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. Or does he only affirm that this act of the late The law contemplates that, under such cirPresident is a usurpation? cumstances, orders shall be given to carry the 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 that dark hour of trial with the means of a just right to disobey them. The law defense against traitorous and secret ene- does not provide for any appeal from the judgmics in every State and district of the coun- ment of the President, or for any right in subtry; though by its use some of the guilty were ordinate officers to review his decision, and in brought to swift and just judgment, and others effect defeat it. Whenever a statute gives a disdeterred from crime or driven to flight; though cretionary power to any person, to be exercised by this means the innocent and defenseless by him upon his own opinion of certain facts, were protected; though by this means the city it is a sound rule of construction, that the of the gentleman's residence was saved from statute constitutes him the sole and exclusive the violence and pillage of the mob and the judge of the existence of those facts." 12 torch of the incendiary. But, says the gen- Wheaton, 31. tleman, it was a usurpation, forbidden by the laws of the land!

In the light of these decisions, it must be clear to every mind that the question of the The same was said of the proclamations of existence of an insurrection, and the necessity blockade, issued April 19 and 27, 1861, which of calling into requisition for its suppression declared a blockade of the ports of the in- both the militia of the States, and the army surgent States, and that all vessels violating and navy of the United States, and of prothe same were subjects of capture, and, to- claiming martial law, which is an essential gether with the cargo, to be condemned as condition of war, whether foreign or doprize. Inasmuch as Congress had not then mestic, must rest with the officer of the Govrecognized the fact of civil war, these procla- ernment who is charged by the express terms mations were denounced as void. The Supreme of the Constitution with the performance of Court decided otherwise, and affirmed the this great duty for the common defense and the power of the Executive thus to subject prop- execution of the laws of the Union. erty on the seas to seizure and condemnation. I read from that decision:

But it is further insisted by the gentleman in this argument, that Congress has not author"The Constitution confers upon the Presi-ized the establishment of military commissions, dent the whole executive power; he is bound which are essential to the judicial administrato take care that the laws be faithfully exe- tion of martial law, and the punishment of cuted; he is Commander-in-Chief of the army crimes committed during the existence of a civil and navy of the United States, and of the militia of the several States when called into the actual service of the United States. * Whether the President, in fulfilling his duties as Commander-in-Chief in suppressing an insurrection, has met with such armed hostile resistance, and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents, is a question to be decided by him, and this Court must be governed by the decisions and acts of the political department of the Government to which this power was intrusted. He must determine what degree of force the crisis demands.

"The proclamation of blockade is itself official and conclusive evidence to the Court that a state of war existed which demanded and authorized a recourse to such a measure under the circumstances peculiar to the case." 2 Black, 670.

war, and especially, that such commissions are not so authorized to try persons other than those in the military or naval service of the United States, or in the militia of the several States, when in the actual service of the United States. The gentleman's argument assuredly destroys itself, for he insists that the Congress, as the legislative department of the government, can pass no law which, either in peace or war, can constitutionally subject any citizen not in the land or naval forces, to trial for crime before a military tribunal, or otherwise than by a jury in the civil courts.

Why does the learned gentleman now tell us that Congress has not authorized this to be done, after declaring just as stoutly that by the fifth and sixth amendments to the Constitution no such military tribunals can be established for the trial of any person not in the military or naval service of the United States, or in the militia, when in actual service, for the commission It has been solemnly ruled by the same tribu- of any crime whatever in time of war or insurrecnal, in an earlier case, "that the power is con- tion? It ought to have occurred to the gentleman fided to the Executive of the Union to. deter- when commenting upon the exception in the fifth mine when it is necessary to call out the article of the Constitution, that there was a reason militia of the States to repel invasion," as for it very different from that which he saw fit follows: "That he is necessarily constituted to assign, and that reason, manifestly upon the the judge of the existence of the exigency in face of the Constitution itself, was, that by the the first instance, and is bound to act according eighth section of the first article, it is expressly to his belief of the facts. If he does so act, provided that Congress shall have power to and decides to call forth the militia, his orders make rules for the government of the land and for this purpose are in strict conformity with naval forces, and to provide for organizing, the provisions of the law; and it would seem arming and disciplining the militia, and for to follow as a necessary consequence, that governing such part of them as may be employed

in the service of the United States, and that, in- of successfully asserting their authority, preserv asmuch 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 therefore, if the, eighth section of the first article all nations is against the gentleman's concluwas to remain in full force IN TIME OF PEACE, sion. The struggle for our national independthe exception must be made; and accordingly, ence was aided and prosecuted by military trithe exception was made. But by the argument bunals and martial law, as well as by arms. we have listened to, this Court is told, and the The contest for American nationality began country is told, that IN TIME OF WAR-a war with the establishment, very soon after the firwhich involves in its dread issue the lives and ing of the first gun at Lexington, on the 19th interests of us all-the guarantees of the Con- day of April, 1775, of military tribunals and stitution are in full force for the benefit of those martial law. On the 30th of June, 1775, the who conspire with the enemy, creep into your Continental Congress provided that "whosoever, camps, murder in cold blood, in the interests of belonging to the continental army, shall be convicted the invader or insurgent, the Commander-in- of holding correspondence with, or giving intelChief of your army, and secure to him the slow ligence to the enemy, either indirectly or diand weak provisions of the civil law, while the rectly, shall suffer such punishment as by a soldier, who may, when overcome by the de-court-martial shall be ordered." This was found mands of exhausted nature, which can not be not sufficient, inasmuch as it did not reach those resisted, have slept at his post, is subject to be tried upon the spot by a military tribunal and shot. The argument amounts to this: that as military courts and military, trials of civilians in time of warare a usurpation and tyranny, and as soldiers are liable to such arrests and trial, Sergeant Corbett, who shot Booth, should be tried and executed by sentence of a military court; while Booth's coconspirators and aiders should be saved from any such indignity as a military trial! I confess that I am too dull to comprehend the logic, the reason, or the sense of such a conclusion! If there is any one entitled to this privilege of a civil trial, at a remote period, and by a jury of the District, IN TIME OF CIVIL WAR, when the foundations of the Republic are rocking beneath the earthquake tread of armed rebellion, that man is the defender of the republic. It will never do to say, as has been said in this argument, that the soldier is not liable to be tried in time of war by a military tribunal for any other offense than those prescribed in the rules and articles of war. To my mind, nothing can be clearer than that citizen and soldier alike, in time of civil or foreign war, after a proclamation Comprehensive as was this legislation, embracof martial law, are triable by military tribunals ing, as it did, soldiers, citizens and aliens, subfor all offenses of which they may be guilty, injecting all alike to trial for their military the interests of, or in concert with, the enemy. crimes by the military tribunals of justice, acThese provisions, therefore, of your Constitution for indictment and trial by jury in civil courts of all crimes are, as I shall hereafter show, silent and inoperative in time of war when the public safety requires it.

civilians who, like certain civilians of our day, claim the protection of the civil law in time of war against military arrests and military trials for military crimes. Therefore, the same Congress, on the 7th of November, 1775, amended this provision by striking out the words "belonging to the continental army," and adopting the article as follows:

"All persons convicted of holding a treacherous correspondence with, or giving intelligence to the enemy, shall suffer death, or such other punishment as a general court-martial shall think proper."

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."

cording to the law and the usage of nations, it was found to be insufficient to meet that most dangerous of all crimes, committed in the interests of the enemy, by citizens, in time of 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:

The argument to which I have thus been replying, as the Court will not fail to perceive, nor that public to which the argument is addressed, is a labored attempt to establish the proposition, that, by the Constitution of the United States, the American people can not, even in a civil war "Resolved, That whatever inhabitants of these the greatest the world has ever seen, employ States shall kill, or seize, or take, any loyal cit martial law and military tribunals as a means izen or citizens thereof, and convey him, her,

or them, to any place within the power of the federate Congress I know was challenged, but enemy, or shall ENTER INTO ANY COMBINATION only by men charged with the guilt of their for such purpose, or attempt to carry the same country's blood. into execution, or hath assisted or shall assist therein; or shall, by giving intelligence, acting as a guide, or, in any manner whatever, aid the enemy in the perpetration thereof, he shall suffer death, by the judgment of a court-martial, as a traitor, assassin, or spy, if the offense be committed within seventy miles of the headquarters of the grand or other armies of these States, where a general officer commands." Journals of Congress, vol. II, pp. 459, 460.

So stood the law until the adoption of the Constitution of the United States. Every wellinformed man knows that, at the time of the passage of these acts, the courts of justice, having cognizance of all crimes against persons, were open, in many of the States, and that, by their several constitutions and charters, which were then the supreme law for the punishment of crimes committed within their respective territorial limits, no man was liable to conviction but by the verdict of a jury. Take, for example, the provisions of the Constitution of North Carolina, adopted on the 10th of November, 1776, and in full force at the time of the passage of the last resolution by Congress above cited, which provisions are as follows:

"That no freeman shall be put to answer any criminal charge but by indictment, presentment or impeachment."

"That no freeman shall be convicted of any crime but by the unanimous verdict of a jury of good and lawful men, in open court, as heretofore used."

Washington, the peerless, the stainless, and the just, with whom God walked through the night of that great trial, enforced this just and wise enactment upon all occasions On the 30th of September, 1780, Joshua H. Smith, by the order of General Washington, was put upon his trial before a court-martial, convened in the State of New York, on the charge of there aiding and assisting Benedict Arnold, in a combination with the enemy, to take, kill and seize such loyal citizens or soldiers of the United States as were in garrison at West Point. Smith objected to the jurisdiction, averring that he was a private citizen, not in the military or naval service, and, therefore, was only amenable to the civil authority of the State, whose constitution had guaranteed the right of trial by jury to all persons held to answer for crime. Chandler's Criminal Trials, vol. II, p. 187. The Constitution of New York, then in force, had so provided; but, notwithstanding that, the Court overruled the plea, held him to answer, and tried him. I repeat that, when Smith was thus tried by court-martial, the Constitution of New York as fully guaranteed trial by jury in the civil courts, to all civilians charged and held to answer for crimes within the limits of that State, as does the Constitution of the United States guarantee such trial within the limits of the District of Columbia. By the second of the Articles of Confederation each State retained "its sovereignty," and every power, jurisdiction and right not expressly delegated to the United States in Congress assembled. By those Articles there was no express delegation of judicial power; therefore, the States retained it fully.

This was the law in 1778 in all the States, and the provision for a trial by jury, every one knows, meant a jury of twelve men, impanneled and qualified to try the issue in a civil court. The conclusion is not to be avoided that these If the military courts, constituted by the enactments of the Congress, under the confed- commander of the army of the United States eration, set aside the trial by jury within the under the Confederation, who was appointed several States, and expressly provided for the only by a resolution of the Congress, without trial, by court-martial, of "any of the inhab- any express grant of power to authorize ititants" who, during the revolution, might, con- his office not being created by the act of the trary to the provisions of said law, and in aid people in their fundamental law-had jurisdicof the public enemy, give them intelligence, or tion in every State to try and put to death kill any loyal citizens of the United States, or "any inhabitant" thereof who should kill any enter into any combination to kill or carry loyal citizen, or enter into "any combination" them away. How comes it, if the argument of for any such purpose therein in time of war, notthe counsel be true, that this enactment was withstanding the provisions of the Constitution passed by the Congress of 1778, when the con- and laws of such States, how can any man constitutions of the several States, at that day, as ceive that, under the Constitution of the fully guaranteed trial by jury to every person United States, which is the Supreme law over held to answer for a crime, as does the Consti- every State, anything in the Constitution and tution of the United States at this hour? Not- laws of such State to the contrary notwithstanding this fact, I have yet to learn that withstanding, and the supreme law over every any loyal man ever challenged, during all the period of our conflict for independence and nationality, the validity of that law for the trial, for military offenses, by military tribunals, of all offenders, as the law, not of peace, but of war, and absolutely essential to the prosecution of war. I may be pardoned for saying that it is the accepted common law of nations that martial law is, at all times, and everywhere, essential to the successful prosecution of war, whether it be a civil or a foreign war. The validity of these acts of the Continental and Con

Territory of the Republic as well, the Commander-in-Chief of the army of the United States, who is made such by the Constitution, and, by its supreme authority, clothed with the power and charged with the duty of directing and controlling the whole military power of the United States, in time of rebellion or invasion, has not that authority?

I need not remind the Court that one of the marked differences between the Articles of Confederation and the Constitution of the United States was, that, under the Confedera

and acted upon now, during the fierce struggle of the past four years, no man can say that our nationality would have thus long survived.

tion, the Congress was the sole depository of civil process, of any of the parties thereto, and all federal power. The Congress of the Con- for their trial by a military tribunal of justice. federation, said Madison, held "the command If any such rule had obtained during our strugof the army." Fed., No. 38. Has the Con-gle for independence, we never would have been stitution, which was ordained by the people the a nation. If any such rule had been adopted better "to insure domestic tranquillity and to provide for the common defense," so fettered the great power of self-defense against armed insurrection or invasion that martial law, so The whole people of the United States, by essential in war, is forbidden by that great in- their Constitution, have created the office of strument? I will yield to no man in rever- President of the United States and Commanderence for or obedience to the Constitution of my in-Chief of the army and navy, and have vested, country, esteeming it, as I do, a new evangel by the terms of that Constitution, in the person to the nations, embodying the democracy of the of the President and Commander-in-Chief, the New Testament, the absolute equality of all power to enforce the execution of the laws, and men before the law, in respect of those rights preserve, protect, and defend the Constitution. of human nature which are the gift of God, The question may well be asked: If, as Comand, therefore, as universal as the material mander-in-Chief, the President may not, in time structure of man. Can it be that this Consti- of insurrection or war, proclaim and execute tution of ours, so divine in its spirit of justice, martial law, according to the usages of nations, so beneficent in its results, so full of wisdom, how he can successfully perform the duties of and goodness, and truth, under which we be- his office-execute the laws, preserve the Concame one people, a great and powerful nation-stitution, suppress insurrection, and repel invaality, has, in terms or by implication, denied sion? to this people the power to crush armed rebel- Martial law and military tribunals are as eslion by war, and to arrest and punish, during sential to the successful prosecution of war as the existence of such rebellion, according to are men, and arms, and munitions. The Constithe laws of war and the usages of nations, se- tution of the United States has vested the power cret conspirators who aid and abet the public to declare war and raise armies and navies exenemy? clusively in the Congress, and the power to Here is a conspiracy, organized and prose-prosecute the war and command the army and cuted by armed traitors and hired assassins, navy exclusively in the President of the United receiving the moral support of thousands in States. As, under the Confederation, the comevery State and district, who pronounced the mander of the army, appointed only by the war for the Union a failure, and your now Congress, was by the resolution of that Congress murdered but immortal Commander-in-Chief a empowered to act as he might think proper for tyrant; the object of which conspiracy, as the the good and welfare of the service, subject only testimony shows, was to aid the tottering rebel- to such restraints or orders as the Congress lion which struck at the nation's life. It is in might give; so, under the Constitution, the evidence that Davis, Thompson, and others, President is, by the people who ordained that chiefs in this rebellion, in aid of the same, Constitution and declared him Commander-inagreed and conspired with others to poison the Chief of the army and navy, vested with full fountains of water which supply your commer-power to direct and control the army and navy cial metropolis, and thereby murder its inhab- of the United States, and employ all the forces itants; to secretly deposit in the habitations of necessary to preserve, protect, and defend the the people and in the ships in your harbors in- Constitution and execute the laws, as enjoined flammable materials, and thereby destroy them by his oath and the very letter of the Constiby fire; to murder by the slow and consuming tution, subject to no restriction or direction torture of famine your soldiers, captives in their save such as Congress may from time to time hands; to import pestilence in infected clothes prescribe. to be distributed in your capital and camps, That these powers for the common defense, and thereby murder the surviving heroes and intrusted by the Constitution exclusively to defenders of the republic, who, standing by the the Congress and the President, are, in time holy graves of your unreturning brave, proudly of civil war or foreign invasion, to be exerand defiantly challenge to honorable combat and cised without limitation or restraint, to the open battle all public enemies, that their coun- extent of the public necessity, and without try may live; and, finally, to crown this horrid any intervention of the Federal judiciary or catalogue of crime, this sum of all human of State constitutions or State laws, are facts atrocities, conspired, as charged upon your in our history not open to question. record, with the accused and John Wilkes Booth The position is not to be answered by and John H. Surratt, to kill and murder in saying you make the American Congress your capital the executive officers of your Gov-thereby omnipotent, and clothe the American ernment and the commander of your armies. Executive with the asserted attribute of heredWhen this conspiracy, entered into by these itary monarchy-the king can do no wrong. traitors, is revealed by its attempted execution, Let the position be fairly stated that the Conand the foul and brutal murder of your Presi- gress and President, in war as in peace, are dent in the capital, you are told that it is uncon- but the agents of the whole people, and that stitutional, in order to arrest the further execu- this unlimited power for the common defense tion of the conspiracy, to interpose the military against armed rebellion or foreign invasion is power of this government for the arrest, without but the power of the people intrusted exclu

duty at that time to make, and some of which I now re-produce, have, I am pleased to say, found a wider circulation in books that have since been published by others.

sively to the legislative and executive depart- great men who formed and fashioned the wise ments as their agents, for any and every abuse and majestic fabric of American government. of which these agents are directly responsible Some of the citations which I deemed it my to the people-and the demagogue cry of an omnipotent Congress, and an executive invested with royal prerogatives, vanishes like the baseless fabric of a vision. If the Congress corruptly, or oppressively, or wantonly When the Constitution was on trial for its abuse this great trust, the people, by the irre- deliverance before the people of the several sistible power of the ballot, hurl them from States, its ratification was opposed on the place. If the President so abuse the trust, the ground that it conferred upon Congress and people by their Congress withhold supplies, or the Executive unlimited power for the common by impeachment transfer the trust to better defense. To all such objectors-and they were hands, strip him of the franchises of citizen- numerous in every State-that great man, Alship and of office, and declare him forever dis-exander Hamilton, whose words will live as qualified to hold any position of honor, trust, long as our language lives, speaking to the lisor power under the government of his tening people of all the States, and urging country. them not to reject that matchless instrument which bore the name of Washington, said:

I can understand very well why men should tremble at the exercise of this great power by "The authorities essential to the care of the a monarch whose person, by the Constitution common defense are these: To raise armies; to of his realm, is inviolable, but I can not con- build and equip fleets; to prescribe rules for ceive how an American citizen, who has faith the government of both; to direct their operain the capacity of the whole people to govern tions; to provide for their support. These powthemselves, should give himself any concern ers ought to exist WITHOUT LIMITATION; because on the subject. Mr. Hallam, the distinguished it is impossible to foresee or define the extent author of the Constitutional History of England, and variety of national exigencies, and the has said: correspondent extent and variety of the means which may be necessary to satisfy them.

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"Kings love to display the divinity with which their flatterers invest them, in nothing "The circumstances that endanger the safety so much as in the instantaneous execution of of nations are infinite; and for this reason no their will, and to stand revealed, as it were, in constitutional shackles can wisely be imposed the storm and thunderbolt when their power on the power to which the care of it is combreaks through the operation of secondary mitted. This power ought causes and awes a prostrate nation without to be under the direction of the same councils the intervention of law." which are appointed to preside over the comHow just are such words when applied to an mon defense. It must be irresponsible monarch! How absurd, when admitted, as a necessary consequence, that applied to a whole people, acting through there can be no limitation of that authority their duly appointed agents, whose will, thus which is to provide for the defense and prodeclared, is the supreme law, to awe into sub-tection of the community, in any manner essenmission and peace and obedience, not a pros-tial to its efficacy; that is, any matter essentrate nation, but a prostrate rebellion! The tial to the formation, direction or support of same great author utters the fact which all the national forces." history attests, when he says:

He adds the further remark:

"It has been usual for all governments du- "This is one of those truths which, to a corring actual rebellion, to proclaim martial law rect and unprejudiced mind, carries its own for the suspension of civil jurisdiction; and this evidence along with it; and may be obscured, anomaly, I must admit," he adds, "is very far but can not be made plainer by argument or from being less indispensable at such unhap-reasoning. It rests upon axioms as simple as py seasons where the ordinary mode of trial is by jury, than where the right of decision resides in the court." Const. Hist., vol. I, ch. 5, p. 326.

they are universal-the means ought to be proportioned to the end; the persons from whose agency the attainment of any end is expected, ought to possess the means by which it is to be attained." Federalist, No. 23.

In the same great contest for the adoption of the Constitution, Madison, sometimes called the Father of the Constitution, said:

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That the power to proclaim martial law and fully or partially suspend the civil jurisdiction, Federal and State, in time of rebellion or civil war, and punish by military tribunals all offenses committed in aid of the public enemy, "Is the power of declaring war necessary? is conferred upon Congress and the Executive, No man will answer this question in the neganecessarily results from the unlimited grants tive. * Is the power of raisof power for the common defense to which I ing armies and equipping fleets necessary? have already briefly referred. I may be par* It is involved in the power of doned for saying that this position is not as- self-defense. * With what sumed by me for the purposes of this occasion, color of propriety could the force necessary but that early in the first year of this great for defense be limited by those who can not struggle for our national life I proclaimed it limit the force of offense? * The as a representative of the people, under the ob- means of security can only be regulated by the ligation of my oath, and, as I then believed, means and the danger of attack. and still believe, upon the authority of the

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It is in vain to oppose constitutional barriers