repel the accusation against my country sent out to the world by the counsel. From anything that he has said, I have yet to learn that the American people have not the right to make their inquiries secretly, touching a general conspiracy in aid of an existing rebellion,

tleman or to his elaborate and ingenious argument. To justify what I have already said, I 'may be permitted here to remind the Court that nothing is said by the counsel touching the conduct of the accused, Mary E. Surratt, as shown by the testimony; that he makes confession at 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 ventured to address in this tone and temper, suppressed? Have not all the proceedings to the authority of the distinguished Chancelbeen published to the world? What, then, lor Kent, whose great name the counsel has was done, or intended to be done, by the Gov-endeavored to press into his service in supernment, which justifies this clamor about a port of his general proposition, that no perSpanish Inquisition? son 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.

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?

In this trial, no parties accused, nor their counsel, nor the reporters of this Court, were at any time excluded from its deliberations when any testimony was being taken; nor has there been any testimony taken in the case with closed doors, save that of a few witnesses who testified, not in regard to the accused or either of them, but in respect to the 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

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 forces are the terms used in both, have the same meaning, and until lately have been supposed by every commentator and judge to exclude from military jurisdiction offenses committed by citizens not belonging to such forces." The learned gentleman then adds: "Kent, in a note to his 1st Commentaries, 341, states, and with accuracy, that 'military and naval crimes and offenses, committed while the party is attached to and under the immediate 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 destitute 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 Who can fail to see that Chancellor Kent, of the laws of peace and war. Even in war 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 this passage quoted from Kent, to say that, "according to this great authority, every other class of persons and every other species of offenses are within the jurisdiction of the civil courts, and entitled to the protection of the proceeding by presentment or indictment and the public trial in such a court."

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:

"Military law is a system of regulations for the government of the armies in the service of the United States, authorized by the act of Congress of April 10, 1806, known as the Articles of War, and naval law is a similar system for the government of the navy, under the act of Congress of April 23, 1800. But martial 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

gentleman proceeds to quote from the Autobiography, "that this order, when handed to the then Secretary of War (Mr. Marcy) for his approval, a startle at the title (martial law order) was the only comment he then or ever made on the subject,' and that it was soon silently returned as too explosive for safe handling.' 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.'" Thereupon 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."

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 of war, for the suppression of a rebellion or to repel invasion. Certainly there is nothing in this extract from the Autobiography which justifies any such conclusion. He was startled, we are told. It may have been as much the admiration he had for the boldness and wisdom of the conqueror of Mexico as any abhorrence 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.

"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-Attorlowed 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 matters not comprehended in that limited branch of legal science. * Military

串

Even some of the reasons given, and certainly the power exercised by the veteran hero bimself, 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. Martial law, as exercised in any country by the commander of a foreign army, is an element of the jus belli.

*

*

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 subject the soldiers under his command to any control or punishment whatever, save that which is provided for in the articles?

It will not do, in order to sustain the gen"It is incidental to the state of solemn war, tleman's hypothesis, to say that these proviand appertains to the law of nations. * sions of the Constitution, by which he attempts Thus, while the armies of the United States oc- to fetter the power of the people to punish cupied different provinces of the Mexican re- such offenses in time of war within the terripublic, the respective commanders were not tory of the United States, may be disregarded limited in authority by any local law. They by an officer of the United States in command allowed, or rather required, the magistrates of of its armies, in the trial and punishment of the country, municipal or judicial, to continue its soldiers in a foreign war. The law of the to administer the laws of the country among United States for the government of its own their countrymen; but in subjection, always, armies follows the flag upon every ses and in to the military power, which acted summarily every land. and according to discretion, when the bellige-| rent 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.

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.

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 ad- In making this exception, the Lieutenantministered by a foreign army in the enemy's General followed the rule recognized by the country "does not enlighten us in regard to American authorities on military law, in the question of martial law in one's own coun- which it is declared that "many crimes comtry, and as administered by its military com- mitted even by military officers, enlisted men, manders. That is a case which the law of na- or camp retainers, can not be tried under the tions does not reach. Its regulation is of the rules and articles of war. Military Comdomestic resort of the organic laws of the missions must be resorted to for such cases, country itself, and regarding which, as it hap-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.

There remain for me to notice, at present, two other points in this extraordinary speech: first, that martial law does not warrant a military commission for the trial of military offenses-that is, offenses committed in time of war in the interests of the public enemy, and by concert and agreement with the enemy; and second, that martial law does not prevail in the United States, and has never been declared by any competent authority.

United States, shall be subject to martial law, and liable to trial and punishment by courtsmartial or military commission.

"Second. That the writ of habeas corpus is suspended in respect to all persons arrested, or who are now, or hereafter during the rebellion shall be, imprisoned in any fort, camp, arsenal, military prison, or other place of confinement, by any military authority, or by the sentence of any court-martial or military 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:

sation 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.

"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.

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 It has been said by another of the counsel throughout the United States; and of which, for the accused (Mr. Stone) in his argument, in Lawrence's edition of Wheaton on Inter- that admitting its validity, the proclamation national Law, p. 522, it is said: "Whatever ceases to have effect with the insurrection, and may be the inference to be deduced, either is terminated by it. It is true the proclamafrom Constitutional or International Law, or tion of martial law only continues during the from the usages of European governments, as insurrection; but inasmuch as the question to the legitimate depository of the power of of the existence of an insurrection is a politsuspending the writ of habeas corpus, the vir- ical question, the decision of which belongs tual abrogation of the judiciary in cases exclusively to the political department of the affecting individual liberty, and the establish- Government, that department alone can declare ment as matter of fact in the United States, its existence, and that department alone can 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.

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

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 judgmies in every State and district of the country; though by its use some of the guilty were brought to swift and just judgment, and others deterred from crime or driven to flight; though by this means the innocent and defenseless were protected; though by this means the city of the gentleman's residence was saved from the violence and pillage of the mob and the torch of the incendiary. But, says the gentleman, it was a usurpation, forbidden by the laws of the land!

ment of the President, or for any right in subordinate officers to review his decision, and in effect defeat it. Whenever a statute gives a discretionary power to any person, to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction, that the statute constitutes him the sole and exclusive judge of the existence of those facts." 12 Wheaton, 31.

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 war, and especially, that such commissions are militia of the several States when called into not so authorized to try persons other than those the actual service of the United States. * in the military or naval service of the United Whether the President, in fulfilling his duties States, or in the militia of the several States, as Commander-in-Chief in suppressing an in- when in the actual service of the United States. surrection, has met with such armed hostile The gentleman's argument assuredly destroys resistance, and a civil war of such alarming itself, for he insists that the Congress, as the proportions as will compel him to accord to legislative department of the government, can them the character of belligerents, is a ques- pass no law which, either in peace or war, can tion to be decided by him, and this Court must constitutionally subject any citizen not in the 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.

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