457.5 
 
 .J71 
 
 1865 
 
DUKE 
 UNIVERSITY 
 
 LIBRARY 
 
AN ARGUMENT 
 
 TO ESTABLISH THE ILLEGALITY OF 
 
 MILITARY COMMISSIONS 
 
 I X T H E 
 
 UNITED STATES, 
 
 And Especially of the One Organized for the Trial of 
 THE Parties Charged ^th 
 
 Conspiring to Assassinate the Late President, 
 
 A-jidOtliers, 
 
 PRESENTED TO THAT COMMISSION, 
 
 On Monday^ the 19th of Ju7ie, 1865^ 
 
 AND PREPAKED BY 
 
 E E V E R D Y JOHNSON, 
 
 One 0/ tJie Counsel of 3Irs. Surratt. 
 
 Baltimore Printed by John Murphy & Co. 
 
 Publishers, Booksellers, Printers and Stationers, 
 
 182 Baltimoke Street. 
 
 1 8 6 5. 
 
Digitized by the Internet Archive 
 in 2015 
 
 https://archive.org/details/argumenttoestabl01john 
 
ARGUMENT. 
 
 Mr. President and Gentlemen of the Commission : 
 
 Has the Commission jurisdiction of the cases before it, is the question 
 which I propose to discuss. That question, in all courts, civil, criminal, 
 and military, nmst be considered and answered affirmatively before judg- 
 ment can be pronounced. And it must be ansvvered correctly, or the judg- 
 ment pronounced is void. Ever an interesting and vital inquiry, it is of 
 engrossing interest and of awful importance when error may lead to the 
 unauthorized taking of human life. In such a case, the court called upon 
 to render, and the officer who is to approve its judgment and have it exe- 
 cuted, have a concern peculiar to themselves. As to each, a responsibility 
 is involved which, however conscientiously and firmly met, is calculated and 
 cannot fail to awaken great solicitude and induce the most mature conside- 
 ration. The nature of the duty is such that even honest error affords no 
 impunity. The legal personal consequences, even in a case of honest, 
 mistaken judgment, cannot be avoided. That this is no exaggeration, 
 the Commission will, I think, be satisfied before I shall have concluded. 
 I refer to it now, and shall again, with no view to shake your firmness. 
 Such an attempt would be alike discourteous and unprofitable. Every 
 member comprising the Commission will, I am sure, meet all the responsi- 
 bility that belongs to it as becomes gentlemen and soldiers. I therefore 
 repeat that my sole object in adverting to it is to obtain a well considered 
 and matured judgment. So far the question of jurisdiction has not been 
 discussed. The pleas which specially present it, as soon as filed, were 
 overruled. But that will not, because properly it should not, prevent 
 your considering it with the deliberation that its grave nature demands. 
 And it is for you to decide it, and at this time for you alone. The com- 
 mission you are acting under of itself does not and could not decide it. 
 If unauthorized it is a mere nullity— the usurpation of a power not vested 
 in the Executive, and conferring no authority whatever upon you. To 
 
 3 
 
4 
 
 hold otherwise would be to make the Executive the exclusive and conclu- 
 sive judge of its own powers, and that would be to make that department 
 omnipotent. The powers of the President under the Constitution are 
 great, and amply sufficient to give all needed efficiency to the office. The 
 convention that formed the' Constitution, and the people who adopted it, 
 considered those powers sufficient, and granted no others. In the minds 
 of both (and subsequent history has served to strengthen the impression) 
 danger to liberty was more to be dreaded from the Executive than from 
 any other department of the Government. So far, therefore, from mean- 
 ing to extend its powers beyond what was deemed necessary to the whole- 
 some operation of the Government, they were studious to place them 
 beyond the reach of abuse. With this view, before entering on the exe- 
 cution of his office," the President is required to take an oath "faithfully" 
 to discharge its duties, and to the best of his " ability preserve, protect, 
 and defend the Constitution of the United States." He is also liable to 
 " be removed from office on impeachment for and conviction of treason, 
 bribery, or other high crimes and misdemeanors." If he violates the 
 Constitution ; if he fails to preserve it ; and, above all, if he usurps 
 powers not granted, he is false to his official oath, and liable to be in- 
 dicted and convicted, and to be impeached. For such an offence, his re- 
 moval from office is the necessary consequence. In such a contingency, 
 " he shall be removed" is the command of the Constitution. What 
 stronger evidence could there be that his powers, all of them, in peace 
 and in war, are only such as the Constitution confers ? But if this was 
 not evident from the instrument itself, the character of the men who com- 
 posed the Convention, and the spirit of the American people at that 
 period, would prove it. Hatred of a monarchy, made the more intense 
 by the conduct of the monarch from whose government they had recently 
 separated, and a deep-seated love of constitutional liberty, made the more 
 keen and active by the sacrifices which had illustrated their revolutionary 
 career, constituted them a people who could never be induced to delegate 
 any executive authority not so carefully restricted and guarded as to ren- 
 der its abuse or usurpation almost impossible. If these observations are 
 well founded — and I suppose they will not be denied — it follows that an 
 executive act beyond executive authority can furnish no defence against 
 the legal consequences of what is done under it. I have said that the 
 question of juricdiction is ever open. It may be raised by counsel at any 
 stage of the trial, and if it is not, the Court not only may, but is bound 
 
5 
 
 to notice it. Unless jurisdiction then exists, the authority to try does not 
 exist, and whatever is done is " cor^am nov judice,''^ and utterly void. 
 This doctrine is as applicable to military as to other courts. 
 
 O'Brien tells us that the question may be raised by demurrer if the 
 facts charged do not constitute an offence, or if they do, not an offence 
 cognizable by a military court, or that it may be raised by a special plea, 
 or under the general one of not guilty. — 0-Brien, 248. 
 
 DeHart says: The court "is the judge of its own competency at any 
 stage of its proceedings, and is bound to notice questions of jurisdiction 
 whenever raised.-' — DeHart III. 
 
 The question then being always open, and its proper decision essential 
 to the validity of its judgment, the Commission must decide before pro- 
 nouncing such judgment whether it has jurisdiction over these parties and 
 the crimes imputed to them. That a tribunal like this has no jurisdiction 
 over other than military offences, is believed to be self-evident. That 
 offences defined and punished by the civil law, and whose trial is provided for 
 by the same law, are not the subjects of military jurisdiction, is of course 
 true. A military, as contradistinguished from a civil offence, must there- 
 fore be made to appear, and when it is, it must also appear that the 
 military law provides for its trial and punishment by a military tribunal. 
 If that law does not furnish a mode of trial, or affix a punishment, the 
 case is unprovided for, and, as far as the military power is concerned, is 
 to go unpunished. Bat as either the civil, common, or statute law 
 embraces every species of offence that the United States, or the States 
 have deemed it necessary to punish, in all such cases the civil courts are 
 clothed with every necessary jurisdiction. In a military court, if the 
 charge does not state a ''crime provided for generally or specifically by 
 any of the articles of war," the prisoner mast be discharged. {(yBrien, 
 p. 235.) Xor is it sufficient that the charge is of a crime- known to the 
 military law. The offender, when he commits it, must be subject to such 
 law, or he is not subject to military jurisdiction. The general law has 
 ''supreme and undisputed jurisdiction over all. The military law puts 
 forth no such pretensions ; it aims solely to enforce on the soldier the 
 additional duties he has assumed. It constitutes tribunals for the trial of 
 breaches of military duty only.'' {O'Brien, 26, 27.) "The one code 
 (the civil) embraces all citizens, whether soldiers or not ; the other (the 
 military) has no jurisdiction over any citizen as such." Ibid. 
 
The provisions of the Constitution clearly maintain the same doctrine. 
 The Executive has no authority "to declare war, to raise and support 
 armies, to provide and maintain a navy/^ or to make rules for the gov- 
 ernment and regulation " of either force. These powers are exclusively 
 in Congress. An army cannot be raised or have law for its government 
 and regulation except as Congi-ess shall provide. This power of Con- 
 gress to govern and regulate the army and navy, was granted by the con- 
 vention without objection. In England, the King, as the generalissimo 
 of the whole kingdom, has this sole power, though Parliament has fre- 
 quently interposed and regulated for itself. But with us^ it was thought 
 safest to give the entire power to Congress, since otherwise summary 
 and severe punishments might be inflicted at the mere will of the Execu- 
 tive." (o Storifs Com., sect. 1192.) No member of the Convention, or 
 any commentator on the Constitution since, has intimated that even this 
 Congressional power could be applied to citizens not belonging to the 
 army or navy. In respect, too, to the latter class, the power was con- 
 ferred exclusively on Congress to prevent that class being made the object 
 of abuse by the Executive — to guard them especially from " summary and 
 severe punishments" inflicted by mere Executive will. The existence of 
 such a power being vital to discipline, it was necessary to pro-vide for it. 
 But no member suggested that it should be or could be made to apply to 
 citizens not in the military or naval service, or be given to any other 
 department, in whole or in part, than Congress. Citizens not belonging 
 to the army or navy were not made liable to mdlitary law, or under any 
 circumstances to be deprived of any of the guaranties of personal liberty 
 provided by the Co-nstitution. Independent of the consideration that 
 the very nature of the Government is inconsistent with such a pretension, 
 the power is conferred upon Congress in terms that exclude all who do 
 not belong to "the land and naval forces." It is a rule of interpretation 
 coeval with its existence, that the Government, in no department of it, 
 possesses powers not granted by express delegation or necessarily to be 
 implied from those that are granted. This would be the rule incident to 
 the very nature of the Constitution ; but to place it beyond doubt, and to 
 make it an imperative rule, the 10th amendn>ent declares that "the powers 
 not delegated to the United States by the Constitution, nor prohibited by 
 it to the States, are reserved to the States respectively, or to the people." 
 The power given to Congress, "is to make rules for the government and 
 regulation of the land and naval forces." No artifice of ingenuity can 
 
7 
 
 make these words include those who do not belong to the army and navy; 
 and they are therefore to be construed to exclude all others, as if negative 
 words to that effect had been added. And this is not only the obvious 
 meaning of the terms, considered by themselves, but is demonstrable from 
 other provisions of the Constitution. So jealous were our ancestors of 
 ungranted power, and so vigilant to protect the citizen against it, that 
 they were unwilling to leave him to the safe guards which a proper con- 
 struction of the Constitution, as orignally adopted, furnished. In this 
 they resolved that nothing should be left in doubt. They determined, 
 therefore, not only to guard him against executive and judicial, but 
 against Congressional abuse. With that view, they adopted the fifth 
 constitutional amendment, which declares 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 active service in time of xcar or 
 public danger. 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." "The land or naval forces" are the terms used in both, have 
 the same meaning, and until lately, have been supposed by every commen- 
 tator and judge, to exclude from military jurisdiction offences committed 
 by citizens not belonging to such forces. Kent, in a note to his 1 Corns., 
 p. 341, states, and with accuracy, that "military and naval crimes, and 
 offences 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." According to this great authority, every other class of 
 persons and every other species of offence, are witliin the jurisdiction of 
 the civil courts, and entitled to the protection of the proceeding by pre- 
 sentment or indictment, and a public trial in such a court. If the consti- 
 tutional amendment has not that effect, if it does not secure that protection 
 to all who do not belong to the army or navy, then the provisions in the 
 sixth amendment are equally inoperative. They, " m all criminal prose- 
 cutions," give the accused a right to a speedy and public trial ; a right to 
 be informed of the nature and cause of the accusation, to be confronted 
 with the witnesses against him, to compulsory process for his witnesses, 
 and the assistance of counsel. The exception in the 5th amendment of 
 cases arising in the land or naval forces applies by necessary implication, 
 
at least in part, to this. To construe this as not containing the exception 
 would defeat the purpose of the exception ; for the provisions of the 6th 
 amendment, unless they are subject to the exceptions of the fith, would 
 be inconsistent with the 5th. The 6th is therefore to be construed as if 
 it in words contained the exception. It is submitted that this is evident. 
 The consequence is, that if the exception can be made to include those 
 who, in the language of Kent, are not, when the offence was committed, 
 "attached to and under the immediate authority of the army or navy, and 
 in actual service," the securities designed for other citizens by the 6th 
 article are wholly nugatory. If a military commission, created by the 
 mere authority of the President, can deprive a citizen of the benefit of the 
 guaranties secured by the 5th amendment, it can deprive him of those 
 secured by the 6th. It may deny him the right to a " speedy and public 
 trial," information of the nature and cause of the accusation," of the 
 right "to be confronted with the witnesses against him," of "compulsory 
 process for his witnesses," and of "the assistance of counsel for his 
 defence." That this can be done no one has as yet maintained; no 
 opinion, however latitudinarian, of executive power, of the effect of public 
 necessity, in war or in peace, to enlarge its sphere, and authorize a dis- 
 regard of its limitations ; no one, however convinced he may be of the 
 policy of protecting accusing witnesses from a public examination, under 
 the idea that their testimony cannot otherwise be obtained, and that crime 
 may consequently go unpunished, has to this time been found to go to 
 that extent. Certainly, no writer has ever maintained such a doctrine. 
 Argument to refute it, is unnecessary. It refutes itself. For, if sound, 
 the 6th amendment, which our fathers thought so vital to individual 
 liberty when assailed by governmental prosecution, is but a dead letter, 
 totally inefficient for its purpose whenever the Government shall deem it 
 proper to try a citizen by a military commission. Against such a doctrine 
 the very instincts of freemen revolt. It has no foundation but in the 
 principle of unrestrained, tyrannic power, and passive obedience. If it be 
 well founded, then are we indeed a nation of slaves, and not of freemen. 
 If the Executive can legally decide whether a citizen is to enjoy the 
 guaranties of liberty afforded by the Constitution, what are we but slaves ? 
 If the President, or any of his subordinates, upon any pretence whatever, 
 can deprive a citizen of such guaranties, liberty with us, however loved, is 
 not enjoyed. But the Constitution is not so fatally defective. It is 
 subject to no such reproach. In war and in peace, it is equally potential 
 
9 
 
 for the promotion of the general welfare, and as involved in and necessary 
 to such welfare, for the protection of the individual citizen. Certainly, 
 until this rebellion, this has been the proud and cherished conviction of 
 the country. And it is to this conviction and the assurance that it could 
 never be shaken that our past prosperity is to be referred. God forbid 
 that mere power, dependent for its exercise on Executive will, (a condition 
 destructive of political and social happiness,) shall ever be substituted in 
 its place. Should that unfortunately ever occur, unless it was soon 
 corrected by the authority of the people, the objects of our Revolutionary 
 struggle, the sacrifices of our ancestors, and the design of the Constitution 
 will all have been in vain. 
 
 I proceed now to examine with somewhat of particularity the grounds 
 on which I am informed your jurisdiction is maintained. 
 
 • 1st. That it is an incident of the war power. 
 
 I. That power, whatever be its extent, is exclusively in Congress. War 
 can only be declared by that body, "With its origin the President has no 
 concern whatever. Armies, when necessary, can only be raised by the 
 same body, Not a soldier, without its authority, can be brought into 
 service by the Executive. He is as impotent to that end as a private citi- 
 zen. And armies, too, when raised by Congressional authority, can only 
 be governed and regulated by "rules" prescribed by the same authority. 
 The Executive possesses no povv-er over the soldier except such as Con- 
 gress may, by legislation, confer upon him. If, then, it was true that the 
 creation of a military commission like the present is incidental to the war 
 power, it must be authorized by the department to which that power be- 
 longs, and not by the Executive, to v^hom no portion of it belongs. And 
 if it be said to be involved in the power "to make rules for the govern- 
 ment and regulation of the land and naval forces," the result is the same. 
 It must be done by Congress, to whom that power also exclusively be- 
 longs, and not by the Executive. Has Congress, then, under either 
 power, authorized such a commission as this to try such cases as these ? 
 It is confidently asserted that it has not. If it has, let the statute be 
 produced. It is certainly not done by that of the 10th of April, 1806, 
 " establishing articles for the government of the armies of the United 
 States." Xo military courts are there mentioned or provided for but 
 courts-martial and courts of inquiry. And their mode of appointment 
 
10 
 
 and organization, and of proceeding, and the authority vested in them 
 are also prescribed. Military comrnissions are not only not authorized, 
 but are not even alluded to. And, consequently, the parties, whoever 
 these may be, who, under that act, can be tried by courts-martial or 
 courts of inquiry, are not made subject to trial by a military commission. 
 'Nov is such a tribunal mentioned in any prior statute, or in any subse- 
 quent one, until those of the llih of July, 1862, and of the 3d of March, 
 1863. In the 5th section of the first, the records of "military commis- 
 sions are to be returned for revision to the Judge Advocate General," 
 whose appointment it also provides for. But how such commissions are 
 to be constituted, what powers they are to have, how their proceedings 
 are to be conducted, or what cases and parties they are to try, is not pro- 
 vided for. In the 38th section of the second, they are mentioned as com- 
 petent to try persons "lurking or acting as spies." The same absence in 
 the particulars stated in respect to the first are true of this. And as 
 regards this act of 1863, this reflection forcibly presents itself. If mili- 
 tary commissions can be created, and from their very nature possess juris- 
 diction to try all alleged military offences, (the ground on which your 
 jurisdiction, it is said, in part rests,) why was it necessary to give them 
 the power, by express words, to try persons "lurking or acting as spies?" 
 The military character of such an offence could not have been doubted. 
 What reason, then, can be suggestd for conferring the power by express 
 language than that without it it would not be possessed ? Before these 
 statutes a commission, called a military commission, had been issued by 
 the Executive to Messrs. Davis, Holt, and Campbell, to examine into cer- 
 tain military claims against the Western Department, and Congress, by 
 its resolution of the 11th of March, 1862, (No. 18,) provided for the pay- 
 ment of its awards. Against a commission of that character no objection 
 can be made. It is but ancilliary to the auditing of demands upon the 
 Government, and in no way interferes with any constitutional right of the 
 citizen. But until this rebellion a military commission like the present, 
 organized in a loyal State or Territory where the courts are open and 
 their proceedings unobstructed, clothed with the jurisdiction attempted to 
 be conferred upon you — a jurisdiction involving not only the liberty, but 
 the lives of the parties on trial— it is confidently stated, is not to be found 
 sanctioned, or the most remotely recognized, or even alluded to, by any 
 writer on military law in England or the "United States, or in any legisla- 
 tion of either country. It has its origin in the rebellion, and like the 
 
11 
 
 dangerous heresy of secession, out of which that sprung, nothing is more 
 certain in my opinion than that, however pure the motives of its origin, it 
 will be considered, as it is, an almost equally dangerous heresy to consti- 
 tutional liberty, and the rebellion ended, perish with the other, thea and 
 forever. But to proceed; such commissions were authorized by Lieu- 
 tenant General Scott in his Mexican campaign. When he obtained pos- 
 session of the City of Mexico, he on the 17th of September, 1847, repub- 
 lished, with additions, his order of the 19th of February preceding, declar- 
 ing martial law. By this order, he authorized the trial of certain offences 
 by military commissions, regulated their proceedings, and limited the pun- 
 ishments they might inflict. From their jurisdiction, however, he excepts 
 cases "clearly cognizable by court-martial," and in words limits the cases 
 to be tried to such as are (I quote) not provided for in tiie act of Con- 
 gress establishing rules and articles for the government of the armies of 
 the United States,"' of the 10th of Aprils 1806. The second clause of 
 the order mentions, among other offences to be so tried, " assassinatioD, 
 murder, poisoning;"" and in the fourth (correctly, as I submit, with all 
 respect for a contrary opinion,) he states that "the rules and articles of 
 war'' do not provide for the punishment of any one of the designated 
 offences, "'even when committed by individuals of the army upon the per- 
 sons or property of other individuals of the same, except in the very 
 restricted case in the 9th of the articles."" The authority, too, for even 
 this restricted commission — Scott — not more eminent as soldier than 
 civilian — placed entirely upon the ground that the named offences, if com- 
 mitted in a foreign country by American troops, could not be punished 
 under any law of the United States then in force. "' The Constitution of 
 the United States and the rules and articles of war,"' he said, and said 
 correctly, provided no court for their trial or punishment, " no matter by 
 whom, or on whom"' committed. — ScoWs Autohiography, 392. 
 
 And he further tells us that even this order, so limited and so called for 
 by the greatest public necessity, 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 Attorney General (Mr. Gushing) 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,'' {lb.) 
 How much more startled and more paralyzed would these great men have 
 
12 
 
 been had they been consulted on such a commission as this ! — a commis- 
 sion not to sit in another country, and to try offences not provided for by 
 any law of the United States, civil or military, but in their own country, 
 and in a part of it where there are laws providing for their trial and pun- 
 ishment, and civil courts clothed with ample powers for both, and in the 
 daily and undisturbed exercise of their jurisdiction ; and where, if there 
 should be an attempt at disturbance by a force which they had not the 
 power to control, they could invoke (and it would be his duty to afford it) 
 the President to use the military power at his command, and which every- 
 body knows to be ample for the purpose. 
 
 If it be suggested that the civil courts and juries for this District could 
 not safely be relied upon for the trial of these cases, because either of in- 
 competency, disloyalty, or corruption, it would be an unjust reflection 
 upon the judges, upon the people, upon the Marshal, an appointee of the 
 President, by whom the juries are summoned, and upon our civil institutions 
 themselves — upon the very institutions on whose integrity and intelligence 
 the safety of our property, liberty, and lives, our ancestors thought, could 
 not only be safely rested, but would be safe nowhere else. If it be sug- 
 gested that a secret trial, in whole or in part, as the Executive might deem 
 expedient, could not be had before any other than a military tribunal, the 
 answer is that the Constitution, " in all criminal prosecutions," gives the 
 accused " the right" to a " public trial." So abhorrent were private trials 
 to our ancestors, so fatal did they deem them to individual security, that they 
 were thus denounced, and, as they no doubt thought, so guarded against 
 as in all future time to be impossible. If it be suggested that witnesses 
 may be unwilling to testify, the answer is, that they may be. compelled to 
 appear and made to testify. 
 
 But the suggestion, upon another ground, is equally without force. It 
 rests on the idea that the guilty only are ever brought to trial — that the 
 only object of the Constitution and laws in this regard is to afford the 
 means to establish alleged guilt, that accusation, however made, is to be 
 esteemed prima facie, evidence of guilt, and that the Executive should 
 ])e armed without other restriction than his own discretion, with all the, 
 appliances deemed by him necessary to make the presumption from such 
 evidence concluvsive. Never was there a more dangerous theory. The 
 peril to the citizen from a prosecution so conducted, as illustrated in all 
 history — is so great that the very elementary principles of constitutional 
 liberty, the spirit and letter of the Constitution itself repudiate it. 
 
13 
 
 II. Innocent parties, sometimes by private malice, sometimes for a mere 
 partisan purpose, sometimes from a supposed public policy, have been 
 made the subjects of criminal accusation. History is full of such instances. 
 How are such parties to be protected if a public trial, at the option of the 
 Executive, can be denied them, and a secret one, in whole or in part, 
 substituted ? If the names of the witnesses and their evidence are not 
 published, what obstacle does it not interpose to establish their innocence ? 
 The character*of the witnesses against them maybe all important to that 
 end. Kept in prison, with no means of consulting the outer world, how 
 can they make the necessary inquiries ? How can those who may know the 
 witnesses be able to communicate with them on the subject ? A trial so con- 
 ducted, though it may not — as no doubt is the case in the present instance, 
 be intended to procure the punishment of any but the guilty, it is obvious 
 subjects the innocent to great danger. It partakes more of the character 
 of the Inquisition, which the enlightened civilization of the age has driven 
 almost wholly out of existence, than of a tribunal suited to a free people. 
 In the palmiest days of that tribunal, kings as well as people stood 
 abashed in its presence, and dreaded its power. The accused was never 
 informed of the names of his accusers, heresy suspected was ample ground 
 for arrest, accomplices and criminals were received as witnesses, and the 
 whole .trial was secret and conducted in a chamber almost as silent as the 
 grave. It was long since denounced by the civilized world, not because 
 it might not at times punish the heretic, (then, in violation of all rightful 
 human power, deemed a criminal) but because it was as likely to punish 
 the innocent as the guilty. A public trial, therefore, by which the names 
 of witnesses and the testimony are given, even in monarchical and despotic 
 governments, is now esteemed amply adequate to the punishment of guilt, 
 and essential to the protection of innocence. Can it be that this is not 
 true of us ? Can it be that a secret trial, wholly or partially, if the 
 Executive so decides, is all that an American citizen is entitled to ? Such 
 a doctrine, if maintained by an English monarch, would shake his govern- 
 ment to its very centre, and, if persevered in, would lose him his crown. 
 It will be no answer to these observations to say that this particular trial 
 has been only in part a secret one, and that secresy will never be resorted 
 to except for purposes of justice. The reply is, that the principle itself is 
 inconsistent with American liberty, as recognized and secured by consti- 
 tutional guaranties. It supposes that whether these guaranties are to be 
 enjoyed in the particular case, and to what extent, is dependent on Execu- 
 
14 
 
 tive will. The Constitution in tliis regard, is designed to secure them in 
 spite of such will. Its patriotic authors intended to place the citizen, in 
 this particular, wholly beyond the power, not only of the Executive, but 
 of every department of the Government. They deemed the right to a 
 public trial vital to the security of the citizen, and especially and abso- 
 lutely necessary to his protection against Executive power. A public 
 trial of all criminal prosecutions they therefore secured by general and 
 unqualified terms. What would these great men have said, had they 
 been asked so to qualify the terms as to warrant its refusal under any cir- 
 cumstances, and make it dependent upon Executive discretion ? The 
 member who made the inquiry would have been deemed by them a traitor 
 to liberty, or insane. What would they have said if told that without 
 such qualification, the Executive would be able legally to impose it as 
 incidental to Executive power ? If not received with derision, it would 
 have been indignantly rejected as an imputation upon those who, at any 
 time thereafter, should legally fill the office. 
 
 III. Let me present the question in another view. If such a Com- 
 mission as this, for the trial of cases like the present, can be legally con- 
 stituted, can it be done by mere Executive authority ? 
 
 1. You are a Court, and, if legally existing, endowed with momentous 
 power, the highest known to man, that of passing upon the liberty or life 
 of the citizen. By the express words of the Constitution, an army can 
 only be raised and governed and regulated by laws passed by Congress. 
 In the exercise of the power to rule and govern it, the act before referred 
 to, of the 10th of April, 180G, establishing the articles of war, was passed. 
 That act provides only for courts-martial and courts of inquiry, and 
 designates the cases to be tried before each, and the laws that are to 
 govern the trial. Military commissions are not mentioned, and, of course, 
 the act contains no provision for their government. Now, it is submitted 
 as perfectly clear that the creation of a court, whether civil or military, is 
 an exclusive legislative function belonging to the department upon which 
 the legislative power is conferred. The jurisdiction of such a court, and 
 the lavv^s and regulations to guide and govern it, is also exclusively legis- 
 lative. What cases are to be tried by it, how the judges are to be 
 selected, and how qualified, what are to be the rules of evidence, and 
 what punishments are to be inflicted, all solely belong to the same depart- 
 
15 
 
 ment. The very element of constitutional liberty, recognized by all 
 modern writers on government as essential to its security, and carefully in- 
 corporated into our Constitution, is a separation of the legislative, judicia], 
 and executive powers. That this separation is made in our Constitution, 
 no one will deny. Article 1st declares that "All legislative powers herein 
 granted shall be vested in a Congress."' Article 2d vests "the Executive 
 power'- in a President, and Article 3d, "the judicial power" in certain 
 designated courts and in courts to be thereafter constituted by Congress. 
 There could not be a more careful segregation of the three powers. If, 
 then, courts, their laws, modes of proceeding, and judgments, belong to 
 legislation, (and this, I suppose, will not be questioned,) in the absence of 
 legislation in regard to this court and its jurisdiction to try the present 
 cases, it has for that purpose no legal existence or authority. The Execu- 
 tive, whose functions are altogether executive, cannot confer it. The 
 offences to be tried by it, the laws to govern its proceedings, the punish- 
 ment it may award, cannot, for the same reason, be prescribed by the 
 Executive. These, as well as the mere constitution of the Court, all ex- 
 clusively belong to Congress. If it be contended that the Executive has 
 the powers in question, because by implication they are involved in the 
 war power, or in the President's constitutional function as commander-in- 
 chief of the -army, then this consequence would follow, that they would 
 not be subject to Congressional control, as that department has no more 
 right to interfere with the constitutional power of the Executive than that 
 power has a right to interfere with that of Congress. If by implication 
 the powers in question belong to the Executive, he may not only consti- 
 tute and regulate military commissions and prescribe the laws for their 
 government, but all legislation upon the subject by Congress would be 
 usurpation. That the proposition leads to this result would seem to be 
 clear, and if it does, that result itself is so inconsistent with all previous 
 legislation and all executive practice, and so repugnant to every principle 
 of constitutional liberty, that it demonstrates its utter unsoundness. 
 Under the power given to Congress "to make rules for the government 
 and regulation of the land"' forces, they have from time to time, up to 
 and including the act of the 10th of April, 1806, and since, enacted such 
 rules as they deemed to be necessary, as well in war as in peace, and their 
 authority to do so has never been denied. This power, too, to govern 
 and regulate, from its very nature, is exclusive. Whatever is not done 
 under it is to be considered as purposely omitted. The words used in 
 
16 
 
 the delegation of the power, "govern and regulate," necessarily embrace 
 the entire subject and exclude all like authority in others. The end of 
 such a power cannot be attained except through uniformity of govern- 
 ment and regulation, and this is not to be attained if the power is in two 
 hands. To be effective, therefore, it must be in one, and the Constitution 
 gives it to one — to Congress — in express terms, and nowhere intimates a 
 purpose to bestow it, or any portion of it, upon any other department. 
 In the absence, then, of all mention of military commissions in the Con- 
 stitution, and in the presence of the sole authority it confers on Congress 
 by rules of its own enacting to govern and regulate the army, and in the 
 absence of all mention of such commissions in the act of the 10th of 
 April, 1806, and of a single word in that act or in any other, how can the 
 power be considered as in the President ? Further, upon what ground, 
 other than those I have examined, can his authority be placed ? 
 
 I. Is it that the constitutional guaranties referred to are designed only 
 for a state of peace ? There is not a syllable in the instrument that jus- 
 tifies, even plausibly, such a qualification. They are secured by the most 
 general and comprehensive terms, wholly inconsistent with any restriction. 
 They are also not only not confined to a condition of peace, but are more 
 peculiarly necessary to the security of personal liberty in war than in 
 peace. All history tells us that war at times maddens the people, frenzies 
 government, and makes both regardless of constitutional limitations of 
 power. Individual safety, at such periods, is more in peril than at any 
 other. Constitutional limitations and guaranties are then also absolutely 
 necessary to the protection of the government itself. The maxim, ^'salus 
 populi suprema est lex,''^ is but fit for a tyrant's use. Under its pretence 
 the grossest wrongs have been committed, the most awful crimes perpe- 
 trated, and every principle of freedom violated, until at last, worn down 
 by suffering, the people, in very despair, have acquiesced in a resulting 
 despotism. The safety which liberty needs, and without which it sickens 
 and dies, is that which law, and not mere unlicensed human will, affords. 
 The Aristotelian maxim, Salus publica siipremas est lex^^ — " Let the 
 public weal be under the protection of the law," is the true and only safe 
 maxim. Nature without law would be chaos ; government without law, 
 anarchy or despotism. Against both these last, in war and in peace, the 
 Constitution happily protects us. 
 
 * 
 
1? 
 
 II. If tlie power in question is claimed under the autboritv supposed 
 to be given the President in certain cases to suspend the writ of habeas 
 corpus and to declare martial law, the claim is equally, if not more evi- 
 dently untenable. 
 
 1. Because the first of these powers, if given to the President at all, is 
 
 given " when, in cases of rebellion or invasion,'" he deems the public 
 safety requires it. I think he has this power, but there are great and pa- 
 triotic names who think otherwise. But if he has it, or if it be in Con- 
 gress alone, it is entirely untrue that its exercise works any other result 
 than the suspension of the writ — the temporary suspension of the right of 
 having the cause of arrest passed upon at once by the civil judges. It in 
 no way impairs or suspends the other rights secured to the accused. In 
 what court he is to be tried, how he is to be tried, what evidence is to be 
 admitted, and what judgment pronounced are all to be what the Constitu- 
 tion secures, and the laws provide in similar cases, when there is no sus- 
 pension of the writ. The purpose of the writ is merely, without delay, to 
 ascertain the legality of the arrest. If adjudged legal, the party is de- 
 tained ; if illegal, discharged. But in either contingency, when he is 
 called to answer any criminal accusation, and he is a civilian and not sub- 
 ject to the articles of war constitutionally enacted by Congress, it must be 
 done by presentment or indictment, and his trial be had in a civil court, 
 having, by State or Congressional legislation, jurisdiction over the crime 
 and under laws governing the tribunal and defining the punishment. The 
 very fact, too. that express power is given in a certain condition of things 
 to suspend the writ referred to, and that no power is given to suspend or 
 deny any of the other securities for personal liberty provided by the Con- 
 stitution, is conclusive to show that all of the latter were designed to be in 
 force "in cases of rebellion or invasion,'' as well as in a state of perfect 
 peace and safety. 
 
 III. I have already referred to the act of 1806 establishing the articles 
 of war, and said what must be admitted, that it provides for no military 
 court like this. But for argument's sake let it be conceded that it does. 
 And I then maintain, with becoming confidence and due respect for a dif- 
 ferent opinion, that it does not embrace the crimes charged against these 
 parties or the parties themselves. 
 
 2 
 
18 
 
 First. The charge is a traitorous conspiracy to take the lives of the 
 designated persons "in aid of the existing armed rebellion." Second. 
 That in the execution of the conspiracy, the actual murder of the late 
 President, and the attempted murder of the Secretary of State, occurred. 
 Throughout the charge and its specification, the conspiracy and its 
 attempted execution are alleged to have been traitorous. The accusation, 
 therefore, is not one merely of murder, but of murder designed and in 
 part accomplished, with traitorous purpose. If the charge is true, and 
 the intent (which is made a substantial part of it) be also true, then the 
 crime is treason, and not simple murder. Treason against the United 
 States, as defined by the Constitution, can "consist only in levying war 
 against them, or in adhering to their enemies, giving them aid and com- 
 fort." {Ill Art.) This definition not only tells us what treason is, but 
 tells us that no other crime than the defined one shall be considered the 
 offence. And the same section provides that "no person shall be con- 
 victed of treason, except on the testimony of two witnesses to the same 
 overt act, or on confession in open court," and gives to Congress the 
 power to declare what its punishment shall be. The offence in the gene- 
 ral is the same in England. In that country, at no period since its free- 
 dom became settled, has any other treason been recognized. During the 
 pendency of this rebellion, (never before,) it has been alleged that there 
 exists with us the offence of military treason, punishable by the laws of 
 war. It is so stated in the instructions of General Halleck to the then 
 commanding officer in Tennessee, of the 5th of March, 1863. — (Law- 
 rence^s Wheaton, Suppt. p). 41.) But Halleck confines it to acts com- 
 mitted against the army of a belligerent, when occupying the territory of 
 the enemy. And he says what is certainly true, if such an offence can be 
 committed, that it "is broadly distinguished from the treason defined in 
 the constitutional and statutory laws, and made punishable by the civil 
 courts." But the term military treason is not to be found in any English 
 work or military order, or, before this rebellion, in any American au- 
 thority. ■ 
 
 It has evidently been adopted during the rebellion as a doctrine of 
 military law on the authority of continental writers in governments less 
 free than those of England and the United States, and in which, because 
 they are less free, treason is not made to consist of certain specific acts, 
 and no others. But if Halleck is right, and ail our prior practice, and 
 that of England, from whom we derive ours, is to be abandoned, the 
 
cases before you are not cases of '-military treason," as be defines 
 it. Wlien the offence here alleged is stated to have occurred in this 
 District, the United States were not and did not claim to be in its 
 occupation as a belligerent, nor was it pretended that the people of this 
 District were in a belligerent sense enemies. On the contrary, they were 
 citizens entitled to every right of citizenship= Nor were the parties on 
 trial enemies. They were cither citizens of the District, or of Maryland, 
 and under the protection of the Constitution. The offence charged, then, 
 being treason, it is treason as known to the Constitution and laws, and 
 can only be tried and punished as they provide. To consider these parties 
 belligerents, and their alleged offence military treason is not only unwar- 
 ranted by the authority of Halleck, but is in direct conflict with the Con- 
 stitution and laws which the President and all of us are bound to support 
 and defend. The offence, then, being treason, as known to the Constitu- 
 tion, its trial by a military court is clearly illegal. And this for obvious 
 reasons. Under the Constitution no conviction of such an offence can be 
 had, ''unless on the testimony of two witnesses to the same overt act, or 
 on confession in open court." And under the laws the parties are entitled 
 to have " a copy of the indictment and a list of the jury and witnesses, 
 with the names and places of abode of both, at least three entire days 
 before the trial." They also have the right to challenge peremptorily 
 thirty-five of the jury, and to challenge for cause without limitation. And 
 finally, unless the indictment shall be found by a grand jury within three 
 years next after the treason done or committed, they shall not be prose- 
 cuted, tried, or punished. (Act oOth April, 1790, 1 stat. at large, 118, 
 119.) Upon what possible ground, therefore, can this Commission possess 
 the jurisdiction claimed for it ? It is not alleged that it is subject to the 
 provisions stated, and in its very nature it is impossible that it should be. 
 The very safeguards designed by the Constitution, if it has such jurisdic- 
 tion, are wholly unavailing. Trial by jury in all cases, our English an- 
 cestors deemed (as Story correctly tells us) ''the great bulwark of their 
 civil and political liberties, and watched vrith an unceasing jealousy and 
 solicitude."" It constituted one of the fundamental articles of Magna 
 Charta — " Nidlus liherhomo capiatur nec imprisonetur aut exulet, aut 
 aliquo modo, destruatur, &c.; nisi per I eg ae judicium parium suorum, 
 vel per legem terrea.- This great right the American colonists brought 
 with them as their birth-right and inheritance. It landed with them at 
 Jamestown and on the rock of Plymouth, and was equally prized by 
 
20 
 
 Cavalier and Puritan ; and ever since, to the breaking out of the rebellion, 
 has been enjoyed, and esteemed the protection and proud privilege of 
 their posterity. At times, during the rebellion, it has been disregarded 
 and denied. The momentous nature of the crisis, brought about by that 
 stupendous crime, involving, as it did, the very life of the nation, has 
 caused the people to tolerate such disregard and denial. But the crisis, 
 thank God, has passed. The authority of the Government throughout our 
 territorial limits is reinstated so firmly that reflecting men, here and else- 
 where, are convinced that the danger has passed never to return. The 
 result proves that the principles on which the Government rests have im- 
 parted to it a vitality that will cause it to endure for all time, in spite of 
 foreign invasion or domestic insurrection ; and one of those principles — 
 the choicest one — is the right in cases of " criminal prosecutions to a 
 speedy and public trial by an impartial jury," and in cases of treason to 
 the additional securities before adverted to. The great purpose of Magna 
 Charta and the Constitution was (to quote Story again) "to guard against 
 a spirit of oppression and tyranny on the part of rulers, and against a 
 spirit of violence and vindictiveness on the part of the people." " The 
 ■appeal for safety can under such circumstances scarcely be made by iymo- 
 cence in any other manner than by the severe control of courts of justice, 
 and by the firm and impartial verdict of a jury sworn to do right and 
 guided solely by legal evidence and a sense of duty. In such a course 
 there is a double security against the prejudices of judges, who may 
 partake of the wishes and opinions of the Government, and against the 
 passions of the multitude, who may demand their victim with a clamorous 
 precipitancy." And Mr. Justice Blackstone, with the same deep sense of 
 its value, meets the prediction of a foreign writer, "that because Rome, 
 Sparta, and Carthage have lost their liberties, those of England in time 
 must perish," by reminding him, " that Rome, Sparta, and Carthage, at 
 the time when their liberties were lost, were strangers to the trial by 
 jury,^^ (3 Bla., 319.) That a right so valued, and esteemed by our 
 fathers to be so necessary to civil liberty, so important to the very exist- 
 ence of a free government, was designed by them to be made to depend 
 for its enjoyment upon the war power, or upon any power entrusted to 
 any department of our Government, is a reflection on their intelligence 
 and patriotism. 
 
21 
 
 IV. But to proceed : The articles of war, if they provided for the 
 punishment of the crimes on trial, and authorized such a court as this, do 
 not include such parties as are now on trial. And, until the rebellion, I 
 am not aware that a different construction was ever intimated. It is the 
 exclusive fruit of the rebellion. 
 
 The title of the act is, " An act for establishing roles and articles for 
 the government of the armies of the United States.''^ 
 
 The first section states "the following shall be the rules and articles by 
 which the armies of the United States shall be governed,'' and every 
 other section, except the 5Gth and 5tth, are, in words, confined to persons 
 belonging to the army in some capacity or other. I understand it to be 
 held by some, that because such words are not used in the two sections 
 referred to. it was the design of Congress to include persons who do not. 
 belong to the army. In my judgment, this is a wholly untenable con- 
 struction : but if it was a correct one, it would not justify the use sought 
 to be made of it in this instance. It would not bring these parties for 
 their alleged crime before a military court known to the act ; certainly not 
 before a military commission — a court unknown to the act. The offence 
 charged is a traitorous conspiracy, and murder committed in pursuance of it. 
 Neither offence, conspiracy or murder, if indeed tvro are charged, is em- 
 braced by either the oGth or 5Tth articles of the statute. The SGth prohibits 
 the relieving '''the enemy with money, victuals, or ammunition, or knowingly 
 harboring and protecting him." Sophistry itself cannot bring the offences 
 in question, under this article. The 5Tth prohibits only the '''holding 
 correspondence with, or giving intelligence to the enemy, either directly 
 or indirectly " It is equally clear that the ofiences in question are not 
 within this provision. Bat, in fact, the two articles relied upon admit of 
 no such construction as is understood to be claimed. This is thought to 
 be obvious, not only from the general character of the act, and of all the 
 other articles it contains, but because the one immediately preceding, like 
 all those preceding and succeeding it, other than the 56th and oTtb, in- 
 cludes only persons belonging to the "armies of the United States." Its 
 language is, "whosoever belonging to the armies of the United States, 
 employed in foreign parts," shall do the act prohibited shall suffer the pre- 
 scribed punishment. Xow, it is a familiar rule of interpretation, perfectly 
 well settled, in such a case, that unless there be something in the following 
 sections that clearly shows a purpose to make them more comprehensive 
 than their immediate predecessor, they are to be construed as subject to 
 
22 
 
 the same limitation. So far from there being in this instance, any evidence 
 of a different purpose, the declared object of the statute, as evidenced 
 by its title, its first section, and its general contents, are all inconsistent 
 with any other construction. And when to this it is considered that the 
 power exercised by Congress in passing the statute was merely the con- 
 stitutional one to make rules for the government and regulation of the 
 army, it is doing great injustice to that department to suppose that in exer- 
 cising it they designed to legislate for any other class. The words, therefore 
 in the 55th article, ''belonging to the armies of the United States," quali- 
 fying the immediate preceding word, " whosoever," are applicable to the 
 56th and 5tth, and equally qualify the same word whosoever" also used 
 in each of them. And, finally, upon this point I am supported by the 
 authority of Lieutenant General Scott. The Commission have seen from 
 my previous reference to his autobiography that he placed his right to 
 issue his martial law order, establishing, amongst other things, military 
 commissions to try certain offences in a foreign country, upon the ground 
 that otherwise they would go unpunished, and his army become demoral- 
 ized. One of these offences was murder committed or attempted, and 
 for such an offence he tells us that the articles of war provided no court 
 for their trial and punishment, " no matter by whom or on whom com- 
 mitted." And this opinion is repeated in the 4th clause of his order, as 
 true of all the designated offences, " except in the very restricted case in 
 the 9th of the article." 
 
 Y. There are other views which I submit to the serious attention of 
 the Commission. 
 
 I. The mode of proceeding in a court like this, and which has been 
 pursued by the prosecution, with your approval, because deemed legal by 
 both, is so inconsistent with the proceedings of civil courts, as regulated 
 for ages by established law, that the fact, I think, demonstrates that per- 
 sons not belonging to the array cannot be subjected to such a jurisdiction. 
 1. The character of the pleadings. The offence charged is a conspiracy 
 with persons not within the reach of the Court, and some of them in a 
 foreign country, to commit the alleged crime. To give you jurisdiction, 
 the design of the accused and their co-conspirators is averred to have 
 been to aid the rebellion, and to accomplish that end not only by the mur- 
 der of the President and Lieutenant General Grant, but of the Vice 
 
President and Secretary of State. It is further averred that the Presi- 
 dent being murdered, the Vice President becoming thereby President, 
 and as such Commander-in-Chief, the purpose was to murder him ; and as 
 in the contingency of the death of both, it would be the duty of the Sec- 
 retary of State to cause an election to be held for President and Yice 
 President, he was to be murdered in order to prevent a ''lawful election"' 
 of these officers ; and that by all these means, ''aid and comfort" were to 
 be given " the insurgents engaged in armed rebellion against the United 
 States," and "the subversion and overthrow of the Constitution and laws 
 of the United States" thereby effected. That such pleading as this 
 would not be tolerated in a civil court I suppose every lawyer will con- 
 cede. It is argumentative, and even in that character unsound. The 
 continuance of our Government does not depend on the lives of any or 
 of all of its public servants. As fact or law, therefore, the pleading is 
 fatally defective. The Government has an inherent power to preserve 
 itself, which no conspiracy to murder or murder can in the slightest degree 
 impair. And the result which we have just witnessed proves this and 
 shows the folly of the madman and fiend by whose hands our late lamented 
 President fell. He, doubtless, thought that he had done a deed that would 
 subvert the " Constitution and laws." We know that it has not had even 
 a tendency to that result. Xot a power of the Government was sus- 
 pended ; all progressed as before the dire catastrophe. A cherished and 
 almost idolized citizen was snatched from us by the assassin's arm, but 
 there was no halt in the march of the Government. That continued in 
 all its majesty wholly unimpeded. The only effect was to place the nation 
 in tears and drape it in mourning, and to awake the sympathy and excite 
 the indignation of the world. 
 
 II. But this mode of pleading renders, it would seem, inapplicable, the 
 rules of evidence known to the civil courts. It justifies, in the opinion of 
 the Judge Advocate and the Court, (or what has been done would not have 
 been done,) a latitude that no civil court would allow, as in the judgment 
 of such a court the accused, however .innocent, could not be supposed 
 able to meet it. Proof has be.en received not only of distinct offences 
 from those charged, but of such offences committed by others than the 
 parties on trial. Even in regard to the party himself, other offences 
 alleged to have been previously committed by him cannot be proved. At 
 one time a dift^erent practice prevailed in England, and does now, it is 
 
24: 
 
 believed, in some of the Continental governments, But since the days of 
 Lord Holt (a name venerated by lawyers and all admirers of enlightened 
 jurisprudence) it has not prevailed in England. In the case of Harrison, 
 tried before that judge for murder, the counsel for the Government offered 
 a witness to prove some felonious design of the prisoner three years be- 
 fore. Holt indignantly exclaimed, " Hold ! hold ! v/hat are you doing 
 now ? How can he defend himself from charges of which he has no 
 notice ? And how many issues are to be raised to perplex me and the 
 jury ? Away ! away ! that ought not to be — that is nothing to the mat- 
 ter." (12 State Trials, 833-8t4.) I refer to this case not to assail 
 what has been done in these cases contrary to this rule, because I am 
 bound to infer that before such a commission as this the rule has no legal 
 force. If, in a civil court, then, these parties would be entitled to the 
 benefit of this rule, one never departed from in such courts, they would 
 not have had proved against them crimes alleged to have been committed 
 by others, and having no necessary or legal connection with those charged. 
 With the same view, and not denying the right of the Commission in the 
 particular case I am about to refer to, but to show that the Constitution 
 could not have designed to subject citizens to the practice, I cite the 
 same judge to prove that in a civil court those parties could not have been 
 legally fettered during their trial. In the case of Cranbum, accused as 
 implicated in the " assassination plot," on trial before the same judge, 
 Holt put an end to what Lord Campbell terms "the revolting practice of 
 trying prisoners in fetters." Hearing the clanking of chains, though no 
 complaint was made to him, he said, " I should like to knov.^ why the pri- 
 soner is brought in ironed." " Let them be instantly knocked oif. When 
 prisoners are tried they should stand at their ease." (13 State Trials, 
 221, 2d Campbell, Lives Chief Justices, 140.) Finally, I deny the 
 jurisdiction of the Commission not only because neither Constitution nor 
 laws justify, but, on the contrary, repudiate it, but on the ground that all 
 the experience of the past is against it. Jefferson, ardent in the prose- 
 cution of Burr, and solicitous for his conviction, from a firm belief of his 
 guilt, never suggested that he should be tried before any other than a 
 civil court. And in that trial, so ably presided over by Marshall, the 
 prisoner was allowed to "stand at his ease;" was granted every constitu- 
 tional privilege, and no evidence was permitted to be given against him but 
 such as a civil court recognizes ; and in that case as in this, the overthrow 
 of the Government w^as the alleged purpose, and yet it was not intimated 
 
26 
 
 in any quarter that lie could be tried by a military tribunal. In England, 
 too, the doctrine on which this prosecution is placed is unknown. At- 
 tempts were made to assassinate George the Third and the present Queen, 
 and Mr. Percival, then Prime Minister, was assassinated as he entered 
 the House of Commons. In the first two instances, the design was to 
 murder the commander-in-chief of England's army nnd navy, in whom, 
 too, the whole war power of the Government was also vested; in the last 
 a secretary, clothed with powers as great at least as those that belong to 
 our Secretary of State ; and yet in each the parties accused were tried 
 before a civil court, no one suggesting any other. And during the period 
 of the French Eevolution, when its principles, if principles they can be 
 termed, were being inculcated in England to an extent that alarmed the 
 Government and caused it to exert every power it was thought to pos- 
 sess to frustrate their effect, when the writ of habeas corpus was sus- 
 pended, and arrests and prosecutions resorted to almost without limit, no 
 one suggested a trial, except in the civil courts. And yet the apprehen- 
 sion of the Government v>'as, that the object of the alleged conspirators 
 was to subvert its authority, bring about its overthrow, and subject the 
 kingdom to the horrors of the French Revolution, then shocking the 
 nations of the world. Hardy, Home Took, and others were tried by civil 
 courts, and their names are remembered for the principles of freedom 
 that were made triumphant mainly through the efforts of "that great 
 genius," in the words of a modern English statesman, (Earl Russel],) 
 " whose sword and buckler protected justice and freedom during the dis- 
 astrous period;'- having '-'the tongue of Cicero and the soul of Hamp- 
 den, an invincible orator and an undaunted patriot." — Erskine. 
 
 As it was, these trials were conducted in so relentless a spirit, and, as 
 it was thought, with such disregard of the rights of the subject, that the 
 administration of the day were not able to withstand the torrent of the 
 people's indignation. What would have been their fate, individually as well 
 as politically, if the cases had been tried before a military commission, 
 and life taken ? Can it be that in this particular an American citizen is 
 not entitled to all the rights that belong to a Britksh subject ? Can it be 
 that with us Executive power at times casts into the shade and renders all 
 other power subordinate ? An American statesman, with a world-wide 
 reputation, long since gave answer to these inquiries. In a debate in the 
 Senate of the United States, in which he assailed what he deemed an un- 
 warranted assumption of Executive power, he said, " the first object of a 
 
26 
 
 free people is the preservation of their liberties, and liberty is only to be 
 maintained by constitutional restraints and just divisions of political 
 power." "It does not trust the amiable weaknesses of human nature, 
 and, therefore, will not permit power to overstep its prescribed limits, 
 though benevolence, good intent, and patriotic intent come along with it." 
 And he added, "Mr. President, the contest for ages has been to rescue 
 liberty from the grasp of Executive power." " In the long list of the 
 champions of human freedom there is not one name dimmed by the re- 
 proach of advocating the extension of Executive authority." Thoughts 
 so eloquently expressed appeal with subduing power to every patriotic 
 heart, and demonstrate that "Webster, if here, would be heard raising his 
 mighty voice against the jurisdiction of this Commission — a jurisdiction 
 placed upon Executive authority alone. But it has been urged that 
 martial law warrants such a commission, and that such law prevails here. 
 The doctrine is believed to be alike indefensible and dangerous. It is 
 not, however, necessary to inquire whether martial law, if it did prevail, 
 would maintain your jurisdiction, as it does not prevail. It has never 
 been declared by any competent authority, and the civil courts we know 
 are in the full and undisturbed exercise of all their functions. We learn, 
 and the fact is doubtless true, that one of the parties, the very chief of 
 the alleged conspiracy, has been indicted, and is about to be tried before 
 one of those courts. If he, the alleged head and front of the conspiracy, 
 is to be and can be so tried, upon v,^hat ground of right, of fairness, or of 
 policy, can the parties who are charged to have been his mere instruments 
 be deprived of the same mode of trial? It may be said that in acting 
 under this commission you are but conforming to an order of the Presi- 
 dent, which you are bound to obey. Let me examine this for a moment. 
 If that order merely authorizes you to investigate the cases and report 
 the facts to him and not to pronounce a judgment, and is to that extent 
 legal, then it is because the President has the power himself, without such 
 a proceeding, to punish the crime, and has only invoked your assistance 
 to enable him to do it the more justly. Can this be so ? Can it be that 
 the life of a citizen, however humble, be he soldier or not, depends in any 
 case on the mere will of the President ? And yet it does, if the doctrine 
 be sound. What more dangerous one can be imagined ? Crime is 
 defined by law and is to be tried and punished under the law. Wliat is 
 murder, treason, or conspiracy, and what is admissible evidence to prove 
 either, are all legal questions, and many of them, at times, difficult of cor- 
 
rect solution. What the facts are iriay also present difficult inquiries. 
 To pass upon the first, the Constitution provides courts consisting of 
 judges selected for legal kno^Yledge, and made independent of Executive 
 power. Military judges are not so selected, and so far from being inde- 
 pendent are absolutely dependent on such po^^-er. To pass upon the lat- 
 ter, it provides juries as being not likely to "partake of the wishes and 
 opinions of the Government." But if your function is only to act as aids 
 to the President, to enable him to exercise his function of punishment, 
 and as he is under no obligation by any law to call for such aid, he 
 may punish upon his own unassisted judgment, and without even the 
 form of a trial. In conclusion, then, gentlemen, I submit that your re- 
 sponsibility, whatever that be, for error, in a proceeding like this, can 
 find no protection in Presidential authority. Whatever it be, it grows 
 out of the laws, and may, through the laws, be enforced. I suggested in 
 the outset of these remarks that that responsibility in one contingency 
 may be momentous. I recur to it again, disclaiming, as I did at first, the 
 wish or hope that it would cause you to be wanting in a single particular 
 of what you may believe to be your duty, but to obtain your best and 
 most matured judgment. The wish and hope disclaimed would be alike 
 idle and discourteous ; and I trust the Commission will do me the justice 
 to believe that I am incapable of falling into either fault. 
 
 Responsibility to personal danger can never alarm soldiers who have 
 faced, and vrill ever be willing in their country's defence to face death on 
 the battle-field. But there is a responsibility that every gentleman, be he 
 soldier or citizen, will constantly hold before him, and make him ponder — 
 responsibility to the Constitution and laws of his country and an intelli- 
 gent public opinion — and prevent his doing anything knowingly that can 
 justly subject him to the censure of either. I have said that your respon- 
 sibility is great. If the commission under which you act is void and con- 
 fers no authority, whatever you may do may involve the most serious per- 
 sonal liability. Cases have occurred that prove this. It is sufficient to 
 refer to one. Joseph Wall, at the time the offence charged against him 
 Vv'as committed, was Governor and commander of the garrison of Goree, 
 a dependency of England, in Africa. The indictment was for the murder 
 of Benjamin Armstrong, and the trial was had in January, 1802, before a 
 special court, consisting of Sir Archibald McDonald, Chief Baron of the 
 Exchequer ; Lawrence, of the King's Bench, and Rocke, of the Common 
 Pleas. The prosecution was conducted by Law, then Attorney General, 
 
2i 
 
 afterwards Lord Ellenborough. The crime was committed in It 82, and 
 under a military order of the accused, and the sentence of a regimental 
 court-martial. The defence relied upon was, that at the time the garrison 
 was in a state of mutiny, and that the deceased took a prominent part in 
 it ; that, because of the mutiny, the order for the court-martial was made, 
 and that the punishment which was inflicted and said to have caused the 
 death was under its sentence. The offence was purely a military one, and 
 belonged to the jurisdiction of a military court, if the facts relied upon by 
 the accused were true, and its judgment constituted a valid defence. The 
 court, however, charged the jury, that if they found that there was no 
 mutiny to justify such a court-martial or its sentence, they were void and 
 furnished no defence whatever. The jury so finding, found the accused 
 guilty, and he was soon after executed. (28 St. Tr., 51, IT 8.) The ap- 
 plication of the principle of this case to the question I have considered is 
 obvious. In that instance want of jurisdiction in the court-martial was 
 held to be fatal to its judgment as a defence for the death that ensued 
 under it. In this, if the Commission has no jurisdiction, its judgment for 
 the same reason will be of no avail, either to Judges, Secretary of War 
 or President, if either shall be called to a responsibility for what may be 
 done under it. Again, upon the point of jurisdiction, I beg leave to add 
 that the opinion I have endeavored to maintain is believed to be the 
 almost unanimous opinion of the profession, and certainly is of every 
 judge or court v/ho has expressed any. 
 
 In Maryland, where such commissions have been and are held, the 
 Judge of the Criminal Court of Baltimore recently made it a matter of 
 special charge to the grand jury. Judge Bond told them : ' It has come 
 to my knowledge that here, where the United States Court, presided over 
 by Chief Justice Chase, has always been unimpeded, and where the 
 Marshal of the United States, appointed by the President, selects the 
 jurors, irresponsible and unlawful military commissions attempt to exercise 
 criminal jurisdiction over citizens of this State, not in the military or 
 na.val service of the United States, nor in the militia, who are charged 
 with offences either not known to the law. or with crimes for which the 
 mode of trial and punishment are provided by statute in the courts of the 
 land. That it is not done by the paramount authority of the United 
 States, your attention is directed to article 5, of the Constitution of the 
 United States, which says : ' no person shall be held to answer for a 
 capital or otherwise infamous crime, unless on a presentment or indict- 
 
29 
 
 ment 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." 
 Such j^ersons exercising such unlaivful jurisdiciion are liable to in- 
 dictment by you, as well as responsible in civil actions to the parties.'' 
 In New York, Judge Peckham, of the Supreme Court of that State, and 
 speaking for the whole bench, charged the grand jury as follows : 
 
 " The Constitution of the United States, Article 5, of the Amendments, 
 declares that ' no person shall be held to ansv/er for a capital or otherwise 
 infamous crime, unless on 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 pubhc danger.' 
 
 ''Article 6 declares that 'in all criminal prosecutions, the accused shall 
 enjoy the right to a speedy and public trial.' 
 
 "Article 3, section 2, declares that 'the trial of all crimes, except in 
 cases of impeachment, shall be by jury,' &c. 
 
 " These provisions were made for occasions of great excitement, no 
 matter from what cause, when passion rather than reason might prevail. 
 
 " In ordinary times, there would be no occasion for such guards, as 
 there would be no disposition to depart from the usual and established 
 modes of trial. 
 
 "A great crime has lately been committed that has shocked the civilized 
 world. Every right minded man desires the punishment of the criminals, 
 but he desires that punishment to be administered according to law, and 
 through the judicial tribunals of the country. No star chamber court, no 
 secret inquisition, in this nineteenth century, can ever be made acceptable 
 to the American mind. 
 
 "If none but the guilty could be accused, then no trial could be 
 necessary — execution should follow accusation. 
 
 " It is almost as necessary that the public should have undoubted faith 
 in the purity of criminal justice, as it is that justice should in fact be 
 administered with integrity. 
 
 "Grave doubts, to say the least, exist in the minds of intelligent men as 
 to the constitutional right of the recent military commissions at Washing- 
 ton, to sit in judgment upon the persons now on trial for their lives before 
 that tribunal. Thoughtful men feel aggrieved that such a commission 
 should be established in this free country, when the war is over, and when 
 the common law courts are open and accessible to administer justice 
 according to law, without fear or favor. 
 
80 
 
 "What remedy exists ? None whatever, except through the power of 
 public sentiment. 
 
 ''As citizens of this free country, having an interest in its prosperity 
 and good name, we may, as I desire to do, in all courtesy and kindness, 
 and with all proper respect, express our disapprobation of this course in 
 our rulers in Washington. 
 
 The unanimity with which the leading press of our land has con- 
 demned this mode of trial, ought to be gratifying to every patriot. 
 
 " Every citizen is interested in the preservation, in their purity, of the 
 institutions of his country ; and you, gentlemen", may make such present- 
 ment on this subject, if any, as your judgment may dictate." 
 
 The reputation of both of these judges is v/eli and favorably known, and 
 their authority is entitled to the greatest deference. 
 
 Even in France, during the consulship of Napoleon, the institution of a 
 military commission for the trial of the Prince Due d'Enhien, for alleged 
 conspiracy against his life, was, to the irreparable injury of his reputation, 
 ordered by Napoleon. The trial was had, and the Prince was at once 
 convicted and executed. It brought upon Napoleon the condemnation 
 of the world, and is one of the blackest spots in his character. The case 
 of the Duke, says the eminent historian of the Consulate and the Empire, 
 furnished Napoleon " a happy opportunity of saving his glory from a 
 stain," which he lost, and adds, with philosophic truth, that it was " a 
 deplorable consequence of violating the ordinary forms of justice,''^ and 
 further adds, " to defend social order by conforming to the strict rules 
 and forms of justice, without allowing any feeling of revenge to operate, 
 is the great lessen to be drawn from these tragical events." — Thier^s 
 History, c^c, 4 vol., 318-322. 
 
 Upon the whole, then, I think I shall not be considered obtrusive if I 
 again invoke the Court to weigh well all that I have thought it my duty 
 to urge upon them. I feel the duty to be upon me as a citizen sworn to 
 do what I can to preserve the Constitution and the principles on which 
 it reposes. As counsel of one of the parties, I should esteem myself dis- 
 honored, if I attempted to rescue my client from a proper trial for the 
 offence charged against her by denying the jurisdiction of the Commission 
 upon grounds that I did not conscientously believe to be sound. And in 
 what I have done, I have not more had in view the defence of Mrs. 
 Surratt, than of the Constitution and the laws. In my view, in this 
 respect, her cause is the cause of every citizen. And let it not be sup- 
 
31 
 
 posed that I am seeking to secure impunity to anyone who may have been 
 guilty of the horrid crimes of the night of the 14th of Aprih Over these 
 the civil courts of this District have ample jurisdiction, and will faithfully 
 exercise it if the cases are remitted to them and guilt is legally established, 
 and will surely award the punishment known to the laws. God forbid 
 that such crimes should go unpunished I In the black catalogue of 
 offences, these will forever be esteemed the darkest and deepest ever com- 
 mitted by sinning man. And in common with the civilized world, do I 
 wish that every legal punishment may be legally inflicted upon all who 
 participated in them. 
 
 A word more, gentlemen, and thanking you for your kind attention, I 
 shall have done. As you have discovered, I have not remarked on the 
 evidence in the case of Mrs. Surratt, nor is it my purpose ; but it is proper 
 that I refer to her case in particular for a single moment. That a woman 
 well educated, and as far as we can judge from all her past life as we have 
 it in evidence, a devout Christian, ever kind, affectionate, and charitable, 
 with no motive disclosed to us that could have caused a total change in 
 her very nature^ could have participated in the crimes in question it is 
 almost impossible to believe. Such a belief can only be forced upon a 
 reasonable, unsuspecting, unprejudiced mind by direct and uncontradicted 
 evidence, coming from pure and perfectly unsuspected sources. Have we 
 these ? Is the evidence uncontradicted? Are the two witnesses Weich- 
 mann and Lloyd, pure and unsuspected ? Of the particulars of their evi- 
 dence I say nothing. They will be brought before you by my associates, 
 liut this conclusion in regard to these witnesses must be in the minds of 
 the Court, and is certainly strongly impressed upon my own, that if the 
 facts which they themselves state as to their connection and iritimacy with 
 Booth and Payne are true, their knowledge of the purpose to commit the 
 crimes, and their participation in them, is much more satisfactorily estab- 
 lished than the alleged knowledge and participation of Mrs. Surratt. As 
 far, gentlemen, as I am concerned, her case is now in your hands. 
 
 REYERDY JOHXSON. 
 
 June 16, 1865. 
 
 As associate counsel for Mrs, Mary E. Surratt, we concur in the above. 
 
 FREDERICK A. AIKEX, 
 JOHN W. CLAMPITT. 
 
AN ARGUMENT 
 
 TO ESTABLISH THE ILLEGALITY OF 
 
 I N T H E 
 
 . UNITED STATES, 
 
 And Especially of the One Organized for the Trial of 
 THE Parties Charged with 
 
 Conspiring to Assassinate the Late President, 
 
 j^nd Otliers, 
 
 PRESENTED TO THAT COMMISSION, 
 
 On Monday f the 19th of June, IS 65, 
 
 AXDPREPAREDBY 
 
 REVERDT JOHNSON, 
 
 One of the Counsel of Mrs. Surratt. 
 
 Baltimore... .Printed BY JoiixX Murphy & Co. 
 
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