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VOL;:XXX- j LD series:
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MILITARYtUIAIjS OFOIV'ILtANS
The Indiana Conspiracy Case.
... .. ,: - ; - :A i -"
AROtpfiCNT OF JRMIAII S. K&.1CK.
' ' ' COXCLUDM). '
' The " truth is, that no authority exists
aTfhere.m tLV.worldor't3ie doctrine of the
Attorney Gcnetal. "No judge" or jurist, no
etatesman-orparliaxueuUry orator, on this
or the other side of the water, suains Lim.
Every elementary writcrfrom Coke to "Whar
ton .is against him.' ''AH military authors
who profess to know the 'duties of their pro
fession admit themselves to be under, not
above, the law.'?" No book can be found in
any library to justify the' assertion' that mili
tary tribunals -may try a citizen at a place-
where -the courts are open. Wheal say no
took, I mean, of course, no book "of ac-
knbwledged authority. I do not deny that
hireling clergymen liave-often been found to
disgrace-the pulfHt by trj'ing' to prove the
divine right of kings and other rulere to gov
ern. &3 ' the j please. It is true, alo, that
court sycophant? and party hacks have many
times written pamphlets, and perhaps large
. volume?, to show that those whom they ?erve
should be allowed to work out their bloody
will upon the people. Xo abive of ptower
is toQasrant ta EnU its I defenders among
cuch servile creature. TI1030 butchers' dogs
that feed upon garbage and fatten upon the
oilal of the shambles-are .'always ready to
bark at whatever interferes with die trade
of their master. ., . . '. -v
But this case doesnotdepcivldn turhority. j
It ia rather a question of fact than of Ltw. - I
I prove my tight to a trial by jury j'u?t a 1
-1 would prove my title to an estate if I held
in my hand a solemn deed conveying it to me,
coupled xiith - undeniable- ovid?ncc of lmig
and : undisturbed possesion under and ac
cording to the deed. There is the charter
" l y which.we claim -to hold it. It i called
the. CdnglitutloripT tha. United States . It is
feigned by the sacre'd name of George Wath
ingloh,anJ by thrrty-ninc other name?, only
less iHu3triou3.than his. ' They represented
. every independent State then upon this con
tindnt, . and each State -afterwards ratified
their work by a separate, convention of its
own people. " Every State that subsequently
came in acknowledged that this was the
gTeat standard by "which their rights were to
be measured. ''Every -man that has ever
held office in the country, from that time to
this, hastaken an. oath that he wotld suj-
" port and Bustain it through good rejort and
through -eviL. The Attorney Geneial him
self became a party to the instrument when
he laid his hand npon the gospel of (3od and
solemnly swore that he would give to mo and
Yery other citizen the full henefit of all it
contains. 1 ' !
j "What does it contain? This among other
N thingai : : ' ' ; .
"The trial of all crimes except in case3 of
Impeachment shall be by jury. -
Again:. "No person shall be held to an
ewer for ' a capital or pthcrSvisc ' infamous
crime unless on a presenrment or indictment
of a grand juryT except in cases arising in the
land or naval forces, or in the'militia when in
actual gervice in time of war or public dan
ger ; nor shall any person be subject for the
same offense to be' twice put in jeopardy of
life or limb, nor be compelled in any crminal
6a3e? to' be a witness ' against himself, ' nor be
deprived of life, Hbertj7 or property without
due process of I.w; nor shall private prop
ertybe taken for public u"wit'hyut ju.-:t com
pensation." ...
1 This ia not ; all y another -article declcarcs
tjhat'JIn all! cnminal prosecutions the accus
ed shall enjoy the right to a speedy and pub
lic trial by an impartial jury of the State and
district wherein the'erimo phall hare been
committed, which district shall have been'
previously ascertained by law;- and to be in
fediied of the nature and cau.se of the accu-.
eatioa t to be ; confronted . with tlie-.-nitnesses
jalxist him ; to have compulsory ' process for
te . fitnesses In his,, favor, and to Lave- the
fcirlstanceof counsel for IaU defend" - . " .
1 1s there: any ambiguity there? '.If that,
does not signify that a jury, trial shall be the
exclusive ''and 'only mean of ascertaining
guilt in criminal case?, then" I 'demand ' to
know wha words , or what collocation of
wordi in the English language . wbuJId have
it effect?. Does this mean that a fair, open,
ipec Jy-j public trial by an impartial jury shall
fc-e rirea only to those persons 'a gainst whom
Co.-'special grudge- is felt by the Attorney
General, or the judge advocate, or the head
of a department? Shall ( this Intestimable
privIIcg-3 be extended only to men' whom the
Edniajitrotioa doe not care to convict ? Is j
it confined to vulgar criminals, who commit
ordinary crimes against society, and shall
it be denied to men who are accused of such
6ffeiLes as those for which Sydney and RuS'
' sell were beheaded, and Lisle was hung, and
Elizabeth Gaunt was burnt alive,- and John
Bunyan was imprisoned fourteen years, and
Baxter was whipped at the cart's tail, and
Pryiin Jiad his ears eut off? No ; the words
of" the Constitution are all-embracing
"At broid and gen.ral aa the casing air."
The trial of ALL crimes thallbe by jury.
ALL persons accused shall enjoy that privi
lege and NO person shall be held to an
swer in any other way.
That would be sufficient without more.
But there is another consideration which
gives it tenfold power. It is a universal rule
of construction, that general words in any
instrument, though they may be weakened
by enumeration, are always strengthened by
exceptions. Here is no attempt to enume
rate the particular cases in which cicn charg
ed with criminal offenses t-hall be entitled to
a jury trial. It is simply declared that all
shall have it. But that "13 coupled with a
statement of two siecifio exceptions : cases
of impeachment ; and cases arising in the
land or . natal forces.. . Theso exceptions
strengthen the, application of the general
rule, to all other cases. Where the law-giver
himself has declared when and in what
circumstances you may depart from the gen
eral rule, you .shall not presume to leave that
onward path for othcrreasons, and make dif
ferent exceptions. ', To exception?, the max
im is always applicable, that ejrprcssio v.nlus
cXclus'o est alterias.
But we are answered that the judgment
under consideration, was pronounced in time
of war, and it is therefore, at least, morally
excusable, inere mayor tnere may not pe
something in that.' I admit that the mcrit3
or demerits of any particular act, whether it
involves a violation of . the Constitution or
not, depend upon the motives that prompted
it. the time, the occasion, and all the attend
ing circumstances. H hen the people ot
this country come to decide upon the acts of
their, rulers, they will take all . these things
into -consideration, iiut that presents tne
political aspect of the case with which,
trust, we nave nothing to do fcere. 1 decline
to dL?cuss it. I would only say, in order to
prevent mL-apprehen.sion, that I think it is
precisely in a time of war and civil commo
tion, that, we should double the guards upon
the Constitution. If the sanitary regula
tions which defend the health of a city are
ever to be relaxed, it oucht certainly not to
e done when pestilence is abroad. - When
the Mississippi shrinks within its natura!
channel, and creeps lazily along the bottom
lie inhabitants of the adjoining shore have
no need of a dyke to save them from innn
dation. But when the looming flood conies
down from . above, and swells into a volume
which rises high aoovc the plain on ekhor
side, then a crevasse in the levee, bt'eames a
most serious thing. So in icaeoable an 1
quiet times,our legal rights are inlittle danger
of being overborne ; but when the wave of a;
bitrary- power lashes itself into violence and
rage, and goes surging against the bar
riers wnich were made to confine it, then
we need the whole strength of an unbroken
Constitution to save us from destruction
But this is a question which properly belongs
to the jurisdiction of the stump and th
newspaper.
There is another quasi political argument
necessity." 'If the law was violated lcause
it could not be obeyed, that might be an ex
cuse. But no absolute compulsion is pre
tended h5re. .These commissioners acted,
at most, under what they regarded as a moral
necessity. The choice was left them to obey
the law or disobey it. The disobedience
was only necessary as means to an end which
they thought desirable ; and now they assert
that though these means are unlawful and
wrong, they are made" right, because with
out them the object could not bo accom
plishod;- in other, words, the end justifies the
moans. ' There you have a rule of conduct
denounced by all law, human and divine, as
being pernicious in policy and false in morals.
See how it applies to this case. Here were
three men whom it wa3 desirable to remove
out of this world, but there was no proof on
which any court would take their lives ;
therefore it was necessary, and being neces
sary it was right and proper, to create an il
legal tribunal which would put them to death
without proorf. By the .same mode of rea
soning you can prove it equally right to poi
son them ia their food, or stab them in their
sleep. ; ' ' " --'- , -
Nothing tliat the worst men ever pro
pounded ha3 produced so much oppression,
misgoverninent, and suffering as this pre
tence of State Jiece'ssi ty. A great authority
calls it "the tyrant's devilish-plea ;" and the
common honesty of all mankind has branded
it with everlasting infamy.
Of course, it is mere absurdity to say5 that
these relators, were necessarily deprived of
Ihcir right to a fiir and , legal trial, for the
record shows that a court of competent juris
diction was sitting at the very time and in the
same town, where justice would have been
done without sale, denial, or delay. But con
cede for the argument's sake that a trial by
jury was wholly impossible ; admit that there
was an, absolute, overwhelming, imperious
necessity operating" so as literally to compel
every act which the commissioners did, would
that give their sentence ofdeath'the validity
and force of a legal judgment pronounced
by an ordained and established court ? The
question answers itself. ; ; This trial was a ti
olation of law, and no necessity could be
more than a mere excuse for those who com-,
raitted It. If the commissioners were on trial
for murder, or .conspiracy to murder, they
might plead necessity if the fact were truc,J
just as they would plead insanity or anything
'else to show that their guilt was not willful.
But we are now considering the legal effect
of their decision, and that depends on their
legal authority to make it. They had no such
authority ; they usurped a jurisdiction which
the law not only did not give them, but ex
pressly forbade them to exercise, and it fol
lows that their act is void, whatever may
have been the real or supposed excuse for it
If these commissioners, instead of aiming
at the life and liberty of the relators, had at
tempted to deprive them of their projHirty
by a sentence of confiscation,would any court
in Christendom declare that such a sentence
divested the title ? Orwoulda person claim
ing under (he sentence make his right any
better by showing that the illegal assumption
of jurisdiction was accompanied by someex
cuse which might save the commissioners
from a criminal prosecution ?
Let me illustrate still further. Suppose
you, the judges of this Court, to be surround
ed in the hall where you are sitting by a body
of armed insurgents, and compelled by main
force to pronounce sentence of death upon
the President of the United States for some
act of his upon which you have no legal au
thority to adjudicate. There would be a val
id sentence if necessity alone could create
jurisdiction. - Bnt could the President be le
gally executed under it? Xo ; the compul
sion under which you acted woidd be a good
defense for you against an impeachment of
an indictment for murder, but it would add
nothing to the Validity of' a judgment which
the law forbade you to give.
That a necessity for violating the law is
nothing more than a mere excuse to the per
petrator, and does not in any legal sense
change the quality of the act itself in its op
eration upon other parties, is a proposition
too plain on original principles to need the
aid of authority. I do not see how any man
of common sense is to stand up and dispute
it. ' But there is decisive authority upon the
point. In 1815 at New Orleans, General
Jackson took upon himself the command of
every person in the city, suspended the func
tions of all the civil authorities, and made
Ills own will for a time the only rule of con
duct It was believed to bo absolutely nec
essary. Judges, officers of the city corpora
tion, and members of the State Legislature
insisted on it as the only way to save the
"booty and beauty" of the place from the"
unspeakable outrages committed at Badajoz
and St. Sebastian by the very same troops
then marching to the attack. Jackson used
the power thus taken by him moderately,
sparingly, benignly, and only for the purpose
of preventing mutiny in his camp. A sin
gle mutineer was restrained by a short con
finement, and another was sent four miles
up the river. But after he had saved the
city, and the danger was all over, he stood
before the court to be tried by the law ; Lis
conduct was decided to be illegal by the same
judge who had declared it to be necessary,
and he paid the penalty without a murmur.
The supreme court of Louisiana, in Johnson
vs. Duncan, decided that everything done
daring the siege in purmiancc of martial rule,
but in conflict with the law of the land was
void and of none effect, without reference
to the circumstances which made it necessa
ry. Long afterwards the fine imposed upon
Jackson was refunded because his friends,
while they admitted him to have violated
the law, insisted that the necessity which
drove him to it ought to h ve saved him
from the punishment due only to a willful
offender.
The learned counsel on the other side will
not assert that there was war at Indianapo
lis in 18t4, for they have read Cokes Insti
tute, and Judge Grier s opinion in the prize
cases, and of course they know it to be a set
tled rule that war cannot be said to exist
where the civil courts are open. They will
not set up the absurd plea of necessity, fur
they are well aware that it -would not be true
in point of fact. They will hardly take the
ground that any kind of necessity could give
legal validity to that which the law forbids.
This, therefore, must be their position :
That although there was no war at the place
where this commission sat, and no actual ne
cessity for it, yet if there was a war any
where else, to which the United States were .
a party, the technical effect of such war was
to take the jurisdiction awajr from the civil
courts and transfer it to army officers.
GEN. BUTLER. We do not take that
position.
Mr. BLACK. Then they can take no
ground at all, for nothing else hit I do
not wonder to see them recoil from their own
doctrine when its nakedness is held up to
their eyes. But they must stand upon that
or give up their cause. They may not state
their proposition precisely as I state it ; that
13 too plain a wajr of putting it. But, in sub
stance, it is their doctrine has been the doc
trine of the Attorney General's office ever
since the advent of the present incumbent
and is the doctrine of their brief, printed and
filed in this case. What else can they say ?
They will admit that the Constitution is not
alto?ether without a meaning; that at a
time of universal peace it imposes some kind
of obligation upon those who swear to sup
port it. If no war existed they would not.
deny the exclusive jurisdiction of the civil
courts in criminal cases. .How then did the
military get jurisdiction in Indiana ?
All men who hold the Attorney General s
opinion to be true,' answer the question I
have put by saying that military jurisdiction
comes from the mere existence of war;
and it comes in Indiana only as the legal re
sult of a war whieh is going on in Mississ
ippi, Tennessee, or South Carolina. The
Constitution is repealed, or its operation sus
pended in one State because there- i3 war in !
another. The Courts are open, the organi
zation of society is intact, the judges are on
the bench, and their process is not impeded;
but their jurisdiction is gone. Why ? . Be
cause, say our opponents, war exists, and the
silent, legal, technical operation of that fact
is to deprive all American citizens of their
right to a fair trial. . : '
That class of jurists and statesmen who
hold that the trial by jury is lost to the citi
zen during the existence of war, carry out
their doctrine theoretically and pracitcally to
its ultimate consequences. The right of trial
by jury being gone, all other rights are gone
with it ; therefore a man may be arrested
without an accusation and kept in prison du
ring the pleasure of his captors ; his papers'
may be searched without a warrant ; his
property may le confiscated behind his back,
and he has no earthly means of redress. Nay,
an attempt to get a just remedy i3 construed
as a new crime. lie dare not even complain,
for the right of free speech is gone with the
rest of his rights. If you sanction that doc
trine, what is to be the consequence ? I do
not speak of what is, past and gone ; but in
case of a future'war what results will follow
from your decision endorsing the Attorney
General's views? They are very obvious.
At the instant when the war begins, our
whole system of legal government will tum
ble into ruin, and if we are not all robbed,
and kidnapped, and hanged, and drawn,
and quartered, we will owe our immunity, not
to the Constitution and laws, but to the mere
mercy or policy of those persons who may
then happen to control the organized physi
cal force of the county.
This certainly puts us in a most precarious
condition ; we must huve war about half the
time, do what we may to avoid it. The
President or Congress can wantonly provoke
a war whenever it suits the purpose of eith
er to do so ; and they can keep it going as
long as they please, even after the actual
conflict of arms is over. When peace woos
them they can ignore her existence ; and
thus they can make the war a chronic con
dition of the country, and the slavery of the
people perpetual. Nay, we arc at the mer
cy of any foreign potentate who may envy
us the possession of those liberties which
we boast of so much ; he can shatter our
Constitution without striking a single blow or
bringing a gun to bear upon us. A simple
declaration of hostilities is more terrible to
us than an army with banners, -
To me, this seems the wildest delusion
that ever took possession of a human brain.
If there be one principle of political ethics
more universally acknowledged than another,
it is that war, and especially civil war, can
be justified only when it is undertaken to
vindicate and uphold the legal and constitu
tional rights of the people; not to trample
them down. He who carries on a system of
wholesale slaughter for any other purpose,
must stand without excu.se before God or
man. In a time of war, more than at any
other time, public liberty is in the hands of
the public officers. And she is there in dou
ble trust; first, as they are citizens and there
fore bound to defend her, by the common
obligation of all citizens; and next, as they
are her special guardians
"Who thould ugainat Iipt iniirilrcra shut the door
Nut bear the knife tutinael ves."
The opposing argument, when turned into
plain English, means this,' and this only;
that when the Constitution is attacked Uon
one side, its official guardians may assail it
upon the other; when rebellion strikes it in
the face, they may take advantage of the
blindness produced by the blow, to sneak be
hind it and stab it in the back.
The Convention when it framed the Con
stitution, and tlie people when they adapted
it, could have had no thought like that. If
they had supposed that it would operate only
while perfect peace continued, they certainly
would have given us some other rule to go
by in time of war; they would not have
left as to wander about in a howling wilder
ness of anarchy, without a lamp to our feet,
or a guide to our path. Another thing
proves their actual intent still more strik
ingly. They required that every man in any
kind of public employment, state or national,
civil or military, should swear, without re
serve or qualification, that he would sup
port the Constitution. Surely our ancestors
had too much regard for the moral and re
ligious welfare of their posterity, to impose
upon them an oath like that, if they in
tended and expected it to be broken half the
time. The oath of an officer to support the
Constitution is as simple as that of a wit
ness to-tell the truth in a court of justice.
What would you think of a witness who
should attempt to justify perjury upon the
ground that he had testified when civil war
was raging, and he thought that by swear
ing to a lie he might promote some public
or private object connected with the strife?
No, no, the great men who made this
country what it is the heroes who won her
indepencence, and the, who statesmen
settled her institutions had no such
notions in their minds. Washington deserv
ed tho lofty praise bestowed upon him by
the president of' Congress when he resigned
his commission that he had always regard
ed the rights of the civil authority through
allchanges and through all disasters. When
his duty as President afterwards required
hinr'to arm the public force to suppress a
rebellion in western Pennsylvania he never
thought that the Constitution was abolished,
by virtue of that fact in New Jersey, or
Maryland, or Virginia. It would have been
a dangerous exxeriment for an adviser of
his at that time, or any other time, to pro
pose thai he should deny' a citizen his. right
to be tried by a jury, and substitute in place
of it a- trial before' a tribunal composed of
men elected by himself from among his own
creatures nd dependents. " f -
You can well imagine how that great heart
would have swelled with indignation at the
bare thought of such an insulting outrage
upon the liberty and law of his country. . In
the war of 1812, the man emphatically called
the Father of the Constitution- was the su
preme Executive Magistrate. Talk of peril
ous times ! there was the severest trial this
Union ever saw.
That was no half-organized rebellion on the
one side of the conflict, to be crushed by the
hostile millions and unbounded resources of
the other. The existence of the nation was
threatened by the most formidable military
and naval power then upon the face of the
earth. Every town upon the northern fron
tier, upon the Atlantic seaboard, and upon
the Gulf coast wa3 in daily and hourlj' dan
ger. The enemy had penetrated the heart
of Ohio. New York, Pennsylvania, and
Virginia were all of them threatened from
the Mrest as well as the east. This Capitol
was taken, and burned, and pillaged, and
every member of the Federal Administra
tion was a fugitive before the invading army.
Meanwhile, party spirit was breaking ont in
to actual treason all over New England.
Four of those States refused to furnish a
man or a dollar even for their own defense.
Thuir public authorities were plotting the
dismemberment of the Union, and invidu
als among them were burning blue lights upon
the coast as a signal to the enemy's ships.
But in all this storm of disaster, with foreign
war in his front, and domestic treason on his
fiank, Madison gave out no sign that he
would aid Old England and New England to
break up this government of laws. On the
contrary he and all his supporters, though
compassed round with darkness and with
danger, stood faithfully between the Consti
tution and its encmios
"To hild it, and rave it or prriab there too."
The fiamers of the Constitution and all
their coteniporarics died and were buried ;
their children succeeded them and contin
ued on the stage of public affairs until they,
too,
"Lived out their leae of 1 if , and paid their breatb
To time and mortal custom :" -
and a third generation was already far on its
way to the gTavc before this monstrous doc
trine was conceived or thought of, that pub
lic officers all over the country might disre
gard their oaths whenever a war or a rebel
lion was commenced.
Our friends on the other side are quite
conscious that when they deny the binding
obligation of the Constitution they must put
some other system of law in its place.
Their brief gives us notice that, while the
Constitution, and the acts of Congress, and
magna chorta, and the common law, and all
the rules of natural justice shall remain un
der foot, they will try American citizens ac
cording to hue of the nations ! But the law
of nations takes no notice of the subject.
If that system did contain a special provi
sion that a government might hang one of
its own citizcas without judge or jury, it
would still be competent for the American
people to say, as they have said, that no
such thing should ever be done here. That
is my answer to the law of nation?.
But then they tell us that the Ltfs of war
must be treated as paramount. Here they
becomc mysterious. Do they mean that
code of public law which defines the duties of
two belligerent parties to one another, and
regulates the intercourse of neutrals with
both ? If yes, then it is simply a recurrence
to the law of nations, which has nothing on
earth to do with the subject. Po they mean
that portion of our municipal cjdc which de
fines our duties to the Government in Avar as
well as in peace? Then the- are speaking
of the Constitution and laws, which declare
in plain words that the Government owes
every citizen a fair legal trial, as much as the
citizen owes obedience to the Government.
They arc in search of an argument under
difficulties. When they appeal to interna
tional law, it is silent ; and when they inter
rogate the law of the land, the answer is an
unequivocal contradiction of their whole
theory.
The Attorney General tell us that all per
sons whom he and his associates choose to de
nounce for giving aid to the rcbellon, are to
be treated as being themselves a part of the
rebellion they are public enemies, and
therefore they may be punished without be
ing found guilty by a competent court or jury.
This convenient rule woidd outlaw ever,' cit
izen the moment he is charged with a politi
cal offense. But political offenders are pre
cisely the class of persons who most need the
protection of a court and jury, for the prose
cutions against them are most likely to be
unfounded both in fact and in law. Wheth
er innocent or guilty, to accuse is to convict
them before the ignorant and bigoted men
who generally sit in military courts. But
this court decided in the prize cases that all
who live in the enemy's territory are public
enemies, without regard to their personal
sentiments or conduct ; and the converse of
the proposition is equally true that all who
reside inside of our own , territory are to be
treated as under the protection of the law.
If they help the enemy they are criminals,
but they cannot be punished without legal
conviction.
You have heard muc h (and you will hear
more very soon) concerning the natural and
inherent right of the Government to defend
itself without regard to law. This is wholly
fallacious. In a despotism the autocrat is
unrestricted in the means he may use for the
defense of his authority against the opposi
tion of his own subjects or others ; and that
is precisely what makes him a despot. But
in a limited monarchy the princemust confine
himself to a legal defense of his government.
If h,c goes beyond that, and commits aggres
sions on the right of the people, he breaks
the social compact, releases his subjects from
all their obligations to him, renders himself
liable to be hurled from his throne, and drag
ged to the block or driven into exile. This
principle was'sternly enforced in the case of
Charles I, and James II, and wc have it an
nounced on the highest official authorityherc
that the queen of England cannot ring a lit
tle bell on her table and cause a man by her
arbitrary order to be arrested under any pre
tense whatever. If that be true there, how
much more true must it be,hcre, where we
have no personal sevcreign and where our
only government is the Constitution and
laws. A violation of law on pretense of sav
ing such a Government as ours is not self
preservation, but suicide.
Sal us pnpuU supremo, lex observe it is not
Salus regis ; the safety of the people,not the
safety of the ruler, is the supreme law.
When those who hold the authority of the
Government in their hands behave in euch a
manner as to put the liberties and rights of
the people in jeopardy, the people may rise
against them and overthrow them without
regard to that law which requires obedience
to them. The maxim is revolutionary and
expresses simply the right to resist tyranny
without regard to prescribed forms. It can
never be used to stretch the powers of gov
ernment against the people.
If this government of ours has no power to
defend itself without violating its own laws,
it carries the seeds of destruction in its own
bosom ; it is a poor, weak, blind, staggering
thing, and the sooner it tumbles over the
better. But it has a most efficient legal
mode of protecting itself against all rossible
danger. It is clothed from head to foot in a
complete panoply of defensive annor. What
are Hie perils which may threaten its exis
tence? I am not able at this moment to
think of more than these which I am about
to mention: foreign invasion, demestio in
surrection, mutiny in the army or navy, cor
ruption in the civil administration, and last
but not least criminal violations of its laws
committed by individuals among the body of
the people. Have wc not a legal mode of
defense against all these? Yes; military
force repels invasion and suppresses insur
rection; you preserve discipline in the annj
and navy by means of courts-martial;" you
preserve the purity of the civil administra
tion by impeaching dishonest magistrates;
and crimes are prevented and punished by
the regular judicial authorities. You are
not merely compelled to use these weapons
against your enemies, because they and tliey
only are justified by the law; you ought to
use them because they are more efficient
than any other, and less liable to be abused.
There is another view of the subject which
settles all controversy about it. No human
being in this country can exercise anj' kind
of public authority which is not conferred
by law ; and under the United States it must
be given by the express words of a written
statue. hatcver is not so given is with
held, and the exercise of it is positively pro
hibited. Courts-martial in the army and
navy are authorized ; they are legal institu
tions; their jurisdiction is limited, and their
whole code of procedure is regulated by act
of Congress. Upon the civil courts all the
jurisdiction they have or can have is bestow
ed by law, and if one of them goes beyond
what is written its action is ultra t ins and
void. But a military commission is not a
court-martial, and it is not a civil court. It
is not governed by the law which is made for
either, and it has no law of its own. Within
the last five years we have seen for the first
time, self-con.-.t ituled tribunal not only assu
ming power which the law did not give them,
but thrusting aside the regular courts to
which the power was exclusively given.
What is I he consequence? Thi terrible
authority is wholly undefined, and its exer
cise is without any legal control. Undelega
ted power is always unlimited. The field
that lies outside of the Constitution snd laws
has no boundary. Thierry, the French his
torian of England, says that when the crown
and sceptre were offered to Cromwell, he hes
itated for several days and answered, "Do
not make mC a king ; for then my hands will
be tied up by the laws which define the duties
of that office ; but make me protector of the
commonwealth and lean do what I please;
no stitue restraining and limiting the royal
prerogative will appby to me." So these
commissions have no legal origin and no legal
name by which they arc known among the
children of men; no law applies to them,
and they exercise all power for the paradoxal
reason that none belongs to them rightfully.
A.-k the Attorney General what rulesapply
to nnhtarv commissions m the exercise of
their assumed authority over civillian.
Come, Mr. Attorney, "gird v..n thy loins now
like a man; I will demand of the and thou
shalt declare unto me if thou hast under
standing." How is a military commission
organized? What shall be the number and
rank of its members? What offenses come
within its jurisdiction? What is its code of
prccedurc? How shall witnesses be compcled
to attend it? Is it perjury for a witness to
swear falsely? Whatistho function of a judge
advocate? Does he tell the members how
they must find, or docs lie only persuade them
convict? Is he the agent of the Government
tj command them what evidence they shall
admit and what sentence they shall pro
nounce, or does he always cany his point,
right or wrong, by the mere force of eloquence
and ingenuity? What is the nature of their
punishments? May they confiscate property
and levy fines as well as imprison and kill ?
In addition to strangling their victim, may
they also deny him the last consolations of
religion, and refuse his family the melancholy
privilege of giving him adcccct grave?
To none of the
us can the "A tto
ney General malce a reply,, for there is no Iavf
on the subject. I Ie will not attero pt to ' 'dar
ken counsel by words without knowledge,"
and, therefore, like Job, he can only lay his
hand upon his mouth and keep silence.
.. The power exercised through these milita
ry commissions is not only unregulated by
law but it is incapable of being so regulated.
What is it that you claim," Mr. Attorney? . I
will give you a definition, the correctness of
which you will not attempt to gainsay. . You
assert the right of the executive
government, without the intervention
of the judiciary, to capture, imprison,' and
kill any person to whom that government or
its paid dependents may choose to impute
an offense. This, in its very essence, is des
potic and lawless. It is never claimed or
tolerated except by those governments which
deny the restraints of all law. It has been
exercised by the great and small oppressors
of mankind ever since the days of Nimrod.
It operates indifferent ways; the tools it
uses arc not alwaj's the same, it hides its
hideous features under many disguises ; it
assumes every variety of form; "-
It can chans ahnpR with t mtpa a for advantages
And aet the murderous Macliiavcl to achool."
But in all its mutations of outward appear
ance it is still identical in principle, object,
and origin. It is always the same great en
gine of despotism which Hamilton described
it to be.
Under the old French monarchy the favor
ite fashion of it was a Itttre de cachet, bign
ed by the king, and this would consign the
party to a loathsome dungeon until he died,
forgotten by all the world. An imperial
ulzase will answer the same purpose In Rus
sia. The most faithful subject of that ami
able autocracy may lie down in the evening
to dream of his future prosperity, and be
fore daybreak he will find himself between
two dragoons on his way to the mines of
Siberia. In Turkey the verbal order of the
Saltan or any of his powerful favorites will
cause a man to be tied up in a Hack and cast
into the Bosphorus. Nero accused Peter
and Paul of spreading a "pestilent enper
stition," which they called the Gospel. He
heard their defense in person and sent them
to the cross. Afterwads he tried the whole
Christian church in one body on a charge of
setting fire to the city, and he convicted
them, though he knew not only that they
were innocent, but that he himself had
committed the crime. The judgement was
followed by instant execution ; he let looso
the Pi jetorian guards upon men, women and
children, to drown butcher and burn them.
Herod saw fit, for good political reasons,
closely affecting the permanence of his reign
il Judca, to punish certain possible traitors
in Bethlehem by anticipation. This requir
ed the death of all the children in that city
under two years of age. He issued his gen
eral order, and his provost marshall carried
it out with so much alacrity and real that in
one day the whole land was filled with
mourning and lamentation.
Macbeth understood the wholo philoso-
pay
U the salject He was an un
limited monarch. His power to punish for
any offense or for no offense at all 'was as
broad as that which the Attorney General
claims for hiinself and his brother officers
under the United States. But he.wasmore
cautious how he used it. He had a danger
ous rival from whom he apprepended the
most scricus peril to to the life of his gov
ernment. The necessity to get rid of him
was plain enough, but he could not afford to
shock the moral sense of the world by
pleading political necessity f jr a murder.
He must
'.Mask the biineM fiom tbe common eye."
Accordingly he sent for two enterprising
gentlemen, whom he took into bis service
upon liberal pay "made love to their assis
tance," and got them to deal with the accus
ed party. He acted as his own judge advo
cate. He made a most elegant and srimng
speech to persuade his agents that Banquo
was their oppressor, and had "held them so
under fortune" ' tliat he ought to die for
that alone. When they agreed that he w&8
their enemy, then said the king
"So i be mino, and thaurb 1 could
With barefaced power r weep him from mr eight
And bid my will avouch it, yet I mutt not.
For ceitain friends, who are both tig and mine.
V hose loves I way nut drop.'
For these, and "mamv weighty reasons'
'resides, he thought it best to commit the
execution of his design to a subordinate
agency. The commission thus organized in
Banquo's case sat upon him that very night
at a convenient place beside the road whero
it was known he would be travelling; and
they did precisely what the Attorney Gen
eral says the military officers may do in this
country they tjok and killed him, becauso
their employer at the head of the govern
ment wanted it done, and paid them for do
ing it out of the public treasury.
But of all the persons that ever wielded
this kind of power, the one who went most '
directly to the purpose and object of it was
Lola Montcz. She reduced it to the ele
mentary principle. In 1S4S, when she was
minister and mintress to the King of Bava
ria, she dictated all the measures of the gov
ernment. The times were troublesome. All
over Germany the spirit of rebellion was
rising; everywhere the people wanted to :
see a first class revolution like that which
had just" exploded in France. Many per
sons in Bavaria disliked to be governed so
absolutely by a lady of the character which.
Lola Montcz bore, and some of them were
rash enough to say so. . Of course that was"
treason, and she went about to punish it in'
the simplest of all possible ways. She bought
herself a pack of English bull dogs, trained
to tear the flesh, and mangle the Hmbs, and
lap the life-blood: . and with these' dogs at'
her heels," she marched up "and do wn tht