mies of the human race; or spies, or even ene-man Senate, on the trial of Lentulus and his mies taken in battle. It protects, not bellig- accomplices in Catiline's conspiracy: "Abuses erent enemies, but only citizens and those often grow from precedents good in principle; but persons not citizens who, in civil life, seek when the power falls into hands of men less env and claim its protection, or aliens who are en- lightened or less honest, a just and reasonable pre gaged in its military or other service. The cedent receives an application contrary to justice power of the commanding general over these and reason." It is to be remembered that crimclasses is restrained only by the usages of war inal trials involving capital punishment were among civilized nations. But these defend- not then within the competency of the Roman ants are not charged as spies or pirates, or Senate; and neither the Consul nor the Sen armed and organized marauders, or enemies ate, nor both of them, had the right to concaptured in war, or persons in the land or na- demn a Roman citizen without the concurrence val service of the United States. They belong of the people.* to none of these classes, over whom military discretion or martial law extends, unless they extend over and embrace all the people of the United States.

If you believe you possess the power of life and death over the citizens of the United States in States where the regular tribunals can be safely appealed to, still, for the sake of But if the jurisdiction in this case exist, our common country and its cherished institu whether by law or by the power of arms, I re- tions, do not press that power too far. Our ju gret that a Military Commission should be dicial tribunals, at some future day, I have no charged with the trial of these causes. The doubt, will be again in the full exercise of crimes are, as far as hinted at and written about their constituted powers, and may think, as a in the charge and specifications, all cognizable large proportion of the legal profession think in our civil courts. Those courts are open, un-now, that your jurisdiction in these cases is an obstructed, without a single impediment to unwarranted assumption; and they may treat the full and perfect administration of justice- the judgment which you pronounce, and the ready and prompt, as they always are, to per- sentence you cause to be executed, as your form the high duties which the well-known own unauthorized acts.

principles of law under the Constitution de-] This assumption of jurisdiction, or this use volve on them. What good reason can be of a legitimate jurisdiction, not created by law, given in a case like this, to a people jealous and not known to the law or to legal men, has of their rights, for a resort here and now to not for its sanction even the plea of necessity. military trials and military executions? We It may be convenient. Conviction may be easier are at the advent of a new, and I trust a suc- and more certain in this Military Commission cessful, Administration. A taint such as than in our constitutional courts. Inexperithis—namely, the needless violation of the enced as most of you are in judicial investiconstitutional rights of the citizen-ought not gations, you can admit evidence which the to be permitted to attach to and infect it. The courts would reject, and reject what they would jurisdiction of this Commission has to be admit, and you may convict and sentence on sought dehors the Constitution, and against evidence which those courts would hold to be its express prohibition. It is, therefore, at wholly insufficient. Means, too, may be releast of doubtful validity. If that jurisdic-sorted to by detectives, acting under promise tion do not exist; if the doubt be resolved or hope of reward, and operating on the fears against it by our judicial tribunals, when the or the cupidity of witnesses, to obtain and inlaw shall again speak, the form of trial by troduce evidence, which can not be detected this unauthorized Commission can not be and exposed in this military trial, but could pleaded in justification of the seizure of prop- be readily in the free, but guarded, course of erty or the arrest of person, much less the in- investigation before our regular judicial tribufliction of the death penalty. In that event, nals. The Judge Advocate, with whom chiefly however fully the recorded evidence may sus-rests the fate of these citizens, is learned in tain your findings, however moderate may the law, but from his position he can not be an seem your sentences, however favorable to the impartial judge, unless he be more than man. accused your rulings on the evidence, your He is the PROSECUTOR, in the most extended sentence will be held in law no better than the sense of the word. As in duty bound, before rulings of Judge Lynch's courts in the administration of lynch law. When the party now in power falls-as in the vicissitudes of things it must one day fall, and all the sooner for a reckless use of its present power-so it will be viewed by that party which succeeds it. This is to be expected, and, indeed, hoped; but if, unfortunately, this proceeding be then accepted and recorded as a precedent, we may have fastened on us a military despotism. If we concede that the exercise of jurisdiction claimed is now necessary, and for the best possible object, before we consent that it stand as a precedent in our jurisprudence, we should recall to mind the statesmanlike and almost prophetic remarks of Julius Caesar, in the Ro

this Court was called, he received the reports of detectives, pre-examined the witnesses, prepared and officially signed the charges, and as principal counsel for the Government, controlled on the trial the presentation, admission and rejection of evidence. In our courts of law, a lawyer who has heard his client's story, if transferred from the bar to the bench, may not sit in the trial of the cause, lest the ermine be sullied through the partiality of counsel. This is no mere theoretical objection-for the union of prosecutor and judge works practical injustice to the accused. The

of their associates in the Senate, were afterward tried for Cicero, who was Consul, Cato, Silanus, and others the murder of the conspirators, convicted, and banished.

Judge Advocate controls the admission and rejection of evidence knows what will aid and what will injure the case of the prosecution, and inclines favorably to the one, and unfavorably to the other. The defense is met with a bias of feeling and opinion on the part of the judge who controls the proceedings of the Court, and on whom, in great measure, the fate of the accused depends, which morals and law alike reject. Let it not be supposed I censure or reflect on any one, for I do not. The wrong suffered by the parties accused has its root in the vice of this system of trial, which I have endeavored to expose.

the rebellion; and the further testimony (which we showed was utterly fabulous) that another of my clients, in 1863 or 1864, entertained rebel officers and soldiers, and corresponded with rebels in Richmond. As if to say: "What matters it how we try, or whether we legally try at all, provided we convict and execute men who have been associated with, or in sympathy with, monsters such as those ?" Homer makes Achilles immolate, at the fune ral pyre of Patroclus, twelve Trojan captives, simply because they were Trojans, and because Patroclus had fallen by a Trojan hand. If that principle of judicial action be adopted Because our Chief, so venerated and be- here, it were surely not too much to sacrifice loved (and no one venerated and loved him to the manes of one so beloved and honored as more than I), has fallen by the hand of a ruth- our late Chief Magistrate a little lot of rebel less assassin, it ought not to follow that the sympathizers, because, like the assassin, some Constitution and law should be violated in of them, at some time, participated in the repunishing men suspected of having compassed bellion, or gave aid and comfort to rebels. his death, or that men not legally found guilty If this course of reasoning do not develop the should be sacrificed in vengeance as vic-object of that strange testimony, I know not tims generally because of the crime. how to read it. Indeed, a position taken by

There may be a lurking feeling among the learned Assistant Judge Advocate, in dismen which tends to this harshness of ret-cussing my objection to the part of that eviribution, regardless of the innocence of dence which relates to my clients, goes to those on whom vengeance may fall. Tending this-and even beyond it-namely, that parti to this feeling, exciting or ministering to it, was the two days' testimony which, without other apparent point or purpose, detailed the horrors of the Libby Prison; and the evidence that, in 1861, one of my clients took part in

cipation in the rebellion was participation in the assassination, and that the rebellion itself formed part of the conspiracy for which these men are on trial here.

ARGUMENT

IN

DEFENSE OF DAVID E. HEROLD.

BY

FREDERICK STONE, ESQ.

May it please the Court:

At the earnest request of the widowed mother and estimable sisters of the accused, I have consented to act as his counsel in the case now before the Court.

It is a source of some embarrassment to the counsel for the accused that the Judge Advocate General has seen fit not to open this case with a brief statement of the law upon which this prosecution is founded. It would have been a great, and, as he thinks, proper assistance to the accused and his counsel to have known with more accuracy than is set out in the charge, the special offense for which he is arraigned. In the absence of such opening statement, the accused can only discuss the law on which he supposes the Judge Advocate to rely.

commissions, according to a system of jurisprudence sometimes called the common law of war. In this changed condition of things, the military commission supersedes the civil tribunal, and the common law of war supersedes the civil law; but the rules of the common law of war are as clearly defined as are those of the civil law, and the jurisdiction of the military commission is as accurately defined as the jurisdiction of the civil tribunal. The common law of war determines the manner in which a military commission, charged with its administration, shall be organized, the mode in which proceedings before it shall be conducted, the rules by which it shall determine questions of evidence arising in the course of the trial, and the penalty to which it shall subject the accused upon conviction.

By this law a military commission must be organized in the manner in which courts-mar

conform to the manner of proceedings before courts-martial, and be conducted according to the rules prescribing the mode and manner of conducting proceedings before these tribunals.

While the counsel for the accused does not, and can not, concede the question of jurisdic-tial are organized, and its proceedings must tion, it is not proposed by him to discuss the question of the jurisdiction of this Court over the accused in this case, except so far as may be necessary incidentally in discussing the effect of General Order No. 141. The question of the general jurisdiction he will leave in abler hands.

By the same common law of war, the juris diction of a military commission as to persons and offenses is also limited and defined. A But, supposing this Court should be entirely military commission possesses no power to try satisfied that they have jurisdiction, another, a person in the army or navy of the United and, as the counsel for the accused thinks, a States for any offense provided for in the artimore important question arises; and that ques-cles of war. It has no jurisdiction in the case tion is: What is the law governing the several of a soldier charged with disobedience of oroffenses with which the accused stands charged, ders, desertion, etc. Offenses of this nature, and what is the law prescribing the punish- and committed by persons subject to military ment thereof? I shall first consider what is law, are expressly cognizable before the milithe law governing the case as to the crime and tary courts created by that law, and known as the punishment, upon the hypothesis that mar-courts-martial. If, in time of peace, a soldier tial law generally was in force in the District commit an offense against the civil law not of Columbia on the 14th of April, 1865, and provided for in the articles of war, he is sur still so continues in force; and I shall, in the rendered up to the civil jurisdiction to be tried; second place, consider whether martial law did, and if he commit such an offense in time of in fact, exist within the District of Columbia war in a district subject to martial law, he will on the 14th of April, and does now exist, and be tried by military commission, which, in such to what extent. district, supersedes the civil courts in the adIn time of peace, the civil law is adminis- ministration of justice. It is, therefore, appatered by civil tribunals, whose mode of pro-rent that everything in the organization of the cedure and jurisdiction are clearly defined; in military commission, or in the manner of contime of war, justice is administered in the ene-ducting proceedings before it, from the filing my's country, occupied by the belligerent, and of the charges and specifications, down to the also in that part of the belligerent's own coun- final decision of the court, and its jurisdiction try which is under martial law, by military as to persons, is not entirely within the dis

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.

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 continue only with the sanction, or, if deemed necessary, the participation, of the occupier or invader."

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.

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 country, under martial law, the civil and penal law shall remain as the rule of conduct and law of the people, unless interrupted by express command. In the absence of any command interrupting the operation of the civil and In regard to the trial of persons arraigned penal law, what is the law over that portion of for any of this class of crimes, the Commission the 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 territory referred to is described as territory law of war, and administer justice with sound under martial law. The civil and penal law discretion; but in regard to the trial of persons of the country also prevails, because the order expressly declares that it shall continue. It is apparent, therefore, that two systems of jurisprudence prevail at the same time on the same territory; one, the system which martial law establishes, and known as the system of the common law of war, and the other, the system in force over the territory at the time of its It is true the operation of this principle may conquest. But the latter system, although pre- be interrupted by order of the occupying milvailing, can not be enforced, except by the con-itary power, in the exercise of an authority queror, for the article further provides that all derived from, and limited by, the military nethe "functions of the hostile government, cessity; but the right to interrupt the operation legislative, executive or administrative, whether of a general, provincial or local character, cease under martial law, or continue only with the sanction, or if deemed necessary, the participation, of the occupier or invader."

arraigned for offenses created and recognized 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.

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 government, and is specifically designated in mandate of section 6, above quoted from. If the order by the word "administrative." All this is true, then the principle for which I have the functions of the government, including the contended should be stated with a qualification, administrative functions, must cease under and the civil and penal law of the country submartial law; but still, by the terms of the ject to martial law becomes a part of the comorder, the civil and penal law shall continue mon law of war, except as to such parts thereof and take its course, and be administered. By as military necessity requires should be suswhom? By what tribunals? The civil courts pended. Section 3 of General Order No. 100 can no longer exercise functions of their admin- provides as follows: istering the law, and military courts administer, not civil and penal law, but military law and the common law of war. Article 13 of the order referred to says:

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

How, then, can a military jurisdiction administer civil and penal law? There is but one solution 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 suspension.

own country in any case other than that referred to in the article, to-wit: when face to face The rule, therefore, is that the civil and penal with the enemy, and to which condition this law shall continue in force, and the exception article would seem to limit the rightful exercise is as to such parts thereof as military neces- of that law. But conceding that it may prevail sity may require to be suspended. This ne- within the commander's country, where hostile cessity, as is well understood, is not a condition armies are not arrayed against each other on in which the suspension of the civil and penal its soil, and war is not in actual progress, what, law would be more convenient to the occupying under such circumstances, is its effect in intermilitary power, or would simply gratify the rupting or suspending the civil and penal law? caprice of the commander, but a condition in I concede, for the purpose of this argument, which such suspension is imperatively de- that it establishes the common law of war as manded to meet the exigencies of war, and suspending the civil and penal law, that it subabsolutely required to conduct that war suc-stitutes a military tribunal for civil courts, and cessfully. Military necessity is thus defined the summary process of military arrests for the by section 14 of General Order No. 100: ordinary mode and form of civil arrests; but, "Military necessity, as understood by mod- when the military court is convened and organern civilized nations, consists in the necessity ized, what law is it required to administer? of those measures which are indispensable for The answer is obvious: it is to administer the securing the ends of the war, and which are common law of war. What part of the civil lawful according to the modern law and usages and penal law has been excluded from that of war." common law of war and suspended under the force of a necessity making such suspension indispensable for securing the ends of the 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.

Sections 3 and 6, above quoted, of General Order No. 100, by their terms, refer only to the "enemy's country," but they indicate the effect of martial law upon the system of jurisprudence to be administered wherever martial law prevails. That effect will be greater or less in modifying or suspending the civil and penal laws of the various territories that may be subject to martial law, according to the measure of the necessity existing in each.

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

This Commission is sitting not only in the commander's own country, but in the capital of that country. Before it met, the last hostile gun of the war had been fired, a thousand miles away. During its session 200,000 veterans have returned from the field, and passed in review in sight of the windows of this court-room, their faces homeward turned, their swords sheathed, their work accomplished. No enemy now remains in arms against the Government of the country; but the war is over, and peace restored. Again, I ask, what military necessity renders a suspension of the civil and penal law of the United States, in the capital of the United States indispensable for securing the ends of war?

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

vasion."

as a necessary measure for suppressing the It is apparent, therefore, that the effect of same, all rebels and insurgents, their aiders martial law in modifying and changing the and abettors, within the United States, and all civil and penal code, or the civil administration persons discouraging volunteer enlistments, of the district or territory in which it prevails, resisting militia drafts, or guilty of any disdepends upon the military necessity growing loyal practice, affording aid and comfort to out of the condition of things existing in such rebels against the authority of the United territory or district. And if in any portion of the States, shall be subject to martial law, and liaconquered and occupied territory of the enemy ble to trial and punishment by courts-martial 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 No. own country as may be declared subject to mar-100, that martial law is not, if I may use such tial law, the civil and penal law should not an expression, an unbending code; that it can be interrupted, unless some extraordinary and be made, in the discretion of the commander, overwhelming necessity arises to justify it. more or less stringent, as the exigencies of the I will not enter into the inquiry suggested by Bection 5, quoted above, as to whether or not martial law can prevail in the commander's

case may require. It also is apparent, from the same General Order, that martial law in the commander's own country, must exist by