
things together, it would seem as if MAXI
MILIAN probably would quit Mexico with
all convenient alacrity, and thus let the
Monroe doctrine prevail.
THE TRIAL.
ADDITIONAL EVIDENCE BY SAN
FORD MOVER.
The "James W. Wallace" Mystery
His Explanation of it.
The Affidavit which Appeared in the
Montreal and New York Papers
Prepaxed under Duress.
Tucker and his Brother Rebels Compel Conove
to Assert that he Perjured Himself.
TESTIMON COM P ETE N TOD CHARIXTER
FROMWITNESSES.
Fierce Remarks from Tucker & Co.
Concerning the President
and Judge Holt,
THE ADVERTISER FOR THE PRE
SIDENT'S_KIIRDER,
PRINTER'S EVIDENCE FIXING THE RE
SPONSIBILITY ON HIM.
Judge Bingham's Arguments against those ei
Johnson and Ewing.
AN EXPLANATION FEOIE KR. EWING
Legal and Military Authorities on the Subject
of the Court's Jurisdiction,
WASHINGTON, June 27.—The Court met at eleven
o'clock, when Judge Advocate General Holt re.
called Sandford Conover, alias J. W. Wallace, as
a witness for the Government.
Judge Holt said he held in his hand a volume
containing the judicial proceedings in the case of
the St. Albans raid, and asked the witness whether
his evidence was therein truthfully reported. The
witness said the testimony to which General Holt
had especially referred was partly his. but associated
with that of another person named Wallace.
dl. IM yen remember how many persons awned
Wallace gave testimony on that Mall A. There
were tura ,e so far as I know — William Pope Wal
laoe, J. Watson Wallace, and J. Wallace; what
was read from the book just now was the report of
the Montreal Telegraph, printed from the type of
that newspaper ; the report which apposed in the
Montreal Witness was correot.
This was read as follows :
"James Watson Wallace said : I redde at present
in this city, and have been here since October; I
formerly , resided in the Confederate States; I know
James it. Seddon - he oeeepted the position of
Seeretery of Warp 9 I
should site the Signatures to
the papers ra, N and 0, are theca of the said Sed
don ; I have on several oocasioni seen the signature
of James A. Seddon, and have seen him on several
0008,810113 write his name ; kepis signed documents
in my presence, and handed:hem to me after sign
lag ; I never belonged to tie Confederate army,
but have Been many comniesiOns issued by the
Confederate Government; the commission of
Lieutenant Young, marled Pd, is in the Weal
form ; the army coMmistions are; always signed by
the Secretary of War' I have never seen a oem
mission with the nametf the President, or with the
Seal of the Government; the Confederate States,
at the time I left the Country , had no seal ; one had
been designed but net prepared."
The witness remitted that the above was sub
stantially what be did,say ; it was clipped either
from the Montreal Witness or the Herald.
Q. State whetter, after you gave your testimony
in Ws court, yor visited Montreal 1 A. I left here,
perhaps, the sane day.
Q. Whom fair you meet there of those spoken of
as refugees I A. I met Tucker, Carroll, Dr. Pollen,
ix. Governor WOBOott, Gee. Sanders, Lewis Sao•
dere, his son, and a number of others ; I had aline
esuversattou with some of them—espeoially with
Tooker and Sanders.
Q. What did Tucker say, so far as the purpose of
those race was concerned A. They had, not the
slightest idea that I had testified before this com
mission, and received me with great cordiality; the
subject of this trial was generally discussed ; Tank
er, after denouncing Stanton and President John
son as scoundrels, spoke of Judge Holt as a blood
thirsty old villain ; they said they must protect
themselves by a guard at present, bat, by the eter
nal, the dap Of tenoning would come, and then they
would have a heavy account to settle; Sanderfi did
not make such violent threats as Tacker did ; Wm.
S. Cleary, whom he also met, made similar violent
threats ; he said that Beall would have been par
domed by the President had it not been for Judge
Holt; he also said blood should follow blood ; he re•
minded me of what he had formerly remarked con.
corning President Linooln—"that retributive jut.
Bee had come, and the aseassinatton of the Presi
dent was the beginning of it."
Q. After giving your testimony here did . you not
go to llamado for we 7 A. I did ;to got a collided
copy of the record ; at Montreal I met these son•
spiratore ; I bad not been there long when they die.
covered that rmy testimony bad been published ; I
received a message from Sanders, Tedder, Carron,
and O'Donnell, a Virginian, sometimes called Pao-
Donnell.
Q. The man who boasted of settle g fire to houses
in New York e A He so boasted ; i went into the
saloon to wait until the public offices were 'opened ;
while sitting there about ten minutes a dozen rebels
surrounded me they accused me of having be
trayed their accrete; not knowing at the time that
my testimony bad been published, I denied It; Mei
said If I would give them a letter to that effect it
would be well ; just as I was about to get away
Beverly Tucker came In; he said a mere letter
would not do, Warne I had testified before the
court, therefore I must give some paper under oath,
to make my denial sufficiently Strong about a
dozen of these men assailed mein a furious manner
O'Donnell took out his pistol, and maid unless I did
so I should never leave the room alive; at last
Sanders said, "Wallace, you see what kind of
bands you are in ;" I at length consented; it was
understood I was to prepare the paper in my own
way ; I intended, however, notto prepare the paper,
but to escape from them at the most convenient op.
portal:My ; Mr. Kerr, who had defended the St.
Albans raiders, was then sent for to prepare the
paper;'two of Morgan's men were there; a pistol
was again drawn on me ; Kerr came, and the ate
davit was prepared, and I signed It, and went
through the ceremony of an oath.
Q; Did yen know that Kerr had knowledge of
these menaces I . A. It mint have so appeared to
him, for Tacker said if I did not alga the paper I
should never leave the town alive, and that thay
could follow me to hell.
Q. Did that paper appear in the Telegrapk i and
was it afterwards copied into the New York World?
A. It did. (The paper was read.) It appeared in
the Montreal Earning. Telegraph, of June 10th, and
in to the effect that If Prefildent Johnson Will send
him, James W. Wallace, Wife conduct to go to
Washington and to return to Montreal, he would
proceed hither and go before the military court and
maim proffer of himself, in order that they may see
whether he was the nine Sandford Conover who
swore as stated. This it dated June Bth, 1865, and
is signed James W. Wallace. To We the affidavit
before referred to, Is appended, namely:
"I am the same James W. Wallaee Whegaire evi
dence on the subject of the St. Albans raid, whlith
"Maim appears on page 212 of the .printed report
of tile ease ; I am, a native of Londone comity, Vir
ginia ; I resided to montreil to Oenitexi /JIM
rem end examined the report of
suppressed evidence before the court martial now
being holden at Washington en Mistress ziaratt,
Payne, and attune, and I have looked carefully
through the report of the evidende in the New York
papers of a person calling himself Sandford CM.
over, who referred to the hoot that Whtlet In tton.
trealhe went by the name of Jamse Malan Wet
lace, and gave evidence iu the St. Albans raid in MIS
tigation ; that said Conover evidaotly personated
me before the said court.martial ; that T never gave
any testimony whatsoever before the said sours
martial; that I never gave any testimony whatsoever
before the said court martial at Washington city ;
that I never bad knowledge of John Wilkes _ Booth,
except seeing him on the stage, and did not know
he was in Montreal until I saw it published, after
the murder of President Lincom ; that I never was
a correspondent of the New York Tribune; that I
never went under the name of Sandford Conover;
that I never had any confidential oommunioatiOli
with George N. Sanders, Beverley Maker, Hon,
Jacob Thompson, General Corr.)] of Tennessee, Cr.
M. N. Paden, or any of the others therein men
tioned ; that my acquaintanite with every one of
these gentlemen was slight.; and, to fine, I nave no
hesitation In stating that the evidence of the said
Conover personating me Is false, untrue, and !un
founded in foot, and is, from beginning to end, a
tissue of falsehoods. I nave made this deposition
voluntarily, and In justice to my own character and
name. S Warsoic Watteon
Tide was sworn to before G. Smith, jasttoe of the
peace, at Montreal, on the Soh or Sand teat. Alfred.
ferry certified that Wallace submitted to the paper
of his own tree will, sic.
By Judge Advocate Holt Q. I understend tam
Is the paper sworn and eubserined to by you under
the circumstances which you havndetalled, with
pistols. presented at your face, and that the state.
meats In this paper are false t A. Yea, sir; I never
heard of Alfred Terry, who said I swore to it volun
tarily.
The advertisement appended to the deposition,
and which is as follows, was also Induced by the
HMO threats :
`ewe reward will be given for the arrest, so that
I Nth bring to plinithinent in Canada, the infamous
and perjured scoundrel who ranently nertiollated me
under the name of Sanford.ConoVer, and deposed to
a tissue of falsehoods before the military commis.
Mon at Washington. J. W. Wanneoa. ,,
Q. You ItaVe stated that you were never In the
Confederate army ; what did you mean I AL: I meant
that I never served ass soldier after I'was conthript.
se ; I was detailed as a Mork in the rebel War De.
DartMent.
My Juals. Was any attempt made by
those men to.detaiu you In Canadal A. I believe
ro ; be frlende of theirs, sad I was relieved through
the influence of General Mx.
Testimony of Nathan &user.
By Judge Holt: Witham said he had buoys Sand
ford Conover for eightor ten years ; hie oharaoter for
integrity was wood ; recently witness had accom
panied Conover to Montreal, and watt present at the
interview with Tucker and Sanders;after they want
Into O'DonnalPs room, Mr, Cameron came there
with s paper eontsining an aoooant of Oonovers
testimony Oonovor had the paper shown to him,
but denied lie had so testified ; he was Old be must
sign a writing to that effect or be should not leave
the room alive;they would shoot him like a dog;
they all went into the St. Lawrence Hall, bat
would not let the witness follow them; there were
twelve or fifteen persons in the party, including
Sanders, Tucker, O'Donnell, Carroll, Dr. Pullen,
and Cameron ; the witness said he did not see any
weapons on these persons.
Testimony of John Cantly.
By Jndge Holt ; I reside at Selma, Alabama, and
am a printer in the Office Of the Selma Despatch.
Judge Holt said I will read the following. Whitt
purports to have been clipped from that newspaper,
namely :
"A 111ILLIOn Dor,LAUs WARTED, TO RAVE P a &On
Br TEE leT oP Melton —lf the citizens of the
Southern Confederacy will furnish me with the
ease, or good securities for the sum of $1,000.000, I
will cause the lives of Abraham Lincolo, William
H. Seward, and Andrew Johnson, to be taken by
the Ist of March next. This will give us peace, and
satisfy the world that cruel tyrants cannot live in a
land of liberty. If this is not accomplished, noth
ing will be claimed beyond the sum of $50,000 in
advance, which is supposed to be necessary to reach
and slaughter the three 'Rifting., I will give, my-
Belt, el OCO toward this patriotio 4)tirpette. Every
one wishizg to contribute will address'
"CABAWBA, Alabama, Dec. 1, 1884."
Q. Will you state whether this advertisement
was published in the Selma Defpatee in December,
18641 A. A 8 far as I recoirect it was so worded,
aid was published four or five times; I Saw tee
manuscript, which was in the handwriting of G. W.
(isle, of Cahawba, Alabama ; his name was signed
at the bottom of the sheet simply to indicate the
author, and who was responsible for it; the Despatch
bad a circulation of eight hundred copies, and ex
changed with the Richmond papers ; Gale is a law
yer of considerable reputation, and is distinguished
for his extreme views on the subject of slavery ; I
never saw Gale before his arrest.
Watkins D. Graves, also a printer, who had been
employed in the Selma Dispatch °Moe, remembered
to bare seen the advertisement signed M. It was
in Mr. Gale's handwriting, which the witness had
frequently seen.
Dr. Merritt WBB Mailed for the Government
with reference to a statement made by Mr. Hutch.
insert, that he overheard a conversation on tee 2d
of June. The doctor said that on that day he saw
General Carroll at St. Lawrence Hall, and intro
duced himself as Dr. Merritt Of Memphis. As
there was a large family of that name at Memphis,
from which vicinity General Carroll name, he ex
pressed to the witness great gratification at meet
ing him. General Carroll introduced Marto Tacker
and others as Dr. Merritt. On Tuesday, the 6th of
June, the testimony was published in Canada, when
Tucker said they were perfectly posted as to every
thing on this trial, and Tucker raid that they had
burned the papers from the Confederate Govern
ment, for fear some Yankee would steal them for
evidence. 'Ex.Governor Westcott was present dar
ing the interview. Witness did not hear the latter
utter any disloyal sentiments, although ft must be
inferred he wag playing into his friend's hands.
By General Wallace : Q. By , whom were they
being poeted A. He said "we have friends in
court; who I don'tknow Idid not take for granted
it was any member of this court. [Laughter.]
Judge Rot bald the Government was now through
with its testimony.
Assistant Judge Advocate Bingham then de.
livered-his argument, asfoltows
Argument of John A. Bingham,
SPECIAL JUDGE ADVOCATE:
MAT IT PLEASE TEE COVET : The . 00nspiraoy
charged and specified, and the acts alleged to have
been committed, constitute a crime, the atrocity of
which, has sent a shudder through the civilised
world. All that was agreed upon and attempted
by the alleg" d boners and Instigators of this crime
constitutes a combination of atrocities with Scarcely
a parallel. Whether the prisoners are guilty of the
conspiracy and the eels alleged to have been done
In pursuance thereof, is a qtteetion the determine,.
tIOn of which rests solely with this honorable Court.
In presenting my views upon the questions of law
raised by the several counsel for the defence, and
also on the testimony, I desire to be just, for the
issue joined involves the highest interests of the
accused, and, in my judgment, the highest interests
of the whole people of the United States.
It is a matter of great moment to all the people
Of this country that the prisoners at your bar be
lawfully treed and lawfully annotated or acquitted.
A wrongful and illegal conviction, or a wrixsgful
and Illegal, acquittal upon this dread issue
Impair somewhat the seourny of every man's
and shake the stability of the republic. y the
The crime charged and specified is not sire
crime of murcering a human being, bag , 1 3 ,„,, 1 3
crime of killing and murdering, on the ,;„" - _,=„,',7
April, A. D. MA, within the natilteric,,z7;; f r
of Washington and the intrenoheat,,l 4 , — .
nited
Abraham Lincoln, then Prealden*a_ --- .7a
States, and commander-iuchief "-" ar m y
navy thereof ; and then and tb . assaulting, with
intent to kill and Murder Mom H. Seward,
then Secretary of State or ae United States ; and
to and murder An
then and there
lying in isr
drew Johnson, then vi 'President of the United
States, and Ulysses Arant, then Lieutenant Gen•
eral and in 00/0137P u of the armies of the 'United
States, i n pete „,..ice of a treasonable conspiracy
ent ere d i n t o Otte accused with one John Wilkes
Booth and j i an ii Suratt, upon the instigation of
Jefferson Inv% Jacob Thompson, and George N.
Sanders Old others, with intent thereby to aid the
existlngrebellion and subvert the Constitution and
bail of the United States.
, The rebellion, In aid of which this conspiracy was
formed alid this gr eat public crime committed, was
prosecuted for t he.vindication of no right, for the
redress of no wrong, but was Itself simply a a rimtnal
conspiracy and gigantic assassination. In resist
ing and crushing thie rebellion,thelAmerloan people
cast no reproach upon their past history. That
people now, as ever, proclaim the eeinevident truth
that whenever government becomes subversive of
the ends of Its creation, it is the right and duty of
the people to alter and abolish it ; but during these
MO yearn Of conflict they have as clearly pro
claimed that the GovernMent Of their OWU oholoe,hu-
Inanely and wisely adMinnitered,Oppreseive of none
and just to an, snail, not be overthrown by privy
conspiracy or armed rebellion.
What wrong had this Government done to any of
the guilty actors In this atrocious rebellion I Yet
for lour years, without cause of Complaint or color
able excuse, the Instigators of the conspiracy
charged, have restated the lawful authority of the
Government, and attempted by force of argue to
blot the republic from the map of nations. Now,
that *heir battalion of treason are broken and fly
ing, the chief traitors in this ftreat crime secretly
conspire with their hlred confederates to achieve, by
assassination, if possible, what 'They vainly at
tempted by wager of _battle. It is for this Emmet
conspiracy In the interest of the rebellion, formed
at the Instigation or tinschien is that rebellion, and
In pursuance of which the acts charged and spe
cified are alleged to have been done, that the ac
cused are upon trial.
The Government, In preferring this charge, indicts
only the alleged parties to this atrocious conspiracy
and crime. The President of the United States, in
the discharge of his duly as commander.in-ohlef of
the army, and by virtue of the power vested in him
by the Constitution and laws of the United States,
has oonstituted you a military gout, to hear and de
termine the issue joined, and has constituted yen a
court for no other purpose wnatever. To this charge
and specifiCatiOn the defendants have pleaded, first,
that this court has no jurisdiction in thepre.
miser ; and, second, not guilty. As the court has
already overruled the plea to the jurisdiction, it
would be passed over in silence by me, but that a
grave and elaborate argument has been made by
couneelfor the accused, not only toshow the want of
iftrisdlc Stab s
but to - arraign the President of the
'Thum te before the country and the world as a
usurper of power over the lives and the libertiee of
the prisoners, Denying the authority of the Pres'•
dent to emanate this tribunal is an averment that
It is not a court ft justice, has no legal existence,
and therefore no power to hear and determine the
in3Utljoined. The - learned counsel, when they make
this averment, Should show how the Proddent could
otherwise lawfully and efficiently discharge the
duty enjoined upon him by his oath, to protect, pre•
serve, and defend' the Constitution of the United
States, and to take cars that the laws be faithfully
executed.
An existing rebellion IS not denied. it is charged
that In aid of this a conspiracy was entered into by
the accused, inelted thereto by the chiefs of this re
benion, to murder the executive officers of the Go
vernment, and the commander of the armies of the
United Statile, and that this conspiracy was partly
executed; and counsel reply, by elaborate argu
ment, that although the facts be as charged, though
the conspirators be numerous and at large, yet the
successor or your murdered President la a usurper,
if he attempts, by military force and martial law,
to prevent the consummation of this traitorous con
spiracy in aid of this treasonable rebellion. The
civil 'mur', say the renntail, are open thedistriet.
I answer, they are Closed throughout half the re.
public, and were only open to tuts district on the
day of the traitorous assaseinatiOil of your Fresh
dent, and are only open at this hour, by force of the
bayonet. Does any man suppose that if the mints,
ry tomes Which garrison the entrenchments were
withdrawn, the rebel bands who infest the moue:
tam passes, in your vicinity would allow any court
to remain open la this ("Istria for the trial of these,
their oor,federateil.
At the time when this Court. was Convened the
csubtry was in a state of civil war. Since this trial
begun the blood of Union soldiers has been shed in
battle. The conspirator, by whose hand his co-con.
spirators Jointly murdered the President on the 14th
of last April, could not be arrested on civil process,
but Was punned by the ntintary_power of the Go.
vernment, captured, and slain. Wag this an set of
usurpation violation of the right guaranteed to
that fleeing assassin by the very Oonstitution
against which. atd for the subversion of whioh, he
had conspired I would be glad to know by what
law the president, by a military force, acting only
upon his Military orders, is justified in pursuing, W
resting, and killing one of these Conspirators, and la
condemned ibr arreetinlf In like meaner, and by his
"A u sub jecting tot rIW any or all of the other ;AV
ties to this damnable donepirkey and wins%
by a military Winans' of justice.
'rill Pliant . 1 6 4 / 8 1 PO jnrledlell9l Ofthis
PHILADELPHIA, WEDNESDAY, JUNE 28, 1865.
court rests on the assumption that even in time of
civil war. no crimes are punishable by r military
CoMIDIsSiOn or courtenartial, save orioles' commit
ted in the military or naval servers of the United
States, or In the militia of the States when pelted
into the actual service of the United States. Bit
It also atarms that under this plea the moused hove
the right to demand that this Court stroll decide that
it is not a judicial tribunal,
This Is a most extraordinary proposition—Mat the
President, under the Constitution and laws of the
United States, was not only not authorised, but ale
soluiely forbidden to constitute this court for the
trial of the accused. .
Tbat 1 do not misstate what is ate motel to be ea•
tablished on behalf of the accused, I ash t e atten
tion of the court to the following aa the ge. lemon's
(Mr. Johnson's) propositions,:
That Congress hoe not authorized, and, rider the
Constitution, cannot authorize the appol tment of
this commission.
That this 00MMISSIOD has, "as a (murk legal
existence or authority,"' because the Presi nt, who
alone appointed the commission, has noon power.
That his net "Is a mere nullity—the etereetioa of
a power not vested In the Entreaties, and efiderring
no authority upon you:" k ,
We have bad no common exhibition of hve.lesrit
ing in this defence, prepared by a Senor of the
United States; but he has utterly failed to show
how a tribunal constituted and sworn, tj doly try
and determine the charge and speoldoatiagainst
the accused and by its commission not thOrited
to bear or determine any other Issues wua ver, can
by any possibility pass Upon the prop o tion'pre-
seated by this argument. , _ 1
The members of this court are offieei.,in the
army of the United States, and by ordtssol , the
Pretident, as commandenimoblef, are freqrtiredi. l
to discharge this duty, and are mutt Wed in
this capacity to discharge no other ity. Of
course, If the commission of the Preid int mop
stltutes this awed for the trial of this one only, it`
is
iii competent to deolde all questions of laoand feet:
arising
arising in the trial of tee ease. Bat ?has no -
power
power to declare the authority by which I was OM. 1
atituted null and void. Has it been sho t iby the
learned gentleman, that officers of the 9 may +.
lawfully and 00111itlinti011aily question to ?der/ of
their 00Minandenireeldef, disobey. and, deotare t ,
them a nullity and a usurprotlett i Eitel) r 00k..T.:
thus detailed by order of the commands-Wader
may question and disregard his order, is itoossibil,
that any body of men, constituted as a tetanal
justice, can sit in judgment upon the p spetitlot , l
that they are not a court, and finally de dr, Jodi
orally, that the Government which appoinlesithe
Wee without authority I Why not orown too
simony of this proposition by astieg tbout revere
to determine that they are not men —ll.viog Int*
gent, responsible sal on upon
would be no more ask timed than the question upon which they are ask
to pass, •
So with the question presented : before .O t
can enter upon the loquiry of the want ofntho
in the President, they must take for gr ated, ea
very point In issue, that they are in law & in t
gravely asked, as such judicial tribunal to a
miably declare that they are not a judicial betel,
I li
but a men nullity and noneaty. • 1
As the learned counsel seems to requiredeist
for every opinion, I may be pardoned to sayt,A•
Mat the objection which I urge has been lemay
ruled by the Supreme Court of the Mats lades.
lee
That court say : "The acceptance of the uncial
office is a recognition of the authority from lilt& it
Is derived. It a court should enter noo . the in
quiry. and should come to the conelasion at the
Government under which It acted had n pat
stelae, it would Cease to he a court and be s pable
of pronouncing a judicial deeisionupon the r anion
it Undertook to try. If It decides at all, as court,
it necessarily affirms the eXistenee and , sturdy
Of the government under which it le creed Sg ja-
Metal power."—( Luther va. Borden, 7 Ho . d, 40)
That Is the very question raised by the lamed
gentleman—that there was no atothosityin t Prest.
dent to vest this tribunal with judicial po to try
this Issue; and by the order upon year rd, as
has been shown. if you have no power to • this
issue for want or authority la the comm , erdn
chief to constitute you a court. you are , court,
and have no power to try any issue.
It requires no very profound legal attai ,
apply the ruling of the highest jaded/SI IT
this country, just cited, to the point ral
court exists as &judicial tribunal by auth ,
of the President of the United States; to
arcs of the office is an acknowledgment ,
itdlty of Me authority conferring it ; a
President had no authority to order, di
constitute this court to try the amused, a
so constituting it, perform an nuoonstitut
illegal SAY, It neMinntrily results that the
the President did not and eouldnot Matt
tribunal of justice, and therefore its me
incapable or pronouncing a jesticial deeds
the question presented.
There is a marked distinction between
Lion here presented and that raised by a p
jurisdiction of a tribunal whose existence •
is unquestioned. A learned Senator and
gnished lawyer, argues that the order. of '
dent, by whose authority alone this court
toted a tribunal of military justice, is nu
unlawini, it has created no court ; thereto
fag a court, it can have no more power to
question whatever, than have Its indict
hers power to decide thatthey, as men, do
exist.
It is & maxim of the common law—the
of human reason—that what is impossio
requires of no man.
How can it be possible that a judida
can decide the question that it does not
more than that a rational man can deal
does not exist 1
The absurdity of this proposition cam: 0 saved
from the ridicule and contempt of FODSI men by
the pretence that the court is not asked diolally
to decide that it is not a court, but only t t it hal
no jurisdiction, , Gentlemen might as w ask the
Supreme Court of the United States to d ide, as a
court, that theP resident had no lawful a ority to
nominate the judges thereof to the Sena ad that
the Senate had no lawful authority too sent to
their appointment, as to ask this court to d de that
the order of the President of the Untie ,States
Constituting it a tribunal, for the sole prep of this
trial, was not only without authority/ I ' bat in
violation ,of lair. if this court is is a le a q to
buret, it can no mere speak 111WO" 1 ."
grnenkreqn red
dead, much less pronounce th e
at ite hands—that it ter il, and !that the
president of the 'l:felted ten I to constg it
so olaorlty and vie ated
such has transcended ,
ide oath of office. ,
Before poising yro sN the OonaideratiOn of the
proposition that this , not a court, it Is St that
I should notice that as
of the counsel for
the amused (Gem 800 163 alto advanced ' the
oa i
Same opinion, certainu Nei more directness, and
without any qualifeati . His statement is:
o y ou a gentlemen, pert no court under the 00n
ark maw:A fail to excite Our
etitation.Y, This r
- A l embered that the g entleman ,
prise, when It isam, was -
not many m a p._ I a general serv i ce
of the eo l ie ....ri as ill/Oh in hie department in the
... ‘ ,„.. 4 l,rsed and enforced martial law by the
Wen p rod military tribunals for the trial of
etorstitutiorin th e land or naval forces, but woo
citizens
„Vol' military offences, for which he deem.
were 2D
.., ~,,.3" justly punishable before military courts,
~,lordingly th at unished them Is the gentle
e.?," qtdte sure he might not have to a w
ns answer
Vizors of these alleged violations or the rights of
&zens than any of the members of this court I In
support of his opinion that this is no Gann, the gen
tleman cites the third article of the Constitution,
which provides "that the judicial power of the
United States shall be vested In ono Supreme
Court, and such inferior Courts as Congress may
establish." the judges whereof "shall hold their of.
floes during good behavior."
It is a But/relent answer to say to the gentleman
that the power of this Government to try and pun
lel: military offences by military tribunals Is no part
of the "judicial power of the United States," under
the third article of the Constitution, bat a power
conferred by the eighth section Of the first article,
and so it has been ruled by the Suirreme Court in
Dyree vs . Hoover, 20 Howard, 78. lt this power is
NO conferred by the eighth section, a military court
authorized by Congress, to try all parsons for mili
tary crimes in time of war, is a court aa constitte
Lionel as the Supreme Court itself. The gentleman
admits this to the extent of the trial, by courts-mar-
Hai, of persons in the military or naval service, and
by admitting it, he gives up the point. There is no
exprese grant for any such tribunal, and the power'
to establish it Is implied from the provisions of the
eighth section, first article, that " Cmgrees strait
have power to provide and maintain a navy," and
also "to make rules for the government of the land
and naval forces." From these grants the Supreme
Court infer the power to establiSh courts
and from the grants In the same eighth section as I
shall notice hereafter, that " Congress shah ' have
power to declare war," and "to pass sinews neces
sary and proper to carry this and all other powers
into effect," it is necessarily implied that, in timirof
war, Congress may authorize military commissions,
to try all crimes committed in aid of the public ,
enemy.
Inasmuch as the gentleman made a liberal exer
cise, lancer the order of the commander-hechtet of
the army, of this potter to arrest and try military
offenders not In the laud or naval forosa Of tile
United States, and inflicted upon them, as I am in.
formed, the extreme penalty of the law, I wish to
know whether he proposes, by his proclamation of
the personal responsibility awaiting ail such usur
pations of judicial authority, that he himself shall
be subjected to the same stern judgment—that, in
short, he shall be drawn and quartered for inflicting
the extreme penalties of the law upon citizens of the
Unfitted States in violation of the Constitution and
laws of his country ! I trust that his error of jade
meld, in pronouncing this military Jurisdiction a
usurpation, may not rise up in judgment to Con
demn him, and that he may never be subjected to
palm and penalties for having done Me duty here*
fore.
Dere I might leave this question, but for the fact
that the learned counsel has been more careful in
his extraordinary argument to denounce the Presi
dent as a usurper than to show how the court could
possibly decide that it has no judicial existence, and
yet that it has judicial existence.
A representative Of the people, and of the rights
of the people before this court, by the appointment
of the President, I cannot allow all that has here
been said by way of denunciation of the murdered
President and his successor to pass unnoticed. This
has been made the oocasion by the learned °CUMIN,
Mr. Johnson to volunteer, net to defend, tile ac
cased, Mary E. Suratt, but to make apolitical ha
rangue, a partisan speech against his Government
and country, and thereby swell the Cry of the armed
legions of sedition and rebellion that but yesterday
shofar the heavens with their Infernal engluery of
treason and filled the habitations of the people with
death. As the law forbids a Senator of the United
Slates to receive compensation, or fee, for defend
ing, in cases before elvil or military commissions,
the gentleman vo.unteers to make a speech before
this court, in which he denounees the action of the
S xeeutive Department as a usurpation and a ty.
canny. I reply to this denunciation, not for the
purpose of presenting any question for the deolsion
of this court, but to repel the unjust aspersion at•
tempted to be cast on the memory of our dead Pm-
Went and the official conduct of his successor..
' I propose to answer fully all that the gentleman
(Mr. Johnson) has said of the want of jurisdiction
in this court, and of the alleged usurpation and
tyranny of the Esemitive, that enlightened public
opinion may decide whether ail this denunciation is
just—whether, indeed, conspiring against the whole
people, and confederation fa aid of insurrection to
murder all the executive Officers of the Govern
n ent, cannot be checked by the Executive power.
Lot the people decide• and, in doing so, let them
pass upon the action of the Senator as well as upon
the action of those whom he so arrogantly arraigns.
Let that people also note, that while the learned
gentleman, (ler. Johnson,) as a Voldliteer, without
pay, thus condemns as's' usurpation the means em
ployed to suppress this - gigantic insurrection, the
stew York Nem, whose proprietor, Benjamin Wood,
is shown by the testimony to have received from the
agents of the rebellion twenty-five thousand dollars,
rushes into the lists to champion the cause of the
rebellion, its Mere and abettors, by following to
the letter his colleague ' • and, with a fervor intensi
fied by the twenty-five thousand dollars received,
and the hope of more, denouncer the court as a
usurpation and threatens the members with the
consequences? --
It does seem to me that this speeeh, its tone and
temper, le the same as that which the country has
heard for the last four years, uttered by the armed
rebels themselves and their apoloalete. Why, it IS
as clearly the right of this Republic to live and to
defend its lire, until it forfeits that right by orime,
as it is the right of the individual to live so long as
God gives him life, unless he forfeits that right by
prune. L mane no argument to Support this. Who
tan coat the reproach Upon my country that ter her
crimes she must diet 'Youngest born of the Mt.
tions l is she not immortal by all the dread mania
rise of the pest—by ',that sublime and voluntary
sacrifice of the present, In whilsh the bravest and
noblest of her sons have laid down their lives that
she might live—lifting their hands for the last time
amidst the Consuming fires of battle! I ammo", for
the papaws of this argument, that seltdefenoe is
as dearly the right of nations as It Is the aoknow•
lodged right Of men. There Ls nothing furthertro m .
my purpole VMS t 9 do tojusttoti to the Lipid gon.
Haman or We elaborate and ingenious arguirilet.
Bat I may remind the court that nothing la said by
Dim touching the conduct of the accused, Ailey J.
Swett ; that he makes confession, at the end of his
arraignment of the Government and country, that
he has not made such argument, aol leaves it to be
made by her other counsel. He does take care,
however, to arraign the country awl the Govern.
MDT Tor conO1:10tiOw e. trial with 014551 doors, and
comperes the preeisedingS Of MS court to the
Spanish Inquisition, using the strongest words at
his command to Intensify the horror which he sup
poses' his announcement will excite throughout the
civilized world.
Wae this dealing fairly by this Government?
Wee there anything in the proceedings here that
justified any soon remark I bias this been a secret
trial? Rae It not been conducted in open day, In
the presence or the accused, and in the presence of
seven gentlemen learned in the law, who appeared
es their mime!? Weis they not informed of the
accusation against them ? Were they deprived of
the tight Of challenge? Was it not secured to them
by law, and were they not asked to exercise it
Bail any part of the evidence been suppressed?
Rave not all the proceedings been published to the
world? What, then, was done, or intended to be
done, by the Government which justitiestnis clamor
about a Spanish Inquisition t
That a people assailed by organised treason over
a territory half as large as the continent of Europe,
arid in their very capital by secret assassins oanded
together and hired to do the work of murder. may
not be permitted to make inquiry, even with closed
(MOW, touching the extent of the organization, ought
not to be softened by. any gentleman who makes the
least pretentionte to any knowledge 01 the law —0 oat
mon, civil, or Military. •
in this trial no parties accused, nor their weasel,'
nor the reporters, were at any time excluded from
its deliberatione while any testimony was being
taken; nor hes there been any testimony taken in
the sate With closed doors, save that of a few wit
..not Spiratela Pot on trial, who were alleged to have
'Salted this crime. Who le there to say :that the
civil n.
e
u lt ee
ra w ! t
a e lh ,
ms
ettvi
military p e ople,
secretly ita n o y i t
o r ciaemtgvtilingovihfyt
court? a t
to
ay d d a e k e r eer:s a a
neossa li a a e r il y e d :
I have mit this simply to axpme tne animus! of
the argument. nub to repel the iteensailen against
my country. From anything he has said, I have yet
to learn that the American people have not tits
right to make their inquiries Secretly, touching a
general coneptraoy in aid of an existing rebellion,
which Involves their nationality.
The 'gentlemen then argues that, by the Coestitu-
lion, the people of the United States cannot surd tot
any person to trial before is military tribunal, unless
MOM patron be in the military or naval service of
the United States. The conduct of this argument.
is as remarkable as its assaults upon the Govern
ment are unwarranted. The court will notice that
the argument addax no person Is liable to be tried
by military or martial law save those in the land
and naval service of the United States. I repeat,
the oseduct of this argument is remarkable. As an
instadde, I at k the attention, not only of this court,
but of tue pnblidwitom he has ventured to address in
this tone miff winger, to the authority of the distin•
gnashed Chancellor Kent, woose great name the
normal has emeavored to press into his Berelee in
support of his general propositiOn. .
The language of the gentleman, after citing the
provielon of the Constitution, " that no person shall
be bold to answer for a capital or otherwise We.
moos crime unites on a presentment or Indictment
of a grand jury, except In oases arising In the land
or naval forces, or In the militia, when In actual
service in time of war or public danger," is, "that
this exception is designed to leave in force, not to
enlarge, the power vested in Congress to make roles
for the Government of the land and naval forces ;
that the laud or naval forces are the terms used in
both, have the same meaning, and Until lately have
been tuppo od by every commentator to exclude
from military jurisdiction offenses committed by
dilemma not belonging to smelt forms." The learned
gentleman then adds : "Kent, in a note to his flat
Commentaries, 841„, states, with accuracy, that
' military and naval mimes and offences, committed
while the party is under the immediate authority of
the army and navy of the United States, are not
cognizable under the common law juris diction of
the courts.'" Tide court will bear in mind that
trim is the Only passage he quota from this note of
Bent. No man possessed or common sense Can for
a moment believe that the distinguished chancellor
of New York, in the passage just cited, intimates
any such thing as the counsel asserts. Chancellor
Kitt, by the passage cited, only decides that mill
tely and naval crimes and offences by a party wrier
the immediate authority of the army and navy of
the United States are not cognizable under the
common law .inrisdiction. He does not say or inti-
mate that "all OriMeo CoMMltted by citizens are, by
the Constitution, excluded from military jariedlo
- Yet the counsel ventures to say that, "ate
cording to this great authority, every other. class of
persons and every otherspeoles of offences are within
the jurisdiction of the civil crusts, and entitled to
the protection of the proceeding by presentment or
inelotment and public trial in moil a court."
Will any candid man In America be able to come
to the conclusion that Chancellor Kent has so
stated in the note which the gentleman has just
cited I If he has said it elsewhere, it is for the gen
tleman, if he relies upon Kent for authority, to pro.
duce the passage. But was it not taking an un
warrantable privilege with the distinguished ohan
calor and hie great work, the enduring monument
of his learningand genius, to so mutilate the note
referred to, as mightleave the gentleman at liberty
to make his deductions and assertions under cover
of that great name to suit the emergency of his
eine, by omitting the following 'passage, which os
cura In the same note, and absolutely excludes the
conclusion BO defiantly put forth by the counsel I
e alititary Weis a system of regulations for the
, government of the armies In the service of the
United States, authorized by the act of Congress of
Aprlllo, /BON- known as the Articles of War; and
gavel law leas similar system for the government of
the navy, under the act of Congress of April 28,
1800. But Inertia law is quite a distinct thieg, and
is founded - upon paramount necessity, and pro
claimed by is military. chief." .
However teistieeessfzil this Menetrens proposition
may be, that the American people are, by their own
Constitution, forbidden to try armed traitors and
- robellitsiblaTOMMili , tary h trjlirtnels, and nubjeet them
v.-10141M imp* i.,.,+ - Villanm,l4lo gtm-
Boma' has rt eminently secoessful in mutilating
this beantlf - prodeotion oft hat eg teat TuA; an
an act of m atiOn VIOIISPR 44 1 0 of the laws of
T .
'peace ace if , -Even in war the - divine creations
or art and the immortal produrdiol3B of genial and
learning are spared.
In the same spirit, and it steins to me with the
Same unfairness , the learned gentleman has pressed
Into his service, by an extract from the autoblogrse
ply of General Scott, the names of the late Score
tarp of War, Mr. Many and the ex-Attorney
General, Mr. - Cushing. Tids adroit performance
states that General Scott, in Mexico, proclaimed
Martial law for tbe trial and punishment by mill
lazy tribunals of persons guilty of "assassination,
murder, and poisoning •((Hr. "that when handed to the
then Secretary of War (Kr. Marcy) for his approval
'a. ensile 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 the Attorney General (Mr. Coshing)
asked for a copy, and the law officer of the govern
ment was stricken with legal dumbness.," Teere.
upon the learned gentleman says: "How mach
more startled would these great men have bean had
they been consulted on such a commission as this I
A commission not to sit in another country, and to
try otleecee not provided for fumy law of the United
States, civil Or irdlitary, 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 that the offielal career of
the late Secretary of War gave no indication that
he ever doubted the constitutional power of the
American people to do any act justified by the laws
of war, for the suppression of a rebellion or to repel
invasion. He was startled, we are told. It may
have been as much the admiration he had for the
wisdom 01 the Conqueror of Mexico as any abhor.
!Balm for the trial and punishment of "assassins,
pawners, and murderers," aooording to the laws
and usages of war. . . .
But the official utterances of the eX.Attorney
General, Cushing, by no means justify the attempt
made to quote him as an authority. That distin.
gulshed man has left an official opinion touching
this subject. Referring to what is said by Sir
Mathew Hale, wherein he limits it (the martial
law,) as the gentleman has seemed desirous of
doing, and says that it Is " not in truth and In re
ality law, but something indulged rather than al.
lowed—the necessity of government, order, and Ma
01020 in an army," mr. (Joshing makes this just
Criticism: "This proposition Is a mere Composite
blunder. It oonfounds martial law anti law military . ;
It erroneously assumes that the government of a
body of troops is a necessity more man of a body of
civilians or citizens. • * * 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 adminie.
tined by special tribunals ; but neither in that nor
in any Other respect essentially differing as to form
dation la constitutional mason from admiralty, co.
olesiaetical or indeed Chancery and common law.
* * • It I s the system of rates for the government
of the army and navy established by successive acts
of pathameet. to *- te Martial law, as exercised
in any country by the commander of a foreign army,
is an element of theism WU.
"It is incidental to the state of solemn war, and
appertain to the law of wahine. -.* *, * Thus,
while the armies of the United States occupied
different provlnees of the Mexican republio; the re
apostles commanders Were not Mato in authority
by any local law. They allowed, or rather required;
the magistrates of the country to continue to ad.
minister the laws of the . coun t ry; but in subject.
Son, always, to the military powe r ,which acted
summarily when the belligerent interests of the
'conqueror required it, and winch exercised j urisdio-
Lion for the protection or the punishment of citizens
of the United States in Mextoo."—Opinfon,s of At.
torneyi Benerid, ed. MU, 866-869.
fdr.' Cashing says : "That, it would . seem was
one of the forms of martial law ;" but adds ,
such an example of martial law administered by a
foreign army 'does not enlighten us in regard to
the questioner martial law In one's own country,
and *a administered by its military commanders.
That is &Wee which the /MY Of nations does not
reach, and regarding which there is no .definite
ia a paation in the United States, as there is none in
Enatald. •
"Accordingly, in England, as we have seen,
Earl Grey assumes that when martial law exists it
has no legal origin, but le a mere fact of necessity."
-/bid, WO.
After. such a statement of the right of
this government, as also of England, to Gm
ploy martial law as a means of defence, he will
be as much surprised when he reads the argu
ment, wherein he is described as being struck with
legal dumbness at the mere mention of pro/flaming
mania law, and its enforcement by the commander
of our army in Mexico.
Vita
y only
1: • opt
the yo
if the
t and
did, in
al and
der of
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ie are
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goes
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a 0311 c
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t In foot
The reasons given, and certainly the power exer
cited, would seem to be in direct oonfliot with these
propositions.
The Lieutenant General "extlados from his order
oases already cognisable by court-martial, and
limits it to 0611413 not provided for." In pressing Gen.
Scott into his service, has he not argued that the
OeMmando; or the army cannot subjeot his soldiers
to any control or punishment: whatever, save that
which is provided for in the artielei I
The law of the United States for the government
of its own armies follows the flag upon every sea and
in every land.
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 Gray haa justly said was a " faot of necessity."
Inaraking this exeeption.the Lieutenant General
followed the role recognised by the AtnerloMi an.
thornier' on military law, in which it is declared
that "many crimes committed even by military
officers. enlisted men, or camp retainers, cannot be
tried Wider the rules and articles of war.
OfmMillelourintist be resorted to for such 08208.'
Benet, 15.
I have to notice two other points in this extraor
dinary speech: First., that martial law does not
warrant a military commission for the trial of mili
tary offences; and second, that martial law does
not prevail in the United States, and has never
been declared by any competent authority.
It le not necessary to rague.whether martial law
authorises the organisation of military Commissions
to try such offences, that I should say more than
that the authority just cited shows Snob oommis
sione are authorized under martial law, and are
Greeted ,by the commander whee,purdshment by
Court martial le not provided by the express statute
lee. -
The second point—that Martial law has not been
declared by any competeneautherity, is an arraign
ment of the late murdered President of the United
Slates for pis proclamation of September 21,1882,
declaring martial law throughout the United
Stater and of 'which. Lawreneel edition of
Wheatonan International' LaW, p. c 93 it is said.
"VhaterVerinay be the Alder/me to be dame,
vitae! frOin 0008t4 1 :0011111er integnOtSelial law s OW
,
virtual abrogation of the jadiclary in moan untiring
iriliviaual liberty, and the tiatabliabmeut in the
'United Stites, by the Executive alone, of mortis'
iaw. not temporsirity, but an. amtnatitaioa as per
mantra, as the inearreetion on which it prolexaes to
be bated, and capable on the same principle of
being revived in all' eagles of foreign as well as diet
War, are placed beyond question by the PfealueoVa
preciamatian of September 24, NW , Toot proolit
motion la as Miami :
".1317 .111 E FRESIDSNT Op THE ThaTEO sl 'A a r" "
AMssiosc.
"A PROULAMA.TION.
It
Whereas It has become necessary to e'en late
melee not only vOlnuteers, but also portions of the
militia of the Stelae, by a draft, in order to lalppresS
the insurrection exletivg In the tanked 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 ve
rb:nos ways to the 'lnsurrection. Now, therefore, be
it ordered, that during the existing tnsurreotion,
and as a necessary means for suppressing tue same,
all rebels and insurgents, their alders and %bottom,
wlibin the UMW Stases, and all parebrir dig.
enraging volunteer enlistments, resisting Militia
drafts, or guilty of any disloyal praistioe, afTwdlog
aid and comfort to rebels, against the authority of
the United' Stater, shall be subject to martial law,
and liable to trial and punishment- by courts-mar.
tial or military commission.
" Second. That the welt of habeart.corpur is sus
pended In respect to all persons arrested, or whoare
row, or herea ft er during the rebellion shalt, be im
prisoned in any fort, camp, arsenal, military prison,
or other place of confinement. by any military an.
eterity, or by the Intend° Of any court-martial or
military commission.
s. In witness whereof, I have hereunto set my
band, and caused the seal of the United States to
be brazed.
"Done at the oily of Washin ton, this 24th day of
4ticte l ealla
itsaeaant Dfaciortc.
"By the President:
61SWARD, Beerotsry of State."
But a few days since a proolamation of the Pratt.
dent, cf which this court will take notice, declares
that the same remains in full foroe.
It has been said by another of the counsel
Stone) that, admitting its validity. the proolame,.
lion scores to have *fleet with the lesurreetion. It
Is true the proclamation Of martial law only eon•
times during toe insurrection ; but as the quotable
of the existence of an insurrection is a political
question, the Government alone can declare its ex
titterr° and its termination. That question has
been settled for fifty years in this country by the
Supreme Court of the United States. First, lii the
Case of Brown vs. the United States (8 Oranoli) ;
also in the prise eases (2 Black, OD. Nothing more,
therefore, need be said upon Ma question of an en
Mall insurrection than this The political depart.
meet of the Government has heretofore proclaimed
an insurrection ; that department has not yet dm
dared the insurrection tinned, and the event which
robbed the people of their chosen Executive, and
clothed' this land in mourning, bore sad but over
whelming witness to the feet.
The declaration of the learned gentleman who
opened the defense, (Mr. Johnson.) that martial
late has never been declared by any competent au
thority, arraignit Mr. Linettln for a Usurpation of
power.
The proclamation of martial law in 1552 a Melee.
lion I though it armed the people in that dark hour
of trial with the means of dolmen in every State
and district of the country ; though by its use some
of the guilty were brought to swift and just judg
ment, and others deterred from orime or driven to
flight; though by this means the innocent and to
fenceless 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. lint, says the gentleman, it was
a usurpation, for/MOOD by the laws of the land I
The came was said of the proclamations of block
ade, issued April 7.91 h and 27th, 1861; but the Su
preme Court decided otherwise.
It has been solemnly ruled by the same tribunal,
in an earlier ease, "that the power is confided to
the Executive to determine when it is necessary to
oar out the militia of the States to repel invasion."
"He is necessarily the judge of the existence of the
exigency, and is bound to act according to his be.
lief of the facts. If he does decide to call forth the
militia, his orders are in strict conformity with the
law ; and it follows that every act done by a Bebop
dinate officer, in Obedielide to mon orders, is egnally
justifiable. The law contemplates that orders shall
be given to carry the power into effect; and It can
not therefore he a correct Inference that any other
person has a right to disobey them. The law does
not provide for any appeal from the judgment of
the President. Whenever a Statute gives a disarm
Uneasy power to any person, it is a sound rule of
construction that the valet° constitutes him the
eels and intolueire judge of the existence 01 those
facts?' (12 Wheaton, 81.)
In the light dl these decielons, it must be clear to
every mind that the question of the oilstone° of an
insurrection and of proclaiming martial law 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.
But it is further insisted that Congress has not
authorized the establishment of military commis.
done, which are essential to the judicial ado:anis.
tratton m law, ad at such mon-
missions d are net artial
antliorlied n to try oteer gar
cons than these in the - military or naval set
vice of the . United States, or 111 the Militia
of the Several States, when in actual service. The
gentleman's argument assuredly destroys itself, for
e a insists that Congress can pass no law whioh,
either in peace or war, can constitutionally subject
any citizen not in the land or naval foroes to trial
for crime before a military tribunal.
ne by are we now told that Congress has not au
tborized this, after it bas been as stoutly declared
that by the fifth and sixth amendments to the Con
stitution no snot:, military tribunals can be esta
blished for the trial of any person not In the mili
tary or naval eerrice of the United States, or in the
militia when In actual service 7 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 he saw tit to assign, and that reason was, by
the eighth=n of the first article, w that Congress
aoasmatai solos far -O soyoramoat
of the land and naval forces, and to provide for
cralatalaing- he
and for gate/sing such part of them as may be em.
pleeed 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 oerative in time Of
peace as well as in time of war ; 'because the pred
ating 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 fall force in time
of peace, the exception must be made;and accord
ingly, the exception was made. Bnby the argo
naut we lave listened to, this court is told, and the
country is told, that in time of mar—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 interests of the invader or insurgent,
the commandenneoldef of your army, and mare
to him the slow and weak providons of the civil
law, while the soldier, who may, when overcome by
the demands of exhausted nature, which cannot be
resisted, have dept at his post, is subject to be tried
upon the spot by a military tribunal and shot, The
argument amounts to this: that as soldiers are
liable to such arresta and trial, Sergeant Corbett,
who shot Booth, should be tried and executed by
sentence of a military court. while Booth's on
eonsplratore and adders should be saved from any
suoh indignity ! I confess lam too dull to compre
hend the logic or the sense of such a conclusion!
It there is any one entitled to tills 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 men is the defender
Of the republic. It will never do to say that the
soldier 18 not liable to be tried In time of war by a
military tribunal for any other offence than those
prescribed in the miles and articles of war.
These provisions, therefore, of your Constitution
for indictment and trial by jury are silent and in
operative in time of war when the public safety re
quires
Thisargument, as the court will not fall to per
ceive, is a labored attempt to establish the proposi
tion, that the American people cannot even in civil
war, employ martial law and mintarytelbunale as a
means of anceeeefully asserting their authority, and
imeurnig protection to the nom and property of all,
anti - especially to the persons Of those to Whom they
have committed the trust of maintalning the mt.
tionat authority. The gentleman says that he de.
Dies the jurisdiction et military tribunals for the
trial of civilians in time of war, because the
Constitution and laws repudiate, and all the expo.
Hence of the pest 10 against It. I might say that
the practice of all nations is against the conclusion.
The struggle for our national Independence was
aided and prOsecuted by military tribunals and
martial law, as well Mt by arms. The contest for
American nationality began with the establish.
meat; very soon after the firing of the first gut at
Lexington on the 19th day of April, 1775, of military
tribunals and martial law. On the 80th of June,
1776, the Continental Congress provided that "who.
soever, be/caging to the Continental army, shall be
oonviotedof holdidg correspondence with, or giving
intelligerme to the enemy, shall suffer such punish.
mantas by a courtanartial shall be ordered." The
mime congress, on the 7th of November, 1775,
emended that prOV/51011 and adopted the artiste 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."
On the 17th of June, 1776, the Congress added :
" That all persons, not members of, nor owing al
legiance 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 tile
United States, or any of them, Shall suffer death,
according to the law andattagie of nations, by the
sentence of a °ointments', Or such other punish.
merit as a court-martial ehaa direct."
Coarposhoasiva as was this legislation, it was
found to be inenillelent to meet that most dangerous
of ail crimes committed in time of war—the Crime
of conspiring together to assassinate or seizeand.
carry away the soldiers and Citizens who Wereieralit.
Therefore, on the 27th of February, 1778, the Con. •
grass adopted the following resolution :
" Resolved, That whatever inhabitant • of ' these
States shall kill, or eels., or take any loyal citizen I
or citizens thereof and convey him, her, or them to
any place within the power of the enemy, or shall
Bsclin INTO AMC COMBINATION for such purpose, or
attempt to carry the same into ateention, or lath
assisted or shall Wait Umtata ; or shall, by giving
intelligent* rioting as a guide, or in any manner
whatever, aid the enemy In the perpetration there.
of, be 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 head
quarters of the grand or other armies of these
Metes where a general officer oommande.a—Jour.
nail of Congress vol. lapp. 459, 460.
So stead the law until the adoption of the Contd.
tution of the United States. Every well-informed
man knows that at the time of the passage of these
iota, the Courts Of jllBllOO Were upon in many of the
States, and that Doman was liable to minded= but
by the verdict of a jury. The conclusion is not to
be avoided, that these enactments under the Con.
federation set aside the trial by jury within the
several States and expressly provided for the trial
by court-mart ial of " any of the Inhabitants" who,
during the revolution, might, in aid of the public
enemy, glve themintelligenoe, or kill any loyal citi
zens of the United States, or enter into any combi
nation 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 constitution of the several States at that day
as fully guaranteed trial by jury to every person
tio
bold a t tO answer fr a crime, t
this BOW',e Cas does thonstitu-
No loyal man ever challenged, during all the pe
riod of our conflict for independeoe and nationality;
the validity of that law, and it le the accepted own.
mon law of nations, that martial low Is, at all times
and everywhere, essential to the successful prose•
(nation of war, whether it be civil or foreign,
Washington, the peerless, the stainless, and the
just, with whom Clod walked through the night of
that great trial, enforced tlds just and wise enact
ment upon all occasions. On the 80th of September,
MD, Joshua IL Smith, by the order of timers&
Washington, was put upon his tiled before a Court
martial, convened in the State of New York, On the
charge of there aiding and assisting Benedict Am
wad i in a commotion with the enemy, to fake, kill,
and seize such loyal Citizens or soldiers of the
United States as were in garrison at West Paha.
smith objected to the Jurisdiction, averring that he
. was a private Citizen, actin the military or naval
service, and therefore was only mumble to the
civil authority of the State. I repeat that - when
Plata wile Wet by oourtmectlel l the eel*
FOUR CENTS.
tution of flew York as telly guaranteed trial by
jury hi the civil oourtS to ell civilians charged and
held to answer for crimes withia the lignite of that
State, as does the Constitution of the United States
guarantee mob trial within the limits of the Die•
Wet of Columbia,
If the military courts, conetftuted by the corn.
Bander of the army of the United States under the
nfederatlon, bad jurisdlotion in every :irate to
try end pat to death "any Inhabit/BO thereof who
should kiU gay loyal citizen, or enter into "'any
eumbinatione , zorany such purpose therein In time
of war, how dm any man COMM that under the
Constitution 6! the United States, the Ceditnander-
In-Ohlef of the army of the United States, who is
Made such by the Constitution, and by its impremi
authority clothed with' the power and charged with
the duty of directing and controlling the whole tab
litary power of the Hefted States in tirne of rebel
lion or Invasion, has not that authority T
one of the marked difibrozates between the Arti
cles of Coefederation and the Ootetitutien of the
United States wee, that. under the CionthderatiOn.
the Compass was the sole depository of all' Federal
power.. Bee the Constitution so fettered the groat
power of self defepere against armed lusurrimsloa or
invasion that Martial law, so essential it, war is
iorbldden by, that great , InStrnmenti I wilt yield
to to man In reverence foror obedience to the Cos
stitation of my Country, esteeming it, as I do, a new
tew evangel to the nations, embodying the demo.
°lacy of the New Testament. Can It be that tale
Cot stimuli of mire, so divine in Its spirit of jos
Um, so full of wisdom and goodness and truth, un
der which we became a great and powerful nation
ality, has dented to this people the power to crush
armed rebellion and to arrest and punish, daring
the existence dance rebellion, secret cOnSpirators,
n aid aid abet the nubile enemy
Here is a eorsplitcy, organized and proseouted by
armed traitors and hire* assassins, the object of
which conspiracy, as the testimony shows, Wait tO
uoptio vieistmzrw es Milit'Struek at the its
Others Chiefs In
ibis rebellion, agreed andant &na
poleon the fountetes,-..e- ere t e rlilitillhirmily your
commercial metropolis, and thereby murder is In
habitants; to secretly deposit in the habitations of
the people and in the ships in your harbore infisM•
mable materials, and thereby destroy them by tire ;
to murder by the slow and consuming torture of
famine your soldiers, captive In their hands ; to im
port pestilence In bleated clothes to be distributed
in your capital and camps, and thereby murder the
anrvlving heroes and detendere of the republic, who,
statditg by the holy graves of your unreturning
brave, proudly and defiantly challenge to honors
We combat and open battle ail public enemies, that
their country may live.; and, finally, conspired with
the accused and John Wilkes Booth, and John H.
Suratt, to kill anti murder in your capital the axe.
unties afters of your Government .and the com
mander of your armies. When this conspiracy, en
tered into by these traitors, is revealed by the
foul murder of your Preetdent In the dapitla,
you are told that It is unconstitutional to in
terpose 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 tri.
burial. If any such rule had formerly obtained, we
never would have been a nation. If any such rule
had been adopted during:the past four years, our
nationality would not have thus long survived.
The people of the United States Created the office
Of President of the United States and commander.
in- chief of the army Mid navy, and have vested, by
tLeir Constitution, in the person of the Preeideett
and commander.ischied the power to enforce the
execution of the laws, and preserve, protect, and
defend the Constitution.
If, as comMander-In.ohlef, thew President may not,
- it time of insurrection or war, proclaim and agents
martial law, bow can he successfully perform the
duties of his office? 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.
Aft under the Confederation, the commander of the
gamy, appointed by the Congress, was empowered
to act as he might think proper, subject only to such
restraints or orders as Congress might give; so,
under the Constitution, the President is 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.
. ..... . .
That these powers, intrusted by the Constitution
to the Congress and the President, are, in time of
civil war or foreign invasion, to be exercised without
limitation er restraint, are fads In our history not
open to question.
The position is not to be answered by saying you
Melte tho American Congress omnipotent, and
clothe the American Executive with tne asserted
attribute of hereditary monarchy. Let the position
be fairly stated. The Congress and President, in
war as in peace, are but the agents of the whole
people. This unlimited power for the common deo
lance agait at armed rebellion or foreign Invasion is
but the power of the people intrusted exorastvely to
the legislative and executive deportilynte as their
agents. Ii the Congress 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 sup
plies, or by impeachment transfer the trust to better
hands, strip him of the franchises of oltizenship and
of tffice, and declare him forever disqualified to
hole any position of honor, trust, or power under
the Government of his country.
Alen may tremble at the exercise of this great
power by a monarch whose person, by the 00nStittl
tIon of his realm, is Inviolable ; but I cannot oom
oeive how any American Citizen, who Mel faith in
the capacity of the whole people to govern these
selves, should give himself any concern on the sub
ject. Dar. Hallam, the distingulsned author of the
Constitutional History of England, has said:
"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, is very tar from, being less indispensa
ble at such unhappy seasons where the ordinal,'
mode of trial is by jury than where the right of de.
claim resides in the court:l—Cong. Big., vol. 1, oh.
5, p. 820.
The power to proclaim martial law, and fully or
partially suspend the civil jurisdiction, and pun
ish by military tribunals all offences committed in
aid of the public enemy, results from the grants of
power for the common defence to which Thome al,
ready briefly referred. This position is not assumed
by me ins ••••••- • • •
. zany in the first year of
this greatruggle for odr national life, I pro
claimed 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 majes
tic fabric of American Government.
Some of the °Math:MS which I deemed it my duty
at that time to make, snd awns of which I now re ,
produce have, lam pleased to say, found a wider
circulation in books that have since been publblited
by others:
When the Constitution wason trial for its deliver
ance before the people of the earner States, that
great man, Alexander Hamilton, speaking to the
listening people of all the States and urgingthem not
to reject that matohlees iostrument watch bore the
name of Washington, egad :
The authorities essential to the ears of the com
mon defence are then : To MIN armies ; to build
and equip delete; to prescribe roles for the govern
ment of both; to - direct their operations; to provide
for their [support. These powers ought to exist
WITHOUT nixt , rxrion ; because it is impossible to
foresee or define the extent andleariety of national
exigenclee, and the correspondent extent and varie
ty of the MOM which may be necessary to satiety
them.
• "The circumstances that endanger the safety of
nations are infinite; and for this reason no constitu
tional shackles can wisely be imposed on the power
Mbloh the care or 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 met 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 com
munity, in any manner essential to its efilasey • that
is in any matter essential to the formation, dire,-
Lion, or support of the national forces."
lie adds the further remark : Thiele oneof 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 argu
ment or reasoning. It rests upon axioms as aim.
pie as they are universal—the nieces ought to be
proportioned to the end; the parsons from whole
agency the attainment of any end is expected ought
to possess the means by which it is to be attained."
—Federalist, No. 28.
In the same greet contest for the adoption of the
Constitution, Maoism sometimes called the Fattier
of the Constitution, said :
"Is the power declaring war necessary I No man'
will answer this question in the negative. •
Is the power of raising amble and equipping fleets
necessary I * * * It is involved in the power
of aelf•defenoe. * * * With what colorer
'propriety , could the force pecessary for defence be
limited by those who cannot limit the forms of of.
fence. * * The means of security can
only be regulated by the means and the danger of
attack. * * * It is in vain to oppise con
stitutional barriers to the impales of self-preserva
tion. It le worse than in vain, because it plants in
the Constitution itself necessary usurpations of
power."—Federalist, No. 41.
with this construction proclaimed by the advo
cates and opponents of its ratiftoalion, the Commit*.
tion of the United States was aecopted and adopted,
and that oonettnotion has been followed, and bated
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 judi
cial power, both Federal and State, had no voice and
could exercise no authority in the conduct and pro.
mention of a war, except in subordination to the
political department of the Government. The Cole
etitutiOn Contains the significant provision, "The
privilege of the writ of habeas corpus Shall not be
suspended, unless when in Oases 01 rebellion or Soya
sloe the public safety may require it."
What was this but a deolaratton, that in time of
rebellion, or invasion, the public Safety is the high.
eat law I—that so far as necessary the civil courts (of
Which the Commandeein-Ohlef, under the direction
of Congress, shall be the sole judge) must he silent,
and the rights of each citizen, as Neared to time of
peace, must yield to the wants, interests, and woes
allies of the nation! Yet we have been grayely told
by the gentleman in his argument. that the maxim,
maga* poplai anplV7/111 sec is but tit for a tyrantl
use. Those grand men, whom God taught to build
fabric of empire, thought otherwise, when they put
ant roam bate the Cionstitution of thentry.
Who will dare to say that In time of civil war
j" nu-person shall be deprived of life, liberty, and
property, without due process of law 1" This lit
provision of your Constitution than howe v erre is
none more just or sacred in ;it is, only
the law of peace, not of war. In peace, that wise
provision of the Constitution must be, and is, en
force,/ by the civil courts; in war, it must be, and
is, to a great extent, inoperative and disregarded.
The thousands slain by your armies in battle were
deprived of life "without due process of law." All
spies aneeted, convicted, and executed by your mili
tary tribunals in time of war, are &pallid of liberty
and life "without due process of law ;" all enemies
captured and held as prisoners of war, are deprived
of liberty "without due process of law ;" allownera
whose property is forcibly seized and appropriated
in war, are deprived of their property "without due
process of law." The Constitution recogn ises the
principle of common law, that every man ' s house is
his castle; and has, therefore, specially provided,
"that no soldier shall in Nine of peace be quartered
in any house, without the consent, of its owner, nor
in time of war, but in a. manner to bepreaoribed by
law, (111 Amend.;) thereby declaring that In time of
war, Congress may by law authorize, as it heal
done, that without the consent and against
the consent of the owner, the soldier may be
quartered in any man's house, and upon any man's
hearth. What I have said illustrates the proposh
tion,lhat in time of war the civil tribunals of jus
tice an wholly pr partially silent. In this I am sus
tained by an authority second to none with intern
gent American citizens. Mr. John Quinoy Adams,
than whom a purer man never Mended the chair
of the chief nozglatritOy in America, said in his place
In the House off Repreeentatives, in 1336, that:
"There are, in the authority of Congress and of
the Ex: mauve, two :classes of powers altogether dif
relent In their nature and Often incompatible with
each other—the war rower and the peen power.
The peace power is limited by regulation and re
" Viet" by Previslone prescribed within the Cons*
Elation Itself. The war power is limited only by the
laws and usage of nations. This F OB . B / 8 " men.
dons ; it Is strictly constitutional," but it break's
down every beerier so anxiously erected for the pro
tection of liberty, of property, and of life."
If this be so, how canjthere be trial by jury for
Military offence/ in time of civil war I If you can
not, and do not, try the armed enemy before you
shoot him, or the captured enemy before you =-
prison bim, why should you be held to open the
Civil Genre , and try the spy, the conspirator, and
the weessin, in the secret service of the public
enemy, by jury, before yen convict and pwlbdiblie
Why not clamor against holding imprisoned the
captured armed rebels, deprived of their liberty
without line process of law, Atli they not °Kismet
Why not clamor igninst slaying far their crime of
trews, wiLlehle eelPdhitbia W the 01741 gauno,
TEM WAR PMEIIII4II4
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rour rifted OrMisuse te.t4l the ;eel: beet '
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betty In battle, these public enemies. wiAnnt trial
by jury 7 Are they not. °Meets 7 Why is the nismor
confined exelnidvely to the trial by military tribn.
pale of juntas of traitorous spies, trait - out Coq.
spiratore and weaning tilled to do secretly what the
armed rebel attempts to do openly—murder y ntr
nattorality by aeseellnattng rte defenders and lit
excel:Mice pillows? Nothing can be clearer than
that the rebel captured printer, being' a citizen of
the republic, to ad much einftled to trial by jury
before lie le constnnted to prfMlll ad the spy, or the
leer end abettor of the treason by corapirmiy and
enoiliflpattimi, being a citizen beentitled to snob trial
by jury, before he II tribjeoted. SO the jes,!, P. aMN ao
merit of the law for his great Milne. I tenth that
in time of war the remark of Bributeaquitm, touch
ing the civil judiciary, L 7 true; that "lt le next to
LothinEr.) ,
The Supreme Court ol the Coate& Stated hall
rblensro aesided that the Clenstkatlon has 00D.
limed upon the Government anthotftlf to employ
all the n.eans necessary to the faitintil execution of
all the powers etdob that Croeetttutleeenjolno analt
tl e Goverttnent of the United States, and upon•
every department end every enleer thereof Speak
ing Of that provision of the 0 - methadon which pea
'veep that "Congress Rhea have poster to maim all
hare that may be necessary and proper to cam,
irto effect all power) granted to the Government of
tbe United States, or to any department or 01110er
thereof? Chief Juetice Marebalai in his great deal.
aft n in the ease of McCulloch va. State of Maryland,
" The powers of the Government were given for
the welfare of the nation ; they were intended to
endure for ages to come, and to be adapted to , the
variGus alum in human affairs. ?o prescribe the
Fveanio means by 'stitch Government should In all
lul ore tithe, execute its power, act ' to confinetha
choice 07 ammo %C. lierreW limits as 8110111111114.
avelt in the power of Congress to adopt any which.
night be appropriate and conducive to the end,
mold be moot unwise and nernichnie.?!.l4lWhastan
-Wows, way aposen emu iitutratedlit 0,„
of their utterance the wisdom of the ConstuatAz;
providing title grnerst grantor.power to.mert
possible extgenoy which the fortunea•of war 1 1,„,,` .1;
cast upon the country, and the wisdom of se,ro
words, in turn, hos been Illustrated today drEal
gigantic and triumphant struggle of the ,
during the last four years, for the supremacy o
Constitution, and in exact aooordanoe with its
visions. In the light of these -wonderful events,
words or. Pinckney, uttered when the illeuttrimii,
Chief Tingley bad 00neluded this opinion, •The ,
Constitution Of illy ooturtry is Inimortal Pilaem to
bare become words of propheoy.
Has the Congrou, to whom iseoramitted the BOYD.
refer ty of the whole people to declare war, by
lotion restricted the President, or attempted to re
strict him In the prosecution of this war for the
Unica from exerolelog all the 66 powers PP and adopt
ing all the nproceruingo usually tipproved , and
err ployed by the Olyilized world t Re would, in my
judgment be a bold man who beamed that COnfiftln
nes so legislated ; and the Congress Which should by
law letter the executive arm when raised for the
ctmuton defence would, in my opinion, be false to
their oath. That Congress may prescribe rules foe
the government of the army and navy, end•the mi
litia when in actual service, by articles of war, is an
express grant of power in the Constitution, That
Ctrgress may aid the Executive by legislation in
the prosecution of a war. civil or foreign,
_it admit
ted. That Cinnamon may restrain the Exeoutives,
and arraign, try, bed Condemn him for Wantonly
abtitlin the great trust, is tleolared le the Comsat*.
tion That Congrees shall pass aitlawa itadeesary
to enable the executive to execute the laws of the
Union, suppress insurrection, and repel invasion, 15
one of the express requirements of the Constitution.
15 hat was the legislation of Comment when treason
fired its first gun on Sumpter 1 By the acts of trefi and
1807, can any one doubt that the Presidio:AM clothed
with full power to determine whether armed Omar
r action exists Many State or Territory of the Union,
and if so to make war upon it with all the force he
may deem necessary or be able to occonandl By
the simple eXeraise of this groat power it necessarily
results that he may, in tie prosecution of the was
for the suppression of such institteation. suspend as
far as may, he necessary the civil administration of
justice by substituting in its stead martial law
which is simply the common law of war. If in such
a moment the President may make no arrests with
out civil warrant, and max Minot no violence or
penalties on persons (as is claimed hero for the se
emed), without first obtaining the verdict of juriess
and the judgment of civil courts, then Is this legis
lation a mockery. The Supreme Court has settled
alt controvery on this que.Uloll. In speaking of the
Rhode Island Insurrection, the court say :
* * "By the sot of 1705, the power
of deciding whether the exigently has arisen upon
which the Ciovermrentof the 'United States is bound
to Interfere, le given to the President."
The court add :
" When the Prerident bee acted and galled out the
militia, is a circuit court of the United States MAWer
rind to inquire whether his deolsion was right 1 If
i• could, &mit would become the duty or the °our%
provided it came to the conclusion that the Presi.
dent had decided Moonsetly, to dieoharge those
who were arrested or detained by the troops In the
sonic() of the United States." * •
. . _ .
14 If tt e jadioia l powlr extends eo far, tile guarantee
contained in the Constitution of the United Stated
is a guarantee of anarchy and not of order,”
* * * "Yet, if this right, does not re-
Ode In the courts when the conflict is raging, If the
juelcial power is at that time bound to follow the
dechlon of the political, it must be equally bound
When the contest is over. It cannot, when peace is
mama, rowan as offenCtS and crimes the Mitt
is Mott it before recognized, and was bound to retear
vise as lawful. ,, —Luther vs Borden, 7 Howard, 42, 43.
If this be law, what becomes of the volunteer
advice of the volunteer counsel, by him given with
out money and without price, to this court of their
rtsponsibility—tbeir personal responsibility-10r
obeying the orders of the President of the United
States in trying persons accused of the murder of
the Chief Alogistrate and commander in-chief of the
army and navy of the United States in time of te
hellion, and in pursuance el a conspiracy entered
into with the public enemy
The proclamation of blockade made by the Preels
dent was affirmed by the Supreme coat as &
lawful and valid ant, although Mt direst Whet wee
to dispose of the property of whoever violated Ii
Wih •
•••..../VJ
what
':Ranger,O Xi is difficult to tterw
ceive what cou r ser f reasoning can be adopted, to
the light of that deolsion, which will justify any men
in saying that the President had not the like power
to proclaim martial law in time of insurrection
Rashid the United States.
This action of the President hes, however, been
legalized by the subsequent legislation of Congress,
OD August
1861 oh . 68, sea. 3,
This sat l egal ized,l $1 any stork legalization was
necessary, all that the Presideitt, had done from the
day of his inauguration to that hour, in the prose
cution of the war for the Union, He had suspended
tire privilege of the writ of habeas corpus, and re•
sisted its execution when issued by the Chief Justice
of the United States; he had' called oat and ac
cepted the Berrien of a large body of volunteers for
a period not previously authorized by Jaw; be had
declared a blockade of the Southern ports; he had
declared the Southern States in Insurrection ; he
had ordered the saltiest° Invade them and suppress
it; thus exercising, in accordance with the laws of
war, power over the life, the liberty, and the prof
perty of the citizens, Congress ratified, it and
affirmed it.
In like manner and by subsequent legislation did
the Congress ratify and affirm the proclamation of
martial law of September 25, 1862. That proclama
tion, as the court will have observed, declares that
during the existing insurrection all rebels and in.
surgente, their alders and abettors within the United
States, and all persons guilty of any disloyal prao
tics, affording aid and comfort to the rebels against
the authority of the United States, shall be subject
to martial law, and /table to trial and punishment
by courts-martial or military commission and
second, that the writ of habeas corpus Is suspended ,
in respect to all persons arrested, or who are now,,
or hereafter during the rebellion shall be, itro
prisoned in any fort, de., by any military authority,
or by the sentence of any courtomartial or military ,
commission,
One would suppose tbat it needed no argument tO
satisfy an Intelligent and patriotic citizen of the
United States that, by the ruling of the Supreme
Court cited, so much of this proclamation as de.
dares that all rebels and insurgents, their alders
and abetterr, all be eubjeot to martial law, and be
liable to trial and punishment by donrbteartial or
military Commission, needed no ratification by Con
gress. Every step that the President took against
rebels and insurgents was taken in pursuance of the
rules of war, and was an exercise of martial law.
Who says that he should not deprive them by the
authority of this law of life and liberty I Are the
alders and abettors of these insurgents entitled to
any higher consideration than the armed insurgents
themselves I It Is against these that the President
proclaimed martial law, and against all others who
were guilty of any disloyal practice affording aid
and comfort to rebels against the authority Of the
United States, Against these he suspended the
privilege of the Writ of halmaS Ind these,
and only snob. as theta!, were by that proolatuatiod
subjected to trial and punishment by courtmartial
or military commission.
That the proclamation covers the offence charged
here no manwlil, or dare, for a moment deny. Was
it not a disloyal practice t Was it not aiding and
abettlig the insurgents and rebels to enter into a
conspiracy with them to kill and murder, within
lour capital and your entrenched camp, the Com.
nieuder.in-Ohlef of our army, your Lieutenant
General, and the Vide President, and the Secretary
of State, with intent thereby to aid the rehelibith
and subvert the Constitution and 'ewe of the United
States 1 But it is said that the President could not
establish a court fcr their trial, and, therefore, Con.
gross must ratify and affirm this proclamation. I
have said before that such an argument Comes with
111 grace from the lips of him, who declared as
solemnly that neither by the Congress nor by the
President, could either the rebel himself, or hie
altar or abettor, be lawfully and constitutionally
subjected to trie s, by any military tribunal, Whether
oonrtmartial or military oonitniesdon i but the Glom.
grate did ratify, In the exercise of the power vested
in them, part of this proclamation. I have
said, upon the authority of the fathers of the Con.
stitutlon, and of its judicial interpreters, that 00n.
grass has power by legislation to aid the Ezeoutive
in the euppression of rebellion, in executing the law/
of theln Un=h g Ttlfi crenon etdated
nti re .
By the act of march 8,1808, the Congress of the
United States, by the first Button thereof, declared
that during the present rebellion the President of
the United States, whenever in his judgment the
public safety may require it, is authorized to sue.
paid the writ or labiate corpus in any cue
throughout the United Statile, or ally pert thereof,
By the fourth ord er of the Same act; un d er de
eland that any of the President; Or hiss
authority, made at any time during the existence
of the preens rebellion, shall be a defence in all
courts to any action or protection, olvil or criminal,
pending or to to commenced, for any Search, seizure,
arrest, or imprisonment, made, done, or committed,
or acts omitted to be done, under and by virtue
of snoh order. By the filth section it is provided,
that if pay suit or prosecution, civil Or criminal, hag
been or shall be 00intneneed in any atom court
&goblet ally onioer, civil or military or againtl /AY
other person, for any arrest or tmorilonMent made,
or other trespasses or wrongs done or committed, or
any act omitted to be done at any time daring the
present rebellion, by virtue of or under color or any
authority derived from or exercised by or under the
President of the Coned States, if the defendant
shall, upon appearance in such court, Ale it petition
stating the facts upon Math" /to., as aforeraid,
for the removal of the canals for trial to the (lima
Court of the United States, it shall be the duty of
the State Court, upon ills giving smutty, toro
teed no further in the Uwe or pr ob e _p
nitiOn, Thal
declaring that all orders of the President, made at
any time during the existence of the present rebel
lion, and all acts done in pursues°e thereof, shall be
held valid in the courts of justice. Without further
inquiry, these provialone of this statute embrace or
der 1 which ,is the proolamation oil martial Law,
set done under it,
e ar th d e n r ec te tte re aril a y e
ll" pass i s is ge e e o v f e t ry he act of UM, arsine%
Icastonon as that proolaniation ordered that situ
bels, insurgents, their alders and abettors and per
sons comfort of any disloyal prattles affoiding aid
and to rebels again the authority of the
United States, at any time during the existing itt
ourroc,roa, mould be subject temartial law, and lie.
Pie to trial andpUilleMent by a minters 9PMMMaion,
the sections of tile law jut cited, demising lawful
all acts done in pursuance td snot order, itiolndlog,
of course , the trial and trunkihnient by military
commission of all such (Menden, as directly leael
ired this order of the ProSident as' it is possible for
Congress to legalize or authorise any executive act
whatever. 12 Stat. at Large, 1133-11.
But alter assuming and declaring with great
earnestness In hie argument that no person could
be tried end convicted for such orioles oy any mili
tary tribunal, whether a court martial or a military
00fOlnieliOD I save those in the land or naval lonia
in time of war, th e gentleman makes the extraordi•
nary statement that the erection of a military come
=Won must be anther/10d by the, legislative do
watiOnt, and demands, if there bean. inch leg*
latton ' , let the statute be produced " Tee stat ute llal laelt prialliced. The power so to try, says the
lintlehllitif /OW Us reitthstetted by Oonerek Id^