cretion of the Commander-in-Chief or of the cation of the principle lying at the foundation commission itself, but is subject to the estab- of the common law of war, and determining lished rules and principles of the common law the system of jurisprudence known by that of war, which calls it into existence, to admin- name, and it is this: That where, by virtue of ister justice according to those rules and prin- the existence of martial law, the common law ciples. of war is required to be administered, the civil and penal law of the territory subject to martial law becomes part of that common law of war, and, as such, is to be administered by military tribunals, under military modes of procedure, with the same effect in securing the rights of litigants and the punishment of crimes as if administered by civil tribunals, according to the modes provided and adopted in the civil courts.

What are these rules and principles? They are clearly indicated in article 6 of General Order No. 100 (already in evidence in this case), which is as follows:

All civil and penal law shall continue to take its usual course in the enemy's places and territories under martial law, unless interrupted or stopped by order of the occupying military power; but all functions of the hostile government-legislative, executive or administrative-whether of a general, provincial or local character, cease under martial law, or coninue only with the sanction, or, if deemed necessary, the participation, of the occupier or invader."

I do not mean to contend that the code of the common law of war is exclusively made up of the civil and penal law of the country which has become subject to martial law, but that the civil and penal law becomes a part of the common law of war in all cases to which it is applicable. Under martial law many acts become crimes which are innoxious and innocent in time of peace and under the civil code, and which are not, therefore, provided against in the civil and penal law.

This order proves that, in the enemy's counry, under martial law, the civil and penal w shall remain as the rule of conduct and law of the people, unless interrupted by express tommand. In the absence of any command terrupting the operation of the civil and In regard to the trial of persons arraigned enal law, what is the law over that portion of for any of this class of crimes, the Commission he enemy's territory to which this order refers? must conform in its action, as nearly as may be, Martial law certainly prevails, because the to the authenticated precedents of the common erritory referred to is described as territory law of war, and administer justice with sound inder martial law. The civil and penal law discretion; but in regard to the trial of persons of the country also prevails, because the order arraigned for offenses created and recognized xpressly declares that it shall continue. It is pparent, therefore, that two systems of jurisprudence prevail at the same time on the same erritory; one, the system which martial law stablishes, and known as the system of the ommon law of war, and the other, the system n force over the territory at the time of its Onquest. But the latter system, although preailing, can not be enforced, except by the coneror, for the article further provides that all he "functions of the hostile government, egislative, executive or administrative, whether fa general, provincial or local character, rase under martial law, or continue only with Le sanction, or if deemed necessary, the parcipation, of the occupier or invader."

by the civil and penal law, the Commission must administer, as part of the common law of war, the civil and penal law as it is written. The civil and penal law becomes part of the common law of war by the fact of the inauguration of martial law.

It is true the operation of this principle may be interrupted by order of the occupying military power, in the exercise of an authority derived from, and limited by, the military necessity; but the right to interrupt the operation of the principle by special order, shows that the principle continues in force until the interrupting order is promulgated. It may, however, be contended that a special order in such case is not necessary according to the laws of war, Judicial power is one of the functions of and would not be required except for the overnment, and is specifically designated in mandate of section 6, above quoted from. If e order by the word "administrative." All this is true, then the principle for which I have le functions of the government, including the contended should be stated with a qualification, Aministrative functions, must cease under and the civil and penal law of the country subartial law; but still, by the terms of the ject to martial law becomes a part of the comder, the civil and penal law shall continue mon law of war, except as to such parts thereof nd take its course, and be administered. By as military necessity requires should be sushom? By what tribunals? The civil courts pended. Section 3 of General Order No. 100 in no longer exercise functions of their admin- provides as follows: tering the law, and military courts administer, t civil and penal law, but military law and e common law of war. Article 13 of the der referred to says:

Military jurisdiction is of two kinds: first, at which is conferred and defined by statute; cond, that which is derived from the common w of war."

How, then, can a military jurisdiction adnister civil and penal law? There is but one lation to the difficulty, and it is in the appli

"Martial law in a hostile country consists in the suspension, by the occupying military authority, of the civil and criminal law, and of the domestic administration and government of the occupied place or territory, and the substitution of military rule and force for the same, as well as in the dictation of general laws, as far as military necessity requires this suspension or dictation."

According, then, to this section of the order, the civil and penal law is suspended only as

far as military necessity requires a suspen- own country in any case other than that re sion.

The rule, therefore, is that the civil and penal law shall continue in force, and the exception is as to such parts thereof as military necessity may require to be suspended. This necessity, as is well understood, is not a condition in which the suspension of the civil and penal law would be more convenient to the occupying military power, or would simply gratify the caprice of the commander, but a condition in which such suspension is imperatively demanded to meet the exigencies of war, and absolutely required to conduct that war successfully. Military necessity is thus defined by section 14 of General Order No. 100:

"Military necessity, as understood by modern civilized nations, consists in the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war."

That portion of the civil and penal law suspended in the enemy's country subject to martial law, on the ground of military necessity, must, therefore, be such portions of said law as it is indispensable to suspend for securing the ends of the war, and which it is also lawful to suspend according to the modern law and usages of

war.

ferred to in the article, to-wit: when face to face with the enemy, and to which condition this article would seem to limit the rightful exercise of that law. But conceding that it may prevail within the commander's country, where hostile armies are not arrayed against each other its soil, and war is not in actual progress, what under such circumstances, is its effect in inter rupting or suspending the civil and penal law! I concede, for the purpose of this argument that it establishes the common law of war a suspending the civil and penal law, that it sub stitutes a military tribunal for civil courts, and the summary process of military arrests for the ordinary mode and form of civil arrests; bat when the military court is convened and organ ized, what law is it required to administer The answer is obvious: it is to administer the common law of war. What part of the civil and penal law has been excluded from th common law of war and suspended under the force of a necessity making such suspe sion indispensable for securing the ends of the war?

This Commission is sitting not only in th commander's own country, but in the capitalf that country. Before it met, the last bostia gun of the war had been fired, a thousand mile away. During its session 200,000 veteran Sections 3 and 6, above quoted, of General have returned from the field, and passed in r Order No. 100, by their terms, refer only to the view in sight of the windows of this court-roca "enemy's country," but they indicate the effect their faces homeward turned, their swor of martial law upon the system of jurisprudence sheathed, their work accomplished. No ener to be administered wherever martial law pre-now remains in arms against the Governme vails. That effect will be greater or less in of the country; but the war is over, and pes modifying or suspending the civil and penal restored. Again, I ask, what military ne laws of the various territories that may be sub-sity renders a suspension of the civil and pers ject to martial law, according to the measure of law of the United States, in the capital of th the necessity existing in each. United States indispensable for securing th ends of war?

Section 5 of General Order No. 100 provides as follows:

The second inquiry which I propose to mak "Martial law should be less stringent in before this Commission, is, whether martial s places and countries fully occupied and fairly did exist on the 14th of April, 1865, in the ca conquered. Much greater severity may be ex- of Washington, and if so, to what extent, an ercised in places or regions where active hos- whether it does now exist? The only eviden tilities exist, or are expected, and must be pre- before the Commission of the existence of m pared for. Its most complete sway is allowed tial law in the city of Washington, on the 14 even in the commander's own country, when of April last, is the proclamation of the Pre face to face with the enemy, because of the ab-dent of the United States, issued in Septemb solute necessities of the case, and of the para- 1862. That proclamation is in these words: mount duty to defend the country against invasion."

"That during the existing insurrection, s as a necessary measure for suppressing t It is apparent, therefore, that the effect of same, all rebels and insurgents, their a martial law in modifying and changing the and abettors, within the United States, and civil and penal code, or the civil administration persons discouraging volunteer enlistmer of the district or territory in which it prevails, resisting militia drafts, or guilty of any d depends upon the military necessity growing loyal practice, affording aid and comfort out of the condition of things existing in such rebels against the authority of the Uni territory or district. And if in any portion of the States, shall be subject to martial law, and conquered and occupied territory of the enemy ble to trial and punishment by courts-mart the civil and penal law is allowed to continue, or military commission." certainly in such portions of the commander's It appears clearly, from General Order! own country as may be declared subject to mar-100, that martial law is not, if I may use s tial law, the civil and penal law should not an expression, an unbending code; that it be interrupted, unless some extraordinary and be made, in the discretion of the comman overwhelming necessity arises to justify it. more or less stringent, as the exigencies of

I will not enter into the inquiry suggested by case may require. It also is apparent, tr section 5, quoted above, as to whether or not the same General Order, that martial la martial law can prevail in the commander's the commander's own country, must exist

General Order No. 141 is still in force, and that they derive their power and authority to hear and determine these cases by virtue of that general order, still the fact remains that they have only the power under that order to try the naked crime of aiding and abetting the rebellion.

virtue of some proclamation or announcement. To what extent, then, does it appear that martial law was declared by the proclamation of the President of September, 1862, and which is sometimes designated as General Order No. 141? The President of the United States, if he had the right to issue the proclamation at all had the right to limit its duration and the The charge in this case consists of several persons to whom it should apply. In the exer- distinct and separate offenses embodied in one cise of this constitutional right, the President charge. The parties accused are charged with did both; he limited the time of existence of a conspiracy in aid of the rebellion, with murmartial law, as well as the persons to whom it der, with assault with intent to kill, and with is applied. By the terms of that order declar- lying in wait. It is extremely doubtful from ing martial law, the existence of that martial the language of the charge and the specificalaw is made to depend entirely on the existence tion, under which of the following crimes the of the rebellion. It required no order to annul accused, Herold, is arraigned and now on his or revoke it; it carried, if I may use such an trial, viz.: expression, its own death-warrant upon its face. "During the existing insurrection, and as a conspiracy to overthrow the Government of the necessary measure for its suppression," per- United States, as punishable by the act of the sons guilty of affording aid and comfort to the Congress of the United States, as passed the 31st rebels are liable to be tried by courts-martial of July, 1861; or,

or military commission. Had the President

of the United States intended that the crime

I. Whether he is on trial for the crime of

II. Whether he is on his trial for giving aid

III. Whether he is on trial for aiding and abetting the murder of Abraham Lincoln, President of the United States.

of aiding the insurgents by giving to them aid and comfort to the existing rebellion, as punand comfort, which occurred during the rebel-ishable by the act of Congress passed the 17th of July, 1862; or, lion, should be punished after the rebellion had ceased, apt words were at hand so to express the order; but the order is not so expressed; both the crime and the punishment are made to depend upon the existence of the rebellion. His counsel well understands the legal defiThat order, too, only touches a particular nition of the three crimes above mentioned, class of crimes. It does not touch the crime but does not understand that either to the comof murder, of an assault with intent to kill, of aiding or abetting in a murder, or aiding or abetting the escape of a murderer from justice, or of a conspiracy to murder. The same facts make the crime, and the same punishment follows conviction, and the same mode of punishment exists after the issue of that order as did before.

mon law or to the law of war is known any one offense comprised of the three crimes mentioned in this charge. He knows of no one crime of a conspiracy to murder and an actual murder, all in aid of the rebellion, distinct and separate from the well-known and defined crimes of murder, of conspiracy in aid of the rebellion, or of giving aid and comfort to the Loyal civil courts in the city of Washington rebellion as defined by the acts of Congress. have been constantly, since the issue of that It is extremely doubtful, from the language of proclamation, in session, with full and ample this charge, whether the murder of the Presipower and authority to try the crimes of mur- dent of the United States is not referred to as der, of conspiracy to murder, of assault with the mere means by which the conspirators gave intent to kill and murder, and of aiding and aid and comfort to the rebellion-whether it abetting in the escape of a murderer. The was not merely the overt act by which the jurisdiction of the civil courts over all such crime of aiding the rebellion was completed. crimes last above enumerated has been left If the crime of aiding and abetting the reuntouched and undisturbed by that order. bellion, as laid in the charge and specification, There has been no hour since the issue of that is only laid as the inducement to the crime of proclamation that the Supreme Court of the murder, then the crime as laid in the charge District of Columbia has not had full and ample and specification does not come within the terms powers to try every crime enumerated in the of the proclamation of September, 1862. It is charge in this case. Upon the suppression of the actual crime, and not the motives which inthe rebellion, that proclamation expired, and duced it, that confers the jurisdiction. In the became from that and continues to this hour a first general specification of the charge we find dead letter upon the statute book, and that the following words used: "And by the means martial law which it inaugurated can never aforesaid" (referring to the murder of the again exist in the capital of the country until President, Vice-President, the Secretary of the Commander-in-Chief, in the exercise of State, and the Lieutenant-General), "to aid and his constitutional powers, shall again declare it. comfort the insurgents in armed rebellion But supposing the proclamation to be still against the United States as aforesaid, and In force, supposing it to be as valid this day thereby to aid in the subversion and overthrow is it was on the day it was issued, still the fact of the Constitution and laws of the United remains that it only applies to one single class States." In that sentence the murder of the of persons and to one single crime, and that President of the United States and the rest of Time is aiding and abetting the rebellion. the crimes aforesaid are merely spoken of as And if this Commission should conclude that the means, and not as the end.

The ambiguity in the charge and the first | out by himself, apart from Herold, and out of general specification is not relieved by the Herold's sight and hearing, and handed him special specification against the accused, Her- (Lloyd) two carbines. There is no evidence old. The special specification against him uses whatever in Lloyd's testimony that Herold had these terms: the most remote knowledge that Surratt had

"And in further prosecution of the said un-given Lloyd the carbines. lawful, murderous and traitorous conspiracy, and in pursuance thereof, and with the intent aforesaid," etc.

The special specification then goes on to charge Herold with two matters: first, with aiding and abetting in the murder of the President of the United States; and second, with aiding and abetting Booth in his escape from justice after the murder.

There is one other point which was given in evidence by the Government, and that is the testimony of the witness Taltavull, the restaurant keeper, who deposes that one night, either Friday, the night of the assassination, or Thursday, the night before it, Herold came into his restaurant and asked if Booth had been there.

Fifty people could probably be convicted if The language of the charge and of the gen-facts like these were sufficient to convict; but eral specification, as well as of the special they do not give, either separately or collec specification, leaving it doubtful whether the tively, the slightest evidence that this boy Her accused is charged with all three or any one, it old ever conspired with Booth and others in is necessary for his counsel to present his de-aid of the rebellion, and for the overthrow of fenses to all three of the crimes mentioned in the Government of the United States. They the charge and specification.

First, as to the crime of conspiracy. What evidence is there of the accused, Herold, having conspired to murder the President, or to aid the rebellion and overthrow the Constitution and laws of the United States? The evidence upon that point consists of but very few facts.

The first that it is necessary to notice is the testimony of Weichmann, who says that he saw Herold once at Mrs. Surratt's house since he went there to board, which was in November, 1864. It is hardly possible that this Commission will take a single visit of a young man to a house, where there were both young men and young ladies, as evidence of complicity in a conspiracy of so grave and heinous a character, especially as the same witness deposes that Herold was a previous acquaintance of the Surratts, as he had seen him before they moved to town, down in the country, at a serenade there some eighteen months before.

show nothing that might not have occurred to any one, perfectly consistent with the most perfect innocence. The term "confidential conmunication" is the witness' (Weichmann's own construction. He meant only to say that the three were talking together-that after leav ing the theater, where they had been, the three stopped and went into a restaurant, and that he found them there talking together near a stove. So much for the conspiracy.

In the special specification there are two things charged. The first is the murder of the President of the United States; the second aiding and abetting Booth in his escape from justice after the murder. An accessory after the fact is thus defined: "An accessory after the fact is one who, when knowing a felony to have been committed by another, receives, relieves, comforts or assists the felon." There is no reasonable doubt, from the evidence in this case, that the accused, Herold, was guilty The same witness (Weichmann) also deposes of aiding and abetting Booth in his escap that once in the winter of 1865, he, Holahan, from justice. It is not the object of the coun Atzerodt, and this boy Herold went to the thea- sel for the accused either to misrepresent the ater to see Booth play; that, on leaving the law (which would be useless in the preser theater and going down the street, he (the wit- of the able and learned Judge Advocates wh ness, Weichmann) and Holahan going in ad- are conducting this case on the part of the vance, they found that they had outwalked the Government), or to attempt to misrepresent the other three of the party; that the witness (Weich- facts that have been disclosed in the evidence mann) returned, and found Booth, Atzerodt, which would be equally useless before the and Herold in a restaurant, and, to use his ex- Court. Of the fact that this boy, Herold, wa pression, "in close conversation near a.stove," an aider and abettor in the escape of Booth and upon his going in they invited him to take there is no rational or reasonable doubt. H a drink. If the fact of two persons going to a was clearly guilty of that crime, and mes theater to see a popular play, and leaving that abide by its consequences. But the accusel theater with the addition of a third, and stop- by his counsel, altogether denies that he w ping at a restaurant and taking a drink, or stand-guilty of the murder of Abraham Lincol ing all three as (in the witness' opinion) in President of the United States, or that he a confidential conversation, is an evidence of con- and abetted in the murder of Abraham Lis spiracy, probably half of the population of Wash-coln, President of the United States, as ington city during the winter could be convicted forth in the specification and the charge. on the same testimony.

The only other testimony is that of John M. Lloyd, who deposes that John Surratt and Atzerodt, some weeks before the assassination, passed his house, and that on their return Herold was with them, Herold being in a buggy alone; that they stopped at his house and took drinks; that John Surratt took him (Lloyd)

Herold is charged in the charge with th murder of the President. It is shown, as clear as the sun shines, that he did not do the murd with his own hands, that he did not strike h mortal blow; and the only question that ca arise under the charge and specification. a the evidence, in this cause, is whether he w such an aider and abettor as would make hi

equally guilty with the party who did strike the blow; and in order to arrive at a satisfactory conclusion whether he did so aid and abet in the murder of the President of the United States, it is necessary to examine what will constitute an aider and abettor.

time of the murder, he was fully half a mile from the scene of the dreadful tragedy.

In order to convict him of being near enough to give aid, should the occasion arise, the Court must be satisfied of the nature of the aid that he was able to give. What aid could he have An aider and abettor, termed in the law a possibly given? Was he near enough to hand principal in the second degree, is thus defined: Booth another pistol in case the first missed "Principals in the second degree are those fire? Was he near enough to prevent assistwho are present aiding and abetting at the ance being given to the lamented President in commission of the fact. To constitute princi- case the first shot did not take effect? Was he pals in the second degree there must be, in the in a situation to give the murderer any aid in first place, a participation in the act committed, his escape from the theater? As far as this and, in the second place, presence, either testimony discloses, Herold was entirely unactual or constructive, at the time of its com- armed. Can the Court conceive any possible Wharton's American Criminal Law, assistance that, under these circumstances, he, on the outside of the theater, in the middle of the principal street of Washington, half a mile from the theater, about the time the murder was committed, could have given Booth in the murder, or even in his escape?

mission."

4th edition, 116.

What is that "actual or constructive" presence is thus explained in the same book, 124: "It is not necessary that the party should be actually present, an ear or eye-witness of the transaction. He is, in construction of law, To constitute an aider and abettor, the acpresent aiding and abetting if, with the inten-cused must have been in a situation to render tion of giving assistance, he be near enough aid. Booth might have supposed him to be in to afford it should the occasion arise."

a situation, the accused might have supposed himself even to be in a situation to render aid; but it is not sufficient, unless the Court are satisfied, from the evidence brought before them, that he was actually and positively in a situation where he could have rendered aid in the commission of the act; and, in support of this position, I refer to 9 Pickering's Reports p. 496:

"To be present aiding and abetting the commission of a felony, the abettor must be in a situation where he may actually aid the perpetrator. It is not enough that he is at a place appointed, where the perpetrator erroneously supposes he might render aid."

Now, did the accused, in the language of the law, participate in the act? Did he strike the illustrious victim the fatal blow? Did he point or hold the weapon? Did he open the door of that accursed box? Did he bar that outer door? Did he clear the passage of the theater? Did he stop or attempt to stop pursuit? Was he even in the theater at the time the fatal deed was done? To all these questions the evidence answers, distinctly and emphatically, no. As to the second branch of the definition of a principal in the second degree, was he constructively present? He was not actually present, as we have seen above. Was he, then, Constructively present? That is to say, in the But it may be argued that the accused said language last quoted from Wharton, was he, to Jett, a witness produced from the State of "with the intention of giving assistance," Virginia, "We are the assassinators of the "Dear enough to afford it, should the occasion President." If the Court will examine, they arise? What says the evidence on this point? will find that this declaration was qualified John Fletcher, the only witness who mentions one moment after it was made; that, pointing Herold at all on the 14th of April, 1865, says to Booth, the accused said, "Yonder is the asthat he saw Herold at twenty-five minutes past sassinator." Herold is on trial for his acts, ten o'clock that night, riding on horseback, and not for his words. It is shown concluslowly, on Pennsylvania avenue, near Willard's sively, in this case, that Booth, and not HerHotel, coming from the direction of George- old, assassinated the President. If Jett heard own; that his horse seemed to be somewhat, accurately the words used by Herold, taken though not very, tired, and gave evidences of in connection with the facts disclosed to this aving been ridden. The main portion of the Court, they only disclosed to Jett the characestimony places the assassination of the Pres-ter of the party. Declarations are only a dent at fifteen minutes after ten o'clock. That means to arrive at the true character of acts. he assassination took place in the midst of a They must be taken in connection with the rowded theater, there is no controversy or dis- facts of every case; and it is clear, from every jate. particle of testimony in this case, that Herold Now, what possible assistance could the ac-was not the "assassinator" of the President; ased have rendered to a murder committed in and even if he used the words as repeated by ord's theater about the time that he was riding Jett, the meaning is clear enough; he meant lowly down the middle of Pennsylvania av-to designate and point out to Jett, the witness, nue? No living man saw Herold nearer Ford's the character of the party that he was with. heater, on that fatal night, than the witness, But it may be urged that the flight of Herold letcher. Every circumstance attending that is evidence of his guilt. It is true that flight, readful act has been minutely detailed to this unexplained, is always regarded as evidence ourt by witnesses who were present. What of guilt, but not conclusive evidence. p8sible assistance could the accused, Herold, "By the common law, flight was regarded so sve rendered to the murderer? The only time strong a presumption of guilt, that, in cases at he was seen on that night, and about the of treason and felony, it carried forfeiture of