responsibility awaiting all such usurpations of or arrested by the Executive power. Let the judicial authority, that he himself shall be people decide this question; and in doing so, subjected to the same stern judgment which he let them pass upon the action of the Senator as invokes against others-that, in short, he shall well as upon the action of those whom he so arbe drawn and quartered for inflicting the ex- rogantly arraigns. His plea in behalf of an treme penalties of the law upon citizens of the expiring and shattered rebellion is a fit subject United States in violation of the Constitution for public consideration and for public conand laws of his country? I trust that his error demnation. of judgment in pronouncing this military jurisdiction a usurpation and violation of the Constitution may not rise up in judgment to condemn him, and that he may never be subjected to pains and penalties for having done his duty heretofore in exercising this rightful authority, and in bringing to judgment those who conspired against the lives and liberties of the people.

Here I might leave this question, committing it to the charitable speeches of men, but for the fact that the learned counsel has been more careful in his extraordinary argument to denounce the President as a usurper than to show how the Court could possibly decide that it has no judicial existence, and yet that it has judicial existence.

Let that people also note, that while the learned gentleman (Mr. Johnson), as a volunteer, without pay, thus condemns as a usurpation the means employed so effectually to suppress this gigantic insurrection, the New York News, whose proprietor, Benjamin Wood, is shown by the testimony upon your record to have received from the agents of the rebellion twenty-five thousand dollars, rushes into the lists to champion the cause of the rebellion, its aiders and abettors, by following to the letter his colleague (Mr. Johnson), and with greater plainness of speech, and a fervor intensified, doubtless, by the twenty-five thousand dollars received, and the hope of more, denounces the Court as а usurpation and threatens the members with the consequences!

The argument of the gentleman, to which the Court has listened so patiently and so long, is but an attempt to show that it is unconstitutional for the Government of the United States to arrest upon military order and try before military tribunals and punish upon conviction, in accordance with the laws of war and the usages of nations, all criminal offenders acting in aid of the existing rebellion. It does seem to me that the speech in its tone and temper is the same as that which the country has heard for the last four years uttered by the armed rebels themselves and by their apologists, averring that it was unconstitutional for the Government of the United States to defend by arms its own rightful authority and the supremacy of its laws.

A representative of the people and of the rights of the people before this Court, by the appointment of the President, and which appointment was neither sought by me or desired, I can not allow all that has here been said by way of denunciation of the murdered President and his successor to pass unnoticed. This has been made the occasion by the learned counsel, Mr. Johnson, to volunteer, not to defend the accused, Mary E. Surratt, not to make a judicial argument in her behalf, but to make a political harangue, a partisan speech against his Government and country, and thereby swell the cry of the armed legions of sedition and rebellion that but yesterday shook the heavens with their infernal enginery of treason and filled the habitations of the people with death. It is as clearly the right of the republic to live As the law forbids a Senator of the United and to defend its life until it forfeits that right States to receive compensation, or fee, for de- by crime, as it is the right of the individual to fending, in cases before civil or military com- live so long as God gives him life, unless he formissions, the gentleman volunteers to make a feits that right by crime. I make no argument speech before this Court, in which he denounces to support this proposition. Who is there here the action of the Executive Department in pro- or elsewhere to cast the reproach upon my counclaiming and executing martial law against try that for her crimes she must die? Youngrebels in arms, their aiders and abettors, as a est born of the nations! is she not immortal by usurpation and a tyranny. I deem it my duty all the dread memories of the past-by that subto reply to this denunciation, not for the pur-lime and voluntary sacrifice of the present, in pose of presenting thereby any question for the which the bravest and noblest of her sons have decision of this Court, for I have shown that the argument of the gentleman presents no question for its decision as a Court, but to repel, as far as I may be able, the unjust aspersion attempted to be cast upon the memory of our dead President, and upon the official conduct of his successor.

laid down their lives that she might live, giving their serene brows to the dust of the grave, and lifting their hands for the last time amidst the consuming fires of battle! I assume, for the purposes of this argument, that self-defense is as clearly the right of nations as it is the acknowledged right of men, and that the American people may do in the defense and maintenance of their own rightful authority against organized armed rebels, their aiders and abettors, whatever free and independent nations anywhere upon this globe, in time of war, may of right do.

I propose now to answer fully all that the gentleman (Mr. Johnson) has said of the want of jurisdiction in this Court, and of the alleged usurpation and tyranny of the Executive, that the enlightened public opinion to which he appeals may decide whether all this denunciation is just-whether indeed conspiring against the All this is substantially denied by the gentlewhole people, and confederation and agreement man in the remarkable argument which he has in aid of insurrection to murder all the execu- here made. There is nothing further from my tive officers of the government, can not be checked purpose than to do injustice to the learned gen

tleman or to his elaborate and ingenious argu- repel the accusation against my country sent ment. To justify what I have already said, I out to the world by the counsel. From anymay be permitted here to remind the Court that thing that he has said, I have yet to learn that nothing is said by the counsel touching the con- the American people have not the right to duct of the accused, Mary E. Surratt, as shown make their inquiries secretly, touching a genby the testimony; that he makes confession at eral conspiracy in aid of an existing rebellion, the end of his arraignment of the Government which involves their nationality and the peace and country, that he has not made such argu-and security of all. ment, and that he leaves it to be made by her other counsel. He does take care, however, to arraign the country and the Government for conducting a trial with closed doors and before a secret tribunal, and compares the proceedings of this Court to the Spanish Inquisition, using the strongest words at his command to intensify the horror which he supposes his announcement will excite throughout the civilized world.

The gentleman then enters into a learned argument for the purpose of showing that, by the Constitution, the people of the United States can not, in war or in peace, subject any person to trial before a military tribunal, whatever may be his crime or offense, unless such person be in the military or naval service of the United States. The conduct of this argument is as remarkable as its assaults upon the Was this dealing fairly by this Govern- Government are unwarranted, and its insinument? Was there anything in the conduct of ations about the revival of the inquisition and the proceedings here that justified any such secret trials are inexcusable. The Court will remark? Has this been a secret trial? Has notice that the argument, from the beginning it not been conducted in open day, in the almost to its conclusion, insists that no perpresence of the accused, and in the presence son is liable to be tried by military or martial of seven gentlemen learned in the law,, who law before a military tribunal, save those in appeared from day to day as their counsel? the land and naval service of the United Were they not informed of the accusation States. I repeat, the conduct of this arguagainst them? Were they deprived of the ment of the gentleman is remarkable. As right of challenge? Was it not secured to an instance, I ask the attention, not only them by law, and were they not asked to ex- of this Court, but of that public whom he has ercise it? Has any part of the evidence been suppressed? Have not all the proceedings been published to the world? What, then, was done, or intended to be done, by the Government, which justifies this clamor about a Spanish Inquisition?

That a people assailed by organized treason over an extent of territory half as large as the continent of Europe, and assailed in their very capital by secret assassins banded together and hired to do the work of murder by the instigation of these conspirators, may not be permitted to make inquiry, even with closed doors, touching the nature and extent of the organization, ought not to be asserted by any gentleman who makes the least pretensions to any knowledge of the law, either common, civil or military. Who does not know that at the common law all inquisition touching crimes and misdemeanors, preparatory to indictment by the grand inquest of the State, is made with closed doors?

ventured to address in this tone and temper, to the authority of the distinguished Chancellor Kent, whose great name the counsel has endeavored to press into his service in support of his general proposition, that no person save those in the military or naval service of the United States is liable to be tried for any crime whatever, either in peace or in war, before a military tribunal.

The language of the gentleman, after citing the provision of the Constitution, "that no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger," is, “that this exception is designed to leave in force, not to enlarge, the power vested in Congress by the original Constitution to make rules for the government and regulation of the land and naval forces; that the land or naval. In this trial, no parties accused, nor their forces are the terms used in both, have the counsel, nor the reporters of this Court, were same meaning, and until lately have been at any time excluded from its deliberations supposed by every commentator and judge to when any testimony was being taken; nor exclude from military jurisdiction offenses has there been any testimony taken in the committed by citizens not belonging to such case with closed doors, save that of a few wit- forces." The learned gentleman then adds: nesses who testified, not in regard to the ac- "Kent, in a note to his 1st Commentaries, 311, cused or either of them, but in respect to the states, and with accuracy, that military and traitors and conspirators not on trial, who were alleged to have incited this crime. Who is there to say that the American people, in time of armed rebellion and civil war, have not the right to make such an examination as secretly as they may deem necessary, either in a military or civil court?

I have said this, not by way of apology for anything the Government has done or attempted to do in the progress of this trial, but to expose the animus of the argument, and to

naval crimes and offenses, committed while the party is attached to and under the imme diate authority of the army and navy of the United States, and in actual service, are not cognizable under the common-law jurisdiction of the courts of the United States.'" I ask this Court to bear in mind that this is the only passage which he quotes from this note of Kent in his argument, and that no man possessed of common sense, however destiture he may be of the exact and varied learning in

the law to which the gentleman may right- | rebellion before military tribunals, and subject fully lay claim, can for a moment entertain them, according to the laws of war and the the opinion that the distinguished chancellor usages of nations, to just punishment for their of New York, in the passage just cited, inti- great crimes, it has been made clear from what mates any such thing as the counsel asserts, I have already stated, that he has been emithat the Constitution excludes from military nently successful in mutilating this beautiful jurisdiction offenses committed by citizens not production of that great mind; which act of belonging to the land or naval forces. mutilation, every one knows, is violative alike of the laws of peace and war. Even in war

Who can fail to see that Chancellor Kent, by the passage cited, only decides that mili- the divine creations of art and the immortal tary and naval crimes and offenses committed productions of genius and learning are spared. by a party attached to and under the immediate In the same spirit, and it seems to me with authority of the army and navy of the United the same unfairness as that just noted, the States, and in actual service, are not cognizable learned gentleman has very adroitly pressed under the common-law jurisdiction of the courts into his service, by an extract from the autoof the United States? He only says they are not biography of the war-worn veteran and hero, ⚫cognizable under its common-law jurisdic- General Scott, the names of the late Secretary tion; but by that he does not say or intimate, of War, Mr. Marcy, and the learned ex-Attorwhat is attempted to be said by the counsel ney-General, Mr. Cushing. This adroit perfor him, that "all crimes committed by citi-formance is achieved in this way: after statzens are by the Constitution excluded from ing the fact that General Scott in Mexico promilitary jurisdiction," and that the perpetra- claimed martial law for the trial and punishtors of them can under no circumstances be ment by military tribunals of persons guilty tried before military tribunals. Yet the of "assassination, murder and poisoning," the counsel ventures to proceed, starting upon gentleman proceeds to quote from the Autobithis passage quoted from Kent, to say that, ography, "that this order, when handed to the "according to this great authority, every other then Secretary of War (Mr. Marcy) for his class of persons and every other species of approval, a startle at the title (martial law offenses are within the jurisdiction of the order) was the only comment he then or ever civil courts, and entitled to the protection of made on the subject,' and that it was soon sithe proceeding by presentment or indictment lently returned as too explosive for safe handand the public trial in such a court." ling. A little later (he adds) the AttorneyGeneral (Mr. Cushing) called and asked for a copy, and the law officer of the government, whose business it is to speak on all such matters, was stricken with legal dumbness.' upon the learned gentleman proceeds to say: "How much more startled and more paralyzed would these great men have been had they been consulted on such a commission as this! A commission, not to sit in another country, and to try offenses not provided for in any law of the United States, civil or military, then in force, but in their own country, and in a part of it where there are laws providing for their trial and punishment, and civil courts clothed with ample powers for both, and in the daily and undisturbed exercise of their jurisdiction."

Whatever that great authority may have said elsewhere, it is very doubtful whether any candid man in America will be able to come to the very learned and astute conclusion that Chancellor Kent has so stated in the note or any part of the note which the gentleman has just cited. If he has said it elsewhere, it is for the gentleman, if he relies upon Kent for authority, to produce the passage. But was it fair treatment of this "great authority" -was it not taking an unwarrantable privilege with the distinguished chancellor and his great work, the enduring monument of his learning and genius, to so mutilate the note referred to, as might leave the gentleman at liberty to make his deductions and assertions under cover of the great name of the New York chancellor, to suit the emergency of his case, by omitting the following passage, which occurs in the same note, and absolutely excludes the conclusion so defiantly put forth by the counsel to support his argument? In that note Chancellor Kent

says:

There

I think I may safely say, without stopping to make any special references, that the official career of the late Secretary of War (Mr. Marcy) gave no indication that he ever doubted or denied the constitutional power of the American people, acting through their duly constituted agents, to do any act justified by the laws "Military law is a system of regulations for of war, for the suppression of a rebellion or to the government of the armies in the service of repel invasion. Certainly there is nothing in the United States, authorized by the act of this extract from the Autobiography which jusCongress of April 10, 1806, known as the Ar-tifies any such conclusion. He was startled, ticles of War, and naval law is a similar sys- we are told. It may have been as much the tem for the government of the navy, under admiration he had for the boldness and wisthe act of Congress of April 23, 1800. But dom of the conqueror of Mexico as any abhormartial law is quite a distinct thing, and is founded upon paramount necessity, and proclaimed by a military chief."

However unsuccessful, after this exposure, the gentleman appears in maintaining his monstrous proposition, that the American people are by their own Constitution forbidden to try the aiders and abettors of armed traitors and

rence he had for the trial and punishment of "assassins, poisoners and murderers," according to the laws and usages of war.

But the official utterances of the ex-AttorneyGeneral, Cushing, with which the gentleman doubtless was familiar when he prepared this argument, by no means justify the attempt here made to quote him as authority against

land.

66

Accordingly, in England, as we have seen, Earl Grey assumes that when martial law exists it has no legal origin, but is a mere fact of necessity, to be legalized afterward by a bill of indemnity, if there be occasion. I am not prepared to say that, under existing laws, such may not also be the case in the United States." Ibid., 370.

the proclamation and enforcement of martial | pens, there is no definite or explicit legislation law in time of rebellion and civil war. That in the United States, as there is none in Engdistinguished man. not second in legal attainments to any who have held that position, has left an official opinion of record touching this subject. Referring to what is said by Sir Mathew Hale, in his History of the Common Law, concerning martial law, wherein he limits it, as the gentleman has seemed by the whole drift of his argument desirous of doing, and says that it is not in truth and in reality law, but something indulged rather than al- After such a statement, wherein ex-Attor lowed as a law-the necessity of government, ney-General Cushing very clearly recognizes order and discipline in an army," Mr. Cushing the right of this Government, as also of Engmakes this just criticism: "This proposition land, to employ martial law as a means of deis a mere composite blunder, a total misappre-fense in a time of war, whether domestic or hension of the matter. It confounds martial foreign, he will be as much surprised when he law and law military; it ascribes to the former reads the argument of the learned gentleman the uses of the latter; it erroneously assumes wherein he is described as being struck with that the government of a body of troops is a legal dumbness at the mere mention of proclaimnecessity more than of a body of civilians or ing martial law, and its enforcement by the citizens. It confounds and confuses all the commander of our army in Mexico, as the late relations of the subject, and is an apt illustra- Secretary of War was startled with even the tion of the incompleteness of the notions of the mention of its title. common-law jurists of England in regard to Even some of the reasons given, and certainmatters not comprehended in that limited ly the power exercised by the veteran hero himbranch of legal science. * Military self, would seem to be in direct conflict with

law, it is now perfectly understood in England, the propositions of the learned gentleman. is a branch of the law of the land, applicable The Lieutenant-General says, he "excludes only to certain acts of a particular class of from his order cases already cognizable by persons, and administered by special tribunals; court-martial, and limits it to cases not probut neither in that nor in any other respect essentially differing as to foundation in constitutional reason from admiralty, ecclesiastical or indeed chancery and common law. It is the system of rules for the government of the army and navy established by successive acts of Parliament.

*

vided for in the act of Congress establishing rules and articles for the government of the armies of the United States." Has not the gentleman who attempts to press General Scott into his service argued and insisted upon it, that the commander of the army can not sub#ject the soldiers under his command to any control or punishment whatever, save that which is provided for in the articles?

Martial law, as exercised in any country by the commander of a foreign army, is an element of the jus belli.

"It is incidental to the state of solemn war, and appertains to the law of nations. Thus, while the armies of the United States occupied different provinces of the Mexican republic, the respective commanders were not limited in authority by any local law. They allowed, or rather required, the magistrates of the country, municipal or judicial, to continue to administer the laws of the country among their countrymen; but in subjection, always, to the military power, which acted summarily and according to discretion, when the belligerent interests of the conqueror required it, and which exercised jurisdiction, either summarily or by means of military commissions for the protection or the punishment of citizens of the United States in Mexico. Opinions of Attorneys-General, vol. viii, 366–369. Mr. Cushing says, That, it would seem, was one of the forms of martial law;" but he adds, that such an example of martial law administered by a foreign army in the enemy's country "does not enlighten us in regard to the question of martial law in one's own country, and as administered by its military commanders. That is a case which the law of nations does not reach. Its regulation is of the domestic resort of the organic laws of the country itself, and regarding which, as it hap

It will not do, in order to sustain the gentleman's hypothesis, to say that these provisions of the Constitution, by which he attempts to fetter the power of the people to punish such offenses in time of war within the territory of the United States, may be disregarded by an officer of the United States in command of its armies, in the trial and punishment of its soldiers in a foreign war. The law of the United States for the government of its own armies follows the flag upon every sea and in every land.

The truth is, that the right of the people to proclaim and execute martial law is a necessary incident of war, and this was the right exercised, and rightfully exercised, by Lieutenant-General Scott in Mexico. It was what Earl Grey has justly said was a "fact of necessity," and I may add, an act as clearly authorized as was the act of fighting the enemy when they appeared before him.

In making this exception, the LieutenantGeneral followed the rule recognized by the American authorities on military law, in which it is declared that "many crimes committed even by military officers, enlisted men, or camp retainers, can not be tried under the rules and articles of war. Military Commissions must be resorted to for such cases, and these commissions should be ordered by

the same authority, be constituted in a simi-listments, resisting militia drafts, or guilty lar manner, and their proceedings be conduc- of any disloyal practice, affording aid and ted according to the same general rules as comfort to rebels, against the authority of the general courts-martial." Benet, 15. United States, shall be subject to martial law, There remain for me to notice, at present, and liable to trial and punishment by courtstwo other points in this extraordinary speech: martial or military commission. first, that martial law does not warrant a "Second. That the writ of habeas corpus is military commission for the trial of military suspended in respect to all persons arrested, offenses-that is, offenses committed in time or who are now, or hereafter during the rebelof war in the interests of the public enemy, lion shall be, imprisoned in any fort, camp, and by concert and agreement with the enemy; arsenal, military prison, or other place of conand second, that martial law does not prevail finement, by any military authority, or by the in the United States, and has never been de- sentence of any court-martial or military clared by any competent authority. commission.

It is not necessary, as the gentleman him- "In witness whereof, I have hereunto set self has declined to argue the first point- my hand, and caused the seal of the United whether martial law authorizes the organi-States to be affixed.

"By the President:

zation of military commissions by order of "Done at the city of Washington, this 24th the Commander-in-Chief to try such offenses, day of September, A. D. 1862, and of the indethat I should say more than that the authority pendence of the United States the eightyjust cited by me shows that such commissions seventh. "ABRAHAM LINCOLN. are authorized under martial law, and are created by the commander for the trial of all such offenses, when their punishment by courtmartial is not provided for by the express statute law of the country.

The second point-that martial law has not been declared by any competent authority, is an arraignment of the late murdered President of the United States for his proclamation of September 24, 1862, declaring martial law throughout the United States; and of which, in Lawrence's edition of Wheaton on International Law, p. 522, it is said: "Whatever may be the inference to be deduced, either from Constitutional or International Law, or from the usages of European governments, as to the legitimate depository of the power of suspending the writ of habeas corpus, the virtual abrogation of the judiciary in cases affecting individual liberty, and the establishment as matter of fact in the United States, by the Executive alone, of martial law, not merely in the insurrectionary districts, or in cases of military occupancy, but throughout the entire Union, and not temporarily, but as an institution as permanent as the insurrection on which it professes to be based, and capable on the same principle of being revived in all cases of foreign as well as civil war, are placed beyond question by the President's proclamation of September 24, 1862." That proclamation is as follows:

"BY THE PRESIDENT OF THE UNITED STATES OF

AMERICA-A PROCLAMATION.

"WILLIAM H. SEWARD, Secretary of State." This proclamation is duly certified from the War Department to be in full force and not revoked, and is evidence of record in this case; and but a few days since a proclamation of the President, of which this Court will take notice, declares that the same remains in full force.

It has been said by another of the counsel for the accused (Mr. Stone) in his argument, that admitting its validity, the proclamation ceases to have effect with the insurrection, and is terminated by it. It is true the proclamation of martial law only continues during the insurrection; but inasmuch as the question of the existence of an insurrection is a polit ical question, the decision of which belongs exclusively to the political department of the Government, that department alone can declare its existence, and that department alone can declare its termination, and by the action of the political department of the Government every judicial tribunal in the land is concluded and bound. That question has been settled for fifty years in this country by the Supreme Court of the United States: First, in the case of Brown vs. the United States, 8 Cranch; also in the prize cases, 2 Black, 641. Nothing more, therefore, need be said upon this question of an existing insurrection than this: The political department of the Government has heretofore proclaimed an insurrection; that department has not yet declared the insurrection ended, and the event on the 14th of April, which robbed the people of their chosen Executive, and clothed this land in mourning, bore sad but overwhelming witness to the fact that the rebellion is not ended. The fact of the insurrection is not an open question to be tried or settled by parol, either in a military tribunal

"Whereas, it has become necessary to call into service not only volunteers, but also portions of the militia of the States, by a draft, in order to suppress the insurrection existing in the United States, and disloyal persons are not adequately restrained by the ordinary processes of law from hindering this measure, or in a civil court. and from giving aid and comfort in various The declaration of the learned gentleman ways to the insurrection: Now, therefore, be who opened the defense (Mr. Johnson), that it ordered, that during the existing insurrec- martial law has never been declared by any tion, and as a necessary means for suppress- competent authority, as I have already said, ing the same, all rebels and insurgents, their arraigns Mr. Lincoln for a usurpation of power. aiders and abettors, within the United States, Does the gentleman mean to say that, until and all persons discouraging volunteer en- Congress authorizes it, the President can not