Why is the clamor confined exclusively to the of power to meet every possible exigency which trial by military tribunals of justice of trait- the fortunes of war might cast upon the counorous spies, traitorous conspirators, and as- try, and the wisdom of which words, in turn, sassins hired to do secretly what the armed has been illustrated to-day by the gigantic and rebel attempts to do openly-murder your na- triumphant struggle of the people during the tionality by assassinating its defenders and last four years for the supremacy of the Conits executive officers? Nothing can be clearer stitution, and in exact accordance with its than that the rebel captured prisoner, being a provisions. In the light of these wonderful citizen of the republic, is as much entitled to events, the words of Pinckney, uttered when trial by jury before he is committed to prison, the illustrious Chief Justice had concluded his as the spy, or the aider and abettor of the trea- opinion, "The Constitution of my country is son by conspiracy and assassination, being a immortal!" seem to have become words of citizen, is entitled to such trial by jury, before prophesy. Has not this great tribunal, through he is subjected to the just punishment of the the chief of all its judges, by this luminous law for his great crime. I think that in time and profound reasoning, declared that the of war the remark of Montesquieu, touching Government may by law authorize the Executhe civil judiciary, is true: that "it is next to tive to employ, in the prosecution of war, the nothing." Hamilton well said, "The Execu- ordinary means, and all the means necessary tive holds the sword of the community; the and adapted to the end? And in the other judiciary has no direction of the strength of decision, before referred to, in the 8th of society; it has neither force nor will; it has Cranch, arising during the late war with Great judgment alone, and is dependent for the ex- Britain, Mr. Justice Story said: ecution of that upon the arm of the Executive." The people of these States so understood the Constitution, and adopted it, and intended thereby, without limitation or restraint, to empower their Congress and Executive to authorize by law, and execute by force, whatever the public safety might require, to suppress rebellion or repel invasion.

"When the legislative authority, to whom the right to declare war is confided, has declared war in its most unlimited manner, the executive authority, to whom the execution of the war is confided, is bound to carry it into effect. He has a discretion vested in him as to the manner and extent, but he can not lawfully transcend the rules of warfare established among civilized nations. He can not lawfully exercise powers or authorize proceedings which the civilized world repudiates and disclaims. The sovereignty, as to declaring war and limiting its effects, rests with the Legislature. The sovereignty, as to its execution, rests with the President." Brown vs. United States, 8 Cranch, 153.

Notwitstanding all that has been said by the counsel for the accused to the contrary, the Constitution has received this construction from the day of its adoption to this hour. The Supreme Court of the United States has solemnly decided that the Constitution has conferred upon the Government authority to employ all the means necessary to the faithful execution of all the powers which that Consti- Has the Congress, to whom is committed the tution enjoins upon the Government of the sovereignty of the whole people to declare war, United States, and upon every department and by legislation restricted the President, or atevery officer thereof. Speaking of that pro- tempted to restrict him, in the prosecution of vision of the Constitution which provides that this war for the Union, from exercising all "Congress shall have power to make all laws the "powers" and adopting all the "proceedthat may be necessary and proper to carry ings" usually approved and employed by the into effect all powers granted to the Govern- civilized world? He would, in my judgment, ment of the United States, or to any department or officer thereof," Chief Justice Marshall, in his great decision in the case of McCulloch vs. State of Maryland, says:

be a bold man who asserted that Congress has so legislated; and the Congress which should by law fetter the executive arm when raised for the common defense, would, in my opinion, "The powers given to the Government imply be false to their oath. That Congress may pre the ordinary means of execution, and the Gov- scribe rules for the government of the army ernment, in all sound reason and fair interpre- and navy, and the militia when in actual sertation, must have the choice of the means which vice, by articles of war, is an express grant it deems the most convenient and appropriate of power in the Constitution, which Congress to the execution of the power. . The has rightfully exercised, and which the Execpowers of the Government were given for the utive must and does obey. That Congress welfare of the nation; they were intended to may aid the Executive by legislation in the endure for ages to come, and to be adapted to prosecution of a war, civil or foreign, is adthe various crises in human affairs. To pre-mitted. That Congress may restrain the Execscribe the specific means by which Government utive, and arraign, try, and condemn him for should, in all future time, execute its power, wantonly abusing the great trust, is expressly and to confine the choice of means to such nar- declared in the Constitution. That Congress row limits as should not leave it in the power shall pass all laws necessary to enable the Exof Congress to adopt any which might be ap-ecutive to execute the laws of the Union, suppropriate and conducive to the end, would be press insurrection, and repel invasion, is one most unwise and pernicious." 4 Wheaton, 420. of the express requirements of the Constitu Words fitly spoken! which illustrated at tion, for the performance of which the Conthe time of their utterance the wisdom of the gress is bound by an oath. Constitution in providing this general grant What was the legislation of Congress when

trason fired its first gun on Sumter? By the tee contained in the Constitution of the United B of 1795 it is provided that whenever the States is a guarantee of anarchy and not of lows of the United States shall be opposed, or order." "Yet, if this right the execution thereof obstructed, in any State, does not reside in the courts when the conflict by combinations too powerful to be suppressed is raging, if the judicial power is, at that time, by the ordinary course of judicial proceeding, bound to follow the decision of the political, it or by the powers vested in the marshals, it must be equally bound when the contest is over. shall be lawful by this act for the President to It can not, when peace is restored, punish, as call forth the militia of such State, or of any offenses and crimes, the acts which it before other State or States, as may be necessary to recognized and was bound to recognize as lawsuppress such combinations and to cause the ful." Luther vs. Borden, 7 Howard, 42, 43. laws to be executed. 1st Statutes at Large, 424. If this be law, what becomes of the volunBy the act of 1807 it is provided that in case teer advice of the volunteer counsel, by him of insurrection or obstruction to the laws, either given without money and without price, to this of the United States or of any individual State Court, of their responsibility-their personal or Territory, where it is lawful for the President responsibility-for obeying the orders of the of the United States to call forth the militia President of the United States, in trying perfor the purpose of suppressing such insurrec- sons accused of the murder of the Chief Magtion or of causing the laws to be duly executed,istrate and Commander-in-Chief of the army it shall be lawful for him to employ for such and navy of the United States in time of rebelpurpose such part of the land or naval forces lion, and in pursuance of a conspiracy entered of the United States as shall be judged necessary. 2d Statutes at Large, 443.

into with the public enemy? I may be pardoned for asking the attention of the Court to Can any one doubt that, by these acts, the a further citation from this important decision, President is clothed with full power to deter- in which the Court say the employment of milmine whether armed insurrection exists in any itary power, to put down an armed insurreeState or Territory of the Union, and, if so, to tion, "is essential to the existence of every make war upon it with all the force he may Government, and is as necessary to the States deem necessary or be able to command? By of this Union as to any other Government; and the simple exercise of this great power it neces- if the Government of the State deem the armed sarily results that he may, in the prosecution opposition so formidable as to require the use of the war for the suppression of such insur- of military force and the declaration of MARrection, suspend, as far as may be necessary, TIAL LAW, we see no ground upon which this the civil administration of justice by substi- Court can question its authority." Ibid. This tuting in its stead martial law, which is simply decision, in terms, declared that, under the act the common law of war. If, in such a mo- of 1795, the President had power to decide, ment, the President may make no arrests with- and did decide, the question so as to exclude out civil warrant, and may inflict no violence further inquiry whether the State Government, or penalties on persons (as is claimed here for which thus employed force and proclaimed the accused), without first obtaining the ver- martial law, was the Government of the State, dict of juries and the judgment of civil courts, and, therefore, was permitted to act. If a State then is this legislation a mockery, and the may do this, to put down armed insurrection, Constitution, which not only authorized but en- may not the Federal Government as well? joined its enactment, but a glittering general- The reason of the man who doubts it may justly ity and a splendid bauble. Happily the Su-be questioned. I but quote the language of preme Court has settled all controversy on this question. In speaking of the Rhode Island insurrection the Court say:

"The Constitution of the United States, as far as it has provided for an emergency of this kind, and authorized the general Government to interfere in the domestic concerns of a State, has treated the subject as political in its nature, and placed the power in the hands of that department."

that tribunal, in another case before cited, when I say the Constitution confers upon the President the whole executive power.

We have seen that the proclamation of blockade, made by the President, was affirmed by the Supreme Court as a lawful and valid act, although its direct effect was to dispose of the property of whoever violated it, whether citizen or stranger. It is difficult to perceive what course of reasoning can be adopted, in the light of that decision, which will justify any man in saying that the President had not the like power to proclaim martial law in time of insurrection against the United States, and to establish, according to the customs of war "When the President has acted, and called among civilized nations, military tribunals of out the militia, is a Circuit Court of the United justice for its enforcement, and for the punishStates authorized to inquire whether his de-ment of all crimes committed in the interests cision was right? If it could, then it would of the public enemy.

"By the act of 1795 the power of deciding whether the exigency has arisen upon which the Government of the United States is bound to interfere is given to the President."

The Court add:

become the duty of the Court, provided it came These acts of the President have, however, to the conclusion that the President had decided all been legalized by the subsequent legisla incorrectly, to discharge those who were ar- tion of Congress, although the Supreme Court rested or detained by the troops in the service decided, in relation to the proclamation of of the United States." "If blockade, that no such legislation was neces

the judicial power extends so far, the guaran-'sary.

By the act of August 6, 1861, ch. 63, sec. 8, it is enacted that:

"All the acts, proclamations and orders of the President of the United States, after the 4th of March, 1861, respecting the army and navy of the United States, and calling out, or relating to, the militia or volunteers from the States, are hereby approved in all respects, legalized and made valid to the same extent, and with the same effect, as if they had been issued and done under the previous express authority and direction of the Congress of the United States." 12 Stat. at Large, 326.

the United States. Against these he suspended the privilege of the writ of habeas corpus; and these, and only such as these, were, by that proclamation, subjected to trial and punishment by court-martial or military commission. That the proclamation covers the offense charged here, no man will, or dare, for a moment deny. Was it not a disloyal practice? Was it not aiding and abetting the insurgents and rebels to enter into a conspiracy with them to kill and murder, within your Capital and your intrenched camp, the Commander-inChief of our army, your Lieutenant-General, This act legalized, if any such legalization and the Vice-President and the Secretary of was necessary, all that the President had done State, with intent thereby to aid the rebellion, from the day of his inauguration to that hour, and subvert the Constitution and laws of the in the prosecution of the war for the Union. United States? But it is said that the PresiHe had suspended the privilege of the writ of dent could not establish a court for their trial, habeas corpus, and resisted its execution when and, therefore, Congress must ratify and affirm issued by the Chief Justice of the United States; this proclamation. I have said before that he had called out and accepted the services of a such an argument comes with ill grace from large body of volunteers for a period not pre- the lips of him who declared, as solemnly, that viously authorized by law; he had declared a neither by the Congress nor by the President blockade of the Southern ports; he had de- could either the rebel himself or his aider or clared the Southern States in insurrection; he abettor be lawfully and constitutionally subhad ordered the armies to invade them and jected to trial by any military tribunal, whether suppress it; thus exercising, in accordance court-martial or military commission. But the with the laws of war, power over the life, the Congress did ratify, in the exercise of the liberty and the property of the citizens. Con- power vested in them, every part of this proclagress ratified it, and affirmed it. mation. I have said, upon the authority of the

In like manner, and by subsequent legisla-fathers of the Constitution, and of its judicial tion, did the Congress ratify and affirm the interpreters, that Congress has power, by legis proclamation of martial law of September 25, lation, to aid the Executive in the suppression 1862. That proclamation, as the Court will of rebellion, in executing the laws of the have observed, declares that, during the exist- Union when resisted by armed insurrection ing insurrection, all rebels and insurgents, and in repelling invasion. their aiders and abettors within the United States, and all persons guilty of any disloyal practice affording aid and comfort to the rebels against the authority of the United States, shall be subject to martial law, and liable to trial and punishment by courts-martial or military commission; and, 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, etc., by any military authority, or by the sentence of any court-martial or military com

mission.

By the act of March 3, 1863, the Congress of the United States, by the first section thereof, declared that during the present rebellion the President of the United States, whenever in his judgment the public safety may require it, is authorized to suspend the writ of habeas corpus in any case throughout the United States or any part thereof. By the fourth section of the same act, it is declared that any order of the President, or under his authority, made at any time during the existence of the present rebellion, shall be a defense in all courts to any action or prosecution, civil or criminal, One would suppose that it needed no argu- pending or to be commenced, for any search, ment to satisfy an intelligent and patriotic cit- seizure, arrest, or imprisonment, made, done, izen of the United States that, by the ruling of or committed, or acts omitted to be done, under the Supreme Court cited, so much of this procla- and by virtue of such order. By the fifth secmation as declares that all rebels and insur- tion it is provided, that, if any suit or prosegents, their aiders and abettors, shall be sub-cution, civil or criminal, has been or shall be ject to martial law, and be liable to trial and commenced in any State court against any offipunishment by court-martial or military com- cer, civil or military, or against any other permission, needed no ratification by Congress. son, for any arrest or imprisonment made, or Every step that the President took against the others trespasses or wrongs done or commitrebels and insurgents was taken in pursuance ted, or any act omitted to be done at any time of the rules of war, and was an exercise of during the present rebellion, by virtue of or martial law. Who says that he should not de- under color of any authority derived from or prive them, by the authority of this law, of life exercised by or under the President of the and liberty? Are the aiders and abettors of United States, if the defendant shall, upon these insurgents entitled to any higher consid-appearance in such court, file a petition stating eration than the armed insurgents themselves? the facts upon affidavit, etc., as aforesaid, for It is against these that the President proclaimed the removal of the cause for trial to the Circuit martial law, and against all others who were guilty of any disloyal practice affording aid and comfort to rebels against the authority of

Court of the United States, it shall be the duty of the State court, upon his giving security, to proceed no further in the cause or prosecution.

Thus declaring that all orders of the President, | persons who, in time of war or rebellion made at any time during the existence of the against the United States, shall be found lurkpresent rebellion, and all acts done in pursuing or acting as spies in or about the camps, ance thereof, shall be held valid in the courts etc., of the United States, or elsewhere, shall of justice. Without further inquiry, these be triable by a military commission, and shall, provisions of this statute embrace Order 141, upon conviction, suffer death. Here is a statwhich is the proclamation of martial law, and ute which expressly declares that all persons, necessarily legalize every act done under it, whether citizens or strangers, who in time of either before the passage of the act of 1863 or rebellion shall be found acting as spies, shall since. Inasmuch as that proclamation ordered suffer death upon conviction by a military that all rebels, insurgents, their aiders and commission. Why did not the gentleman give abettors, and persons guilty of any disloyal us some argument upon this law? We have practice affording aid and comfort to rebels seen that it was the existing law of the United against the authority of the United States, at States under the Confederation. Then, and, any time during the existing insurrection, since, men not in the land or naval forces of should be subject to martial law, and liable to the United States have suffered death for this trial and punishment by military commission, offense upon conviction by courts-martial. If the sections of the law just cited declaring law-it was competent for Congress to authorize ful all acts done in pursuance of such order, their trial by courts-martial, it was equalincluding, of course, the trial and punishment ly competent for Congress to authorize their by military commission of all such offenders, trial by military commission, and accordas directly legalized this order of the Presi-ingly they have done so. By the same authority dent as it is possible for Congress to legalize the Congress may extend the jurisdiction of or authorize any executive act whatever. military commissions over all military offenses 12 Stat. at Large, 755–6.

spies in your camp, but to lurk there as murderers and assassins, and who, in pursuance of that conspiracy, commit assassination and murder upon the Commander-in-Chief of your army within your camp and in aid of rebellion, should be subject in like manner to trial by military commission. Stat. at Large 12, 736-'7, ch. 8.

or crimes committed in time of rebellion or war But after assuming and declaring with great in aid of the public enemy; and it certainly earnestness in his argument that no person stands with right reason, that if it were just could be tried and convicted for such crimes, to subject to death, by the sentence of a military by any military tribunal, whether a court-mar- commission, all persons who should be guilty tial or a military commission, save those in merely of lurking as spies in the interests of the the land or naval service in time of war, the public enemy in time of rebellion, though they gentleman makes the extraordinary statement obtained no information, though they inflicted that the creation of a military commission no personal injury, but were simply overtaken must be authorized by the legislative depart- and detected in the endeavor to obtain intelliment, and demands, if there be any such leg-gence for the enemy, those who enter into islation, "let the statute be produced." The conspiracy with the enemy, not only to lurk as statute has been produced. The power so to try, says the gentleman, must be authorized by Congress, when the demand is made for such authority. Does not the gentleman thereby give up his argument, and admit, that if the Congress has so authorized the trial of all aiders and abettors of rebels or insurgents for whatever they do in aid of such rebels and insurgents during the insurrection, the statute and proceedings under it are lawful and valid? I have already shown that the Congress have so legislated by expressly legalizing Order No. 141, which directed the trial of all rebels, their aiders and abettors, by military commission. Did not Congress expressly legalize this order by declaring that the order shall be a defense in all courts to any action or prosecution, civil or criminal, for acts done in pursuance of it? No amount of argument could make this point clearer than the language of the statute itself. But, says the gentleman, if there be a statute anthorizing trials by military commission, "Let it be produced."

By the act of March 3, 1863, it is provided in section thirty that in time of war, insurrection, or rebellion, murder and assault with intent to kill, etc., when committed by persons in the military service, shall be punishable by the sentence of a court-martial or military commission, and the punishment of such offenses shall never be less than those inflicted by the laws of the State or District in which they may have been committed. By the 38th section of the same act, it is provided that all

Accordingly, the President having so declared, the Congress, as we have stated, have affirmed that his order was valid, and that all persons acting by authority, and consequently as a court pronouncing such sentence upon the offender as the usage of war requires, are justified by the law of the land. With all respect, permit me to say that the learned gentleman has manifested more acumen and ability in his elaborate argument by what he has omitted to say than by anything which he has said. By the act of July 2, 1864, cap. 215, it is provided that the commanding general in the field, or the commander of the department, as the case may be, shall have power to carry into execution all sentences against guerrilla marauders for robbery, arson, burglary, etc., and from violation of the laws and customs of war, as well as sentences against spies, mutineers, deserters, and murderers.

From the legislation I have cited, it is apparent that military commissions are expressly recognized by the law-making power; that they are authorized to try capital offenses against citizens not in the service of the United States, and to pronounce the sentence of death upon them; and that the commander of a department,

or the commanding general in the field, may argument of the gentleman, would, upon precarry such sentence into execution. But, says sentation of such charge in legal form against the gentleman, grant all this to be so; Congress the President, constitute the high court of imhas not declared in what manner the court peachment for his trial and condemnation, has shall be constituted. The answer to that ob- decided the question in advance, and declared jection has already been anticipated in the upon the occasion referred to, as they had citation from Benet, wherein it appeared to be before decided by solemn enactment, that this the rule of the law martial that in the punish-order of the President declaring martial law ment of all military offenses not provided for and the punishment of all rebels and insurgents, by the written law of the land, military com- their aiders and abettors, by military commismissions are constituted for that purpose by the sion, should be enforced during the insurrection. authority of the commanding officer or the as the law of the land, and that the offenders Commander-in-Chief, as the case may be, who should be tried, as directed, by military comselects the officers of a court-martial; that they mission. It may be said that this subsequent are similarly constituted, and their proceedings legislation of Congress, ratifying and affirming conducted according to the same general rules. what had been done by the President, can have That is a part of the very law martial which no validity. Of course it can not if neither the the President proclaimed, and which the Con- Congress nor the Executive can authorize the gress has legalized. The Proclamation has de- proclamation and enforcement of martial law, clared that all such offenders shall be tried by in the suppression of rebellion, for the punishmilitary commissions. The Congress has legal- ment of all persons confmitting military offenses ized the same by the act which I have cited; in aid of that rebellion. Assuming, however, as and by every intendment it must be taken that, the gentleman seemed to assume, by asking for as martial law is by the Proclamation declared the legislation of Congress, that there is such to be the rule by which they shall be tried, the power in Congress, the Supreme Court of the Congress, in affirming the act of the President, United States has solemnly affirmed that such simply declared that they should be tried accord- ratification is valid. 2 Black, 671. ing to the customs of martial law; that the commission should be constituted by the Commander-in-Chief according to the rule of procedure known as martial law; and that the penalties inflicted should be in accordance with the laws of war and the usages of nations. Legislation no more definite than this has been upon your statute-book since the beginning of the century, and has been held by the Supreme Court of the United States valid for the punishment of offenders.

The gentleman's argument is full of citations of English precedent. There is a late English precedent bearing upon this point-the power of the legislature, by subsequent enactment, to legalize executive orders, arrests, and imprisonment of citizens—that I beg leave to commend to his consideration. I refer to the statute of 11 and 12 Victoria, ch. 35, entitled "An act to empower the lord lieutenant or other chief governor or governors of Ireland, to apprehend and detain until the first day of March, 1849, such By the 32d article of the act of 23d April, persons as he or they shall suspect of conspiring 1800, it is provided that "all crimes committed against her Majesty's person and government," by persons belonging to the navy which are not passed July 25, 1848, which statute in terms specified in the foregoing articles shall be pun declares that all and every person and persons ished according to the laws and customs in such who is, are, or shall be, within that period, cases at sea." Of this article the Supreme within that part of the United Kingdom of Court of the United States say, that when of England and Ireland called Ireland, at or fenses and crimes are not given in terms or by on the day the act shall receive her Majesty's definition, the want of it may be supplied by a royal assent, or after, by warrant for high treacomprehensive enactment such as the 32d arti-son or treasonable practices, or suspicion of high cle of the rules for the government of the navy; treason or treasonable practices, signed by the which means that courts-martial have juris- lord lieutenant, or other chief governor or govdiction of such crimes as are not specified, but ernors of Ireland for the time being, or his or which have been recognized to be crimes and their chief secretary, for such causes as aforeoffenses by the usages in the navies of all na-said, may be detained in safe custody, without tions, and that they shall be punished according bail or main prize, until the first day of March, to the laws and customs of the sea. Dynes vs. Hoover, 20 Howard, 82.

1849; and that no judge or justice shall bail or try any such person or persons so commitBut it is a fact that must not be omitted in the ted, without order from her Majesty's privy reply which I make to the gentleman's argu- counsel, until the said first day of March, 1849, gument, that an effort was made by himself and any law or statute to the contrary notwithothers in the Senate of the United States, on the ing. The 2d section of this act provides that, 3d of March last, to condemn the arrests, impris- in cases where any persons have been, before onments, etc., made by order of the President of the passing of the act, arrested, committed, or the United States in pursuance of his proclama-detained for such cause by warrant or warrants tion, and to reverse, by the judgment of that signed by the officers aforesaid, or either of body, the law which had been before passed them, it may be lawful for the person or peraffirming his action, which effort most signally sons to whom such warrants have been or shall failed. be directed, to detain such person or persons in Thus we see that the body which by the Con-his or their custody in any place whatever in Irestitution, if the President had been guilty of land; and that such person or persons to whom the misdemeanors alleged against him in this such warrants have been or shall be directed