360 ARGUME erice of the United States so military discipline :evalay in time of pesce Constitution would ea ps in peace, it must make rules and regulations the proclaim and enforce martial law in the sup- every act done by a subordinate officer, in pression of armed and organized rebellion? obedience to such orders, is equally justifiable. cumstances, orders shall be given to carry the Or does he only affirm that this act of the late The law contemplates that, under such cir President is a usurpation? The proclamation of martial law in 1862 a power into effect; and it can not, therefore, be usurpation! though it armed the people in a correct inference that any other person has ene- does not provide for any appeal from the judge of peace as well as that dark hour of trial with the means of a just right to disobey them. The lawmut defense against traitorous and secret mies in every State and district of the coun- ment of the President, or for any right in sub-te prisions of the Ca try; though by its use some of the guilty were ordinate officers to review his decision, and in tal by jury IN T of P brought to swift and just judgment, and others effect defeat it. Whenever a statute gives a disimulations by indictmen deterred from crime or driven to flight; though cretionary power to any person, to be exercisedgery human being that by this means the innocent and defenseless by him upon his own opinion of certain face in crime is the United were protected; though by this means the city it is a sound rule of construction, that the heighth section of t the violence and pillage of the mob and the judge of the existence of those facts as must be made; and aof the gentleman's residence was saved from statute constitutes him the sole and excluainen mi a fal force of the torch of the incendiary. But, says the gen- Wheaton, 31. tleman, it was a usurpation, forbidden by the laws of the land! ng was made. But by the A In the light of these decisions, it sisened to this Court is clear to every mind that the question of that NIKE OF WB The same was said of the proclamations of existence of an insurrection, and the nests in its dread issue the blockade, issued April 19 and 27, 1861, which of calling into requisition for its supped-the guarantees of declared a blockade of the ports of the in- both the militia of the States, and the any in full force for the benef surgent States, and that all vessels violating, and navy of the United States, and of with the enemy, creep 1 the same were subjects of capture, and, to-claiming martial law, which is aner in cold blood, in the gether with the cargo, to be condemned as condition of war, whether foreign insurgent, the C recognised the fact of civil war, these procla-, ernment who is charged by the expions of the cavila. prize. Inasmuch as Congress had not then mestic, must rest with the offer of the army, and secure t mations were denounced as void. The Supreme of the Constitution with the perfi my, when overstate Court decided otherwise, and affirmed the this great duty for the começa deface at hosted nature whore power of the Executive thus to subject property on the seas to seizure and condemnation. I read from that decision: But it is further insisted by the spot by a military tra in this argument, that Congress has the amounts to this: that execution of the laws of the Uni teh arrests and tria. Yes "The Constitution confers upon the Presi- ined the establishment of military that itary trials of civ dent the whe executive power; he is bound which are essential to the judicialion and tyranny an cod. de is Commander-in-Chief of the army crimes committed during the esht Booth should be tried to take care that the laws be faulty eretion of martial law, and and aiders should be ame lan to doll to comprenen: the sense of such a ca e entitled to this remote period and of the Republie are m ate tread of armed me leader of the repation nation of blockade my ruled by the same they come Yat the powers the in the service of the United States, and that, in- of successfully asserting their authority, preservasmuch as military discipline and order are as ing their nationality, and securing protection to essential in an army in time of peace as in time the lives and property of all, and especially to of war, if the Constitution would leave this power the persons of those to whom they have comto Congress in peace, it must make the excep- mitted, officially, the great trust of maintaining tion, so that rules and regulations for the gov- the national authority. The gentleman says, ernment of the army and navy should be ope- with an air of perfect confidence, that he denies rative in time of peace as well as in time of war; the jurisdiction of military tribunals for the because the provisions of the Constitution give trial of civilians in time of war, because neithe right of trial by jury IN TIME OF PEACE, in ther the Constitution nor laws justify, but on all criminal prosecutions by indictment, in terms the contrary repudiate them, and that all the embracing every human being that may be held experience of the past is against it. I might to answer for crime in the United States: and content myself with saying that the practice of herefore, if the eighth section of the first article all nations is against the gentleman's concluvas to remain in full force IN TIME OF PEACE, Sion. The struggle for our national independhe exception must be made; and accordingly, ence was aided and prosecuted by military trihe exception was made. But by the argument bunals and martial law, as well as by arms. e have listened to, this Court is told, and the The contest for American nationality began untry is told, that IN TIME OF WAR-a war with the establishment, very soon after the firhich involves in its dread issue the lives and ing of the first gun at Lexington, on the 19th terests of us all-the guarantees of the Con- day of April, 1775, of military tribunals and tution are in full force for the benefit of those martial law. On the 30th of June, 1775, the conspire with the enemy, creep into your Continental Congress provided that "whosoever, aps, murder in cold blood, in the interests of belonging to the continental army, shall be convicted invader or insurgent, the Commander-in- of holding correspondence with, or giving intelef of your army, and secure to him the slow ligence to the enemy, either indirectly or di Iweak provisions of the civil law, while the rectly, shall suffer such punishment as by a der, who may, when overcome by the de- court-martial shall be ordered." This was found ids of exhausted nature, which can not be not sufficient, inasmuch as it did not reach those sted, have slept at his post, is subject to be civilians who, like certain civilians of our day, lupon the spot by a military tribunal and shot, claim the protection of the civil law in time of Argument amounts to this: that as military war against military arrests and military trials ts and military trials of civilians in time of for military crimes. Therefore, the same Conare a usurpation and tyranny, and as soldiers gress, on the 7th of November, 1775, amended able to such arrests and trial, Sergeant Cor-this provision by striking out the words "bewho shot Booth, should be tried and executed longing to the continental army," and adopting stence of a military court; while Booth's co-the article as follows: irators and aiders should be saved from! "All persons convicted of holding a treacherach indignity as a military trial! I con-ous correspondence with, or giving intelligence at I am too dull to comprehend the logic, to the enemy, shall suffer death, or such other son, or the sense of such a conclusion! If punishment as a general court-martial shall 's any one entitled to this privilege of a think proper." ial, at a remote period, and by a jury of strict, IN TIME OF CIVIL WAR, when the ions of the Republic are rocking beneath thquake tread of armed rebellion, that the defender of the republic. It will to say, as has been said in this arguat the soldier is not liable to be tried in war by a military tribunal for any other han those prescribed in the rules and of war. To my mind, nothing can be han that citizen and soldier alike, in ivil or foreign war, after a proclamation Comprehensive as was this legislation, embracal law, are triable by military tribunals ing, as it did, soldiers, citizens and aliens, subfenses of which they may be guilty, in jecting all alike to trial for their military ests of, or in concert with, the enemy. crimes by the military tribunals of justice, acprovisions, therefore, of your Constitu- cording to the law and the usage of nations, indictment and trial by jury in civil it was found to be insufficient to meet that all crimes are, as I shall hereafter show, most dangerous of all crimes, committed in the inoperative in time of war when the interests of the enemy, by citizens, in time of ety requires it. war, the crime of conspiring together to assassinate, or seize and carry away, the soldiers and citizens who were loyal to the cause of the country. Therefore, on the 27th of February, 1778, the Congress adopted the following resolution: And on the 17th of June, 1776, the Congress added an additional rule: "That all persons, not members of, nor owing allegiance to, any of the United States of America, who should be found lurking as spies in or about the fortifications or encampments of the armies of the United States, or any of them, shall suffer death, according to the law and usage of nations, by the sentence of a courtmartial, or such other punishment as a courtmartial shall direct." ument to which I have thus been re- battalions of treason are broken and flying in-Chief, to prevent the consummation of this before the victorious legions of the Republic, traitorous conspiracy in aid of this treasonable the chief traitors in this great crime against rebellion. The civil courts, say the counsel, your Government, secretly conspire with are open in the District. I answer, they are their hired confederates to achieve by assassi- closed throughout half the Republic, and were nation, if possible, what they have in vain only open in this District on the day of this attempted by wager of battle, the overthrow confederation and conspiracy, on the day of of the Government of the United States and the traitorous assassination of your President, the subversion of its Constitution and laws. and are only open at this hour by force of the It is for this secret conspiracy in the interest of bayonet. Does any man suppose that if the the rebellion, formed at the instigation of the military forces which garrison the intrenchchiefs in that rebellion, and in pursuance of ments of your capital, fifty thousand strong. which the acts charged and specified are al- were all withdrawn, the rebel bands who this leged to have been done, and with the intent day infest the mountain passes in your vicinity laid, that the accused are upon trial. would allow this Court, or any court, to remain open in this District for the trial of these their confederates, or would permit your executive officers to discharge the trust committed to them, for twenty-four hours? arrested upon civil process, but was pursued by the military power of the Government, captured and slain. Was this an act of usurpa tion?-a violation of the right guaranteed to that fleeing assassin by the very Constitution against which and for the subversion of which he had conspired and murdered the President? Who in all this land is bold enough or base enough to assert it? The Government, in preferring this charge, does not indict the whole people of any State or section, but only the alleged parties to this unnatural and atrocious conspiracy and crime. The President of the United States, in the dis- At the time this conspiracy was entered inte, charge of his duty as Commander-in-Chief of and when this Court was convened and entered the army, and by virtue of the power vested in upon this trial, the country was in a state of him by the Constitution and laws of the United civil war. An army of insurrectionists have. States, has constituted you a military court, to since this trial began, shed the blood of Union hear and determine the issue joined against soldiers in battle. The conspirator, by whose the accused, and has constituted you a court hand his co-conspirators, whether present or for no other purpose whatever. To this charge absent, jointly murdered the President on the and specification the defendants have pleaded, 14th of last April, could not be and was not first, that this court has no jurisdiction in the premises; 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 for the fact, that a grave and elaborate argument has been made by counsel for the accused, not only to show the want of jurisdiction, but to arraign the President of the United States before the country and the world as a usurper of power over the lives and the I would be glad to know by what law the liberties of the prisoners. Denying the author- President, by a military force, acting only upon ity of the President to constitute this Com- his military orders, is justified in pursuing. mission is an averment that this tribunal is not arresting, and killing one of these conspira court of justice, has no legal existence, and ators, and is condemned for arresting in therefore no power to hear and determine the like manner and by his order subjecting to trial, issue joined. The learned counsel for the ac- according to the laws of war, any or all of the cused, when they make this averment by way other parties to this same damnable conspiracy of argument, owe it to themselves and to their and crime, by a military tribunal of justice—a country to show how the President could oth-tribunal I may be pardoned for saying, whose erwise lawfully and efficiently discharge the integrity and impartiality are above suspicion. duty enjoined upon him by his oath to protect, and pass unchallenged even by the accused preserve, and defend the Constitution of the themselves. United States, and to take care that the laws be faithfully executed. The argument against the jurisdiction of this Court rests upon the assumption that, even in An existing rebellion is alleged and not de-time of insurrection and civil war, no crimes nied. It is charged that in aid of this existing are cognizable and punishable by military rebellion a conspiracy was entered into by the commission or court-martial, save crimes come accused, incited and instigated thereto by the mitted in the military or naval service of the chiefs of this rebellion, to kill and murder the United States, or in the militia of the several executive officers of the Government, and the States when called into the actual service of the commander of the armies of the United States, United States. But that is not all the argu and that this conspiracy was partly executed ment; it affirms that, under this plea to the ju by the murder of Abraham Lincoln, and by a risdiction, the accused have the right to demand murderous assault upon the Secretary of State; that this Court shall decide that it is not a judi and counsel reply, by elaborate argument, that cial tribunal, and has no legal existence. although the facts be as charged, though the This is a most extraordinary proposition, that conspirators be numerous and at large, able the President, under the Constitution and laws and eager to complete the horrid work of as- of the United States, was not only not author sassination already begun within your military ized, but absolutely forbidden to constitute encampment, yet the successor of your mur- this Court, for the trial of the accused, and dered President is a usurper if he attempts by therefore, the act of the President is void, and military force and martial law, as Commander- the gentlemen who compose the tribunal, with out judicial authority or power, and are not, cide in advance, the very question in dispute, in fact or in law, a court. to-wit, his actual existence. That I do not misstate what is claimed and attempted to be established on behalf of the accused, I ask the attention of the Court to the following as the gentleman's (Mr. Johnson's) propositions: That Congress has not authorized, and, under the Constitution, can not authorize the appointment of this Commission. So with the question presented in this remarkable argument for the defense; before this Court can enter upon the inquiry of the want of authority in the President to constitute them a court, they must take for granted and decide the very point in issue, that the President had the authority, and that they are in law and in fact a judicial tribunal; and, having assumed this, they are gravely asked, as such judicial tribunal, to finally and solemnly decide and declare that they are not in fact or in law a judicial tribunal, but a That his act "is a mere nullity, the usurpa- mere nullity and nonentity. A most lame tion of a power not vested in the Executive, and impotent conclusion! and conferring no authority upon you." That this Commission has, "as a court, no legal existence or authority," because the President, who alone appointed the Commission, has no such power. As the learned counsel seems to have great We have had no common exhibition of law-reverence for judicial authority, and requires learning in this defense, prepared by a Senator precedent for every opinion, I may be parof the United States; but, with all his expe-doned for saying that the objection which I rience, and all his learning and acknowledged urge against the possibility of any judicial ability, he has failed, utterly failed, to show tribunal, after being officially qualified as how a tribunal, constituted and sworn, as this such, entertaining, much less judicially dehas been, to duly try and determine the charge ciding, the proposition that it has no legal and specification against the accused, and, by existence as a court, and that the appointment its commission, not authorized to hear or deter- was a usurpation, and without authority of mine any other issues whatever, can rightfully law, has been solemnly ruled by the Supreme entertain, or can, by any possibility, pass Court of the United States. upon the proposition presented by this argu- That Court say: "The acceptance of the jument of the gentleman for its considera-dicial office is a recognition of the authority tion. from which it is derived. If a court should enter upon the inquiry (whether the authority of the Government which established it existed), and should come to the conclusion that the Government under which it acted had been put aside, it would cease to be a court, and be incapable of pronouncing a judicial decision upon the question it undertook to try. If it decides at all, as a court, it necessarily affirms the existence and authority of the Government under which it is exercising judicial power." Luther vs. Borden, 7 Howard, 40. The members of this Court are officers in the army of the United States, and, by order of the President, as Commander-in-Chief, are required to discharge this duty, and are authorized, in this capacity, to discharge no other duty, to exercise no other judicial power. Of course, if the commission of the President constitutes this a court for the trial of this case only, as such court it is competent to decide all questions of law and fact arising in the trial of the case. But this Court has no power, as a Court, to declare the authority by which it was con- That is the very question raised by the stituted null and void, and the act of the learned gentleman in his argument, that President a mere nullity, a usurpation. Has it there was no authority in the President, by been shown by the learned gentleman, who whose act alone this tribunal was constituted, demands that this Court shall so decide, that to vest it with judicial power to try this issue; officers of the army may lawfully and consti- and, by the order upon your record, as has tutionally question, in this manner, the orders already been shown, if you have no power to of their Commander-in-Chief, disobey, set them try this issue, for want of authority in the aside, and declare them a nullity and a usurpa- Commander-in-Chief to constitute you a court, tion? Even if it be conceded that the officers, you are no court, and have no power to try thus detailed by order of the Commander-in- any issue, because his order limits you to this Chief, may question and utterly disregard his issue, and this alone. order, and set aside his authority, is it possible, It requires no very profound legal attainin the nature of things, that any body of men, ments to apply the ruling of the highest juconstituted and qualified as a tribunal of jus- dicial tribunal of this country, just cited, to tice, can sit in judgment upon the proposition the point raised, not by the pleadings, but by that they are not a court for any purpose, and the argument. This Court exists as a judicial finally decide judicially, as a court, that the tribunal by authority only of the President of Government which appointed them was with- the United States; the acceptance of the office out authority? Why not crown the absurdity is an acknowledgement of the validity of the of this proposition by asking the several mem- authority conferring it, and, if the President bers of this Court to determine that they are had no authority to order, direct and constitute not men-living, intelligent, responsible men! this Court to try the accused, and, as is This would be no more irrational than the claimed, did, in so constituting it, perform an question upon which they are asked to pass. unconstitutional and illegal act, it necessarily How can any sensible man entertain it! Be- results that the order of the President is void fore he begins to reason upon the proposition and of no effect; that the order did not, and be must take for granted, and, therefore, de- could not, constitute this a tribunal of justice, and, therefore, its members are incapable of since, was a general in the service of the counpronouncing a judicial decision upon the try, and as such in his department in the West question presented. proclaimed and enforced martial law by the There is a marked distinction between the constitution of military tribunals for the trial question here presented, and that raised by a of citizens not in the land or naval forces, but plea to the jurisdiction of a tribunal whose who were guilty of military offenses, for which existence, as a court, is neither questioned nor he deemed them justly punishable before milidenied. Here, it is argued, through many tary courts, and accordingly he punished them. pages, by a learned Senator, and a dis- Is the gentleman quite sure, when that account tinguished lawyer, that the order of the Presi- comes to be rendered for these alleged uncondent, by whose authority alone this Court is stitutional assumptions of power, that he will constituted a tribunal of military justice, is not have to answer for more of these alleged unlawful; if unlawful it is void and of no violations of the rights of citizens by illegal effect, and has created no court; therefore, arrests, convictions, and executions, than any this body, not being a court, can have no of the members of this Court? In support of more power as a court, to decide any ques- his opinion that this is no court, the gentleman tion whatever, than have its individual mem- cites the 3d article of the Constitution, which bers power to decide that they, as men, do not provides "that the judicial power of the United in fact exist. States shall be vested in one Supreme Court, and such inferior courts as Congress may estab lish," the judges whereof "shall hold their offces during good behavior." It is a maxim of the common law-the perfection of human reason that what is impossible the law requires of no man. How can it be possible that a judicial tribunal can decide the question that it does not exist, any more than that a rational man can decide that he does not exist? It is a sufficient answer to say to the gentleman, that the power of this Government to try and punish military offenses by military tribunals is no part of the "judicial power of the The absurdity of the proposition, so elabo- United States," under the 3d article of the Conrately urged upon the consideration of this stitution, but a power conferred by the 8th secCourt, can not be saved from the ridicule and tion of the 1st article, and so it has been ruled contempt of sensible men by the pretense that by the Supreme Court in Dyres vs. Hoover, 20 the Court is not asked judicially to decide that Howard, 78. If this power is so conferred by it is not a court, but only that it has no juris- the 8th section, a military court authorized by diction; for it is a fact not to be denied that Congress, and constituted as this has been, ta the whole argument for the defense, on this try all persons for military crimes in time of point, is, that the President had not the law-war, though not exercising "the judicial power' ful authority to issue the order by which provided for in the 3d article, is nevertheless & alone this Court is constituted, and that the court as constitutional as the Supreme Court order for its creation is null and void. itself. The gentleman admits this to the extent Gentlemen might as well ask the Supreme of the trial by courts-martial of persons in the Court of the United States, upon a plea to military or naval service, and by admitting the jurisdiction, to decide, as a court, that he gives up the point. There is no express grant the President had no lawful authority to for any such tribunal, and the power to estabnominate the judges thereof severally to the lish such a court, therefore, is implied from the Senate, and that the Senate had no lawful provisions of the 8th section, 1st article, that authority to advise and consent to their ap-"Congress shall have power to provide and pointment, as to ask this Court to decide, as a court, that the order of the President of the United States constituting it a tribunal for the sole purpose of this trial was not only without authority of law, but against and in violation of law. If this Court is not a lawful tribunal, it has no existence, and can no more speak as a court than the dead, much less pronounce the judgment required at its hands, that it is not a court, and that the President of the United States, in constituting it such to try the question upon the charge and specification preferred, has transcended his authority, and violated his oath of office. maintain a navy," and also "to make rules fot Before passing from the consideration of the Inasmuch as the gentleman (Gen. Ewing)) proposition of the learned Senator, that this is whom, personally, I have a high regard as not a Court, it is fit that I should notice that military commander of a western departmen another of the counsel for the accused (Mr. made a liberal exercise, under the order of 1 Ewing) has also advanced the same opinion, Commander-in-Chief of the army, of this pow certainly with more directness and candor, and to arrest and try military offenders not in without any qualification. His statement is, land or naval forces of the United States. "You," gentlemen, "are no court under the inflicted upon them, as I am informed, the Constitution." This remark of the gentleman treme penalty of the law, by virtue of his mi can not fail to excite surprise, when it is remem-tary jurisdiction, I wish to know whether hered that the gentleman, not many months proposes, by his proclamation of the person |