in fact, do neither the one nor the other of the in- commands the commission of a crime—it is laid tended acts, he has committed an overt act of ad- down in Wharton's American Criminal Law, cithering to the enemy? Certainly not. All rests in ing 1 Hale, 618, that "the procurement (by an intention merely, which our law of treason, in accessory) must continue till the consummation no instance, professes to punish." of the offense, for if the procurer of a felony reThus we find it adjudged by the highest au- pent, and before the felony is committed actually thorities, that under our Constitution, mere inten-countermand his order, and the principal, nottion, or preparation, or conspiracy, to levy war withstanding, commit the felony, the original or adhere to and aid and comfort the enemies contriver will not be an accessory." The conof the Government, does not constitute treason, spirator, then, who withdraws from a conbut misdemeanor only, and Congress seem clearly spiracy before the same is executed, is in the to recognize this view in their legislation, for position of a principal who has repented before by the act entitled "An act to define and pun-acting, and of a procurer who has incited or ish certain conspiracies," approved July 21st, ordered a crime, and withdrawn his order before 1861, they enact "that if two or more persons, it was acted upon. And his case is evidently within any State or Territory of the United still stronger where he was not the principal States, shall conspire together to overthrow, or conspirator, who has incited and procured others, to put down, or to destroy by force, the Govern- but was only one of the subordinates, himself inment of the United States, or to levy war cited and procured by others, and where, after against the United States, or to oppose by yielding for the time to their influence, he withforce the authority of the United States," etc., draws from and resists their solicitations. The "each several person so offending shall be guilty responsibility of such a person for the results of of a high crime, and upon conviction thereof, in the conspiracy, had he remained in it, would any District or Circuit Court of the United States have been less, morally, than that of the princihaving jurisdiction thereof, shall be punished pal, and by his withdrawal is so much the more by a fine not less than $500, and not more than easily got rid of. $5,000; or by imprisonment with or without hard labor, as the court shall determine, for a period not less than six months, nor greater than six years, or by both fine and imprisonment." In other words, the offense is declared to be a high misdemeanor, and has annexed to it, by this law, the punishment appropriate to that degree of crime.

It results, then, that a mere conspiracy to commit either treason or felony, in this country, is a mere misdemeanor. Of course, these remarks apply only to unexecuted conspiracies. If the conspiracy to commit treason or felony be executed by the actual commission of the intended crime, it is held that the misdemeanor is merged in the higher crime. And the law is conceded to be, that if parties join and continue in a conspiracy, and different parts are assigned to the different members, and are executed, wholly or partially, each is responsible for everything done in pursuance of the common design.

Another proposition to be borne in mind is, that if parties conspire for one object, however criminal, and some of them commit a crime different from that contemplated by the original conspiracy, the others are not involved in their guilt. The proposition is too evident for argument. An illustration of it is found in 1 Bishop on Criminal Law, section 265. He says: "Obviously, if two or more persons are lawfully together, and one of them commits a crime without the concurrence of the others, the rest are not thereby involved in guilt. So, if they are unlawfully together, or if several persons are in the actual perpetration, by a concurrent understanding, of some crime, and one of them, of his sole volition, not in pursuance of the main purpose, does another thing criminal, but in no way connected with this, he only is liable. Thus, if numbers are together, poaching, and join in an attack on the game-keeper and leave him

senseless, then if one of them returns and steals the game-keeper's money, this one only can be convicted of the robbery.”

But if, after a conspiracy is organized, but anexecuted, any party involved therein should withdraw and abandon it, and refuse to have So, in the analogous case of an accessory, it any further connection with it, he is not respon- is said (1 Hale, 617), "If the accessory order or sible for any act done by the others in prosecu-advise one crime, and the principal intentiontion of the objects of the conspiracy afterward. ally commit another, as, for instance, to burn a A conspirator may be said to be a compound house, and instead of that he commit a larceny, of a principal and an accessory before the fact. or to commit a crime against A, and instead of Conspirators mutually incite, encourage, advise that he commit the same crime against B, the and instruct each other to the commission of a accessory will not be liable." crime, and are thus accessories before the fact, and at the same time each expects to act as principal in some way or other.

In the case of a principal, so long as an act rests in bare intention, it is not punishable. So, if a man start out to commit a crime, as in the case put by Judge Washington in the case of the United States vs. Pryor, before cited, of a man going to market to purchase provisons, or going to his field to slaughter cattle for the enemy, but doing neither in fact.

And in the case of an accessory before the fact that is, one who counsels, persuades or

These are the general principles which I desired to premise in reference to the general nature of crimes, and which might be applicable, more or less to this case.

I need scarcely add, that a material variance between the charge and the proof, as where one crime is charged and another proved, is fatal to the prosecution, and entitles the accused to an acquittal. Thus, if a burglary be alleged to have been committed in the house of J. Y., and it turned out in evidence to be the dwellinghouse of J. S., the defendant must be acquitted for the variance. (Archbold, 95.)

So, in indictment for larceny of the goods of HI, when they were proved to be the goods of H and E, the variance was admitted to be fatal. (Commonwealth vs. Trimmer, 1 Mass. Rep., 476.) So, a conspiracy against A is not sustained by proof of conspiracy against B or against the public generally. (See Wharton.) So, if a person be indicted for one species of killing, as by poisoning, he can not be convicted by evidence of a species of death entirely different, as by shooting, starving or strangling. (1 Russell on Crimes, 557.)

Still less can a conviction be had by proof of an offense which is entirely different in char

acter.

While upon an indictment for a murder a man may be convicted of manslaughter, the essential crime being the homicide, it is very plain that he could not be convicted of an assault, false imprisonment or abduction; and upon a charge of conspiracy to murder, he could not be convicted of conspiracy to imprison or to abduct.

The same rule prevails in courts-martial. De Hart says (p. 364): "It is a distinction which runs through the whole criminal law, that it is enough to prove so much of the indictment as shows that the defendant has committed a substantive crime therein specified; but the offense, however, of which he is convicted must be of the same class with that with which he is charged." The general principles of the common law on this subject are adopted in the military code.

organized for that purpose by the Government of military occupation, etc. It must be remembered that the authority of such tribunals has its source not in the laws of the conquering, nor in those of the conquered State, but, like any other powers of the Government of military occupation, in the laws of war; and in all cases not provided for by the laws actually in force in the conquered territory, such tribunals must be governed and guided by the principles of universal public jurisprudence." This plainly implies that where the cases are provided for by the local law, that should guide in the administration of criminal justice.

Professor Lieber, in his Instructions for the Government of the Armies of the United States in the Field, adopted by the War Department, says:

"Martial law in a hostile country consists in the suspension by the occupying military authority of the criminal and civil law and of the domestic administration and government in the occupied place or territory, and in 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, substitution, or dictation."

And Benet, p. 14, thus lays down the rule: "Martial law, then, is that military rule and authority which exists in time of war in relation to persons and things under and within the scope of active military operations in carrying on the war, and which extinguishes or suspends civil rights and the remedies founded on them, for the time being, so far as it may appear to be necessary in

Let us next consider how far tribunals sitting by virtue of martial law can depart from the established law of the land in its distinctions between crimes and in its scale of pun-order to the full accomplishment of the purpose of ishments.

the war, the party who exercises it being liable in an action for any abuse of the authority thus conferred. It is the application of military government-the government of force-to persons and property within the scope of it, according to the laws and usages of war, to the exclusion of the municipal Government in all respects where the latter would impair the efficiency of military law or military action."

Military law, says De Hart (p. 17), is a rule for the government of military persons only; but martial law is understood to be that state of things when, from the force of circumstances, the military law is indiscriminately applied to all persons whatsoever. And Greenleaf says (vol. 3, p. 469, etc.): "It [martial law] extends also to a great variety of cases not relating to the discipline of the army, such as plots against The exercise of martial law is capable of the sovereign, intelligence to the enemy, and being abused. It must, therefore, have some the like. It is founded on paramount necessity, limits. It has no code but one single, vital, and is proclaimed by a military chief, and when fundamental principle, which is alike its justiit is imposed upon a city or other territorial fication and its limit; and that is, necessitydistrict, all their inhabitants and all their ac- not state nor political necessity, but military tions are brought within the sweep of its do- necessity. It is the same principle announced minion." Almost everything in the shape of by Sir Boyle Roche, a member of the Irish authority on the subject of martial law relates Parliament and a breeder of Irish bulls, who, to that law as exercised in a foreign and hostile in the debate on the suspension of the habeas country. Even in that case it has certain limitations.

General Halleck, in his work on international law and the laws of war, in treating of the effects of military occupation, says (chap. 32, sec. 6):

corpus act, said "he was in favor of surrendering a part of the Constitution, and even the whole of it if necessary, in order to save the remainder." As this alone justifies the suspension of the civil law of the land at all, so that suspension can not be legitimately carried further than is necessary to the efficiency of military action or military law-i. e., of the law governing the military force.

"Although the laws and jurisdiction of the conquering State do not extend over such foreign territory, yet the laws of war confer upon it ample power to govern such territory, and to If this is true of a military occupation of an punish all offenses and crimes therein, by enemy's country, how infinitely more binding whomsoever committed. The trial and punish- in the case of martial law prevailing at home! ment of the guilty parties may be left to the When an enemy's country is conquered, all poordinary courts and authorities of the country, litical powers therein cease, and a suspension or they may be referred to special tribunals of judicial functions also generally results.

There must be offenses unprovided for in such crimes, and in its measure of punishment. To disa state of things which can only be taken cog- regard it without overruling military necesnizance of by military courts established in sity, is unnecessarily to infringe public and virtue of the martial law, which is established private rights, and this is military oppression, and proclaimed by the very presence of a hos- which Professor Lieber says is not martial law, tile army. Of course, revolts, insurrections, but is the abuse of the power that law confers. and plots against the conquering power would Granting, then, for the sake of argument, be wholly unprovided for in the laws of the that at the time of the President's assassinaconquered State, and must be necessarily dealt tion, when the rebellion was not yet subdued, with by martial law. But all this is different when it was possible for its flickering and exwhen martial law exists at home. Treason, piring hopes to be revived by this startling eonspiracy, murder, in short, every crime, is event, when the mysterious plot seemed to be already provided for by the civil law. When aimed directly at the power of the Government the law martial undertakes to deal with such to effect the purpose of the war, to suppress offenses, it finds them already accurately de- the rebellion and perpetuate its own existence, fined in the written or common law of the it was necessary to employ the machinery of land, and the appropriate punishment affixed martial law to pursue and bring to justice the by the same. It may find, and it certainly perpetrators of the murder, and on account of does find in the present case, legal courts duly difficulties, supposed or real, in the trial of the constituted and in unobstructed operation. It accused in a civil court, to subject them to a invades the domain of the latter, wrests from trial by a military commission, still the questhem their jurisdiction, and seeks to deal with crimes which, I may say, it does not understand, for which it has no definitions, no graduated scale of penalties.

Clearly, nothing can justify this but the most urgent military necessity, and the requirements of active military operations must be the measure of that departure from the civil law, which would be legitimate and which could not be taken notice of subsequently, by that law, as an abuse.

tion recurs, how is this commission to deal with the accused? Now that "grim-visaged war hath smoothed his wrinkled front," that "bruised arms are hung up for monuments," that the only military action in progress consists in the disbanding and dispersion of the national forces, that even the rancors of civil strife are yielding to an universal aspiration for peace and fraternal union, can any man, on his conscience, say, that any military exigency requires this Commission to ignore the In a beleaguered city, under martial law, one law of the land in regard to crimes and punwho is detected in signaling the enemy, or do- ishments, to condemn and punish, as treason, ing any thing to cripple the defenders, secretly that which is not treason by the Constitution; or openly, may be shot down without trial, or to confound felonies with treason on the one dealt with by a military commission in the side, or misdemeanors, on the other; to try for most summary way. But no one would main- one offense and convict of another; to inflict tain that such a commission could place a petty punishments disproportionate to the crime, in larceny, by a civilian, on the same footing as view of the proportion between them estabmurder, and visit it with the death penalty. It lished by the common law and universal unwould be a criminal abuse of power, simply derstanding? Most clearly not. It will not because wholly unnecessary to the efficiency of do to assume that martial law, once conceded to military operations. And even acts of mili- be in force, has no limit. It is begging the tary hostility, committed during a period of whole question to assume that to concede the invasion and siege, could not, after the enemy necessity of martial law is to concede the neis repulsed, the siege raised, the danger cessity of all its rigors and harsh contrasts passed, be punished by summary execution with the civil law. In the able argument of without trial. Judge-Advocate Burnett on the plea of jurisThe argument on this head may be summed diction, on the trial of the Chicago conspirup thus: The law of the land defines certain ators, he says: crimes. It establishes a distinction and grada- "Martial law can never be restricted by any tion among them, and visits them with appro-defined lines, because it is the law of necessity, priate punishments. It also establishes the the law of self-defense, of self-preservation; it mode in which the accused shall be tried, and is a law to meet the exigencies and necessities of certain guarantees of fairness and justice. great, unexpected emergencies in time of war; and These distinctions between crimes and punish-whatever law or rule of action becomes necesments and these guarantees are the right alike sary to meet these emergencies is martial law." of the innocent and guilty, the injured public He also cites Professor Greenleaf, who, in and the accused. If it be absolutely necessary speaking of the difference between martial and to the repulse of a foreign or the reduction of military law, says: a domestic enemy, by the military power of the "The tribunals of both are alike bound by country, persons within the scope of its opera- the common law of the land in regard to the rules tions may be both tried and punished in a man- of evidence, as well as to other rules of law, so far ner different from the course of the civil law. as they are applicable to the manner of proceeding;" But without such necessity they can not be so and adds: "As, for illustration, martial law, tried. And if the situation require such trial, as now being administered, is, giving these still, without such necessity, the military authority prisoners a fair, impartial hearing, according can not ignore but must adhere to, observe, and be to the strict rules of the civil law, in all quesguided by the civil law, in its distinctions between tions of evidence, argument, etc.; it gives them

proven, and in affixing a punishment to it, to follow and be guided by the law of the land, as administered in the civil courts.

the benefit of counsel, of processes to compel the attendance of witnesses; it allows them a clear and public trial, in open day, before their peers, and before just and honorable men. But The application of these general principles under other circumstances and greater emer-I shall reserve until I shall have discussed the gencies, it might have demanded that they be evidence. shot down in the streets, and without trial and without hearing, as in case they had gone forward in this conspiracy, attacked our camps, undertaken to release our prisoners, and burn the city."

The evidence offers a very wide field to one inclined to collate, weigh, and comment on it, in detail, but I shall notice only so much as seems material to my case.

First, then, what are some of the facts in reNow, on what ground can martial law admit lation to the alleged conspiracy? The assassia trial at all? On what ground can its courts nation of the President and other heads of be bound to observe the common law rule of ev- Government, may have been discussed in the idence and proceeding? On no other but this: South, as a measure of ultimate resort, to reThat, by the law of the land, this is one of the trieve the fortunes of the Confederacy, when rights of the accused of which he can not be at their lowest ebb; the rebel agents in Canada deprived, unless there be a military necessity may have individually signified their approval for it. But what reason is there applicable to of the measure, in the abstract, long since; form, which does not apply, with ten-fold force, but I undertake to maintain, upon the evidence, to matters of substance? If the accused is en- that there never was any final determination titled to be tried according to the forms of the on the part of any person or persons, with common law, as far as applicable, how much whom any of these accused can possibly be more is he entitled to be judged and punished connected, actually to attempt the life of the according to that law, where no departure from President, or other functionary, until a few it, in that respect, is required by any military emergency.

But the Government officers seem to have tasked their ingenuity to invent a new species of crime-traitorous murder, traitorous conspiracy-murder which is something more than murder, yet something less than treason; a hybrid between them, partaking of both. On the same principle, stealing a percussion cap, with intent to use it against the Government, would be traitorous larceny, instead of petty larceny. And when we inquire by what code it is to be judged and punished, we are referred to the common law of war.

days-about one week-before the murder; that no conspiracy for that object, such as is charged against the accused, was formed, or, at least, had any active existence, at any time during the month of March, as imputed in the charge and specification; and that if any conspiracy had ever been organized, for such object, at an earlier period, it did not contemplate the event, otherwise than contingently, and upon a contingency which never arrived until the period I have named, and was, meanwhile, completely in suspense and abeyance.

The specification imputes that the accused were incited and encouraged to the murder by Davis, Thompson, Clay, and others, and this is of the very essence of the charge.

The common law of war! What a convenient instrument for trampling upon every constitutional guarantee, every sacred right of the citi- The theory of the prosecution is, that Booth, zen! There is no invention too monstrous, no who is acknowledged to have been the head, punishment too cruel, to find authority and and front, and soul of the conspiracy, if there sanction in such a common law. Is it possible was one, was only the hireling tool of these that American citizens can be judged and pun- rebel emissaries. I think he was probably ished by an unwritten code, that has no defini- something more, but it will not vary the result. tions, no books, no judges or lawyers; which, I think he was probably actuated not only by if it has any existence, like the laws of the the sordid hope of reward, but by a misguided, Roman Emperor, is hung up too high to be perverted ambition. Of moderate talents, but read? considerable ambition, of strong will and pasI deny that the common law of war has any- sions, and high nervous organization, accusthing to do with treason, or anything traitor- tomed to play parts, and those of a tragic ous, as such. Treason, in any shape, is an character, he had contracted perverted and offense against the civil government. The acts artificial views of life and duty, and aspired constituting the offense are dealt with by mar- to be the Brutus, in real life, that he had been tial law, not as treason, but only as they inter- or seen on the boards. He well knew, howfere with military rule and operations. Such ever, that the act he contemplated would be exoffenses as those charged are unknown to any ecrated all the world over, except, possibly, common law of war. In short, the only com- among those whom he intended to serve. Theremon law of war, which can be admitted in this fore, whether pecuniary reward or false glory country against civilians, is the common law was his object, he could hope for neither until of the land, so far modified, only, as the mili- he was secure of their approbation. Whatever tary emergency of the hour requires. his principle of action, he was wholly without

I conclude, then, that, supposing this Com-motive for so desperate an undertaking until mission to have lawful jurisdiction over the he had, or supposed he had, the approval of the persons of the accused, for the purpose of try- rebel authorities. When does the evidence ing them upon this charge, still the Commis- tend to show that this was given? On this sion are bound, in ascertaining the nature of subject three principal witnesses have testified the offense made out by the evidence, if any be for the Government. None of them carry far

ther back than January last, the date when|treal, where he would probably arrive on the even an individual approval of the scheme of 5th or 6th.

assassination was expressed by any of the There is an apparent discrepancy between rebel agents in Canada. The first witness, the testimony of Dr. Merritt and that of ConsRichard Montgomery, represents Jacob Thomp-ver, which I here proceed to notice. son as saying, in the summer of 1864, that he He represents that he was present at a meethad his agents throughout the Northern States, ing of a number of the rebel emissaries, in and could, at any time, have President Lincoln, Montreal, in the middle of February last, at or any of his advisers, put out of the way. But which George N. Sanders, after discussing the it was only in the middle of January last that projected assassination, read a letter which he Thompson informed him that a distinct propo- said he had received from "the President of our sition for the President's assassination had Confederacy," meaning Jefferson Davis, exbeen made to him, and that he was in favor of pressing approbation of whatever measures it, but was determined to defer his answer until they might take to accomplish the object. Conhe had consulted his Government, at Richmond, over, on the other hand, had had conversations and he was then only waiting their approval. with Thompson all through the month of FebAlthough the witness was in constant inter-ruary, and no dispatches had then arrived of course with those men in Canada, going back the purport stated by Merritt. But that Merand forth, until shortly before his testimony ritt is wholly mistaken, and his testimony was given, he was not able to state when these wholly unreliable, in this particular, is clear, rebel agents considered themselves authorized from several considerations: to act in this matter. But in a conversation First. The witness did not read the letter, with Tucker, a few days after the assassination, nor does he pretend to repeat its language, nor the latter said, "it was too bad that the boys can he distinguish very clearly between the had not been allowed to act when they wanted language of the letter and that of Sanders to," which would indicate that the approval himself. He says, at first: "Which letter justwaited for from Richmond was not received in ified him (Sanders) in making any arrangetime for earlier action, and this the witness ments that he could to accomplish the object." distinctly states to be his impression. He inferred from Tucker's remark that the approval had been received, and that the attempt had been delayed for its arrival.

This was the witness' construction of the letter, not its terms. When asked for its language he could not give a word of it, but said it was in substance, "That if the people in In all this, Montgomery agrees exactly with Canada and the Southerners in the States were Conover. The latter states that Thompson willing to submit to be governed by such a tyspoke to him in February on the subject of the rant as Lincoln, he did not wish to recognize removal of the President and others from office, them as friends or associates, or something by killing them, and offered him the chance of like that." This was the whole of the witness immortalizing himself and saving the country unprompted account of the substance of the by embarking in the enterprise; that these letter. He is asked, however, the leading conversations were repeated all through the question, "And you say that in that letter he month of February, and in that month he expressed his approbation of whatever measstated he was awaiting dispatches from Rich-ures they might take to accomplish this object?” mond. The witness inquired if he thought the To this he answers, "Yes." But he had said plan would receive the approbation of the Gov-nothing of the sort. He had merely said that ernment at Richmond, and Thompson replied the letter justified such measures. Still later he that he thought it would, but he would know in says: "When he (Sanders) read the letter he a few days. The witness knew nothing of the spoke of Mr. Seward, and I inferred that that arrival of such dispatches, until about the 6th was partially the language of the letter; I think or 7th of April, when Surratt arrived in Can- it was, that if those parties, the President, Viceada with dispatches from Mr. Benjamin and President and Cabinet, or Mr. Seward, could Mr. Davis. The witness was present in Thomp-be disposed of, it would satisfy the people of son's room, with Surratt, when Thompson laid the North that they (the Southerners) had his hand upon the papers, brought by the latter friends in the North, and that a peace could from Richmond, and said, "This makes the thing all right," referring, as the witness says, to the assent of the Richmond authorities, that is, to the assassination project. On cross-examination the witness says distinctly that he understood this to be the first official approval they had received from Richmond of the plan to assassinate the President, and he knew of no other.

be obtained on better terms than it could otherwise be obtained," etc. It will be found that, in the course of his testimony, he gives three different versions of the substance of the letter. He does not pretend to say the assassination was mentioned, in terms, in the letter, and he is evidently unable to distinguish clearly between the language of Sanders and that of Davis, and, on the whole, we are left in complete uncertainty whether we have the conclusions of the witness or those of Jefferson Davis.

And this evidence, as far as it fixes the date Surratt's arrival in Canada, and its probable abject, is corroborated by Weichmann, who has testified that Surratt arrived in Washington, from Richmond, on the 3d of April, with money But, secondly, it is perfectly certain that Jefin his pocket, and professing to have seen Ben- ferson Davis never would have written such a jamin and Davis, and to have been assured by letter as this is described to be, to George N. them that Richmond would not be evacuated, Sanders. It is apparent, from the whole testiand that he left, on the same evening, for Mon-mony, that Jacob Thompson and Clement G.