iJuij: i:^^.:. vJ^JLJ 
 
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 4.fF /^r^^ ^ 
 
 University of California. 
 
 FROM THE LIBRARY OF 
 
 ]:)R. FRANCIS LIEBER, 
 Profefsor of History and Law in Columbia College, New Yor,k. 
 
 THK GIFT OF 
 
 MICHAEL REESE, 
 
 Of San Francisco. 
 isrs. 
 
 I 
 
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AN ARGUMENT 
 
 AUAlNS'r 
 
 THE J URISDICTION 
 
 MILITARY COMMISSIONS 
 
 TO TRY 
 
 CITIZENS OF THE UNITED STATES, 
 
 DELIVERED UST THE CASE OF \VM. A. BOWLES, 
 AND OTHERS, BY 
 
 HON. J. W. GORDON. 
 
 INDIANAPOLIS: 
 
 HALL k HUTCHINSON, PRINTERS AND BINDERS. 
 
 18 5. 
 
■ 
 
Library^ 
 
 jonathan"wTgordon's 
 
 ARGUMENT ON THE JURISDICTION OF A « 
 
 MILITARY COMMISSION 
 
 TO TRY CITIZE]tTS OF A LOYAL STATE. 
 
 Mr, Fresident and Gentlemen of the Commission : 
 
 I appear for Col. Bowles and Mr. Humphreys, who have di- 
 rected me to discuss the question of your jurisdiction to try 
 them. Before proceeding to this discussion, however, I may be 
 pardoned for briefly referring to some preliminary considera- 
 tions. 
 
 I will not deny that I am oppressed with the greatness and 
 weight of the labor assigned me. Many circumstances conspire 
 to make this day's work a burthen, while but few sources of 
 external encouragement and support are to be found. 
 
 I meet at the threshhold of the solemn duty of this hour, the 
 settled hostility of the Administration, the fierce and relentless 
 spirit of the dominant party, and a strong tide of prejudice and 
 passion created by a partizan press which, during this trial, has 
 continually prejudged the questions to be discussed and decided 
 here to-day. Norjindeed, has this uncharitable work been con- 
 fined to the press. Public speakers have caught up the testi- 
 mony of witnesses even before their cross-examination; and, 
 with such one sided, partial, broken fragments of the whole 
 truth, have rushed eagerly into the popular arena, and proclaimed 
 the guilt of the accused in every part of the State. 
 
 It is impossible that these facts should not have met your ob- 
 servation; and almost as impossible that you should not, (al- 
 though you are all unconscious of their influence,) be more or 
 less affected by them. They can not, indeed, have passed unob- 
 served by you who have been at liberty and circulating freely 
 among the people; for they have found their way even into the 
 lonely cells of the prisoners, and made themselves manifest by 
 the dim and dismal twilight of their dungeons. They are, in- 
 deed, everywhere. They have polluted the atmosphere, and in- 
 fected the minds of the people. They are like the air around 
 
2 J. W. GORDON S ARGUMENT. 
 
 and within us; and pass unheeded and unthought of, while 
 they giv^e color, direction and tone to all our thoughts and ac- 
 tions. 
 
 ITor, in regard to one of the accused, has it been sufficient for 
 the purposes of those who have joined in this hue and cry, to 
 confine their assaults upon him to the present time, or to the 
 offences with which he now stands charged. They have gone 
 back to the days of other years, and have dragged up and scat- 
 tered over the land, old, and stale, and groundless imputations 
 of delinquency originating in the time of the ^Mexican War. 
 A record, made by interested men, for selfish and ambitious 
 purposes, has been referred to, and old passions and prejudices 
 invoked, upon a point whereon the people of Indiana are justly 
 more sensitive than upon any other — the point of honor. But 
 even that record does not assail his courage, his gallantry, or 
 his patriotism ; and, if it did, he might still proudly appeal from 
 it to the testimony of his illustrious commander, Major General 
 Zachary Taylor, under whose eye he fought on the glorious field 
 of Buena Vista, To the report of that chieftain he appeals 
 against the slanders born of subsequent and interested accounts 
 of that contest ; and prays that they may not be allowed to give a 
 false and injurious coloring to the present accusation; and to 
 the sentence which you are now about to pronounce. 
 
 I confess, however, that a still graver source of embarrass- 
 ment to me, in the performance of my present duty, springs 
 from the nature of the subject to be discussed — the importance 
 of the principles to be defended. In view of these, the lives and 
 fortunes of the accused — and, indeed, of us all — are as nothing. 
 They and we are but mortal men. The worst that can possibly 
 befall them at your hands, can, therefore, but anticipate, by a 
 very few years, the common doom ^ which time, or disease, or 
 both together, will bring to them and to us all; for 
 
 "To every man upon this earth, death cometh soon or late." 
 
 It is not, then, merely because the lives and fortunes of the ac- 
 cused are suspended upon the result of this trial, that 1 confess 
 myself embarrassed — overwhelmed at this moment, in the pres- 
 ence of the duty to which it calls me. That the lives, and for- 
 tunes, and good fame of the defendants are all involved in this 
 cause, is, indeed, of itself, a fact of sufficient importance to touch 
 very nearly any one whose heart is not dead to the gentle plead- 
 ings of pity and mercy ; and weigh heavily upon him who in any, 
 even the least degree, may divide the responsibility of an unfor- 
 tunate result to either. I am not insensible to the weight of 
 responsibility due, in that respect, to my relation to their cause. 
 I am sure, however, that I should but ill represent their senti- 
 ments and wishes, if I allowed myself in this defence of their 
 individual interests, wholly to lose sight of the consequences 
 
J. W. GORDON S ARGUMENT. « 
 
 which must follow to the cause of constitutional liberty in our 
 country, by subjecting them to a military jurisdiction, to which, 
 by the constitution and laws of the land, they are, in my judg- 
 ment, clearly not amenable. The general consequences which 
 must flow from such a precedent, give this trial an importance 
 far above any private interests involved in it ; and make my 
 sense of responsibility painful in the extreme, for fear that 
 "Me good old cause'' may suffer detriment through some default 
 of mine. 
 
 But amid all these sources of discouragement and embarrass- 
 ment, — and there are others which time will not permit me to 
 notice, — I acknowledge with due thankfulness that there are 
 not w^anting some great encouragements and supports. Among 
 these is the fact of publicity. These things are not done in a 
 corner, nor under a bushel. They will be proclaimed from the 
 house-top ; and read and known of all men. They will be re- 
 considered and re-judged long after they shall have lost all their 
 importance to us who are now engaged in them. What is right 
 in them will be retained and appropriated by mankind to aid 
 the great cause of civil liberty, and advancing civilization. 
 What is wrong will just as certainly be condemned and rejected, 
 as useless or hurtful to the same cause, by the same judgment. 
 The record which we this day make up and complete will go to 
 the tribunal of history — a tribunal where prejudice can not 
 wound, nor slander kill. To all who earnestly strive to follow 
 the path of truth and justice this day, the decisions of this tri- 
 bunal can bring neither harm nor shame; for truth and justice 
 are its eternal foundations. 
 
 ^or am I less encouraged and upheld by the voice of history. 
 The labor assigned me will rest upon facts and precedents, han- 
 ded down to us b}^ the liberty loving race to which we belong. 
 If these shall be regarded as of any auhority in this forum, then 
 my labors shall not be in vain. Success shall crown them. 
 The character of the members of this Commission, their habit- 
 ual love of constitutional liberty, and of order maintained bylaw, 
 do not permit me to doubt that they will carefully consider the 
 great question of jurisdiction ; and, indeed, all other questions 
 properly before them, and render an honest finding and sentence 
 according to the constitution and laws of the land. That con- 
 stitution and those laws are but the organization of the facts 
 and precedents transmitted to us with our blood, by our British 
 ancestors. They are mingled with our very being; and perme- 
 ate all the channels of our social and political life. To abandon 
 them is to give up our social and political life — is to die. And, 
 indeed, in this time of national sickness, w^hen the public mind 
 is suffering under a melancholy and morbid excitement, 
 amounting almost to frenzy, it would be madness to give up the 
 sure foundations of the constitution and laws, and the history 
 
4 J. W. GORDON S ARGUMENT. 
 
 and customs of a thousand years upon which they rest, for any 
 new fangled notion born of these evil times. It would be like 
 a man, amid the delirium of a fever, abandoning the business 
 and habits of a whole lifetime, for a new business and new hab- 
 its with which he had no acquaintance whatever. His friends 
 would confine him in a straight jacket, and send him to a 
 Lunatic Asylum. 
 
 No, therefore, it must not be. The past is the only basis 
 upon which to reconstruct the present — the constitution, on 
 which it is possible reunite the belligerent members of this once 
 glorious, but now broken Union. But we, who are devoted to 
 this great work of reconstruction, must not exhibit to all the 
 world our utter disregard of its plainest provisions, and most 
 Bacred principles. We must not throw down and destroy the 
 fences, which it has built about the primordial rights of man- 
 kind ; and then expect our enemies^ or even our friends to be- 
 lieve us sincere in our professions of love for the constitution, 
 or desire to restore the Union; for, by such a course, we shall 
 become scarcely less guilty of treason to our country, than reb- 
 els in arms against it. Indeed, the only distinction, in such 
 case, would be that which separates force from fraud ; and as 
 between two such means to such an end, I am sure you will 
 agree with me that force is by far the more noble and manly. 
 But we stand opposed to both — we who stand for our country; and 
 I am comforted to believe that you, have each offered your lives 
 for its salvation from the dangers that assail it by force, will not 
 hesitate to interpose your justice to save it from overthrow 
 which may threaten it under the forms of law. 
 
 It is left for others to discuss the questions of guilt or inno- 
 cence arising from the testimony in its application to the charges. 
 I have nothing to do with it. Only so much of the evi- 
 dence as tends to throw light on the question of jurisdiction 
 falls to me ; and I shall refer to the charges and specifications in 
 so far only as they may aid in the same general purpose. The 
 argument I am to make would be just as valid if the guilt of 
 the accused stood admitted, as if their innocence were estab- 
 lished by the proof, beyond all question. 
 
 There are rights which belong to the guilty as well as to the 
 guiltless ; and among them is that of a fair constitutional and 
 legal trial, and, all the legitimate consequences thereof. This 
 right, among the ignorant and unthinking is often lost sight of, 
 and sometimes disregarded. It is, nevertheless, as important as 
 any other. Its denial is, therefore, a crime not only against the 
 individual, but also against society at large. To destroy a mur- 
 derer or a traitor by any other process than that prescribed by 
 law, is as much murder as to kill the best man in the country. 
 Dr. Francis Lieber has well presented this subject in his trea- 
 tise on Political Ethics. He says: 
 
J. W. GOKDON S AllGUMENT. 5 
 
 "The State never ceases to protect; even the bhickest crimi- 
 nal, the moment before his head falls, is protected. It was a 
 most fallacious argument that, frustra Icgis auxilium invocat 
 qui legem committit, from the lex talionis, §or as St. John said be- 
 fore the Lords, when he brought in the bill of attainder against 
 the earl of Sratford, (April 29, 1641,) "lie that would not liave 
 others have a law, why should he have any himself?" Why 
 should not that be done to him, that he himself would have 
 done to others?" Even modern writers have endeavored to de- 
 rive the punitory power of the State, from the fact that the of- 
 fender, by doing wrong, declares himself out of the jural soci- 
 ety. iTothing can be more untenable in all its bearings. On 
 the contrary, the State being especially a jural society, can not 
 possibly act except by law, and upon jural relations, and as fur 
 as the right of an individual is the condition of his union with 
 other rational individuals, punishment is the right of the offend- 
 er, however paradoxical this may sound at first, because we are 
 accustomed to imagine under right, some specific privileges. 
 State punishment is likewise the protection of the offender, 
 who without it would be exposed to all, even the most extrava- 
 gant, modes of private redress. No offender would hesitate to 
 acknowledge and claim state punishment as his right, if the 
 choice w^ere left him, between state punishment, which, because 
 it is state punishment, requires a formal trial on the one hand ; 
 and, on the other, those summary proceedings against criminals 
 QSiUght flagrante delicto fV^YAch. we find perhaps in all early codes, 
 and sometimes acknowledged to a very late period, (Blackstone, 
 4, 308,) or to which an excited people sometimes return, when 
 the regular trial appears too slow for their inflamed passions, as 
 has been the case in those riotous and illegal inflictions of death 
 or other punishment, so unfortunately called lynch law in our 
 country. I say unfortunately called lynch law, for it is ever to 
 be deplored, if any illegal procedure receives a regular and 
 separate name of its own. By this very application of a tech- 
 nical term, it assumes an air of systematized authority, which 
 has an astonishing effect upon the multitude, and in fact, upon 
 most men." Book 2, § 345. 
 
 It is this simple principle that makes it murder for any one 
 to kill even a man condemned to death by a competent court, 
 in a difierent manner, or at a different time or place than may 
 have been fixed by the judgment. The law in this respect 
 makes no difference between the lives of the guilty and the 
 guiltless. Hence, when men seek to bring their enemies to jus- 
 tice and punishment by short and easy methods unknown to the 
 law, and, therefore, in violation thereof, they but dig a pit into 
 which themselves may, at any moment, fall and be lost. He 
 w^ho kills even a traitor in violation of law, kills at the same 
 time the law itself. 
 
6 J. W. GORDON'S ARGUMENT. 
 
 Whatever may be your opinions, therefore, of the guilt or in- 
 nocence of the accused, it can not effect the question of juris- 
 diction. 
 
 The next topic to which I desire to call your attention, arises 
 from the language of the several specifications, and is particu- 
 larly important for the purposes of this discussion in so far as 
 it may apply to those embraced under the last charge, namely : 
 '•YiOLATiON OF THE LAWS OF WAR." It is this : that the alleged 
 offences were committed "within the military lines of the army 
 of the United States, and the theatre of military operations." 
 
 Whatever may have been the purpose of the Judge Advocate 
 in inserting this clause, it is clear to any lawyer that no juris- 
 diction can arise from, it, when taken in connection with the 
 fact that the accused are citizens of the State of Indiana, and 
 of the United States; and that Indiana has always sustained a 
 relation of loyalty to the Union and its Government. But 
 even if there was no proof of citizenship of the accused, it has 
 not been proven that the State of Indiana is either '* within the 
 military lines of the armies of the United States," or '' the thea- 
 ter of military operations." Had the averment been that it 
 was within the theater of war, it would have been well ; for the 
 whole country is the theater of war. But that can not be said 
 of the lines of the army, or of the theater of military opera- 
 tions. There is no definition of "the lines of the army" that 
 extends so far as is here claimed by the Judge Advocate; and all 
 military writers which I have been able to examine define "the 
 theater of operations," as follows, contradistinguishing it from 
 the theater of war : 
 
 " The theater of war embraces not only the territory of the 
 two belligerent powers, but also that of their allies, and of such 
 secondary powers, as through fear or interest, may be drawn 
 into the contest." * ^ :^ ^i^ * * 
 
 " The theater of operations, however, is of a more limited char- 
 acter and should not be confounded with the theater of war. 
 In general, it includes only the territory which an army seeks, 
 on the one hand, to defend, and on the other to invade." Hal- 
 lack^ s Elements of Military Art and Science, p. 44; JominVs Art of 
 War, 74, 75. 
 
 I conclude, therefore, that " the theater of military opera- 
 tions," of a given army must be in front of the base of opera- 
 tions of that arm3^ Thus, the base of operations of General 
 Buell's army during the winter of 1861, and the succeeding 
 spring, was the Ohio river; and his theater of operations, the 
 whole country south of that base. And so of other armies. The 
 base of our operations has generally been some line separating 
 friendly from hostile territory; and hence, "the theater of op- 
 erations," during this war, has generally been upon the enemy's 
 soil. The sea-coast, I know, has frequently, during the present 
 
war, become the base of our operations; but, then, the enemy's 
 country was still, in every instance, the theater of those opera- 
 tions. It is useless, however, to discuss these public and noto- 
 rious facts; for the citizenship of the accused, renders the at- 
 tempt to make them responsible for a violation of the laws of 
 war, wholly futile. Public enemies, only, are subject to the 
 laws cf war. The citizen, on the other hand, must answer for 
 such acts as would, if committed by an enemy, be a transgres- 
 sion of the laws and usages of w^ar, to his own government, ac- 
 cording to its own law^s. I will offer a single example, which I 
 quote from the auto-biography of Lieutenant General Scott. 
 It is as follows : 
 
 "In time of war all persons, not citizens of or owing allegi- 
 ance to the United States of America, who shall be found lui'k- 
 ing, as spies, in or about fortifications or encampments of the ar- 
 mies of the United States, or any of them shall suffer death 
 according to the law and usage of nations, by sentence of a 
 general court-martial." 
 
 "'Not citizens;' because, if citizens, and found ^lurking,' the 
 crime would be that of treason — 'adhering to [our] enemies, 
 giving them aid and comfort; ' and is so defined by the Consti- 
 tution." Yol. 1, pp. 290, 291. 
 
 But what are "the laws of war?" To whom do they apply? 
 The answer to these questions must forever put an end to all 
 attempts to invoke the aid of those laws, and of the tribunals 
 in which they are administered for the trial and punishment of 
 one of our own citizens; for it must be remembered that "the 
 laws of war" constitute that branch of international law which 
 regulates the intercourse and conduct of belligerent persons, 
 public enemies — with each other. It is this code that condemns 
 spies, when taken, to an infamous punishment at the hands of 
 their enemy. It is for cruel breaches of this code, that we are 
 sometimes compelled, as a measure of self-defence, to resort to 
 the cruel practice of retaliation. It is to this code we refer for 
 authority to punish guerrillas. And so, I might go on until I 
 had enumerated all its provisions ; but I should not find one 
 for the punishment of one of our own citizens among them all, 
 unless it was established that he had first joined himself to, and 
 become part of our acknowledged public adversaries. These 
 laws of war are international — wholly international ; and do not 
 apply to the internal regulation of either one of two or more 
 belligerent powers engaged in the same contest. 
 
 If, however, it shall be said that all persons, or the great body 
 of them, engaged in the present contest on either side, are citi- 
 zens of the United States; and, therefore, that a difficulty re- 
 sults in the application of this public code, to the parties, and 
 that what character any citizen may sustain to either, may not 
 ahvays be clear, I grant it; but w.hat follows? Can we give a 
 
8 
 
 mail a hostile character before he has openly espoused it? Can 
 we strip him of the rights of citizenship, before he Ijas acquired 
 that relation to the enemy which will entitle him to the protec- 
 tion of this code, as well as subject him to its penaltiesj, in case 
 he violates it ? There must be some general rule on the subject ; 
 and there can be no other or better one than to hold all persons 
 resident in the States which have seceded and still remain out 
 of the Union, as prima facie public enemies; and all those who 
 have adhered, and still adhere, to the Constitution and Union, 
 as prima facie citizens of, and subject to the laws and authority 
 of the United States. 
 
 I know, indeed, that there are at least two States which have 
 hitherto sustained an ambiguous relation to the struggle. I al- 
 lude to Kentucky and Missouri. They have never seceded by 
 solemn act; and still maintain their constitutional relation to 
 the Federal Government. But, then, they are also represented 
 in the Confederate Congress, and army. The character of a 
 citizen of either, must therefore, depend upon his conduct ; and 
 he must be treated accordingly. If he has not joined the pub- 
 lic enemy openly; but commits a crime against the government, 
 he is entitled to be tried therefor by the ordinary courts of the 
 Union, in pursuance of the Constitution and laws. If he has 
 joined the public enemy and been taken in arms, or '^lurking as 
 a s/^y," he is entitled to be treated according to " the laws of war :" 
 — in the former case to be exchanged as a prisoner of war, in 
 the latter, to be hung for violating the laws of war. And this 
 is just w^hat our government has been doing during this rebellion. 
 
 The form of these charges places the Government then, 
 in the following attitude toward the accused, namely : As 
 claiming them as citizens on the one hand, but denying them 
 the rights of citizenship, on the other : as fixing upon them, 
 for the purposes of this trial, and the punishment and infamy 
 that may follow it, the character of public enemies, on the one 
 hand; but denying them any of the advantages resulting from 
 that character, on the other. Such a course, I submit, is unheard 
 of in the judicial proceedings of our country; and with all 
 deference to my friend, the Judge Advocate, is, in my opinion 
 wholly inadmissible. I have little apprehension, therefore, that 
 you will claim jurisdiction of the accused on the ground that 
 they are guilty of a violation of the laws of war; and, by con- 
 sequence, public enemies. If you sustain your ifmmi^mm at all, 
 it must, therefore, be upon the basis of martial lav). 
 
 I beg leave to call your attention to a fact, in evidence, which 
 must exercise an important influence upon your judgment on 
 the question : Whether martial law is, or has been, in force in 
 the State of Indiana, or not? and, of course, upon that of your 
 jurisdiction. I allude, of course, to the fact that the courts both 
 of the State, and of the United States, within the State of In- 
 
 JVi/iT-v^ fiUii^l%.^>0 
 
9 
 
 diana, have never at any time, during the present rebellion been 
 thereby shut up, and the course of justice therein disturbed and 
 stopped; but that those tribunals have all along remained open, 
 and engaged in the administration of justice ; and capable of 
 enforcing their judgments, orders and decrees according to the 
 established laws of the land. This fact was not proved in Mr, 
 Z>odcr s csise. His escape cut off all evidence in his defence; 
 and, of course, this fact among others. Upon this fact, how- 
 ever, and a more thorough argument, I build my hopes of an 
 ultimate decision against^he jurisdiction. In pressing the argu- 
 ment and giving utterance to these hopes, I beg leave to say for 
 myself, and for those whom I represent, that our objection to 
 the jurisdiction, does not spring from any objection to the indi- 
 vidual members of the court as fair minded and honorable gen- 
 tlemen, and worthy to sit in judgment upon any man in the 
 land, subject, under the constitution and laws, to their author- 
 ity. It is on the other hand, simply because as citizens, in no- 
 wise connected with the military or naval service of the United: 
 States, the accused are not within any military jurisdiction what- 
 ever. They claim the right to be tried by one of the constitu- 
 tional courts of their country, and by a jury thereof. They ask 
 justice at the hands of their peers of the District of the State 
 of Indiana. For justice is properly justice only when legal, 
 constitutional, and just means, are employed in the attainment 
 of legal, constitutional and just ends. Your findings may cor- 
 respond precisely with what would be those of a jury of the 
 country; but if you lack jurisdiction — the right to find at all 
 in the premises — it would be a mockery to call them, or any 
 subsequent proceedings thereon, justice. Justice must have a 
 right origin, or it can not exist. If what is called justice pro- 
 ceed from a tribunal without authority, it is injustice, outrage, 
 crime; and, if it reach the life of him who is made its subj-ect,. 
 it is murder, 3 Co. Inst., p. 52 ; 1 Hale's His. P. C. p. 6, 499— 
 501 ; 4 Bl. com. 178 ; and 4 State Trials, p. 129. 
 
 A good citizen will not accept even a favorable judgment at 
 the hands of an unauthorized tribunal ; much less an adverse 
 one; because it involves the overthrow of the laws and govern- 
 ment of his country, on which all rights, whether of person or 
 property, depend. A good State, alive to a proper sense of its 
 duty and dignity, will never allow him to accept the one, nor to 
 be made the victim of the other. 
 
 Has this Commission, then, jurisdiction of this cause? May 
 it rightfully, lawfully, constitutionally try the accused upon the 
 charges and specifications exhibited against them ? If it may,- 
 whence does it derive its authority for that purpose? 
 
 I am here to-day, to endeavor to answer these questions* 
 You are here to-day, to judge whether I give the true response^ 
 or not. That you may "the better ^udge>" I a&k your attention^, 
 your candor, and your patience. 
 
10 J. w. Gordon's argument. 
 
 I do not believe that you will hold, as was maintained before 
 you on a former occasion, that you are precluded from going 
 into the question of jurisdiction by the mere order of the Gen- 
 eral convening this Commission, and that sending tlie accused 
 before you "for trial." That I may not misrepresent the posi- 
 tion taken by the learned Judge Advocate, upon this point, I beg 
 leave to quote the entire paragraph. It is as follows : 
 
 "When General Hovey convened this Commission within the 
 limits of his jurisdiction, and committed the case of Harrison 
 H. Dodd, the accused, to this Commission to try it, by virtue of 
 his military power, acting under the authority that was given 
 to him by the Commander-in-chief of the army, namely : the 
 President of the United States, he suspended the civil law, and 
 put in operation the military, or martial law. The officers of 
 this Commission could not under the oath that they have taken, 
 refuse to obey the orders of the officers placed over them. 
 They could not stop and go back of that order, and refuse to 
 hear and determine this case." 
 
 ]N'ow, whatever may have been your decision in that case upon 
 the question of jurisdiction, I am very certain that you did not 
 adopt the doctrine of this paragraph. I know you do not, and 
 can not hold to the slavish and shameful notion, that you sit 
 here to do whatever the commanding General may order. 
 Obedience of the inferior to the superior is for the field, the 
 march, the camp, the desk; and even there it has its limits. 
 The law does not require obedience anywhere in contravention 
 of its own provisions. You are sworn to obey the "lawful" 
 •commands of your superiors; and there your obligation ceases. 
 The employment of the word "lawful," (Art. War Sec. 9,) 
 clearly excludes the idea of obedience to all but such commands. 
 The unlawful order of a superior, even the highest, can not be 
 -given in evidence in justification of a trespass — much less of a 
 felony. Can obedience then extend to the duties of the court 
 room, and subordinate the justice which, in your judicial capac- 
 ity, you are to administer there? If it does, what a mockery is 
 all military justice ! Who would, or could consent to sit as a 
 •member of a military court, and pass judgment upon the lives 
 and fortunes of his fellow-men, when his own convictions of the 
 law and the facts, in the case, were to have no control over his 
 decisions ! 
 
 'I had sooner be a dog and bay the moon." 
 
 Held on such terms, your commissions would be but badges of 
 the most odious and wicked servitude. Every free mind that 
 has not quite escaped the direction of conscience, must reject 
 fiuch a position with indignation and horror ! I think I hear you 
 exclaiming at such a proposal: "No; let the General go di- 
 ^•ectlj to bis purposes, and punish whom he will, and as he w^ill, 
 
J. w. Gordon's argument. 11 
 
 without the deceitful and wicked pretence of a trial. I will brave 
 all consequences sooner than thus surrender my manhood. He 
 shall never employ me in a mockery so foul, and so cruel!" 
 Every honorable mind w^ould so feel and so speak ; and none, 
 I am sure, more promjftly and warmly than my distinguished 
 friend, the General, who now commands this District; and un- 
 der whose authority you sit. Fory if it is all a matter of com- 
 mand aud obedience, then let the command and its execution 
 stand together, without the intervention of this hollow form of 
 justice. ^Do not mock the predestined victims with the delusive 
 hopes arising from the forms of a trial, that, from first to last, 
 onthis tlieory, can not rise higher than a miserable trick to de- 
 ceive the looker on; and divide the responsibility of acts not 
 capable of justification, when placed before the world in their 
 true light. Indeed, on such a theory, you do not constitute a 
 court at all, in any received sense of the term ; for "a court is a 
 place where justice is judicially administered." 
 
 With these observations I shall deliver this topic to your 
 consideration and judgment. 
 
 I am thus brought at last to the discussion of martial law, as 
 the basis; and, indeed, the only basis on which your jurisdic- 
 tion of the present cause can possibly be sustained. If martial 
 laio doesj in fact, exist in the State of Indiana, you may have 
 jurisdiction. If it does not, you do not, and can not possibly 
 possess such jurisdiction. The question, therefore, recurs upon 
 us: 
 
 Has martial law an actual existence in the State of Indiana 
 to-day? If so, how has it received such existence? Does it 
 exist by proclamation, by law, or by necessity? If by procla- 
 raation, or law, w^hen was the proclamation made, or the law 
 passed? If by necessity, when did that necessity arise; and 
 wherein does it consist? 
 
 As the first step toward a satisfactory answer to these ques- 
 tions, let us determine what martial law really is; for this is still 
 a question. This question I propose to answer from the books. 
 Smith says: 
 
 '^Martial law is the law of war, that depends on the just, but 
 arbitrary power of the King or his lieutenant; for though the 
 King doth not make any law but by common consent in Par- 
 liament, yet in time of war, by reason of the necessity of it, to 
 guard against dangers that often arise, he useth absolute power, 
 BO that his word is law." Smith on the English Bepublic, book 
 2, chap. 4. 
 
 Sir Matthew Hale, in his History of the Common Law, says: 
 
 '' Martial law is not in truth and reality a law, but something 
 indulged rather than allowed as a law; the necessity of govern- 
 ment, order, and discipline in an army is that only w^hich gives 
 these laws any countenance." 1 His. C. L., p. 54. 
 
12 J. w. Gordon's argument. 
 
 I make this quotation, not because, in the present state of 
 opinion and law, either in England or America, it gives us a very 
 precise and accurate notion of martial law; but in order to 
 bring it into relation to a criticism which, when taken in con- 
 nection with the state of British military law at the time the 
 venerable Hale wrote, is, in my opinion, entirely unjust; and, to 
 show that, at that time, this definition was as accurate and com- 
 plete as could be given. The criticism to which I refer is that 
 of the late Attorney General Gushing. He says : 
 
 "This proposition is a mere composite blunder, a total mis- 
 apprehension of the matter. It confounds viartial laio and mil- 
 itary laid; it ascribes to the former the uses of the latter; it 
 erroneouslj^ assumes that the government of a body of troops 
 is a necessity, more than that of a body of civilians, or citizens. 
 It confounds and confuses all the relations of the subject, and 
 is an apt illustration of the incompleteness of the notions of the 
 common-law jurists of England in regard to matters not com- 
 prehended in that Hmited branch of legal science.'^ 8 Opinions 
 of the Atfys Gen. 865, et seq. 
 
 I^ow% I beg leave to say, that Sir Matthew Hale w^as not a 
 mere common-law lawyer. His writings show him to have been 
 familiar with the civil law; and to have read extensively the 
 continental writers on public law. N"or is it true that his obser- 
 vations on the nature and uses of martial law constitute a mere 
 "composite blunder," "a total misapprension of the question." 
 The "blunder," on the contrary, is on the part of the learned 
 Attorney General; and not on that of the venerable Chief Jus- 
 tice. It will be apparent that I am right, if we refer to the 
 state of England and English military law" at the time the His- 
 tory of the Common Law was written. Its author died in 1676. 
 Up to that time, England had properly no military code. Her 
 armies were really subject to such laws as the King might im- 
 pose, where a limit upon his will in this respect had not been 
 fixed by Parliament. It was not until after Hale wrote, and had 
 been gathered to his fathers, that the first inilitayy bill was 
 passed, and military law thereby placed upon a different footing 
 from that of martial law. The will of the King, until then, was 
 the law of the army — a will regulated, indeed, by the principles 
 of the civil law; but, even in that respect, controlled no further 
 than he chose; and this w^ill is the same w^hether applied to sol- 
 diers or civilians. "It is not in truth and reality a law." It 
 was, nevertheless, pretty much all the law known to the British 
 army in the time of Hale. 1 Bl. Com., chap. 13; 2 Sullivan's 
 Lectures, p. 257. In this view" of the facts of history, and the 
 state of military law when Hale wrote, the learned Attorney 
 General seems to be guilty of the blunder which he attributes 
 to the Chief Justice. 
 
 The first member of Mr. Stephens' definitions of martial law 
 is sufficiently accurate. He says: 
 
 ^nHt-CCfc'^vY 
 
J. w. Gordon's argume^'t. 18 
 
 ^'Martial law may be defined as the law, (whatever it may be,) 
 which is imposed by military power." 2 Com. Laws of Eng- 
 land, p. 561. 
 
 The Duke of Wellington was also right when he defined it 
 thus: 
 
 ^' Martial luw is neither more nor less than the will of the 
 General who commands the army." Hansard's Debates, (3d 
 series,) voL 115, p. 880. 
 
 And again, when he wrote as follows: 
 
 "Military law," [i. e. martial law,'] "as apphed to any persons 
 excepting officers, soldiers, and followers of the army, for whose 
 government there are particular provisions of law, in all well 
 regulated countries, is neither more nor less than the ivill of the 
 General of the armyT Despatches, vol. 6, p. 43. 
 
 The distinction between martial and military law is, in this last 
 definition, made plain, the latter being confined to provisions of 
 law for the regulation of the army; and the former, to such as 
 the will of the General may impose upon those — not soldiers — 
 under martial laio. 
 
 Earl Grey, in discussing the questions growing out of a declar- 
 ation of martial law in Ceylon again expresses the idea with 
 sufficient accuracy. He says : 
 
 "What is called proclaiming martial law is no law at all; but 
 merely for the sake of public safety, in circumstances of great 
 emergency, setting aside all law and acting under military power ; 
 a proceeding which requires to be followed up by an act of in- 
 demnity when the disturbances are at an end." Hough's Prec. 
 in Mil. Law, p. 515. 
 
 Judge- Advocate-General Dundas, in writing upon the sub- 
 ject, says: 
 
 ^''Martial law is not a written law; it arises on a necessity to 
 be judged of by the Executive, and ceases the instant it can pos- 
 sibly be allowed to cease. Military law has to do only with the 
 land forces of the Crown, mentioned in the second section of 
 the mutiny act. Martial law comprises all persons, all are under 
 it, whether they be civil or military." Second Rep. on Ceylon, 
 Hough, supra, p. 535. 
 
 "When martial law is proclaimed," says Hough, "courts- 
 martial are thereby vested with such a summary proceeding, 
 that neither time, place nor persons are considered. jSTecessity 
 is the only rule of conduct; nor are the punishments which 
 courts-martial may inflict under such authority limited to" such 
 as are prescribed by law. Hough on Courts-Martial, p. 383. 
 
 Captain Benet, in his treatise on Military Law and Courts- 
 Martials, in speaking of martial law, says : 
 
 '•' Martial law, then, is that military rule and authority which 
 exist in time of war, and is conferred by the laws of war, in 
 relation to persons and things, under and within the scope of ac- 
 
14 
 
 tive military operations in carrying on the war, and which extin- 
 guishes or suspends civil lights, and the remedies founded upon them 
 for the time being, so far as it may appear to be necessary, in 
 order to the full accomplishment of the purpose of the war, the 
 party exercising it being liable in an action for any abuse of the 
 authority thus conferred. It is the application of military gov- 
 ernment — the government of force — to persons and property 
 within the scope of it, according to the laws and usages of war, 
 to the exclusion of municipal goverment, in all respects where 
 the latter would impair the efficiency of military law, or mili- 
 tary action." Benet on Mil. Law and Courts-Martial, p. 14. 
 
 The late commander-in-chief of the army of the United 
 States, Major General Halleck, observes: 
 
 " We remark, in conclusion, that the right to declare, apply 
 and exercise martial law is one of the rights of sovereignty, and 
 is as essential to the existence of a State, as is the right to de- 
 clare or carry on w^ar. It is one of the incidents of war, and, 
 like the power to take human life in battle, results directly and 
 immediately from the fact that war legally exists. It is a power 
 inherent in every government, and must be regarded and recog- 
 nized by all other governments; but the question of the author- 
 ity of any particular functionary to exercise this power is a mat- 
 ter to be determined by local, and not by international law. 
 Like a declaration of seige, or blockade, the power of the officer 
 who makes it, is to be presumed until disavowed; and neutrals 
 who attempt, in derogation of that authority, do so at their 
 peril." International Law and Laws of War, p. 380. 
 
 Again, he says : 
 
 *'The English common law authorities generally confound 
 mar^M^ with military law; and, consequently throw very little 
 light upon the subject, considered as a domestic fact; and in 
 parliamentary debates it has usually been discussed as a fact, 
 rather than as forming any part of their system of jurispru- 
 dence. ^Nevertheless, there are numerous instances in which 
 martial law has been declared and enforced, in time of rebellion 
 or insurrection, not only in India, and British Colonial Posses- 
 sions, but also in England and Ireland. It seems that no act of 
 Parliament is required to precede such declaration, although 
 it is usually followed by an act of indemnity, when the disturb- 
 ances which called it forth are at an end, in order to give consti- 
 tutional existence to the fact of martial law." Id. 874. 
 
 I desire to remark, in passing, that a careful study of the 
 English authorities alluded to, will, perhaps, explain them, and 
 show that their confusion is only apparent, in relation to this 
 subject. In the iirst place, as already shown, the English had 
 no distinct system of military law until after the revolution of 
 1688; and before that time their armies were subject, in a great 
 degree, to simple martial law. It is true the Kings' will was in 
 
J. w. Gordon's argument. 15 
 
 some measure restrained by statute. In the second, as the only 
 ground upon which that will — martial law — can apply to others 
 than soldiers within the kingdom, is that of necessity^ it was both 
 natural and philosophical for them to regard it as simply a fact. 
 Indeed, it is nothing else but a fact both in its origin and its 
 application. It originates in necessity, which is a fact. It is 
 the will of the commanding general, who always determines its 
 extent and the mode of its application. It will thus assume a 
 different form — will be more or less sweeping — cruel or merci- 
 ful, according to the exigency of each particular instance of its 
 exercise, as well as the character and temper of him who ad- 
 ministers it. A thing thus variant and uncertain can not be 
 allowed as a law; for a law must be a rule prescribed, must be 
 uniform in its application, which can never be said of any thing 
 resulting from mere necessity, and subject for its measure and 
 duration to mere human will. The only element common to 
 such a state of administration and law, is that both are applied 
 to the affairs of men. It will, therefore, be subject, of course, to 
 the judgment of public opinion as all other facts are, in which, 
 moral agents and relations are involved; but whatever restraint 
 that imposes can not change the fact into a law. IlTor, it w^ouldi 
 seem, does the right of a belligerent depend upon the legality 
 of the war, as remarked by General Halleck. On the contrary,, 
 we might naturally suppose that he who entered upon an illegal 
 and unjust Avar, would be most likely to avail himself first of 
 the advantages of martial law, which, in the language of Mr. 
 Adams, would "sweep the laws of his adversary by the board," 
 and substitute his discretion therefor. Hence, upon the whole, 
 I see no reason why the learned general should criticise the 
 English. The last two authors cited, seemingly without per- 
 ceiving it, confine the operation of martial law to the territory 
 of public enemies, or to the immediate theater of military oper- 
 tions. In either view, their remarks are inapplicable to our 
 condition here; for we may admit the most unbounded author- 
 ity to exercise martial law in our generals, in carrying on a for- 
 eign war in an enemy's country ; or in a domestic war ^'within the 
 scope of active military operations,'' and it will not follow that any 
 such authority can exist in a State devoted to the government, 
 and in no sense the theater of ^'active military operations.'' In 
 the foreign country the citizen will be subject to international 
 law; and our public enemy can not look beyond that to see 
 whether, in the exercise of martial law, we disregard our own 
 constitution. At home, the fact of war and the immediate pres- 
 ence of hostile armies puts an end to all other laws; and martial 
 law, for the time being, exists by necessity. Military power is 
 rather, in such case, a law to itself. They leave us, therefore, in. 
 quite as much doubt and confusion, so far as the case in handi 
 is concerned, as they found us. 
 
16 J. w. Gordon's argument. 
 
 I beg your pardon for introducing liere, a little out of place, 
 the observations ujDon martial law of some of our own leading 
 politicians. I say politicians advisedly; for I do not think that 
 they were generally actuated in the utterance oi these opinions 
 by the motives that should govern statesmen ; and I do not 
 think so, because the whole spirit of the debates in which they 
 were delivered, was of a most decided and even bitter partizan 
 tone. I allude to the debates on remitting the fine imposed by 
 Judge Hall upon General Jackson, at ^ew Orleans, in 1815, for 
 contempt of court in refusing obedience to a writ of habeas cor- 
 pus. Democrats in Congress were in favor of the measure, 
 while most, if not all the Whigs, were opposed to it. Mr. John 
 Q. Adams, then in the House of Representatives, made it an 
 occasion for striking at both the Democratic party and slavery. 
 He maintianed that the measure was a hobby on which leading 
 Democrats were seeking to elevate themselves to the Presidency 
 upon General Jackson's popularity; and then turned upon the 
 slaveholders of the South, and reminded them how easy it would 
 be, in some fit emergency, to employ martial law for the aboli- 
 tion of slavery. And such generally was the spirit of the de- 
 bate; a spirit, one would think, little calculated to render opin- 
 ions remarkable for their legal accuracy. It was in this debate 
 that Mr. Adams said : 
 
 *'The power of Congress" — the power to declare martial 
 law — "has, perhaps, never been called into exercise under the 
 present constitution. But when the laws of war are in force, 
 what, I ask, is one of those laws ? It is this : that when a country 
 is invaded, and two hostile armies are met in m.artial array, the 
 commanders of both armies have power to emancipate all the 
 slaves in the invaded territory. 
 
 "And here I recur again to the example of General Jackson. 
 What are you about in Congress? You are *bout passing a 
 law to refund to General Jackson, the amount of a certain fine 
 imposed upon him by a judge under the laws of Louisiana. 
 You are going to refund him the money with interest, and this 
 you are going to do, because the imposition of the fine was un- 
 just. And why was it unjust? Because General Jackson was 
 acting the under laws of war ; and because the moment you place 
 a military commander in a district that is the theater of war, the 
 laws of war apply to that place. 
 
 " I might furnish a thousand proofs to show that the preten- 
 sions of the gentlemen to the sanctity of their municipal insti- 
 tutions, under a state of actual invasion, and actual war, whether 
 servile, civil, or foreign, is wholly unfounded, and that the. laws 
 of war do in all such cases take precedence. I lay this down 
 as the law of nations. I say, the military authority takes, for 
 ,the time, the place of all municipal institutions, and of slavery 
 among the rest; and that, under that state of things, so far from 
 
J. w. Gordon's argument. 17 
 
 its being true, that the States where slavery exists have the ex- 
 clusive management of the subject, not only tbe President of 
 the United States, but the commander of the army, has power 
 to order the universal emancipation of the slaves. I have given 
 here more in detail a principle which I have asserted on this 
 floor before now; and of which I have no more doubt than that 
 you, sir, occupy that chair." 
 
 In the course of the same debates, Mr. Buchanan, taking it 
 for granted that General Jackson had done no more than his 
 duty in declaring martial law in I^ew Orleans, in 1814 and 1815, 
 said: 
 
 "If General Jackson did no more than his duty in declaring 
 martial law, the moment that declaration w^as made, the official 
 functions of Judge Hall ceased, with regard to his power of 
 issuing writs of habeas corpics, which might interfere with the 
 defence of the city. As soon as martial law was in force every 
 citizen of New Orleans, whether sustaining an official character 
 or not, was bound to submit to it. * * * * 
 
 * * * * For it was quite a plain case, 
 
 that, if martial law did not supercede and put in abeyance the 
 civil power, it would be wholly insufficient in attaining the only 
 objects for which alone it could be tolerated or justified." 
 
 Mr. Douglas, in the House of Representatives, maintained 
 the same principles; but from his statement of the case confined 
 their operation to the defence of the city; in other words, to a 
 state of siege. Among other things he said: 
 
 "I maintain that, in the exercise of the power of proclaim- 
 ing martial law, General Jackson did not violate the constitu- 
 tion, nor assume to himself any authority not fully authorized 
 and legalized by his position, his duty and the necessity of the 
 case. General Jackson was the agent of the government, legally 
 and constitutionally authorized to defend the city of New Or- 
 leans. It was his duty to do this at all hazards. It was then 
 conceded, and is now conceded, that nothing but martial laxo 
 would enable him to perform that duty. His power was com- 
 mensurate with his duty, and he was authorized to use the 
 means essential to its performance. This principal has been 
 recognized and acted upon by all civilized nations, and is famil- 
 iar to all who are conversant with military history. It does not 
 imply the right to suspend the laws and civil tribunals at pleasure. 
 The right grows out of the necessity. The principle is that the 
 commanding General may go as far, and no farther than is ab- 
 solutely necessary to the defence of the place committed to his 
 protection. There are exigencies in the history of nations, 
 when necessity becomes the paramount law, to which all other 
 considerations must yield. If it becomes necessary to blow up 
 a fort, it is right to do it. If it is necessary to sink a ship, 
 it is right to sink it. If it is necessary to burn a city, it is right 
 to burn it." Life and Speeches of Senator Douglas, pp. 25, 26. 
 
18 J. w. gokdon's argument. 
 
 And so I might go on, adding opinions and definitions of 
 martial laio to endless extent. I ^vill quote but one more; and 
 that is the opinion of Attorney General Gushing already refer- 
 red to. He sa3'8 : 
 
 " 31artial law, as exercised in any country by the commander 
 of a foreign army, is an element of the jus belli. It is incidental 
 to a state of solemn war, and appertains to the law of nations. 
 The commander of the invading, occupying, or conquering 
 army, rules the invaded, occupied, or conquered foreign country, 
 with supreme power, limited only by international law, and the 
 orders of the sovereign or government he serves or represents. 
 For by the law of nations, the occupatio bellica, in a just war, 
 transfers the sovereign power of the enemy's country to the 
 conqueror. (Wolff's Jus. Gentium, § 255; Grotius, De Jure et 
 Pads, ed. Cocceii,lib. iii, cap. 8.) 
 
 Such occupation by right of war is, so long as it is military only, 
 that 18 flagrante hello, will be the case put by the Duke of Wel- 
 lington, of all the powers of the government resumed in the 
 hands of the commander-in-chief. If any local authority con- 
 tinue to exist, it will be w^ith his permission only, and with the 
 power to do nothing, except what in his plenary discretion, or 
 his own sovereign, through him, shall see fit to authorize. The 
 law of the land will have ceased to possess any proper vigor. 
 
 Thus, while the armies of the United States occupied difiter- 
 ent provinces of the Mexican Republic, the respective com- 
 manders were not limited in authority by any local law. They 
 allowed, or rather required, the magistrates of the country, 
 municipal or judicial, to continue to administer the laws of the 
 country among their own countrymen, but in subjection always 
 to the miltary power, which acted summarily and according to 
 discretion, when the belligerent interests of the conqueror re- 
 quired it, and which exercised jurisdiction either summarily, or 
 by means of military commissions, for the protection or punish- 
 ment of citizens of the United States in Mexico. 
 
 That, it would seem, was one of the forms of martial laio. A 
 violent state of things, to cease, of course, when hostilities should 
 cease, and military occupation be changed into political occupa- 
 tion." {Mphinstone v. Bedruchund, 1 Knapp's Rep. p. 338; 
 Cross V. Harrison, 16 How. p. 164.) 
 
 If we now return, and endeavor to glean from all these authori- 
 ties and opinions, an idea of martial laio, as applicable to the 
 internal affairs of a State, we shall find ourselves scarcely nearer 
 to it than we were at the start. The laws of war regulate a 
 state of war, and define the rights of parties to it, with respect 
 to each other; and can only afford, therefore, a remote analogy 
 for our guidance in the internal concerns of a State in which 
 riots or rebellions call into requisition the military power. 
 True, when a civil war assumes the magnitude of our present 
 
19 
 
 contest, and the parties thereto — rebels on the one side and 
 government on the other — from the necessity of the case, as 
 well as from considerations of humanity, are compelled to adopt 
 the public law of war, and to regulate their conduct according 
 to its principles, the laws of w^ar become, to that extent, a suffi- 
 cient guide. But all this does not in the least help us, in regard 
 to those States which have never been engaged against the gov- 
 ernment. Whether any, and if any, what assertion of military 
 power, incompatible with civil institutions and civil rights, is 
 admissible in those States, does not appear from the books that 
 treat of martial law. Earl Gray seems to approach the point 
 more nearly than the rest; for in such case martial law would 
 "m truth and fact be no law at all; hut the setting aside of all law 
 and acting under military power J^ Supra. And this he says can 
 only be done "in circumstances of great emergency," and must 
 be followed "by an act of indemnity." It is, therefore, the 
 substitution of military force for, and to the exclusion of, the 
 laws; and can be justified no further than is absolutely neces- 
 sary. And all the authorities and opinions cited go to this ex- 
 tent, and no further. 
 
 Has this substitution, then, of military power for civil law, 
 and civil tribunals and institutions taken place in Indiana ? And 
 if so, upon what necessity? When was it done? Who determined 
 the necessity, and made the substitution ? Where is the act of 
 Congress, the proclamation of the President, or the order of the 
 military commander of the department, or the district? Have 
 these, or has any of them acted upon this subject; and, if so, to 
 what extent? And above, and before all, where is the grant of 
 authority to any, or all of them combined, or, indeed, to the 
 whole government, thus to "set aside all law," and substitute 
 "military power" therefor? To assume that any such author- 
 ity can exist in a limited government is a self-contradiction. 
 
 Let us examine briefly the nature of the Anglican system of 
 civil liberty — institutional government — a system which in a 
 very large measure we have inherited or adopted ; and see 
 whether such a system as martial laic is at all compatible there- 
 with. Can the two exist together? 
 
 I shall endeavor to answer this question by a brief review of 
 English history and law; for if this power "to set aside all 
 law," and to " act under military power," be at all consistent 
 with such a system of law and government, we shall thus be 
 able to determine in what emergencies and to what extent. 
 
 I enter the more cheerfully upon this review, because it will 
 enable me to correct my friend, the Judge Advocate, in an 
 assertion which he has frequently made during the progress of 
 these trials, namely: " We are making new precedents daily. ^^ 
 Now, I think, I shall be able to show him that we are following 
 old and bad precedents — the work of wicked and lawless princes 
 
20 J. w. Gordon's argument. 
 
 in evil times — which were condemned, disallowed, and reversed 
 bj better princes immediately upon the return of better times ; 
 and which are only not known to him, because they have so 
 long remained dead and buried among the rubbish of barbarous 
 ages, that he has not been able, or, at least, has not chosen to 
 dig them up for his own, and your guidance on this occasion. 
 I shall aid him in this respect ; and, while I do so, must beg 
 his pardon, and that of the government he represents, for dis- 
 pelling the illusion that either is entitled to patent a new prece- 
 dent. In this regard they will find, after all, and, indeed, they 
 should have known from the first, that the farther back they go 
 in the history of the past, the more precedents they will find 
 for the easy but ruinous substitution oi force for lav:. Wher- 
 ever a free people have lost their liberties, there will be found 
 a precedent in point. The history of Greece and Rome is 
 fruitful of such precedents. Solomon had wiser conceptions 
 of the methods by which history continually repeats itself, than 
 to speak of new precedents ; and the sum of wisdom on this 
 point, as in his day, still remains happily expressed in these 
 words : "There is no new thing under the sun." 
 
 I will not go back in the history of English law beyond 
 Magna Charta; for that "solemn instrument" has been justly 
 regarded as laying the imperishable fou!idations of the great 
 political institutions of that country. (Creasy on the English 
 Constitution, 3.) Ours, in America, rest on the same foundations 
 — are referable to the same origin. 
 
 The 29th chapter of that instrument, as given by Henry 3, 
 contains these provisions which have found a place in all our 
 American Constitutions : 
 
 ''NuUus liber homo capiatur^ vel imprison etur, aut dlsseisietur de 
 libero tenemento suo, vel libertatibus, vel liberis consuetudinibus suis, 
 aut utlagatur, aut exuletur, aut aliquo modo distruatur, nee super 
 eum ibimus, nee super eum mittimus^ nisi per legale judicium, pari- 
 um suorum., vel per legem terrce" 2 Coke's Inst., p. 45. Which 
 has been rendered as follows : 
 
 "No freeman shall be taken, or imprisoned, or disseised, or 
 outlawed, or exiled, or banished, or in any ways destro^'ed; nor 
 will we pass upon him, nor will we send upon him, unless by the 
 lawful judgment of his peers, or by the law of the land." Crea- 
 sy, Supra, p. 134. 
 
 "These are," as Mr. Creasy observes "all words that should 
 be carefully read over, and over, and again ; for, as Lord Coke 
 quaintly observes, in his comments on them; 'as the gold-finer 
 will not out of the dust, threds, or shreds of gold let passe the 
 least crum,' in respect of the excellency of the metal ; so ought 
 not the learned reader to passe any syllable of this law, in re- 
 spect of the excellency of the matter ' " Id., 135 ; and 2 Inst, 57. 
 
J. W. GORDON^S ARGUMENT. 21 
 
 Lord Coke in commenting upon the words: "IlTo man de- 
 stroyed," &c., gives the following commentary and illustration: 
 
 *'Tliat is, forejudged of life, or limb, disherited, or put to tor- 
 ture or death." ^ '^ '' M. :{. :ic 
 
 "Thomas, Earl of Lancaster, was destroyed, that is, adjudged 
 to die as a traitor, and put to death, in 14 E. 2, and a record 
 thereof made ; and Henry, Earl of Lancaster, his brother and 
 heir, was restored for two principal errors against the same 
 Thomas, Earl : 1. Quod non fait araniatus, et ad responsionem. posi- 
 tus tempore pads, eo quod cancellaria et alice curim llegis fuer, 
 apertcE, in quibus lex fiebat unicuique prout fieri consuevit: that ia 
 to say : Because he was not arraigned, and because in time of 
 peace, he was put to trial while the Chancery and other courts 
 of the King were open, in each of which the law was regularly 
 administered; 2. Quod contra cartam de libertatibus^ cum dictus 
 Thomas fait unus parium et magnatum regni, in qua continetur — 
 and reciteth this chapter of Magna Charta and specmWy quod 
 JDominus Lex non super eum ibit; nee mittet; nisi per legale judi- 
 cium parium suorum, contra legem, et contra tenorum Magna* 
 Charta;'th'dt is, because it was against the charter of liberties, since 
 the said Thomas was one of the peers and magnates of the 
 realm in which it is preserved ; and reciteth this chapter of 
 Magna Charta, and specially "because the Lord the King. will not 
 proceed against any one, nor send upon him unless by the legal 
 judgment of his peers. Nevertheless, by the aforesaid pro- 
 ceeding, in time of peace, without arraignment,, or pleading, or 
 the legal judgment of his peers, against law, and the terms of 
 Magna Charta, he was put to death. More examples of this 
 kind might be found." Id., supra. 
 
 This case, when the mode of trial is shown, is the reversal of 
 a precedent which the Judge- Advocate would, perhaps, style "a 
 new precedent;" for the historian tells us that Thomas of 
 Lancaster was adjudged to death by a kind of military court, 
 extemporized by the King, and consisting of himself and a few 
 Earls anil Barons. 2 Lingard His. Eng., p. 248, and note; ^; 
 Hume His. of Eng., pp. 159, 160. 
 
 The learned Coke adds, immediately after citing this case, and, 
 its reversal — 
 
 "Every oppression against law, by color of any usurped au- 
 thority, is a kind of destruction; for Quando aliquid prohibitur,. 
 prohibiter et omiie, per quod devenitur ad illud; and it is the most 
 grievous oppression that is done by color of justice." Id., sup. 
 Tlie reversal of a second precedent that might be regarded as 
 new, is recited by Sir Matthew Hale in his History of the Com- 
 mon Law ; and is thus given : 
 
 " The exercise of martial law, whereby any person should lose 
 his life, or member, or liberty, may not be permitted in time of 
 peace, when the King's Courts are open for all persons to receive- 
 3 
 
22 J. w. 
 
 justice according to the laws of the land. This is in substance 
 declared by the Petition of Right, 3 Car. 1, whereby such 
 'Commissions and martial law were repealed and declared con- 
 trary to law. And accordingly was that famous case of Ed- 
 mund, Earl of Kent, who being taken at Pomfret, 15 Edw. 2, 
 Jthe King and divers lords proceeded to give sentence of death 
 against him, as in a kind of military court, b}^ a summary pro- 
 'Ceeding, which judgment was afterwards, in 1 Edw. 3, reversed 
 •in Parliament. And the reason of that reversal serving to the 
 purpose in hand, I shall here insert it as entered in the record, 
 viz : ' Quod cum.quicunq; homo ligeiis domini regis fro sediiionibus, 
 <5'C., tewi-pore pads captus et in quacunque curia domini regis ductus 
 fuerit de ejusmodi seditionibus et aliis feloniis sibi impositis per legem 
 et consuetudineregni arrectari debet et responsionem adduci, et indeper 
 •eommunem legem antequam fuerit morti adjudicand' (triari) ^c. Unde 
 cum notorium. sit et manifestum quod totum tempus quo impositum 
 fuit eidem comiti propter mala et facinora fecisse, ad tempus in quo 
 captus fait et in quo morti adjudicatus fuit, fuit tempus pads maximce, 
 'Cum per totum tempus prmdictum. et cancellaria et alice plac. curice 
 domini regis apertxfuer. in quibus cuilibet lex fiebatur sicut fieri con- 
 suevit, nee idem dominis rex unquam tempore illo cum vexillis expli- 
 'talis equitabaty ^c." Which record may be rendered thus: 
 
 " Whenever the subject of the Lord the King, shall be ar- 
 trested for sedition in time of peace, before he can be adjudged 
 to death according to the common law, he must be taken into 
 some court of the King and held to answer for such seditions 
 and other felonies; whence it follows, that when it is made 
 known and manifest, that all the time during which it is alleged 
 that. the crimes were done, on account of which he was arrested, 
 to the time in which he was taken and adjudged to death, was a 
 time of profound peace, and during all the time aforesaid, the 
 Chancery and other courts of the King were open in which any 
 Jaw could be executed as it was the custom to have done, the 
 eame Lord the King h'ad no power, during that time, to ex- 
 ^ercise military control. 
 
 "And accordingly the judgment was reversed ; for martial law, 
 which is rather indulged than allowed, and that only in case of ne- 
 cessity, in time of open war, is not permitted in time of peace lohen 
 ike ordinary courts of justice are open J' 1 His. C. L. pp.55, 56. 
 
 In order that these precedents may have their due weight in 
 •this case, I beg leave to give a legal definition of what is, in this 
 respect, held to be a time of peace in England, according to the 
 <;ommon law. I will quote the precise language of Lord Coke, 
 who says: 
 
 " When the courts of justice are open, and the judges and minis- 
 ters of the same, may by law protect men from oppression and 
 violence, and distribute justice to all, it is said to be a time of peace. 
 fio, when by invasion, insurrection, or rebellion, &c., the peaceable 
 
23 
 
 course of justice is stopped, so as the courts of justice be as it were. 
 shut up, then it is said to be time of war." Ghke upon Littleton, 
 249, b. n. 1. 
 
 In further commenting upon the great chapter of Magna 
 Charta, ah*ca«ly quoted, Lord Coke says : 
 
 " *By the judgment of his peers' are to be understood of the 
 King's suit" — in other words, of a State prosecution. "And it 
 extendeth to the King's suit in case of treason or felony, or 
 misprision of treason or felony, or being accessor}' to a felony 
 before or after, and not to any other inferior off'ense. Also, it 
 extendeth to the trial where he is to be convicted." 2 Inst., 49. 
 
 And upon the word, ^^ legale,'' he says : 
 
 "By the word legale, amongst others, three things are im- 
 plied; 1st. That the manner of trial was by law before this 
 statute; 2d. That their verdict must be legally given, wherein 
 principally it is tq be observed; 1st. That the lords ought 
 to hear no evidence but in the presence and hearing of the 
 prisoner ; 2d. After the lords have gone together to consider 
 of the evidence, they can not send to the High Steward to 
 ask the judges any question of law, but in the hearing of the 
 prisoner," &c.; 3d. " When all the evidence is given," &c., "the 
 High Steward can not collect the evidence against the prisoner, 
 or in any sort confer wMth the lords, touching their evidence, in 
 the absence of the prisoner," &c. 2 Inst., 49. 
 
 And again, upon the word, "by the law of the land," while, 
 perhaps, going to the extent of permitting a party suspected of 
 treason to be arrested without writ, upon suspicion and com- 
 mon fame, he totally excludes the notion of his continued impris- 
 onment without some warrant; and leaves out of the question 
 all other forms of trial, but that by the legal judgment of hia 
 peers. Id. pp. 50, 55. 
 
 After the close of the long and glorious reign of Edward the 
 Third, his unworthy grandson, Richard the Second, came to the 
 throne, which he finally lost, by attempting to return to such 
 precedents as those just cited of his great grandfather. Ilis ef- 
 forts to get rid of Magna Charta and the Common Law, and to 
 substitute the Roman Civil Law for them, may be learned from 
 the records of his reign. An outline sufficient for our purpose 
 will be found in Sullivan's Lectures on the Laws and Constitution 
 of England. (See, vol. 1, p. 318, et seq.; and vol. 2, 257.) In 
 the former place will be seen what great efforts he made to in- 
 troduce the Civil Law, and in the latter, that this law became 
 the law of the Marshal's Court; — no doubt on account of the 
 fondness of the kings therefor, — and also, that the jurisdiction 
 of that court embraced the administration of martial law over 
 soldiers and camp followers. 
 
 In subsequent reigns, the kings of England struggled almost 
 constantly to extend this jurisdiction to others than soldiers ; 
 
24 J. w. Gordon's argument. 
 
 but it was a struggle against the free spirit of the nation. In 
 the reign of Henry the Eighth, an instrument was placed in 
 the hands of that monarch, by the parliament, which seemed to 
 go far toward making the king absolute; and which was subse- 
 quently used by him and his successors in such a way as almost 
 to insure that end. This was done by the passage of a statute 
 "w^hich," as Lord Coke observes, "gives more power to the 
 king than he had before;" and yet even there it is declared that 
 he can not '* alter the law, statutes or customs of the realm, or 
 impeach any in his inheritance, goods, body, life, &c." The 
 father of that King had gone so far, prior to this act, as to claim 
 the right to control the subject's right of doing all things not 
 unlaw'tul ; (Hal lam's Constitutional History, p. 15;) and his 
 daughter, Queen. Elizabeth, carried the power under this act to 
 euch an extent as to set all law at defiance. ''One Peter Burch- 
 ill, a fanatical Puritan, and, perhaps, insane, conceiving that 
 Sir Christopher Hatton was an enemy to the true religion, de- 
 termined to assassinate him ; but by mistake, he wounded instead 
 a famous seaman. Captain Hawkins. For this ordinary crime, 
 the Queen could hardly be prevented from directing him to be 
 tried instantly by martial law. Her council, however, (and this 
 it is important to observe,) resisted this illegal proposition with 
 spirit and success." (Hallam Cons. His., 143.) "The Queen had 
 been told, it seems, of what had been done in Wyatt's busi- 
 ness — a case not at all parallel; though there was no sufficient 
 necessity, even in that instance, to justify the proceeding by 
 martial law. But bad precedents always beget progeniiim vitiosi- 
 orem." (Id., in note.) But the same learned authority gives 
 the following instances of the exercise by Queen Elizabeth, of a 
 power almost absolute, through proclamations. I quote : 
 
 "We have, indeed, a proclamation some years afterward, de- 
 claring that such as brought into the kingdom, dispersed papal 
 bulls, or traitorous libels against the queen, should with all se- 
 verity, be proceeded against by her majesty's lieutenants, or 
 their deputies, by martial law, and suffer such pains and penal- 
 ties as they should inflict; and that none of her said lieuten- 
 ants, or their deputies, be in any wise impeached in body, lands, 
 or goods, at any time hereafter, for anything to be done or exe- 
 cuted in the punishment of any such offender, according to the 
 said martial laiv, and the tenor of this proclamation, any law, 
 or statute to the contrary, notwithstanding." This, Mr. Hallam 
 regards as "by no means constitutional ;" but apologises for it, 
 because it was done "when, within a few days, the vast arma- 
 ment of Spain" — known in history as the Spanish Armada — 
 "might effect a landing on the coast." "But," he remarks fur- 
 ther, "it is an unhappy consequence of all deviations from the 
 even course of law, that the forced acts of overruling' necessity, 
 
J. w. Gordon's argument. 25 
 
 come to be distorted into precedents, to serve the purposes of 
 arbitrary power." Id.^ 143 ; 4 Hume's His. Eng., p. 344. 
 
 I quote the same author for the following instance of a still 
 greater stretch of this arbitrary and unconstitutional power, 
 which occurred during the same reign : 
 
 "ITo measure of Elizabeth's reign can be compared, in point 
 of illegality, to a commission in July, 1595, directed to Sir 
 Thomas Wilford, whereby, upon no other allegation than that 
 there had been of late sundry great unlawful assemblies of a 
 riotous sort, both in the city of London and the suburbs, for the 
 suppression whereof (for the insolency of many desperate offen- 
 ders, is such that they care not for any ordinary ^punishment,) it 
 was found necessary to have some such notable rebellious per- 
 sons to be speedil}^ suppressed by execution to death, according 
 to the justice of martial laio ; he is appointed provost marshal, 
 with authority by the magistrates, to attack and seize such no- 
 table, rebellious and incorrigible offenders, and in the presence 
 of the magistrate to execute them openly, on the gallows." 
 
 "Thi? peremptory style of suspending the Common Law 
 was a stretch of prerogative without an adequate parallel, so 
 far as I know, in any former period." Id.^ 143, 144 ; 4 Hume's 
 His. Eng. p. 344. 
 
 It must be remembered that these high-handed measures took 
 place in the sixteenth century, a period when both religious and 
 political revolutions were rife in Europe ; that the life of Eliza- 
 beth, was more than once the object of conspiracies, both for- 
 eign and domestic ; that the ablest men in Europe were parties 
 to and prompters in these perfidious and bloody schemes; (Mot- 
 ley's Dutch Republic, vol. 2, part 3, p. 333; and D'Israeli's Curios- 
 ities of Literature, 1st ser., p. 166 ;) that the very persons at whom 
 these proclamations were aimed, had, in the preceding reign of 
 her sister, employed the same agencies for the overthrow of her 
 religion in the kingdom, and the destruction of her friends; 
 that the constable's and marshal's court, "whose jurisdiction 
 was considered as of a military nature," and whose proceedings 
 were not according to the course of the common law, had 
 "sometimes tried offenders" — not soldiers — by what was called 
 martial law, "either during or not long after a serious rebellion;" 
 and, above all, that, at the time of the last-mentioned proclama- 
 tion, the queen was a very old woman, and, it may be, some- 
 what subject to fits of ill temper. All these things must be 
 reckoned in her favor, to mitigate the judgment of history 
 against these arbitrary measures ; but still can not save the 
 acts themselves from the indignant condemnation of mankind. 
 Accordingly we find Lord Coke, in the next reign, condemn- 
 ing utterly the doctrine that the king's proclamation can either 
 
26 J. W. GORDON*S ARGUMENT. 
 
 alter, repeal, or suspend the law, or make that criminal, which 
 before was not. He says : 
 
 "The King can not create any offence by his prohibition or 
 proclamation, which was not an offence before ; for that was to 
 change the law, and to make an offence which was not ; for ubi 
 non est leXy ibi non est transgressio : therefore that which can not 
 be punished without proclamation, can not be punished with 
 it." "But," he further remarks, "we do find divers precedents 
 of proclamations which are utterly against law and reason, and 
 for that void; quoB contra rationem juris introduda sunt, non de- 
 bent trahi in consequentiam*' — i. e., measures introduced contrary 
 to the reason of the law, ought not to be drawn into conse- 
 quence, or precedent. Again, he says that it had been held that 
 the king, by his proclamation can not create any offence which 
 was not an offence before, "for then he may alter the law of the 
 land by his proclamation, in a high point; for, if he may create 
 an offence where none is, upon that ensues fine and imprison- 
 ment : Also the law of England is divided into three parts: — 
 common law, statute law, and custom; but the King's procla- 
 mation is none of them : also, malum aut est malum in se, aut 
 prohibitum, that which is against common law is malum, in se^ 
 malum prohibitum- is such an offence as is prohibited by act of 
 Parliament, and not by proclamation." 12 Rep., pp. 74, 75, 76. 
 
 Yet, notwithstanding the law was thus cogently laid down 
 in the time of James the First, we, nevertheless, find Charles 
 the First, in the first year of his reign, endeavoring to return to 
 the bad and unlawful measures of his predecessors. He ac- 
 cordingly addressed a commission to Lord Wimbleton, 28th 
 December, 1625, empowering "him to proceed against soldiers, 
 or dissolute persons joining with them, who should commit any 
 robberies, &c., which by martial law ought to be punished with 
 death, by such summary course as is agreeable to martial lawJ* 
 He, also, issued another commission of the same kind, in 1626. 
 See, Hallam's Const. His., p. 223, and note. 
 
 These unlawful proclamations, among other grievances, sub- 
 sequently moved Parliament to demand of his majesty the 
 justly celebrated Petition of Right, which forever put an end to 
 all colorable pretences of their legality. Let it be observed, 
 too, that this great act is but declaratory of the common law. 
 Ko measure was ever supported on the side of the Parliament 
 with greater force of talents and learning; or opposed by the 
 king with worse show of reason, or more bare-faced attempts 
 to deceive the public, and to prevent its final passage. Among 
 the managers of the Commons, on that occasion, may be reckon- 
 ed the great names of Coke and Selden — two names that may, 
 perhaps, be equaled, but certainly not surpassed, for learning 
 and ability, in English history. Under their management the 
 measure was finally perfected and passed ; and became a new 
 
J. w. Gordon's argument. 27 
 
 guaranty of Anglican liberty. I shall make no apology for 
 reading here such parts of it as I deem pertinent to the subject 
 under consideration. They are as follow : 
 
 ''And whereas, also, by the statute called the Great Charter 
 of the Liberties of England, it is declared and enacted, that no 
 freeman may be taken or imprisoned, or be disseized of hia 
 fceehold or liberties, or his free customs, or be outlawed, or ex- 
 ilod, or in any manner destroyed but by the lawful judgment 
 or his peers, or by the law of the land. 
 
 ''And in the eight and twentieth year of the reign of King 
 Edward III, it was declared and enacted by authority of Par- 
 liament, that no man, of what estate or condition that he be, 
 should be put out of his lands or tenements, nor taken, nor im- 
 prisoned, nor disherited, nor put to death, without being 
 brought to answer by due process of law\ * ?!: >}j 
 
 "And whereas, also, by authority of Parliament in the five 
 and twentieth year of the reign of King Edward III, it was de- 
 clared and enacted, that no man should be forejudged of life or 
 limb against the form of the Great Charter and the law of the 
 land ; and by the said Great Charter, and other, the laws and 
 statutes of this your realm, no man ought to be adjudged to 
 death but by the laws established in this your realm, either by 
 the customs of the same realm, or by acts of Parliament: and 
 whereas, no offender of what kind soever, is exempted from the 
 proceedings to be used, and punishments to be inflicted by the 
 laws and statutes of this your realm: nevertheless, of late time, 
 divers commissions under your majesty's great seal have issued 
 forth, by w^hich certain persons have been assigned, and ap- 
 pointed commissioners with power and authority to proceed 
 within the land according to the justice of martial law, against 
 such soldiers, or mariners, or other dissolute persons joining 
 with them, as should commit any murder, robbery, felony, mu- 
 tiny, or other outrage or misdemeanor whatsoever; and by such 
 summary course and order as is agreeable to martial law, and 
 as is used in armies in time of war, to proceed to the trial and 
 condemnation of such offenders, and them to cause to be exe- 
 cuted and put to death according to the law martial. 
 
 "By pretext whei-eof some of your majesty's subjects have 
 been by some of said commissioners put to death, when and 
 where, if by the laws and statutes of the land they had de- 
 served death, by the same laws and statutes also, they might, 
 and by no other ought, to have been judged and executed. 
 
 "They do, therefore, humbly pray your most excellent maj- 
 jesty * * * * ^ ^ :^ ^ that the 
 aforesaid commissions for proceeding by martial law, may be re- 
 voked and annulled; and that hereafter no commissions of the 
 like nature may issue forth to any person or persons whatsoever 
 
28 
 
 to be executed as aforesaid, lest by colour of them any of your 
 majesty's subjects be destroyed, or put to death contrary to the 
 laws and franchises of the land." 
 
 And to this prayer the King was finally compelled to answer, 
 ^ Soil fait comme est desire — be it as it i< desired." — 2 Pari. His., 
 p. 374, et seq. ; and Creasy on the Eng. Const., pp. 260-264. 
 
 But this act was no sooner passed than the perfidious King 
 set about violating its provisions; whereby he finall}' drove his 
 Parliament and people into open rebellion against him. In the 
 contest which ensued they beat him, took him, and beheaded 
 him, by the judgment of a tribunal not better in point of con- 
 stitutionality, than those by which he had doomed man}^ of his 
 subjects to death. The engineer was thus literally "hoist with 
 his own petar." "The curse," which he had more than once 
 sent abroad over his kingdom, thus at last, "came home to 
 roost." 
 
 It is unnecessary for our purpose to notice in detail the meas- 
 ures of the next two reigns. Let it sufiice for the present 
 to say that in the 31 Car. 2, the justly celebrated habeas corpus 
 act was passed ; and the personal liberty of the subject thereby 
 more effectually guaranteed than ever before; and that for at- 
 tempting to procure its repeal, dispense with acts of Parliament 
 by commission or otherwise, and other similar illegal measures, 
 his brother, James the Second, was obliged to abdicate, and fly 
 the kingdom, and "William and Mary were called to the throne. 
 1 Macaulay's His. Eng., 186 ; 2 Id,, 3 ; Id., 62, 64. 
 
 Upon the accession of William and Mary the great principles 
 of Anglican liberty w^ere again distinctly asserted in the Bill of 
 Rights ; and all the guarantees thereof reafiirmed. (Creasy on 
 the English Constitution, p. 284, et seq.) Since that event there 
 has been no trial of any citizen by martial law in Great Britain. 
 The writ of habeas corpus has been suspended often ; and in two 
 instances, arising from both rebellion and invasion, martial law 
 has been proclaimed ; but it has never been carried further than 
 to the arrest and imprisonment of suspected persons, until trial 
 by the ordinary tribunals could be had. One would think, too, 
 from a perusal of the State Trials which followed these inva- 
 sions and rebellions, that the punishments inflicted were both 
 certain and sanguinary enough to satisfy all the ends of State 
 Justice. It will be understood, of course, that I speak of the 
 invasions of the Pretender in 1715, and again in 1745. But 
 that I am not mistaken in regard to the fact, that martial law 
 was not in either instance enforced to the trial and punishment 
 of any citizen, and has not been in any other instance since or 
 before, subsequent to the abdication of James the Second, I beg 
 leave to show by reference to the case of Grant v. Gould, 2 Hy. 
 Bl. Rep. 89; and the following passage from DeLolme's excel- 
 lent treatise on the Constitution : 
 
J. w. Gordon's argument. 29 
 
 "At the time of the invasions of the Pretender, assisted by 
 the forces of hostile nations, the habeas corpus act was, indeed, 
 suspended; (which, by the by, may serve as one proof, that in 
 proportion as a government is in danger, it becomes necessary 
 to abridge the liberty of the subject;) hnt the Executive power 
 did not thus of itself stretch its own authority. The precaution 
 was deliberated upon and taken by the representatives of the 
 people; and the detaining of individuals in consequence of the 
 suspension of the act, was limited to a certain fixed time. Not- 
 withstanding the just fears of internal and hidden enemies, 
 which the circumstances of the times miglit raise, the deviation 
 from the former course of law was carried no further than the 
 single point we have mentioned. Persons detained by order of 
 the government were to be dealt with in the same manner aa 
 those arrested at the suit of private individuals, the proceed- 
 ings against them were to be carried on no otherwise tban in 
 a public place ; they were to be tried by their peers ; and have 
 all the usual legal means of defence allowed them — such as the 
 calling of witnesses, peremptory challenges of jurors, &c." — 
 DeLolme on the Const., by Macgregor, p. 274. 
 
 It has been supposed by many that martial law was pro- 
 claimed in England in 1780, during the great Protestant riot, 
 headed in its incipiency by the celebrated Lord George Gordon. 
 It is a mistake however, due, perhaps, to the discussions in 
 Parliament soon after that event, in relation to the King's 
 ordering the military to suppress the riot, and which was done 
 by direct military force. It was supposed then, 'by many mem- 
 bers of Parliament, that this could not be done without a decla- 
 ration of martial law; and in that view the proceeding was con- 
 demned by them, and especially by those in the opposition. 
 Two speeches, however, in the House of Lords may be regard- 
 ed as triumphantly maintaining the contrary opinion. I allude 
 to the speeches of Lord Chief-Justice Mansfield and Lord 
 Chancellor Thurlow. In order that the Commission may see the 
 ground on which the action of the military was placed by these 
 great men, and by Parliament, — for that body adopted their 
 views, — I shall submit a brief quotation from that of the 
 former, which has ever since been regarded by the English bar 
 as an authority. It is as follows: 
 
 **I presume it is known to his majesty's confidential servants, 
 that every individual in his private capacity, may lawfully inter- 
 fere to suppress a riot, much more to prevent acts of felony, 
 treason, and rebellion. Js'ot only is he authorized to interfere 
 for such purpose ; but it is his duty to do so ; and, if called up- 
 on b}' a magistrate, he is punishable in case of refusal. What 
 any single individual may lawfully do for the prevention of 
 crime, and preservation of public peace, may be done by any 
 number assembled to perform their duty as good citizens. It is the 
 
30 J. w. Gordon's argument. 
 
 peculiar business of all constables to apprehend rioters, to endeav- 
 or to disperse all unlawful assemblies, and, in case of resistance, 
 to attack, wound, nay, kill those who continue to resist; taking 
 care not to commit unnecessary violence, or to abuse the power 
 legally vested in them. Every one is justified in doing what is 
 iiecessary for the faithful discharge of the duties annexed to his 
 office, although he is doubly culpable if he wantonly commits 
 an illegal act, under the color or pretext of law. The persons 
 who assisted in the suppression of these tumults, are to be con- 
 sidered mere private individuals, acting as duty required. 
 
 "My Lords, we have not been living under martial lav), but 
 under that law which it has long been my sacred function to 
 administer. For any violation of that law, the offenders are 
 amenable to our ordinary courts of justice, and may be tried 
 before a jury of their countrymen. 
 
 " Supposing a soldier, or any other military person, who acted 
 in the course of the late riots, had exeeded the powers with 
 which he was invested, I have not a single doubt that he may 
 be punished, not by a court-martial, but upon an indi(;tment to 
 be found by the grand inquest of the city of London, or the 
 county of Middlesex, and disposed of before the ermined Judges 
 sitting in Justice Hall, at the Old Bailey. Consequently, the idea 
 is false that we are living under a military government, or that since 
 the commencement of the riots any 'part of the laws, or of the Con- 
 stitution, has been suspended, or dispensed with. I believe that much 
 mischief has arisen from a misconception of theliiot Act, which 
 enacts that, aft6r proclamation made, persons present at a riotous 
 assembly shall depart to their homes, and that those who remain 
 there above an hour afterwards, shall be guilty of felony, and 
 liable to suffer death. From this it has been imagined that the 
 military can not act, whatever crimes may be committed in 
 their sight, till an hour after such a proclamation has been made, 
 or as it is termed, 'the Riot Act is read.' But the riot act only 
 introduces a new offence — remaining an hour after the procla- 
 mation — without qualifyiijg any pre-existing law, or abridging 
 the means vrhich before existed for preventing or punishing 
 crimes." 2 Campbell's Lives of the Chief Justices, pp. 401, 402. 
 
 The same can not be said, however, of the dependencies of 
 the British crown. Indeed, Ireland, the Indias, and other prov- 
 inces have been frequently subjected to the rigors of martial laic 
 — the will of the king's lieutenants, or of the commanding 
 general. But then, it must be remembered that martial law has 
 not been the only hardship or outrage inflicted upon them. 
 Any one who will but read the trial of Warren Hastings, must 
 be satisfied, notwithstanding his acquittal, that in her colonies 
 and dependencies. Great Britain inflicts, permits, or can not pre- 
 vent great crimes against the people. Who does not remember 
 to have read of the terrible punishments inflicted during the 
 
J. w. Gordon's argument. 31 
 
 Sepoy rebellion? A man of sensibility can see "in the mind^s 
 eye," the quivering fragments of the victims of martial laio fly- 
 ing through the air, as they are blown from the mouths of can- 
 non ; and yet even the holy horror which our English cousini 
 manifest at our cruelty in the present war, has not won our 
 favor for their mild and christian warfare as practiced in India. 
 May we never be won to approve or practice such lessons of 
 humanity! They really seem to regard their provinces as sub- 
 ject to the absolute wnll of the domestic government, very much 
 as our law books treat our territories. The constitution and 
 laws do not exist for them. It was to rid themselves of such a 
 relation, and from the oppressions incident to it, that the people 
 of America rebelled against the parent country ; and, after eight 
 years of war, established their independence and freedom. 
 
 But before I quit this subject, I beg leave to notice two cases 
 occurring in remote possessions'of Great Britain ; and wdiich have 
 become marked in history, from the fact that they were brought 
 within the reach, and subjected to the public opinion and laws of 
 that island. 
 
 The iirst of these, is the case of Col. Wall, Governor of Go- 
 ree. It seems that this officer, upon some apprehension of 
 mutiny in the forces at his post — an apprehension which may 
 or may not have been well founded, so far as I have been able 
 to learn from the very meager report of the evidence found in 
 the Annual Register for 1802, pp. 560, convened a drum-head 
 court-martial one evening upon dress parade, and ordered a 
 sergeant before it for immediate trial. The court adjudged him 
 guilty and sentenced him to receive eight hundred lashes, which 
 were thereupon inflicted on the spot, by the servants of the Go- 
 vernor, who stood by and urged them to lay on, employing lan- 
 guage indicative of great passion. The sergeant died of the flog- 
 ging. The Governor returned to England, where, after some two 
 or three years had elapsed, he was arrested on a charge of murder. 
 He escaped, and remained absent for seventeen or eighteen years, 
 when he returned to England, was re-arrested, indicted, tried 
 at the Old Bailey, convicted and hung for murder, in 1802. This 
 case strongly marks the light in which martial law is regarded 
 when enforced against Englishmen ; and the writer of the re- 
 report of the trial, in the Register, employs the whole case as an 
 illustration, on the one hand, of the harshness of martial law; and, 
 on the other, of the impartial justice of English courts and 
 juries. 
 
 The second case is that of missionary Smith, in Demarara. He 
 was a missionary to the negroes of that colony. Among these, 
 in 1823 or 1824, an insurrection broke out; martial laio was 
 proclaimed; and the rebellion almost immediately suppress- 
 ed. Having already incurred the ill-will of the planters, as the 
 
32 J. w. Gordon's argument. 
 
 reward of his kindness to their slaves, he was arrested on a 
 charge of having had knowledge of the insurrection before the 
 fact, and failing to communicate it to the authorities ; and was 
 brought to trial upon this charge before a court-martial, and 
 convicted and sentenced to be hung. Before the time for 
 his execution arrived, however, he had died of consumption. 
 This fact alone, it would seem, from what subsequently tran- 
 spired in Parliament, saved the parties to this trial — the Govern- 
 or and members of the court from being proceeded against crim- 
 inally. Sir James Mackintosh, in a speech of great power, deliv- 
 ered before the House of Commons in regard to this case, said 
 that "the acts of this court were nullities, and their meeting a 
 conspiracy; that their sentence was a direction to commit a 
 crime; that, if they had been obeyed, it would not have been 
 an execution, but a murder ; and that they, and all other parties 
 engaged in it, must have answered for it with their lives." 
 Miscellaneous Essays, &c., p. 542. Lord Brougham, in a mas- 
 terly speech delivered on the same occasion, maintained and 
 demonstrated the nullity of the sentence, and the criminality of 
 the court. 1 Speeches, p. 390-391. Out of Parliament, the Ed- 
 inburgh Review took up the case, in an unanswerable and scath- 
 ing article of more than forty pages, and condemned the whole 
 proceeding to everlasting infamy. 40 Vol., p. 226, (Old Series). 
 
 I have been able to find but tw^o instances in which the British 
 Government declared martial law in this country, during the 
 revolutionary war. The first of these occurred at Boston, Mas- 
 sachusetts, June 12, 1775, at which time General Gage issued 
 his proclamation of martial law, resting it expressly upon the 
 ground that, owing to the rebellion of the people, the ordi- 
 nary courts of justice were closed, and the course of justice 
 therein stopped ; and the consequent necessity of proclaiming 
 martial law as a substitute for the common law. Let it be re- 
 membered, that this was nearly two months after the battles of 
 Concord and Lexington, and but five days before that of Bunker 
 Hill, and that Boston was, at the time, almost in a state of 
 siege, and Jit will scarcely be thought, by anj^ one living in our 
 country to-day, that this procedure was premature. J^everthe- 
 less, in the opinion of Americans of that day, it was an out- 
 rage w^ell worthy to crown all the rest for which they were then 
 everywhere rushing to arms. It was spoken of in the old Con- 
 gress as an attempt "to supercede the course of the common 
 law, and instead thereof, to publish and order the use of mar- 
 tial law." Journal of the Old Congress, 147; Ann. Keg. 1775, 
 p. 261. 
 
 Governor Dunmore adopted a similar measure in Virginia, 
 November 7th, 1775, which the Virginia Assembly met and de- 
 nounced as "an assumed power which the King himself can 
 not exercise; because it annuls the law of the land, and intro- 
 
83 
 
 duces the most execrable of all systems — martial law.'* 4 Am. 
 Archives, 87; Ann. Keg., 1775., p. 28. 
 
 Sometime after the close of the war of Independence, and 
 about the time of the adoption of our present constitution, I be- 
 lieve in the year 1787, a rebellion occurred in the State of Massa- 
 chusetts. It is known in history as Shay's rebellion. When it 
 became too strong" for the civil arm of the State government, and 
 the militia were finally called out, it was not to supercede the 
 civil authority, but was strictly employed in aid thereof. The 
 writ of habeas corpus was, indeed, suspended for a brief period; 
 but no martial law was proclaimed or enforced against the insur- 
 gents. On the contrary. Governor Bowdoin directed General 
 Lincoln to "consider himself in all his military offensive opera- 
 tions, constantly as under the direction of the civil ofiicer, sav- 
 ing when any armed force shall appear and oppose his marching 
 to execute these orders." In this way, the rebellion, though 
 formidable both for its numbers, and the extensive sympathy it 
 received among the people of the State who did not yet openly 
 engage in it, was put down almost without bloodshed ; and peace, 
 order and good feeling were restored. 
 
 I am now brought to the era of the Federal Constitution; and 
 we can form some notion of what was, most likely, the opinions 
 and sentiments of its authors in relation to martial law, as an 
 incident of the Government they were about to establish for 
 themselves. They had received their notions of law from a 
 country in which martial laiD had not been exercised for more 
 than one hundred years; they had suffered, in two instances, 
 during the late war, the outrage of martial law ; and had repelled 
 and denounced it as wholly incompatible with the limitations 
 imposed by law upon the King's prerogative. They had claimed* 
 the great acts of English liberty as their rightful inheritance. 
 (4 Franklin's Works, 274.) They had asserted their independ- 
 ence ; because, among other reasons, the King " had affected to 
 render the military independent of, and superior to, the civil 
 power," which was simplj^ an attempt to establish, martial law. 
 And, finally, they had just seen a formidable domestic rebellion, 
 in one of the States, go down before the local authorities there- 
 of, without a declaration o^ martial law, and almost without the 
 shedding of blood. IsTow, may I not ask. Is there a single 
 fact in all the experience of these men, that could possibl^^ have 
 given rise to a wish on their part for a government capable 
 upon every occasion offered by invasion or rebellion, of suspend- 
 ing all its ordinary functions, and calling into play, "the odious 
 system of martial law .^ " On the contrary, we are led to conclude 
 that with the ordinary feelings of men, they must have been 
 utterly and intensely hostile to any such power in their govern- 
 ment. This would be our conclusion, if they had left us no 
 record on the subject. But they have left us their solemn testi- 
 
34 J. w. Gordon's argument. 
 
 mony in the constitution, and it completely sustains the conclu- 
 sion to which we are led by reasoning from the history of the 
 past, and their experience; for, if ever any constitution did en- 
 tirely shut out the idea of any power being vested in any 
 department of the government, to declare martial law, it is that 
 of the United States of America. From its very nature, no less 
 than by its express terms, any such power is rendered totally 
 impossible, while a vestige of the constitution remains. Let us 
 examine it, and see. 
 
 In the first place it is a government created by a written con- 
 stitution, which limits it to the exercise of specified powers. 
 The first section of the instrument stamps its entire character. 
 Thus: "All legislative power herein granted, shall be vested," 
 &c. But this is not all. After granting the powers intended for 
 the government, it limits them by express denials of others, 
 which would otherwise have been embraced in those granted. 
 The ninth section of the first article, is thus wholly devoted to 
 these denials of powers. Among these negative provisions are 
 some utterly incompatible with the notion that the framers of 
 the constitution could have entertained the thought, even for a 
 moment, of conferring the power upon any department of the 
 government, to declare martial laio over the whole United States, 
 or any part of it, where the presence of embattled hostile ar- 
 mies had not already suspended all civil authority. Take a sin- 
 gle instance : " The privilege of the writ of habeas corpus shall 
 not he suspended, unless w^hen, in cases of rebellion or invasion, 
 the public safety may require it." Now, we have already seen 
 that martial law is the suspension of the civil law, and of all the 
 functions of the tivil government — not only of the writ of 
 habeas corpus, but of all other process and laws whatever. Why 
 should the constitution limit the power of suspending privi- 
 leges to the writ of habeas corpus alone, and strictly to cases 
 of rebellion and invasion, ''when the public safety may require 
 it," if its authors had understood, or intended that, in every 
 such case, all other provisions of the constitution and laws, 
 designed to protect the citizen against the encroachments of 
 arbitrary power, might be suspended at pleasure, by the Presi- 
 dent, all over the country ; or by any General, all over his depart- 
 ment? The specific limitation of this power of suspension, to 
 this one w^it, in any extreme public necessityt, he public safety, 
 *'in cases of rebellion or invasion," forever explodes the no- 
 tion that they intended to confer, in such cases, the power to 
 suspend all other writs and rights arising under the constitu- 
 tion and laws of the land. The expression of one excludes the 
 rest. 
 
 Let us, however, briefly consider this pretended power to pro- 
 claim martial law with special relation to a government like 
 ours — a government with a written and limited constitution. 
 
J. w. Gordon's argument. 35 
 
 Tho power in question, provided it exist, must reside in some 
 one, or in some two, or in all three of the departments of the 
 government. The categories are exhaustive. 
 
 It will not he pretended that it resides in the Judiciary alone; 
 nor, indeed, that any portion of it is vested therein. All 
 writers who have supported the power, are silent as to any por- 
 tion of it residing in the Judiciar3^ But not only so, the 
 Supreme Court itself, when called to discuss the subject, seem 
 to regard it as vested elsewhere by the constitution, provided it 
 exist at all. This is as it should be; for that department is, by 
 its charter, confined to the exercise of judicial functions; and 
 it will not be claimed that the entire suspension of such func- 
 tions, and the laws upon which they depend, is a judicial func- 
 tion. Such a suspension of the Judiciary must come from 
 without that department. It has to do with the laws, and with 
 rights and wrongs under them ; and as long as a case is pre- 
 sented to the courts under existing laws, they must from their 
 nature needs act upon it. But this constitutional necessity under 
 which the Judiciary is placed, is directly at war with the nature 
 and existence of martial law, which puts an end, for the time being, 
 to the courts. In other words, martial laio can only exist when 
 the courts have ceased to exist. As long as they remain open, 
 martial law remains impossible; Hence, the courts can not 
 possess any power to declare, or aid others in declaring martial 
 law. The power in question must, therefore, reside in the Leg- 
 islative, or Executive departments separately ; or in both 
 together, provided it exist at all. 
 
 Is the power in question vested in (Congress alone? If so, 
 then what follows upon its exercise? Have you ever thought 
 of that? If you have not, let me show you what must be the 
 result. It is this : A declaration of martial law would, for the 
 time being, put an end to the functions of Congress; and it 
 would do so, by placing an absolutely unlimited power in the 
 hands of the President, or of his Generals. Now, if Congress 
 had this absolute power to bestow, does not all history tell us 
 that once gone from their hands, it would be gone forever? 
 But you know that Congress has no such power to confer. A 
 single limitation upon the powers of Congress gives the lie to 
 any such assumption of power as is implied in a proclamation of 
 martial law. And yet the whole charter of Congress is hedged 
 in by limitations — nothing but limitations; — limitations as to 
 the subjects of their jurisdiction; — limitations as to their mode 
 of proceeding in the attainment of specified objects ; — and limit- 
 ations by the express reservation of all powers not granted to 
 the Federal Government, to the people or the States. All the 
 powers denied to Congress in the Constitution, leave that body 
 so much less power than is necessary to a proclamation of mar 
 Hal law. All the powers reserved to the people and States by 
 
B6 ■ J. w. Gordon's argument. 
 
 the Constitution is a further limitation of the power requisite 
 to a proclamation of martial laio. All the power legitimately 
 in the hands of the Judiciary, is still a further limitation of the 
 power requisite to enable Congress to establish martial law. 
 And the same may be said of the rightful powers of the Execu- 
 tive. Hence, it is plain that Congress has no power to proclaim 
 or authorize the proclamation of martial law, which, according 
 to the definition thereof, given by all writers on the subject, 
 makes the loill of the Commander-in-Chief the su'i)reme avd only 
 law of the land; or, to use the language of Mr. Webster, em- 
 powers the ''officer clothed with it, to judge of the degree of 
 force that the necessity of the case may demand; and," he adds, 
 "there is no limit to this, except such as is to be found in the 
 nature and character of the exigency." Webster's Works, 6 
 vol., pp. 240, 241. 
 
 • But grant for the argument, that Congress has this power, 
 what would be the inevitable result of its exercise? AH history 
 tells us that such an act would be the suicide of the National 
 Legislature. All liberty, all laws designed to secure liberty, all 
 free institutions would perish by the rash act; for what would 
 laws, liberties, institutions, or life itself be worth when all were 
 placed at the will of an absolute master ? The exigency in which 
 such powder passed from the representatives of the people, would 
 be readily continued by him on whom it w^as conferred. The 
 government would be changed by the act from the freest to the 
 most simple and absolute despotism on earth. Congress, there- 
 fore, has no such power to confer; 1. Because it is incompati- 
 ble with the limitations impcjed upon the powers of that body, 
 both by denial and reservation. 2. Because it would be a power 
 of self destruction ; and we can not justly hold that it w^as in- 
 tended by the framers of the Constitution, that any Congress 
 should, in its discretion in a given emergency, put an end, not 
 only to its own existence, but to the possible existence of any 
 future Congress. 
 
 If the power in question belongs to the President alone, then, 
 in times of invasion or rebellion — times like these — the consti- 
 tution of the country affords no better guaranty for the secu- 
 rity of the lives, liberty and property of the people, than his 
 will. And is that the end of the labors and solicitude of 
 Washington and his compatriots, for the establishment of a 
 free people upon the American continent ? What signifies a 
 limitation on the power of the Judiciary and on that of Con- 
 gress, if the President has, in any event, an unlimited powder 
 over both, and all else in the land? The power, then, does not 
 belong to the President alone. 
 
 The same result is attained, if the power to proclaim martial 
 law is conceded to reside in the Congress and President jointly ; 
 or, indeed, in all the departments of the Government together ; for 
 
J. w, Gordon's argument. 37 
 
 its exercise involves the transformation of the entire govern- 
 ment from one limited and free, at least in form, to one unlim- 
 ited and despotic both in form and in fact. So that, in any view we 
 can possibly take of this power, it can not exist in a limited 
 government created by a written constitution. It is, indeed, an 
 absurdity too fi^ross to be admitted, until all pretense of liberties 
 and rights on the part of the people is utterly abandoned. 
 
 But let us now glance at the war power conferrred by the 
 constitution upon the government, and ascertain where it is 
 vested. la any part of it bestowed upon the President by orig- 
 inal constitutional grant ? If not, upon what basis are we to 
 rest the stupendous powers claimed for him, as the foundation 
 of your jurisdiction? Let us examine and see how he stands. 
 
 He is, I grant, appointed Commander-in-Chief by the consti- 
 tution ; but where is his command ? It is in the discretion of 
 Congress. If that body determine to hav3 no army, why^ then, 
 the President can have none to command. If Congress takes 
 the same view in regard to a navy, the President again, will be 
 in precisely the same situation as a naval officer. Without an 
 act of Congress he can not, therefore, raise a single soldier, or 
 seaman, or build a ship, or fort, or do any other military act 
 whatever. If Congress do not raise an army he can have no 
 military power to repel invasion, or suppress insurrection. But, 
 if Congress authorize him to raise an army and navy, and pro- 
 vide him with the means necessary to the end, they may still pro- 
 vide just such rules and regulations for the government thereof 
 as they please, and may thus leave ^im little or no power over 
 either. The same is true of the militia of the several States. 
 They are to be organized, armed and disciplined according to the 
 will of Congress ; and Congress alone has power to provide for 
 callina^ them forth to execute the laws of the union, suppress in- 
 surrection, and repel invasion. The Pressident is powerless on 
 all these subjects until Congress invigorate him. The very 
 terms which designate him as Commander-in-Chief of the army 
 and nav3^ and of the militia of the several states, limit his pow- 
 er over the last, until they are "called into the actual service of 
 the United States." Is it not preposterous, then, to say of such 
 an officer — one so entirely dependent upon Congress for every el- 
 ement of military power, and bound to accept it subject to just 
 such rules and regulations as they impose, that he is, nevertheless, 
 authorized upon a given emergency "to sweep the constitution 
 and laws of the country by the board," as Mr: Adams expressed it; 
 to annihilate, for the time being, all the powers and functions of 
 Congress and the Judiciary, by virtue of this same power, thus 
 dependent upon Congress; and, going still further, to create a 
 new political society by equalizing all the people of the several 
 states, by abolishing their several governments and institutions, 
 and consolidating them into one social and political state, subject 
 4 
 
38 
 
 to one law only — his own mere will ; for tins is martial laze. The 
 power contended for by the Judge- Advocate, as the basis of your 
 jurisdiction, leads to this monstrous result; and some of the 
 opinions cited in support of it, may even go to this extent. 
 
 It is, therefore, plain to my mind that the several departments 
 of the government do not possess the power in question, either 
 jointly or severally ; for, if given, it would be a power to sub- 
 vert the constitution and overthrow the government. 
 
 But the nature and objects of the political society over which 
 the government of the United States w^as organized to preside, 
 precludes the idea that any such power, as that of declaring mar- 
 tiallaw, can exist therein That society is defined and limited 
 in its objects and purposes by the constitution ; and, in fact, has 
 no existence beyond the terms of that instrument. The rela- 
 tions that in all consolidated nations most deeply and nearly 
 interest mankind, and most strongly bind them together, are 
 not embraced in the purposes and scope of the federal union 
 at all. It is in the states that the great elements and relations 
 of political society are principally found. The government of 
 the union can not, therefore, assert the power in question, for 
 two reasons, namely : 
 
 1. Because the people of the several states of the union have 
 formed no society — no community — beyond that which results 
 from the terms of the constitution ; 
 
 2. Because the exercise of such a power by the federal gov- 
 ernment would destroy the several distinct societies now^ repre- 
 sented by the several state governments ; and to such destruc- 
 tion neither the people nor the governments of the States have 
 ever consented. 
 
 But from such destruction of the states follows inevitably the 
 destruction of the federal government; for the states are in 
 many and essential regards constituents of that government, 
 which can not exist without them. 
 
 That the federal government is thus limited by its constitu- 
 tion, and from the special character of the political society 
 upon which it rests, is proven by its whole history. It can not, 
 like a government of general powers, with no limitations upon 
 them which it may not by its own legitimate act remove, exer- 
 cise any power not conferred upon it by the charter of its crea- 
 tion. If its officers should do so, their acts are not the acts of 
 the government ; but simply the acts of the individuals w^ho do 
 them ; and are in no wise binding upon the people who have 
 never consented to them. Whitaker v. English, 1 Bay's Kep., 15 ; 
 Thayer i\ Hedges et al, 22 Ind. Kep., 282 ; Wilcox v. Griffin, 21 
 Id., 370 ; and Little et al. v. Barreme et ah, 2 Cranch's Rep., p. 
 170. 
 
 In this respect the British government has greatly the advan- 
 tage over ours ; for there are no written limitations upon its 
 
89 
 
 powers, which Parliament — bein,^ omnipotent — may not ex- 
 pand, or remove altogether. A declaration of martial laiv by an 
 act of Parliament ; or under an authority granted thereby ; or 
 with the assurance that an act of indemnity will follow it, is in 
 no wise inconsistent watli the British constitution. The highest 
 -written element in that constitution does not rise above an act 
 of Parliament. Parliament at all times represents the entire 
 sum of all the politico-social capability, or possibility of the 
 whole country. It may, therefore, properly take any step it 
 may deem necessary for the conservation of the society over 
 which it presides. As Parliament itself is but a means to an 
 end — the preservation and well-being of that society — it may, 
 in a great emergency, without violating any fundamental prin- 
 ciple, surrender its own existence. And yet, a declaration of 
 martial law is said to be unconstitutional there, by a high legal 
 and military functionary of that country. HouyKs Precedents 
 in Military Law, p. 543. 
 
 In viev/ of all this, it seems passing strange that the govern- 
 ment of the United States should ever have been compared 
 with that of Great Britain in relation to the establishment of 
 this transcendent fact ; and still more strange that the President 
 should have been set up as the equal in this respect of the king- 
 — nay, as his superior. The entire proceedings of the conven- 
 tion that framed the constitution, go to discountenance any^ 
 such position. They intended to create an executive with alto- 
 gether less authority than the king of Great Britain ; and they^ 
 succeded in doing so, if it is possible to impose limitations by 
 means of a written constitution. How they regarded this part 
 of their work, after its accomplishment, may be learned front 
 the Federalist. (No. 69, Hallowell's ed., 1831, p. 347.) It is not 
 contended that the king can rightfully suspend the writ habeas 
 corpus; but, in times of great emergency, he is permitted to 
 do so until the next meeting of Parliament, when an act of in- 
 demnity must be passed for the protection of those who were, 
 in anywise engaged in such suspension, against civil prosecu- 
 tions on account thereof. Now, this act of indemnity is an ad- 
 mission of the original illegality of the previous suspension ; 
 for it is passed for the purpose of curing it, and giving it the 
 sanction of law. But Dr. Francis Lieber maintains that there 
 can be passed no valid act of indemnity by a government 
 created by, and acting under, a written constitution like ours;. 
 and this opinion he cites in a second treatise published many 
 years after his work on "Legal and Political Hermeneutics " 
 was given to the public. (Hermeneutics, pp. 79, 80 ; and Civil 
 Liberty and Self-Government, vol. 1, p. 134.) If argument were 
 wanting to support this authority, it arises from the very nature- 
 of our constitution. But I leave it to stand upon the authority 
 of a great name, adorned not only by great learning devoted to- 
 
40 J. w. 
 
 the noblest purposes of science ; but, also, to the support of the 
 cause of his adopted country in the existing struggle for the in- 
 tegrity of its territory and the supremacy of its constitution. 
 And yet, I know there are not wanting men, native to the. 
 manor born, who claim that the President has the power, under 
 the constitution, to suspend the writ of habeas corpus. But do 
 they forget that no such opinion was ever expressed by any one 
 who had a hand in framing the constitution, or who lived and 
 acted with them. Mr. Jefterson did not think so. (2 Jefferson's 
 Corresp., p. 274, 291 ; Id., 344.) On the contrary, he went to 
 Congress and asked for a suspension of the writ at the time of 
 Burr's conspiracy ; and, while they refused to suspend it, not 
 a member of that body was found to question the fact that the 
 power to pass such an act, under proper circumstances, was 
 vested in them. 3, Benton's Debates in Congress, p. 504, et seq. 
 
 About the same time, in the case of two men imprisoned by 
 order of the President for complicity in that conspiracy, Chief- 
 Justice Marshall, in speaking upon the writ of haheas corpus, 
 and the act of Congress which authorizes judges and courts of 
 the United States to grant it, said : 
 
 '' It may be worthy of remark that this act was passed by the 
 first Congress of the United States, sitting under a constitution 
 which had declared Hhat the privilege of the writ of habeas 
 fCorpus should not be suspended, unless, when in cases of rebellion 
 or invasion the public safety might require it.' Acting under 
 the immediate influence of this injunction, they must have felt 
 with peculiar force the obligation of providing efficient means 
 •by which this great constitutional privilege should receive life 
 and activity ; for if the means be not in existence, the privilege 
 itself would be lost, although no law for its suspension should 
 be enacted. Under the impression of this obligation, they gave 
 all the courts the power of awarding writs of habeas corpus. 
 
 "If at any time the public safety should require the suspension 
 •of the powers vested by this act in the courts of the United 
 States, it is for the Legislature to say so. That question depends 
 on political considerations, on which the Legislature is to decide. 
 Until the legislative will be expressed, the court can only see its duty, 
 und must obey the UimsJ^ — 4, Cranch's Reports, pp. 75, 137. 
 
 In this opinion concur all respectable authorities that I have 
 been able to consult. Among them are Rawle, Sedgewick, 
 Story and the late Chief-Justice Taney. Rawle on the Const., 
 pp. 114, 115 ; 2 Story on the Const., § 1342 ; Sedgewick on the 
 •Const, and Statue Law, p. 598 ; and 9 Am. Law Reg., p. 524. 
 
 But, if the President has no power to suspend the writ of 
 habeas corpus, and Congress no power to indemnify him, and 
 •those acting under his orders, for forcibly denying it, then it fol- 
 •lows that be can not have the far greater power of proclaiming 
 
J. w. Gordon's argument. 41 
 
 martial law — a power which embraces the suspension not only 
 of the writ of habeas corpus^ but of all other writs and laws, 
 even the Constitution itself. 
 
 And, hence, I conclude, that there is not, and can not possi- 
 bly be, any power in a government like ours to declare martial 
 law, unless it be upon the theater of active military operations ; 
 and that every such declaration of martial law^ in any state, or 
 place, not subject to such operations, is mere naked unauthorized 
 force, and altogether unjustifiable ; that the true test of the pres- 
 ence, in any state or place, of such military operations as justi- 
 fies a proclamation of martial law, is found in the fact that the 
 courts of justice therein are closed, and the administration of 
 justice stopped by the presence of hostile armies; that, 
 whenever that is not the case in any part of the United States, 
 martial law, in no possible view, can rightfully exist ; and, 
 finally, as the courts of justice in this State are proven, in this 
 case, to be open at this time, and to have been so all the time, 
 both before and since the arrest of the accused, any attempt to 
 enforce martial law against them is a grievous wrong, not only 
 to them, but to the whole country; and, indeed, to the general 
 cause of freedom and free government throughout the world. 
 
 While upon this branch of the subject — the power to declare 
 martial law — I beg leave to repeat a few propositions urged in a 
 former trial. I am now prepared to support them by high mil- 
 itary authority, which was not then at hand. They are as 
 follow : 
 
 " The charges in this cause involve capital and infamous 
 crimes ; and the constitution of the United States expressly 
 provides that 
 
 " ^No person shall be held to answer for a capital or otherwise 
 infamous crime, unless on a presentment or indictment by 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.' (Amend. Const. U. S., Art. 5.) And, again, *in all 
 criminal cases, the prisoner shall enjoy the right to a speedy 
 and public trial, by an impartial jury of the State and district 
 where the crime shall have been committed,' &c. Amend. 
 Const, Art. 6. 
 
 " These provisions were adopted after the organization of the 
 government of the United States under the present constitution, 
 and for the purpose of placing the trial by jury entirely beyond 
 the power of Congress, and of all other branches of the gov- 
 ernment. The constitution, as originally adopted, contained the 
 following provision on the subject : ' The trial of all crimes, ex- 
 cept in cases of impeachment, shall be by jury ; and such trial 
 shall be held in the state where such crime shall have been com- 
 mitted.' (Art. 4, § 2.) So jealous were the people of the right 
 in question that they required the amendments I have already 
 quoted notwithstanding this original provision. 
 
42 J. w. Gordon's argument. 
 
 '* The accused are citizens of the United States, and of the state 
 of Indiana, not in the land or naval forces, or in the militia in 
 actual service. They are, therefore, not within the exception of 
 the fifth article of amendments just cited. The exception does 
 not aftect their right any more than if it did not exist. [On the 
 contrary, it makes it altogether more clear and undeniable.] 
 These several provisions are absolute as to them; and if any 
 constitutional provisions can protect a right, it would seem they 
 ought to be protected from a trial not in conformity with them. 
 Indeed, it would seem, they can not in fairness be tried without 
 being first presented or indicted by a grand jury, nor without 
 a petit jury of the district wherein their alleged offenses were 
 committed." 
 
 Lieut. General Scott, in his Auto-Biography, republishes an 
 article published by him in the National Intelligencer, in 1842. 
 From this article I extract the following paragraphs, which im- 
 mediately follow the amendments of the constitution already 
 quoted : 
 
 "If these amendments do not expressly secure the citizen, not 
 belonging to the army, from the possibility of being dragged 
 before a council of loar, or court martial, for any crime, or on any 
 pretense whatsoever, then there can he no security for any human 
 right, under any human institutions! 
 
 "Congress and the President could not, if they were unani- 
 mous, proclaim martial law in any portion of the United States, 
 without first throwing these amendments into the fire. If Mr. 
 Madison, (begging pardon of his memory for the violent suppo- 
 sition,) had sent an order to General Jackson to establish the 
 odious code over the citizens of New Orleans, during, before, or 
 after the siege of that capital, it w ould have been the duty of 
 the general, under his oath, to obey the constitution, and to 
 have withheld obedience; for, by the ninth Article of War, 
 (the only one on orders^ officers are not required to obey any but 
 'lawful commands.'" Vol. 1, p. 292. 
 
 Again, he says : 
 
 "When Pompey played the petty tyrant at Sicily, as the 
 lieutenant of that master despot Sylla, he summoned before 
 him the Mammertines. That people refused to appear, alleging 
 that they stood excused by an ancient privilege granted them 
 by the Romans. 'What,' said Sylla's lieutenant, 'will you 
 never have done with citing laws and privileges to men who 
 wear swords.' Roman liberty had already been lost in the dis- 
 temperature of the times. jk * >k ^k * 
 
 If Pompey had gained the battle of Pharsalia, would his odious 
 reply to the Mammertines have been forgiven by the lovers of 
 human liberty ? With such maxims of government, it was of lit- 
 tle consequence to the Roman world that Caesar won the day. 
 A Verres would have been as good as either." Id., p. 294. 
 
43 
 
 He also gives the following fact in our own history, which, 
 although a little out of its place, I yet beg leave to insert as in- 
 dicative of the spirit in which the struggle of 1776 was con- 
 ducted by the founders of our government : 
 
 "In South Carolina, during the Eevolutionary War, at the 
 moment when Sir Henry Clinton was investing the devoted city 
 of Charleston, and the tories in arms everywhere, the Legisla- 
 ture empowered her excellent Governor, John Kutledge, after 
 consulting with such of his council as he conveniently could, *to 
 do everything necessary for the public good, except the talcing 
 away of the life of a citizen without legal trial.' Under that excep- 
 tion at a time when there was no constitution of the United 
 States, there was no Louallier deprived of the one, and put in 
 jeopardy of the other, by martial law J' Id., pp. 297, 289. 
 
 But the same distinguished General has consistently, through- 
 out his whole life, maintained the same opinions on this subject. 
 In the month of October, 1846, he submitted to Secretary Marcy 
 a projet for the purpose of enabling generals of our armies, then 
 in the field in Mexico, to enforce martial law for the protection 
 of our armies against lawlessness on the part of the people of 
 that country, and the people against lawlessness on the part of 
 our soldiers, in cases not provided for in our Articles of War. 
 In this communication, among many other things, he says : 
 
 "It will be seen that I have endeavored to place all necessary 
 limitations on martial law. 1. By restricting it to a foreign hos- 
 tile country. 2. To offenses enumerated with some accuracy. 
 3. By assimilating councils of war to courts martial. 4. By re- 
 stricting punishments to the known laws of some one of the 
 States," &c. 
 
 And, having shown the course usually pursued by British Com- 
 manders, under like circumstances, he proceeds to say : 
 
 " This law " — he was asking for an act of Congress — " can 
 have no constitutional, legal or necessary existence i(;i7Am the United 
 States. At home, even the suspension of the writ of habeas cor- 
 pus by Congress, could only lead to indefinite incarceration 
 of an individual, or individuals, who, if further punished at all, 
 could only he so through the ordinary or common law of the 
 land." 5 Exec. Doc, 80 Congress, 1st session. Doc. 59, pp. 50, 
 52. 
 
 This projet, apparently so reasonable and so necessary, was, 
 however, never adopted by the administration of Mr. Polk; and 
 we accordingly find the Secretary of War, about the same time, 
 directing General Taylor to release from confinement, and send 
 out of his lines, a notorious murderer, because the Articles of 
 War did not then authorize his trial by a court martial, although 
 he was a soldier. And so the Articles of War remained until 
 the present rebellion, notwithstanding the international laws 
 and usages of war clearly clothed our generals, in the enemy's 
 
44 J. w. Gordon's argument. 
 
 country, with the power requisite to punish such offenses by 
 martial law. Grotius, De Jure Belli ac Pacis, lib. 3, cap. 8 ; Vat- 
 tel's Law of Nations, lib. 3, chap. 8; and Wheaton's Elements 
 of International Law, part 4, chap. 2. 
 
 Since the present rebellion began, Congress have enlarged the 
 jurisdiction of courts martial over soldiers, so as to embrace such 
 cases. In the same act, too, they have made the punishments 
 affixed to such crimes by the laws of the state where they may 
 be committed, the measure, in one respect at least, of the pun- 
 ishments to be inflicted by such courts. The act, however, i& 
 limited in its operations to soldiers. Hence I infer that it was 
 not intended to extend to citizens; and this upon the long estab- 
 lished principle, " that affirmatives in statutes ^ that introduce new 
 laivs do imply a negative of all that is not in thej^urviewJ' Hobart's 
 Kep., p. 298. 
 
 It might readily be shown that, upon all the principles of con- 
 struction and interpretation applicable to constitutional pro- 
 visions in regard to the right of trial by jury, that they occupy 
 a favored relation to the other provisions of that instrument. 
 In the first place, it stands among the reserved rights of the peo- 
 ple. It is, as it were, placed in a BUI of Eights; and is thus en- 
 titled to a favorable, or liberal construction, as in favor of liberty^ 
 and against the powers granted, which, simply because they are 
 encroachments upon liberty, must be strictly construed. There 
 are no rules better established in our constitutional jurisprudence 
 than these. Besides, amendments must always prevail as against 
 provisions conflicting with them; and the right of trial by jury 
 is secured by amendments to the constitution. If they had not 
 been so named, the mere fact that they were adopted after the 
 constitution, and by equal authority to that by which it was 
 adopted, entitles them to prevail against any provision conflict- 
 ing with them ; for as it is not possible for one Parliament, or 
 Congress, to bind the hands of a subsequent one, so one genera- 
 tion of the people can not bind the next, or even itself, at a sub- 
 sequent time. 
 
 I disagree with the opinion expressed by Mr. Attorney Gen- 
 eral Gushing, in an opinion which I have already quoted, in 
 which he seems to hold that these provisions in respect to the 
 right of trial by jury, are of but little value on account of the 
 very general terms in which they are expressed. He should 
 have remembered, however, that they were adopted by the 
 framers of the constitution from ancient English laws, and had 
 received a fixed and practical signification and Application for 
 ages. Mr. Justice Story was not inclined to regard them as 
 mere "glittering generalities;" for he thus descants upon the 
 rights they secure: 
 
 " It seems hardly necessary in this place to expatiate on the 
 antiquity or importance of the trial by jury in criminal cases. 
 
45 
 
 It was from very early times insisted on by our ancestors, in the 
 parent country, as the great bulwark of their civil and political 
 liberties ; and watched with an unceasing jealousy and solici- 
 tude. The right constitutes one of the fundamental articles of 
 Magna Charta, in which it is declared : * ISullus homo capiatur, 
 nee imprisonetur, aut exulit, aut aliquo modo distruatur, ^c; nisi per 
 legale judicium parium suorum, vel per legem teirce; no man shall 
 be arrested, nor imprisoned, nor banished, nor deprived of life, 
 &c., but by the judgment of his peers, or by the law of the 
 land.' The judgment of his peers here alluded to, and com- 
 monly called, in the quaint language of former times, a trial per 
 pais, or trial by the country, is the trial by a jury, who are 
 called the peers of the party accused, being of the like condi- 
 tion and equality in the State. When our more immediate an- 
 cestors removed to America, they brought this great privilege 
 with them, as their birthright and inheritance, as a part of that 
 admirable common law which had fenced round and interposed 
 barriers on every side against the approaches of arbitrary 
 power. It is now incorporated into all our State constitutions 
 as a fundamental rights and the constitution of the United States 
 would have been justly obnoxious to the most conclusive objection, if it 
 had not recognized and confirmed it in the most solemn terms, 
 
 " The great object of a trial by jury in criminal cases is 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. Indeed, it is often more important to 
 guard against the latter than the former. The sj^mpathies of 
 all mankind are enlisted against the revenge and fury of a 
 single despot, and every attempt will be made to screen his vic- 
 tims. But how difficult is it to escape from the vengeance of 
 an indignant people, roused to hatred by unfounded calumnies, 
 or stimulated to cruelty by bitter political enmities, or unmeas- 
 ured jealousies. The appeal for safety can, under such circum- 
 stances, scarcely be made by innocence 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 precipitation. So long, indeed, as this 
 palladium remains sacred and inviolable, the liberties of a free 
 government can not wholly fall. But to give it real efficiency, 
 it must be preserved in its purity and dignity, and not with a 
 view to slight inconveniencies, or imaginary burthens, be put 
 into the hands of those who are incapable of estimating its 
 worth, or are too inert, or too ignorant, or too imbecile to wield 
 its potent armor. Mr. Justice Blackstone, with the warmth and 
 
46 J. w. Gordon's argument. 
 
 pride becoming an Englishman, living under its blessed protec- 
 tion, has said: 'A celebrated French writer, who concludes, 
 that because Rome, Sparta and Carthage have lost their liber- 
 ties, therefore, those of England, in time, must perish, should 
 have recollected that Rome, Sparta and Carthage, at the time 
 their liberties were lost, were strangers to the trial by jury.' 
 
 " It is observable that the trial of all crimes is not only to be 
 by jury, but to be held in the state where they are committed. 
 The object of this clause is to secure the party accused from 
 being dragged to a trial in some distant state, away from his 
 friends, and witnesses, and neighborhood, and thus to be subjec- 
 ted to the verdict of mere strangers, who may feel no common 
 sympathy, or who may even cherish animosities or prejudices 
 against him. Besides this, a trial in a distant state or territory 
 might subject the party to the most oppressive expenses, or, 
 perhaps, even to the inability of procuring the proper witnesses 
 to establish his innocence. There is little danger, indeed, that 
 Congress would ever exert their power in such an oppressive 
 and unjustifiable a manner. But, upon a subject so vital to the 
 security of the citizen, it was fit to leave as little as possible to 
 mere discretion. By the Common Law, the trial of all crimes 
 is required to be in the county where they are committed. Nay, 
 it originally carried its jealousy still further, and required that 
 the jury itself should come from the vicinage of the place 
 where the crime was alleged to be committed. This was cer- 
 tainly a precaution, which, however justifiable in an early and 
 barborous state of society, is little commendable in its more ad- 
 vanced stages. It has been justly remarked that, in such cases, 
 to summon a jury, laboring under local prejudices, is laying a 
 snare for their consciences, and though they should have virtue 
 and vigor of mind sufficient to keep them upright, the parties will 
 grow suspicious, and indulge other doubts of the impartiality of 
 the trial. It was doubtless by analogy to this rule of the Com- 
 mon Law, that all criminal trials are required to be in the state 
 where committed. But as crimes may be committed on the 
 high seas, and elsewhere, out of the territorial jurisdiction of a 
 state, it was indispensable that, in such cases. Congress should 
 be enabled to provide a place of trial. Story on the Const., §§ 
 1778, 1779, 1780, et seq. 
 
 M. DeTocqueville, in discussing the institution of the jury, 
 gives very great weight to its character as a political institution. 
 In times like these, we may, perhaps, learn something of the 
 value of what we now seem about to lose, even from the words 
 of a foreigner. He says : 
 
 " The true sanction of political laws is to be found in penal 
 legislation, and, if that sanction be wanting, the law will sooner 
 or later lose its cogency. He ivho punishes infractions of the law, 
 iSf therefore, the real master of society. Now, the institution of 
 
J. w. Gordon's argument. 47 
 
 the jury raises the people itself, or, at least, a class of citizens, 
 to the bench of judicial authority. The constitution of the 
 jury consequently invests the people, or a class of citizens, with 
 the direction of society." 1 Democracy in America, p. 309. 
 
 Again, he says : 
 
 "The jury is pre-eminently a political institution. It must 
 be regarded as one form of the sovereignty of the people. 
 When that sovereignty is repudiated, it must be rejected ; or it 
 must be adapted to the laws by which that sovereignty is estab- 
 lished. The jury is that portion of the nation to which the ex- 
 ecution of the laws is entrusted, as the House of Parliament 
 constitute that part of the nation which makes the laws ; and 
 in order that society may be governed with consistency and 
 uniformity, the list of citizens qualified to serve on juries must 
 increase and diminish with the list of electors." Id., 310. 
 
 He further says:. 
 
 "The system of the jury, as it is understood in America, ap- 
 pears to me to be as direct, and as extreme a consequence of the 
 sovereignty of the people as universal suffrage. The institu- 
 tions are two instruments of equal power, which contribute to 
 the supremacy of the majority. All the sovereigns who have 
 chosen to govern by their own authority, and to direct society instead 
 of obeying its direction, have destroyed or enfeebled the institution of 
 the jury. The monarchs of the house of Tudor sent to prison 
 jurors who refused to convict, and !Rapoleon caused them to be 
 returned by his agents." Id., p. 310. 
 
 How much it is to be regretted that any American citizen, and 
 especially one in high position, should allow himself to be driven 
 by the terrible condition of the country, or any other considera- 
 tion, to disparage the trial by jury in criminal cases ; and, in the 
 very teeth of the constitution of his 'country, publicly express 
 his regret that the jury stands in the way of a system of penal 
 administration, which may be more certain to conform to his own 
 private views of justice ; and to hold men to answer "charges of 
 crimes" not "well defined by law." That any cause should have 
 led an American citizen to such conclusions, is, I humbly conceive, 
 one of the very worst signs of these evil times. If our country is 
 to be successful in its present struggle, and if its liberties are 
 destined to survive, the jury, venerable for its antiquity and 
 sacred for its uses, must go with us, in all its vigor, through the 
 red-sea, in the midst of which we are now journeying. To aban- 
 don it now is to give up the contest for free government in which 
 we are engaged. We must not, therefore, abandon it in these 
 dark days, and it will follow us again into the light, and long con- 
 tinue to protect and bless us in the possession of a manly freedom, 
 in the happy years to come. 
 
 I think it has already been sufficiently shown, that there is, 
 in fact, no power in the general government, nor behind that, in 
 
48 J. w. Gordon's argument. 
 
 the society which it represents, to proclaim martial law through- 
 out the whole country. It may, perhaps, have a local operation, 
 as a mere fact, resulting from the presence of hostile armies; 
 but, in that case, it will exist without a proclamation as well as 
 with it. Dr. Lieber, whom I have already quoted, and whose 
 works are of the highest possible value on all subjects which he 
 touches, in General Orders, No. 100, 1863, of our War Depart- 
 ment, fully sustains this view. lie says, or rather the Com- 
 mander-in-Chief, speaking his words, says : " The presence of 
 a hostile army proclaims its martial lawJ' If, therefore, there 
 be no rightful power in the government to proclaim martial law 
 over any part of its own territories, where the fact is not al- 
 ready established by events, then Indiana is certainly not undei 
 martial law to-day, and has never yet been. 
 
 If, however, in the consideration of this branch of the sub- 
 ject, you should still hold that the government, or any depart- 
 ment thereof, may declare martial law without the presence of 
 the fact, then other questions naturally present themselves. 
 Among these, I may be permitted to ask the following : 
 
 Has the government of the United States, or any department 
 thereof, declared martial law in the state of Indiana ? 
 
 Who has done it ? — the President, or some of his generals ? 
 
 Has Congress authorized it ? Let us examine and see how 
 the fact stands. Has that body taken that great, and, for them- 
 selves, as a department of the goverement, it may be, final step. 
 Surely Congress has not turned /do de se. On the contrary they 
 have showed great prudence and discretion, as well as regard for 
 the constitution, and our free institutions existing under it; 
 while, at the same time, they have taken due care that the Bepublic 
 may suffer no detriment. 
 
 I can not more pointedly and briefly present the action of 
 Congress on this subject than was done in the case of Mr. Dodd; 
 and, therefore, adopt what was then urged upon your considera- 
 tion: 
 
 " By an act approved July 31, 1864, (12 Stat, at Large, p. 284,) 
 conspiracies are defined and the mode of punishment prescribed, 
 namely : by trial in the circuit or district courts of the United 
 States, of the proper circuit or district. Can these parties be 
 tried before any other tribunal ? The defendants hold not. 
 
 " By the President's proclamation of September 24, 1862, sus- 
 pending the privilege of the writ of habeas corpus^ it was order- 
 ed, * that during the existing insurrection, and as a necessary 
 measure for suppressing the same, all rebels and insurgents, their 
 aiders and abettors within the United States, shall be subject to 
 martial law, and liable to trial and punishment by court martial 
 or military commission.' Without stopping to enquire whether 
 this proclamation was authorized ; and, if so, whether it em- 
 braced persons charged with committing a substantive offense, 
 
J. w. Gordon's argument. 49 
 
 within a state, not in insurrection, and where the United States 
 courts were in full exercise of their powers, the defendants claini 
 that it has heen superceded by the act of Congress of the 3d of 
 March, 1863. [12 Stat, at Large, 755,] relating to the w^rit of 
 habeas corpus; and by the President's proclamation based there- 
 on, of Sept. 15, 1863. 
 
 "The first section of this act of 1863, authorizes the President 
 to suspend the writ of habeas corjms. 
 
 " The second, requires the Secretaries of State and War to re- 
 port to the judges of the United States circuit and district 
 courts the names of all persons held in military custody by 
 order of the President, in their respective districts ; and, if the 
 grand juries of the proper districts fail to find bills, it is made 
 the duty of the judges to have all such persons discharged, on 
 taking the oath of allegiance, and giving bond, if required. 
 
 "The third section provides that all persons so held, and not 
 reported, shall be entitled to a discharge in the same manner as 
 is provided in the second section, after a failure, on the part of 
 the proper grand jury, to indict them. 
 
 "Here are all the sections of this act which bear on the ques- 
 tion ; and, it will be seen, that while they contemplate and sanc- 
 tion military arrests, they do not countenance or authorize mili- 
 tary trials. On the contrary, they fairly discountenance them. 
 
 " The President's proclamation, based on this act, limits the 
 suspension of the habeas corpus to persons amenable to military 
 law, or to the Rules and Articles of War. No order is contained 
 in the proclamation in regard to trial, and the inference is irre- 
 sistable, that the proper courts are left to act under the rules of 
 law upon that subject ; and these are too well defined to require 
 comment. Civil courts try offenses against the law, committed 
 by citizens — military courts try such as are subject to the Rules 
 and Articles of War ; and the defendants claim that they do not 
 fall within that class." 
 
 I have been able to find no other act of Congress, passed since 
 the 3d of March, 1863, which authorizes or countenances in any 
 manner whatever the notion that it has, at any time, been the in- 
 tention of that body to establish martial laic, or to authorize any 
 one else to do so, or even to permit it. This act does, indeed, au- 
 thorize the suspension of the writ of habeas, corpus^ if Congress 
 can transfer the disccretion conferred upon them by the constitu- 
 tion, to determine at what time, in the progress of an invasion, or 
 rebellion, the emergency required has arisen, when the public 
 safety requires its suspension. That Congress can do any such 
 thing, I deny ; but do not choose to stop here to discuss the 
 point, as it is not involved in this cause. 
 
 If we admit, for the sake of argument, that Congress have 
 invested the President with the power both to judge and to act 
 in the proper emergency ; and that he has well availed himself 
 
50 
 
 of this power by publishing his proclamation of September 15, 
 1863, what follows ? Certainly not, that Congress have proclaim- 
 ed, or authorized him to proclaim martial law ; but have, on the 
 other hand, by a controlling implication, provided that martial 
 law, so far as the trial of a citizen is concerned, shall not be toler- 
 ated ; but that such citizen shall, in all cases, when under military 
 arrest, be turned over to the proper civil tribunals — the circuit 
 or district courts, of the proper district, for trial according to 
 law; or discharged either absolutely or conditionally, if no bill 
 of indictment be found against him. And this harmonizes well 
 with what Col. Scott, in his Military Dictionar}^ lays down as 
 the consequence of a declaration or proclamation of martial law 
 within the United States. He says : 
 
 "Within the United States, therefore, the efiect of a declara- 
 tion of martial law would not be to subject citizens to trial by 
 courts-martial; but it would involve simply the suspension of the 
 writ of habeas corpus, under the authority given in the second 
 clause of section nine of the constitution, viz : *The privilege 
 of the writ of habeas corpus shall not be suspended, unless when,, 
 in case of rebellion or invasion, the public safety may re- 
 quire it.' 
 
 " The suspension of this privilege would enable the com- 
 mander to incarcerate all dangerous citizens ; but, when brought 
 to trial, the citizen w^ould necessarily come before the ordinary 
 civil courts of the land." Military Dictionary, tit. Martial 
 Laio. 
 
 And such would seem to be the opinion of Mr. Attorney Gen- 
 eral Cushing, who says : 
 
 " I say we are without law on the subject." 
 
 " The constitution, it is true, empowers Congress to declare 
 war, to raise and support armies, to provide and maintain a 
 navy, to make rules for the government of the land and naval 
 forces, to provide for calling forth the militia to execute the 
 laws of the union, suppress insurrections and repel invasions, 
 and to provide for organizing, arming and disciplining the mili- 
 tia, and for governing such part of them as may be employed 
 in the service of the United States. But none of these powers 
 has been exerted in the solution of the present question. 
 
 " In the amendments of the constitution, among the provisions 
 of general right which they contain, are some, the observance 
 of which seems incompatible with the existence of martial law, 
 or, indeed, any other of the supposable, if not necessary inci- 
 dents of invasion or insurrection. But these provisions are not 
 sufficiently definite to be of practical application to the subject 
 matter. 
 
 " In the constitution there is one clause of more apparent rele- 
 vancy, namely, the declaration that Hhe privilege of the writ 
 
51 
 
 of habeas corpus shall not be suspended, unless, when in case of 
 rebellion, or invasion, the public safety may require it.' This 
 negation of power follows the enumeration of the powers of 
 Congress, but it is general in its terms ; it is in the section of 
 things denied, not only to Congress, but to the federal govern- 
 ment as a government, and to the States. I think it must be 
 considered as a negation reaching all the functionaries, legisla- 
 tive or executive, civil or military, supreme or siibordinate, of 
 the federal government: that is to say, that there can be no 
 valid suspension of the writ of habeas corpus under the juris- 
 diction of the United States, unless when the public safety may 
 require it, in cases of rebellion or invasion. And the opinion is 
 expressed by the commentators on the constitution, that the 
 right to supend the writ of habeas corpus; and, also, that of 
 judging when the exigency has arisen, belong exclusively to 
 Congress. Story's Comm., § 1342; 1 Tucker's Biackstone, 
 p. 292. 
 
 " In this particular, as in many others, the constitution has 
 provided for a secondary incident, or a single fact, without pro- 
 viding for the substance, or for the general fact; just ^ when it 
 gives power to establish post-roads, but says nothing of the 
 transportation of the mails. It does not say that martial law shall 
 not exist, unless when the public safety may require it, in case of 
 insurrection or iavasion ; but only that the writ of habeas corpus 
 shall not be suspended, except in such circumstances. But, if 
 the emergency of insurrection or invasion, involving the public 
 safety, be requisite to justify the suspension of the writ of 
 habeas corpus, surely that emergency must be not the less an es- 
 sential prerequisite of the proclan.ation of martial law, and of 
 its constitutional existence. » 
 
 ^ " We have in Great Britain several recent examples of acts to 
 give constitutional existence to the fact of martial latv. One is 
 the act of Parliament of the 3 and 4 Geo. 4, ch. 4, designed for the 
 more effectual suppression of local disturbances in Ireland. 
 Another act of that same nature, that of 57 Geo. 3, ch. 3, was for 
 the case of apprehended insurrection *in the metropolis, and in 
 many other parts of Great Britain,' which act was followed the 
 next year by the indemnifying act of 58 Geo. 3, ch. 6. These 
 examples show, that in the opinion of the statesmen of that 
 country, the general fact of the existence of martial law, and its 
 incident, the suspension of the writ of habeas corpus, alike re- 
 quire the exercise of the power of the supreme legislative 
 authority. (1 Blacks. Comm., p. 136, Coleridge's note; Bow- 
 yer's Const. Law, p. 424.) 
 
 " That idea pervades the constitutional organization of the sev- 
 eral States of the union. Thus, in Massachusetts it is provided 
 that the writ of /la^eas corpus * shall not be suspended by the 
 Legislature, except upon the most urgent necessity, and press- 
 
62 J. w. Gordon's argument. 
 
 irig occasions, and for a limited time/ In other states, while 
 the exigency for the suspension of the writ is detined, as in New 
 York, the suspending authority is not specified. In others, 
 there is express general provision, as to the suspension of 
 laws, without specifying this writ — the general power of sus- 
 pension being confided to the legislature, as in Maryland, Vir- 
 ginia and Tennessee. The State of Pennsylvania has both pro- 
 visions in its constitution. And, it may be assumed, as a gen- 
 eral doctrine of constitutional jurisprudence in all the United 
 States, that the power to suspend laios, whether those granting 
 the writ of habeas corpus, or any other, is vested exclusively in the 
 legislature of the particular State. 
 
 " How intimate the relation is, or may be, between the procla- 
 mation of martial law and the suspension of the writ of habeas 
 corpus, is evinced by the particular facts of the case before me — 
 it appearing, as well by the report of the G-overnor as by that 
 of Chief Justice Lander, that the very object for which martial 
 lav) was proclaimed was to prevent the use of the writ in behalf 
 of certain pei'sons held in confinement by the military authority, 
 on the charge of treasonable intercourse with hostile Indians. 
 That, however, is but one of the consequences of martial law, 
 and by no means the largest or gravest of those consequences, 
 since, according to every definition of inartial law, it suspends, 
 for the time being, all the laws of the land, and substitutes, in 
 their place no law, that is, the mere will of the military com- 
 mander. 
 
 " There may undoubtedly be, and have been, emergencies of 
 necessity, capable of themselves to produce, and, therefore, to 
 justify such supension of law ; and involving, for the time, the 
 omnipotence of military power. But such a necessity is not in 
 the range of mere legal questions. When martial laio is pro- 
 claimed, under circumstances of assumed necessity, the procla- 
 mation must be regarded as the statement of an existing fact, rather 
 than the legal creation of that fact. In a beleaguered city, for in- 
 stance, the state of siege lawfully exists, because the city is be- 
 leagured ; and the proclamation of martial law, in such case, is 
 but notice, and authentication of a fact, that civil authority 
 has become suspended, of itself, by the force of circumstances ; 
 and that, by the same force of circumstances, the military 
 power has had devolved upon it, without having authorita- 
 tively assumed, the supreme control of affairs, in the care of the 
 public safety and conservation. Such, it would seem, is the 
 true explanation of the proclamation of martial law at New 
 Orleans by General Jackson." 8 Opinions Atty's Gens, of U". S., 
 supra. 
 
 Now, this whole opinion establishes, I think, beyond success- 
 ful controversy, three points, namely : 
 
 1. That an act of Congress is necessary to a suspension of the 
 writ of habeas corpus ; 
 
J. w. Gordon's argument. 53 
 
 2. That the suspension of that writ is emhraced in a procla- 
 mation of martial loio as one of the incidents thereof; and, 
 
 3. That, a fortiori^ an act of Congress is necessary to authorize 
 a proclamation of martial law. 
 
 We are thus, again, on solid footing; for, in all cases where 
 a proclamation of martial law is necessary, Congress must act — 
 must authorize it before it can properly issue. Hence, martial 
 laiD can only be declared by act of Congress directly ; or by act 
 of Congress conferring authority on some other department or 
 officer of the government to make such proclamation. The 
 measure, in either case, must proceed from Congress. 
 
 But a brief examination of the acts of Congress, passed since 
 the commencement of the current rebellion, will satisfy you 
 that Congress has not interfered in this matter either by direct 
 or indirect means, except, as already noticed, to deny any such 
 power to the President or those under him. If, therefore, mar- 
 tial law must, in any case, be brought in by aft authoritative 
 declaration, proclamation, or other public act, before it can 
 properly exist, then, no such declaration or proclamation has 
 yet been made, or act done ; and for the best of all possible 
 reasons, namely : Congress has not authorized any such declara- 
 tion or proclamation to be made, or act to be done, and it can 
 not, on our present hypothesis, be done without such authority. 
 
 I believe the Judge- Advocate will find it exceedingly difficult 
 to turn to any act of Congress conferring any such authority. 
 The act of the 3d of March, 1863, is at war with any such au- 
 thority; for why should Congress authorize the suspension of 
 the writ of habeas corpus^ if they intended to confer the greater 
 power to declare martial law ? Above all, why should they pre- 
 scribe terms upon which military prisoners, 7iot of icar^ should 
 have a trial in the ordinary courts of the land, and, in case of a 
 failure to indict them, should be allowed habeas corpus for their 
 discharge? All this is quite opposed to any disposition, on the 
 part of Congress, to confer any such authority; and, indeed, is 
 quite at war with any act done by the President, before the pas- 
 sage of that act, either for the suspension of the writ of habeas 
 corpus^ or the establishment of martial laiu. 
 
 But suppose that, although you should hold, as I conceive you 
 must, that the President can not suspend the writ of habeas cor- 
 pus without an act of Congress authorizing him to do so, you 
 should yet maintain that he can without any act of Congress 
 exercise the all embracing power of establishing martial law all 
 over the country, then the question arises : 
 
 Has he established martial law ? 
 
 ^ We have been told that the President established martial law 
 
 by his proclamation of September 24, 1862, which has been held 
 
 up here, as the solid basis of your authority to sit in judgment 
 
 on the lives of the citizens of Indiana, who are not in the military 
 
 5 
 
54 J. w. Gordon's argument. 
 
 or naval service of the United States, and have not been, if ever, 
 for many years. But this proclamation is co-extensive with the 
 territories of the United States; and, if in force any where, it 
 must be everywhere throughout the country. In this view, it is 
 here, and suspends the civil laws and institutions of this State ; 
 and of all other States of the Union. Is such a supposition con- 
 sistent with facts? Can it be reconciled with the subsequent 
 action of the President himself? It is, on the contrary, directly 
 contradicted by the acts both of Congress and the President. 
 Thus, the act of Congress of March 3, 1863, six months subse- 
 quent to the proclamation, authorizes the President to suspend 
 the writ of habeas corpus, but provides for a report of his mili- 
 tary prisoners, not of w^ar, to the proper courts at every term, 
 and fcr their trial therein if indicted ; but, if not indicted, then for 
 their discharge, provided they have been imprisoned twenty days. 
 These provisions are wholly incompatible with the force and 
 effect of every part of the proclamation of September 24, 1862; 
 and DO less with the notion that martial law had actually been 
 proclaimed and was in force, than with the notion that it should, 
 in the future be proclaimed, or exist in future in any place where 
 the fact of war had not suspended the civil law, and closed the 
 civil courts. 
 
 Yet what do we find ? The President approved this act, and 
 subsequently acted under it as the law of the land ; and, of course, 
 as the true exposition of the constitution in respect to his power 
 over the subjects it embraced. It is a plain expression, on the 
 part of Congress, and of the President, that the writ of habeas 
 corpus can only be suspended by law; and that imprisonment of 
 citizens by order of the President, or his inferiors, shall here- 
 after have a limit entirely independent of his will. Every Cir- 
 cuit and District Court, within its jurisdiction, is to be, under 
 this act, a jail delivery to the military prisons of all persons, like 
 the defendants, either by trial, or discharge without trial. I 
 may repeat here the rule of interpretation applicable to statutes 
 which bring in new remedies, namely : What is affirmed in 
 uch acts of one thing, is denied of all others. (Hobart, supra.) 
 Then, as the civil courts are, by this act, expressly given juris- 
 diction of these cases, either to try, or, if no indictment be found, 
 to discharge the prisoners, it follows that the jurisdiction of them 
 is denied to military courts or commissions. 
 
 The President accepted the act of March 3d, 1863, as the neg- 
 ative of his proclamation of September 24th, 1862. Otherwise, 
 why did he afterwards issue another proclamation to suspend 
 the writ of habeas corpus? If the former proclamation was 
 valid, that writ was already suspended ; and his second, could* 
 add nothing to the force of the first. But the first proclamation 
 contained a declaration of martial law. Now, if this was valid, 
 it carried along with it, as its inseparable incident, the suspen- 
 
J. w. Gordon's argument, 55 
 
 81011 of the writ of habeas corpus; and, if it is still in force, then 
 the act of Congress authorizing a subsequent suspension thereof, 
 and the proclamation to carry the same into effect, issued on the 
 15th of September, 1863, both proceed on a false basis; for it is 
 taken for granted, in both these measures, that the writ of habeas 
 corpus was not, at the date of either of them, suspended, which 
 could not have been the case, had either Congress or the Presi- 
 dent regarded ?nar^ian(??f? as then in force; for martial law as 
 already defined, always carries with it the suspensionof the writ 
 of habeas corpus. In his proclamation of September 15th, 1863, 
 the President makes no allusion to martial law, manifestly in- 
 tending to leave it just where the act of Congress had left it. 
 This silence on the subject in the last proclamation clearly shows 
 that the President, at its date, regarded himself as restrained by 
 the act of Congress, to the suspension of the writ of habeas cor- 
 pus ; and did not design to transcend the authority thereof, 
 by a declaration of martial law. 
 
 But there is a still later act of the President's, that, in my 
 opinion, utterly overthrows all pretense that martial laio is now 
 in force in the State of Indiana. The act to which I refer is the 
 following proclamation : 
 
 " WiiKREAS, By a proclamation which was issued on the 15th 
 day of April, 1861, the President of the United States announced 
 and declared that the laws of the United States had been for 
 some time past, and then were, opposed, and the execution there- 
 of obstructed, in certain States therein mentioned, by combina- 
 tions too powerful to be suppressed by the ordinary course of 
 judicial proceedings, or by the powders vested in the marshals by 
 law ; 
 
 " And whereas, Immediately after the issuing of the said 
 proclamation, the land and naval forces of the United States 
 were put into activity to suppress the said insurrection and 
 rebellion ; 
 
 *' And whereas, The Congress of the United States, by an act 
 approved on the 3d day of March, 1863, did enact that during 
 the said rebellion the President of the United States, whenever 
 in his judgment the public safety may require it, is authorized 
 to suspend the privilege of the writ of habeas corpus in any case 
 throughout thp. United States, or any part thereof; 
 
 "And whereas, The said insurrection and rebellion still con- 
 tinue, endangering the existence of the constitution and gov- 
 ernment of the United States; 
 
 " And whereas. The military forces of the United States are 
 now actively engaged in suppressing the said insurrection and 
 rebellion in various parts of the States where the said rebellion 
 has been successful in obstructing the laws and public authori- 
 ties, especially in the States of Virginia and Georgia; 
 
 " And whereas, On the 15th day of September last, the Presi- 
 
56 J. w. Gordon's argument. 
 
 dent of the United States duly issued his proclamation, wherein 
 he declared that the privilege of the writ of habeas corpus sh.o[i\d 
 be suspended throughout the United States in the cases where, 
 by the authority of the President of the United States, military, 
 naval, and civil officers of the United States, or any of them, 
 hold persons under their command or in their custody, either as 
 prisoners of war, spies, or aiders and abettors of the enemy, or 
 officers, soldiers, or seamen enrolled, or drafted, or mustered, or 
 enlisted in, or belonging to, the land or naval forces of the United 
 States, or as deserters therefrom, or otherwise amenable to mili- 
 tary law, or the rules and articles of war, or the rules or regula- 
 tions prescribed for the military or naval services by authority 
 of the President of the United States, or for resisting a draft, 
 or for any other offence against the military or naval service ; 
 
 "And whereas, Many citizens of the State of Kentucky have 
 joined the fortes of the insurgents, and such insurgents have on 
 several occasions entered the said State of Kentucky in large 
 force, and not without aid and comfort furnished by disaffected 
 and disloyal citizens of the United States residing therein, have 
 not only greatly disturbed the public peace, but have overborne 
 the civil authorities and made flagrant civil war, destroying 
 property and life in various parts of that State ; 
 
 " And whereas, It has been made known to the President of 
 the United States by the officers commanding the national ar- 
 mies, that combinations have been formed in the State of Ken- 
 tucky with a purpose of inciting rebel forces to renew the said 
 operations of civil war within the said State, and thereby to 
 embarrass the United States armies now operating in the said 
 States of Virginia and Georgia, and even to endanger their 
 safety : 
 
 "Now, therefore, I, Abraham Lincoln, President of the United 
 States, by virtue of the authority vested in me by the constitu- 
 tion and laws, do hereby declare that, in my judgment, the pub- 
 lic safety especially requires that the suspension of the w^rit of 
 habeas corpus^ so proclaimed in the said proclamation of the 15th 
 of September, 1863, be made effectual and be duly enforced in 
 and throughout the said State of Kentucky, and that martial law 
 be for the present established therein. I do, therefore, hereby re- 
 quire of the military officers in the said State that the privileges 
 of the w^rit of habeas corpus be effectually suspended within the 
 said State, according to the aforesaid proclamation, and that mar- 
 tial law be established thereirit to take effect 'froyn the date of this 
 proclamation, the said suspension and establishment of martial law 
 to continue until this proclamation shall be revoked or modified, but 
 not beyond the period w^hen the said rebellion shall have been 
 suppressed or come to an end. And I do hereby require and 
 command, as well all military officers as all civil officers and 
 authorities existing or found within the said State of Kentucky, 
 
J. w. Gordon's argument. 57 
 
 to take notice of this proclamation, and to give full effect to the 
 same. 
 
 '' The martial law herein proclaimed, and the things in that 
 respect herein ordered, will not heen deemed or taken to inter- 
 fere with the holding of lawful elections, or with the proceed- 
 ings of the constitutional Legislature of Kentucky, or with the 
 administration of justice in ttie courts of law existing therein, 
 hetwe^n citizens of the United States in suits or proceedings 
 which do not affect the military operations or the constituted 
 authorities of the government of the United States. 
 
 "In testimony whereof, I have hereunto set my hand, and 
 caused the seal of the United States to be affixed. 
 
 ''Done in the city of Washington, this tifth day of July, in 
 the year of our Lord one thousand eight hundred and 
 [l. s.] sixty-four, and of the Indepcndente of the United States 
 the eighty- ninth. 
 
 "ABRAHAM LINCOLN. 
 " By the President : 
 
 *' William H. Seward, Secretary of State." 
 
 Now, I respectfully submit: Why should the President deem 
 it necessary to proclaim martial law in Kentucky, if martial law 
 was already in force by a standing, valid proclamation, not only 
 in that State, but all over the Union? The question crushes 
 the supposition. But the recitals of the last proclamation are 
 equally destructive of it; and the special terms of the declar- 
 atory portion of the instrument go to the same end. Thus, 
 it is declared that '•^martial law be, for the present, established 
 therein," — that is, in the State of Kentucky. But according to 
 the theory of the Judge-Advocate, martial law had already been 
 established therein two years almost, prior to this proclamation ; 
 and in every other State of the Union. The President goes 
 {jtill further to overthrow the theory on which alone, you can 
 entertain jurisdiction of this cause; for he says, that the martial 
 law "established" in Kentucky, by that proclamation, shall 
 "take effect from the date" thereof, namely: the 5th of July, 
 1864. What nonsense is this proclamation if the Judge- Advo- 
 cate is right in his assumption that the proclamation of Sep- 
 tember 24th, 1862, had tdready established martial law through- 
 out the Union? If the President, on the other hand, is right, 
 what nonsense is the assumption, that martial law is in force in 
 this State? The President had reasons for his discrimination 
 against Kentucky; for he recites them. But it is quite unnec- 
 essary to go into them. That he did discriminate against her is 
 enough to answer my purpose; and to place Indiana before you 
 in a different condition from that which she occupies in relation 
 to martial law. Indiana is not yet touched with the curse of 
 martial law. Kentucky is. I recur to the old rule of construe- 
 
58 J. W. GORDON'S ARGUMENT. 
 
 tion, and ask you to apply it to this proclamation. The expres- 
 sion of one excludes the rest — of Kentucky, Indiana. 
 
 Then, there is no existence of martial law in Indiana; for I 
 will not enter again upon the question, whether the order con- 
 vening this Commission, and the other ordering the accused be- 
 fore it for trial, establish martial law. It was not convened 
 until these men were imprisoned for the offences for which they 
 are now on trial. These offences must, of course, have been 
 committed, if ever, before they were arrested. Then, on this 
 hypothesis, you are convened to try tliem for offences against 
 inartial law, which had not been proclaimed, and did not exist 
 until after their arrest ! 
 
 Suppose, however, that there has at any time existed an in- 
 tention, on the part of the President, or of the General command- 
 ing this district, to declare martial law, what have they, or 
 either of them, done, to give vitality to such intention, or to es- 
 tablish it as a practical measure of public administration ? 
 What rules have they laid down to govern your action in its 
 application? What crimes have they said shall be punished by 
 it? And how shall the^^ be punished? 
 
 Ko general in the world, in the present age, or, indeed, in any 
 age, since the dawn of civilization, has ever yet thought of es- 
 tablishing a martial law, the penalties whereof should be con- 
 fined to kis own breast, and that of his judges, until the mo- 
 ment they should fall with ruin and destruction upon its miser- 
 able subjects. God forbid that we should live to see such a 
 system put into operation here! All writers on the subject 
 agree that there must always be some notification of what the 
 commanding general intends may be done, and what, not done, 
 by the people under his sway, when he proclaims martial law. 
 But has any such notification gone before these proceedings? 
 Truly, I should like to know where we are, and what we are 
 about. Who has defined the offences you are to punish? 
 What is to be the rule and measure of your punishments? You 
 are to select, I suppose, definitions and penalties at pleasure, 
 from the boundless range of unlimited power; for, it* martial 
 law has been proclaimed, and is in force, all the laws of the land 
 are suspended as to the accused, and to you, and to all. You 
 are under no obligation to go to them, either for definitions or 
 penalties, unless they have been adopted by the military power. 
 But that power has adopted nothing, ordained nothing, defined 
 nothing, in a word, has given us no definitions of offences, and 
 no measures of punishment. 
 
 It was not thus that Wellington administered ma7iial law; 
 for he declares that the commanding general is — mark the 
 words — "bound to lay down distinctly the rules, and regulations, 
 and limits, according to which his will" — which is martial law — 
 "is to be carried out." Hough's Precedents in Mil. Law, p. 514. 
 
59 
 
 And so our own illustrious military chieftain, Lieutenant- 
 General Scott, when he proclaimed martial law in Mexico, and 
 enforced it, prescribed rules for its administration. Let me 
 show you how he proceeded in the matter. He did not surprise 
 the people of Mexico, though they were aliens and enemies, by 
 announcing the advent of martial laio, in the first instance, by 
 arrests and trials. On the contrary, he published a general 
 order, in which, among other things, he said : 
 
 "1. It is still to be apprehended that many grave offenses not 
 provided for in the act of Congress * establishing rules and arti- 
 cles for the government of the armies of the United States,' ap- 
 proved April 10, 1806, may be again committed — by, or upon, 
 individuals of those armies, in Mexico, pending the existing war 
 between the two republics. Allusion is here made to offenses, 
 any one of which, if committed within the United States or their 
 organized Territories, would, of course, be tried and severely 
 punished by the ordinary civil courts of the land. 
 
 " 2. Assassination, murder, poisoning, rape, or the attempt to 
 commit either; malicious stabbing or maiming; malicious assault 
 and battery ; robbery ; theft; the wanton desecration of churches, 
 cemeteries, or other religious edifices and fixtures ; the interrup- 
 tion of religious ceremonies; and the destruction, except by 
 order of a superior officer, of public or private property, are such 
 offenses." 
 
 Then, after going on and reciting the absence of any provis- 
 ion for the government of an army and people situated, as were 
 the army of the United States and the people of Mexico, to each 
 other, in our military code; and the necessity of such provision, 
 and that it was found in martial law as a matter of necessity, he 
 proceeded to order : 
 
 " 8. From the same supreme necessity mxtrtial law is hereby 
 declared as a supplementary code, in and about all cities, towns, 
 camps, posts, hospitals, and other places, which may be occupied 
 by any part of the forces of the tFnited States in Mexico, and 
 in and about all columns, escorts, convoys, guards and detach- 
 ments of the said forces, while engaged in prosecuting the exist- 
 ing war in and against the said republic, and while remaining 
 within the same. 
 
 "9. Accordingly every crime enumerated in paragraph No. 2 
 above, whether committed: — 1. By an inhabitant of Mexico, 
 sojourner or traveler therein, upon the person or property of 
 any individual of the United States' forces, retainer, or follower 
 of the same. 2. By any individual of the said forces, retainer 
 or follower of the same, upon the person or property of any in- 
 habitant of Mexico, sojourner or traveler therein ; or, 3. By any 
 individual of the said forces, retainer or follower of the same, 
 upon the person or property of any other individual of the said 
 forces, retainer or follower of the same, shall be duly tried and 
 punished under the said supplementary code. 
 
60 J. w. Gordon's argument. 
 
 " 10. For this purpose it is ordered that all offenders iti the 
 matters aforesaid shall be promptly seized, confined, and reported 
 for trial, before military commissions^ to be duly appointed, as fol- 
 lows : 
 
 *'ll. Every military commission, under this order, will be 
 appointed, governed and limited, as nearly as practicable, as 
 prescribed by the 65th, 66r,h, 67th, and 97th of the said Rules 
 and Articles of War, and the proceedings of such commissionH 
 will be duly recorded in writing, reviewed, revised, disapproved 
 or approved, and the sentences executed ; all, as near as may 
 be, as in the cases of the proceedings and sentences of courts- 
 martial; provided, that no military commission shall try any case 
 clearly cognizable by any courts-martial ; and provided, also, that 
 no sentence of a military commission shall be put in execution 
 against any individual belonging to this army; which may not 
 be, according to the nature and degree of the offense, as estab- 
 lished by evidence, in conformity with known punishments, in 
 like cases, in some one of the States of the United States of 
 America." 
 
 The order covers many more topics, and presents a concise 
 but masterly system for the administration of martial law, well 
 worthy of the consideration of those who may be placed 
 under a similar necessity to that w^hich called it forth. It is 
 manifestly the same which, nearly a year before its date, had been 
 presented to the Secretary of War, and which for some reason 
 or other, that functionary had rejecte<l, as I have already shown. 
 The whole order will be found in Scott's Mil. Die, art. Martial 
 Law, p. 3b2. 
 
 Now, this order made all plain both for the army and the peo- 
 ple; and, indeed, for the commissions sitting under it. There 
 was certainty as to the crimes punishable ; and, as far as practica.- 
 ble, as to the penalties to be inflicted. There could be no great 
 surprises in either. But how is it here, to-day? Are w^e not 
 left quite out at sea ? And are we not thus left without compa?s, 
 or chart, or guiding star? If such things be permitted, where 
 will they end? I will not pause to picture the wreck that 
 surely awaits us, if we allow ourselves thus to drift on, over the 
 pathless ocean that lies before us. I have no heart to think 
 of it. 
 
 You will not, therefore, entertain jurisdiction of this cause. 
 I am sure you will not; for I can not see where such jurisdiction 
 can begin, on what principles it can rest, or how it can be justi- 
 fied. You ivill not, I beg leave to repeat, entertain jurisdiction, 
 because — 
 
 1. Such a jurisdiction is at war with the principles of consti- 
 tutional liberty as derived by us from Great Britain, and em- 
 bodied in the federal constitution; 
 
 2. Such a jurisdiction is at war with all the liberal principles 
 
J. w. Gordon's argument. 61 
 
 of tlie gcfdd old laws of Father-land, which our ancestors brought 
 over with them, as their best birth-right, to the wilds of America ; 
 
 3. Such a jurisdiction is at war with all the inspiring facts of 
 our early history; and renders worse than useless the noble ex- 
 amples of the men of 1776; 
 
 4. Such a jurisdiction is at war with the very nature of a lim- 
 ited constitutional government ; and strikes it dead as soon as 
 we permit it to cross our national threshhold; 
 
 5. Such a jurisdiction nullifies the acts of Congress as well as 
 the Constitution ; 
 
 6. Such a jurisdiction, in Indiana, is at war with the procla- 
 mations of the President; and would make him the author of 
 the most absurd and monstrous folly, as well as of the grossest 
 injustice; 
 
 7. Such a jurisdiction outrages the facts of our condition — 
 our courts, both Federal and State, being open — and the laws of 
 the land having therein free course and full power. 
 
 In order to sustain such a jurisdiction you must take the respon- 
 sibility ; for the general commanding has issued no order taking 
 it upon himself; and the President is still more distant and dis- 
 inclined to assume it. Why should yon volunteer to do this 
 thing ? And why should you now take a step that may, in the 
 future, be referred to as a precedent for the abolition of our lib- 
 erties ? 
 
 Under the administration of good honest men, almost any- 
 thing evil, in the way of precedent, may remain harmless. 
 They will not use it ; or, if they do, suiter it to die with the evil 
 exigency that called it forth. But if you now go on with this 
 business, may there not come a time, when the land shall mourn 
 for its lost freedom — lost through the evil example of this hour? 
 Then shall our children curse the evil day in which the bad pre- 
 cedent — a fatal departure from law and right — was left by us 
 for their ruin. 
 
 Mr. President and gentlemen, I have done. I know you have 
 each defended our common country in the field ; and, had it 
 been your lot, would have cheerfully and nobly died to preserve 
 its liberty and constitution from overthrow or harm. To-day, 
 you have a greater duty to perform — a far more difficult one 
 also. Perform it according to the constitution and laws — ac- 
 cording to justice and good conscience, as I trust you will, and 
 posterity, more indebted to this day's work than to all the mili- 
 tary achievements of the war in which we are now engaged, 
 will rise up and call you blessed. 
 
 6 
 
Ji^:RGrTJls/L:Ell<TT 
 
 OF THE 
 
 HON. JAMES A. GARFIELD 
 
 f tt the ^, <f . ^tt|Htme (Eouii 
 
 i^jLTicii 6, isee. 
 
 In the matter of ex-parte L. P. Milligan, W. A. Bowles, and 
 
 Stephen Horsey. 
 
 Counsel for the Petitioners, Hon. J. £. McDONALD, Hon. JAMES A. 
 
 OARFIEIiD, Hon. J. S. BLACK, and Hon. DAVID DUDIiKY 
 
 FIELD. For tlie United States, Hon. B. F. BUTLiER, 
 
 Hon. JAS. SPEED, and Hon. HENRY STANBERRY. 
 
 Nullus Liber Homo capiatur, vel imprisonetur, aut dissieeietur aut utligetur aut exuletur, aut ; 
 aliquo alio modo destruatur ; nee super eum ibimus, nee eum in carcere mittemus, nisi per legale • 
 judicium Parium suorum, vel per Legem Terrse — Magna Charta, Cap. XLVIII. ' 
 
 REPORTED BY D. F. MURPHY 
 
 WASHINGTON : 
 JOSEPH L. PEARSON, PRINTER, 
 
 511 Ninth St., near Penn. Avenue. 
 
 1866. 
 
ARGUMENT. 
 
 May it please the Court. 
 
 In the months of September and October, 1864, Lambdin P. Milligan, 
 William A. Bowles, and Stephen Horsey, natives of the United States 
 and citizens of the state of Indiana, were arrested by order of Alvin P. 
 HovEY, Major General commanding the military district of Indiana, and 
 on the 21st day of the latter month, were placed on trial before a '* Mili- 
 tary Commission," convened at Indianapolis, by order of Gen. Hovey, 
 on the following charges, preferred by Maj. Henry L. Burnett, Judge 
 Advocate of the North- VVestern Military Department, viz : 
 
 1. *' Conspiracy against the government of the United States." 
 
 2. " Affording aid and comfort to rebels against the government of the 
 United States." 
 
 3. '< Inciting insurrection." 
 
 4. ** Disloyal practices." 
 
 5. '* Violations against the laws of war." 
 
 The commission, overruling the objection of the accused against its 
 authority to try them, proceeded with the trial, pronounced them guilty, 
 and sentenced them to death by hanging. The sentence was approved 
 on the 2d day of May, 1865 ; but before the day fixed for its execution, 
 the President of the United States commuted it to imprisonment for life, 
 and the prisoners are now confined in the penitentiary of Ohio. 
 
 On the lOlh day of the same month they filed their petition in the Cir- 
 cuit Court of the United States for the District of Indiana, setting forth 
 the above facts, and also declaring that while the petitioners were held in 
 military custody, and more than twenty days after their arrest, a Grand 
 Jury ot the Circuit Court of the United States, for the District of Indiana, 
 was convened at Indianapolis, the petitioners' place of confinement, and 
 being duly impaneled, charged, and sworn for said district, held its sit- 
 tings, and finally adjourned, without having found any bill of indictment, 
 or made any presentment whatever against them ; that at no time had 
 they been in the military service of the United States, or in any way con- 
 nected with the land or naval force, or the militia in actual service ; that 
 they had not been within the limits of any state whose citizens were 
 engaged in rebellion against the United States, at any time during the 
 war, but during all the time aforesaid, and for twenty years last passed, 
 had been inhabitants, residents, and citizens of Indiana. The petitioners' 
 claim to be discharged from the military custody was founded upon the 
 provisions of an act of Congress of March 3d, 1863, entitled **An act re- 
 lative to habeas corpus, and regulating judicial proceedings in certain 
 cases." 
 
 On hearing the petition, the opinions of the judges of the circuit court 
 were opposed, and they have certified to this court for its decision the 
 following questions, viz: 
 
 1. On the facts stated in said petition and exhibits, ought a writ of 
 habeas corpus to be issued according to the prayer of said petition ? 
 
2. On the facts stated in said petition and exhibits, ought the petitioners 
 to be discharged from custody as in said petition prayed ? 
 
 3. Whether, upon the facts stated in said petitition and exhibits, the 
 military commission mentioned therein had jurisdiction legally to try and 
 sentence said petitioners in manner and form as in said petition and exhibits 
 is stated. 
 
 These preliminary proceedings have been so fully stated and examined 
 by the gentleman who opened the cause (Judge McDonald) that I need 
 not dwell upon them further. 
 
 I desire to say in the outset that the questions now before this court 
 have relation only to constitutional law, and neither involve the guilt or 
 innocence of the relators, nor the motives and patriotism of the officers who 
 tried and sentenced them. 
 
 I trust 1 need not say in this presence, that in my estimation nothing in 
 the calendar of infamy can be more abhorrent than the crimes with which 
 the relators were charged; nothing that more fully deserves the swift ven- 
 geance of the law, and the execration of mankind. But the questions be- 
 fore Your Honors are not personal. They reach those deep foundations of 
 law on which the Republic is built; and in ihv.'iT proper settlement are 
 involved the highest interests of every citizen. 
 
 HAD THE MILITARY COMMISSION JURISDICTION LEGALLY TO TRY AND SEN 
 TENCE THE PGTITIQNERS .? 
 
 Upon the determination of this question the whole cause rests. 
 
 If the commission had such jurisdiction, the petitioners are legally impri- 
 soned, and should not be discharged from custody; nor should a writ of 
 habeas corpus be issued in answer to their prayer. 
 
 If the military commission had not jurisdiction, the trial was void, the 
 sentence illegal, and should not be further executed. 
 
 As a first step toward reaching an answer to this question, I affirm that 
 evei'y citizen of the United States is under the dominion of law; that whether 
 he be a civilian^ a soldier, or a sailor^ the Constitution provides for him a 
 tribunal before which he may be proteded if innocent, and punished if guilty 
 of crime. 
 
 In the iifih article of the amendments to the Constitution it is declared 
 that: 
 
 *'No person shall be held to answer for a capital or otherwise infamous 
 crime, unless on a presentment or indictment of a grand jury, except in 
 cases arising in the land or naval forces, or in the militia when in actual 
 service, in time of war or public danger ; nor shall any person be sub- 
 ject for the same offence to be twice put in jeopardy of life or limb ; nor 
 shall he be compelled in any criminal case to be witness against himself; 
 nor be deprived of life, liberty, or property without due process of law ; 
 nor shall private property be taken for public use without just compensa- 
 tion." 
 
 This sweeping provisiion covers every person under the jurisdic- 
 tion of the Constitution. To the general rule of "^presentment or indict- 
 ment of a grand jury''"' there are three exceptions : First, cases arising 
 in the land forces ; second, cases arising in the naval forces ; third, 
 cases arising in the militia when in actual service in time of war or public 
 danger. All these classes are covered by express provisions of the Con- 
 stitution. In whatever one of these situations an American citizen may 
 
be placed, his rights are clearly defined, and a remedy is provided against 
 oppression and injustice. The Constitution establishes the Supreme Court, 
 and empowers Congress — 
 
 **To constitute tribunals inferior to the supreme court." 
 
 ''To make rules for the government of the land and naval forces, and 
 * To provide for governing such part of the militia as may be employed in 
 'the service of the United States." 
 
 No other tribunal is authorized or recognized by the Constitution. No 
 other is established by the laws of Congress. 
 
 For all cases not arising in the land or naval forces. Congress has amply 
 provided in the Judiciary act of September 24, 1789, and the acts amend- 
 atory thereof. 
 
 For all cases arising in the naval forces, it has fully provided in the act 
 of March 2, 1799, "for the government of the navy of the United States," 
 and similar subsequent acts. 
 
 But since the opposing counsel do not claim to find authority for the 
 tribunal before which the petitioners were tried, in either of these catego- 
 ries, I shall proceed to examine, somewhat minutely, the limits and boun- 
 daries of the military department; the character of its tribunals; the 
 classes of persons who come within its jurisdiction; and the defences 
 which the law^ has thrown around them. 
 
 We are apt to regard the military department of the government as an 
 organized despotism in which all personal rights are merged in the will of 
 the commander-in-chief. But that department has definitely marked 
 boundaries, and all its members are not only controlled, but also sacredly 
 protected by definitely prescribed law. The first law of the revolutionary 
 Congress, passed September 20, 1776, touching the organization of the 
 army, provided that no officer or soldier should be kept in arrest more 
 than eight days without being furnished with the written charges and spe- 
 cifications against him ; that he should be tried at as early a day as possible 
 by a regular military court, whose proceedings were regulated by law, and 
 that no sentence should be carried into execution till the full record of the 
 trial had been submitted to Congress or to the commander-in-chief, and 
 his or their direction be signified thereon. 
 
 From year to year Congress has added new safe-guards to protect the 
 rights of its soldiers, and the rules and articles of war are as really a part of 
 the laws of the land as the judiciary act or the act establishing the Treasury 
 department. 
 
 If the humblest private soldier in the army be wronged by his command- 
 ing officer, he may demand redress by sending the statement of his griev- 
 ance step by step through the appointed channels till it reaches the Presi- 
 dent or Congress, if justice be not done him sooner. 
 
 The main boundary line between the civil and military jurisdictions is 
 the muster into service. Before that act the citizen is subject to the juris- 
 diction of the civil courts — after it, until his muster out, he is subject to 
 the military jurisdiction in all matters of military duty. 
 
 This line has been carefully surveyed by the courts, and fixed as the 
 lawful boundary. 
 
 They do not regard a citizen as coming under the jurisdiction of a federal 
 court-martial, even when he has been ordered into the military service 
 by the governor of hi^ state, on requisition of the President, until he reaches 
 the place of general rendezvous, and has been actually mustered into the 
 
service of the United States. On this point 1 cite the case of Mills vs. 
 Martin, 19 Johnson, N. Y. Reports. In that case, a militiaman, called 
 out by the governor of the state of New York, and ordered by him to enter 
 the service of the United States, on a requisition of the President for 
 troops, refused to obey the summons, and was tried by a federal court-mar- 
 tial for disobedience of orders. The supreme court of the state of New 
 York decided that until he had gone to the place of general rendezvous, 
 and had been regularly enrolled, and mustered into the national militia, he 
 was not amenable to the action of a court-martial composed of officers of 
 the United States. 
 
 The judge, in giving his opinion, quoted the following language of Mr. 
 Justice Washington, of the Supreme Court of the United States, in the 
 case of Houston vs. Moore, 5 Wheaton : 
 
 " From this brief summary of the laws, it would seem that actual ser- 
 
 * vice was considered by Congress as the criterion of national militia ; and 
 
 * that the service did not commence until the arrival of the militia at the place 
 ' of rendezvous. That is, the terminus a quo, the service, the pay, and sub- 
 ejection to the articles of war, are to commence and continue." 
 
 By the sixtieth article of war, the military jurisdiction is so extended as 
 to cover those persons not mustered into the service, but necessaril}' con- 
 nected with the army. It provides that — 
 
 ^'All sutlers and retainers to the camp, and all persons whatsoever, 
 'serving with the armies of the United States in the field, though not en- 
 
 * listed soldiers, are to be subject to orders according to the rules and 
 
 * articles of war." 
 
 That the question of jurisdiction might not be doubtful, it was thought 
 necessary to provide by law of Congress that spies should be subject to 
 trial by court-martial. 
 
 As the law stood for eighty-five years spies were described as '' persons 
 ' not citizens of, or owning allegiance to, the United States, who shall be 
 
 * found lurking" &c. Not until after the great rebellion began was this 
 law so amended as to allow the punishment by court- martial of citizens of 
 ike United States who should be found lurking about the lines of our army 
 to betray it to the enemy; for until then, be it said to the honor of our 
 people, it had never been thought possible that ai^y American citizen would 
 become a spy, to aid the enemies of the republic ; but in 1862 the law was 
 so amended that an American citizen, if found lurking about the lines of 
 the army as a spy, in time of war, should be tried by a court-martial as 
 though he were a spy of a foreign nation. 
 
 It is evident, therefore, that by no loose and general construction of the 
 law can citizens be held amenable to military tribunals, whose jurisdiction 
 extends only to persons mustered into the military seivice, and such other 
 classes of persons as are, by express provisions ot law, made subject to the 
 rules and articles of war. 
 
 But even within their proper jurisdiction, military courts are, in many 
 important particular s, subordinate to the civil courts. This is acknowledged 
 by the leading authorities on this subject. 
 
 I read from O'Brien's Military Law, p. 222. 
 
 After discussing the general relations between the civil and military 
 
 * departments of the government, he says : •■' From this admitted prin- 
 ' ciple, it Would seem a necessary consequence that the Supreme Court of 
 ' the United States has an inherent power over all military tribunals, of 
 
* precisely the same nature as that which it exerts and exercises over infe- 
 
 < rior courts of civil jurisdiction. Any mandatory or prohibitory writ, 
 ^ therefore, emanating from the Supreme Court of the United States, and 
 
 < addressed to a court martial, would demand the most unhesitating obedi- 
 ' ence on the part of the latter. Whether in the absence of a special law 
 
 * to that effect, the same obedience is due to a writ coming from a circuit 
 ' or a district court of the Union, and directed to a court-martial assembled 
 
 * in the district or circuit, does not appear to be so clear. A military 
 
 * tribunal would doubtless obey such a writ. As to stale courts, the case 
 
 * is very different. Military courts are entirely independent of them ; 
 ' their powers are derived from a distinct, separate, and independent source. 
 
 * In regard to the courts of the United States, there can be no question. 
 
 * Each individual member of a court-martial is also liable to the supreme 
 'courts of civil judicature, not only for any abuse of power, but for any 
 
 < illegal proceedings of the court, if he has votcid for, or participated in the 
 
 * same." 
 
 Again, on page 225, the same author says : 
 
 **The authority of courts-martial is sometimes extended by executive 
 
 * governments, subjecting, by proclamation, certain districts or countries 
 ' to the jurisdiction of martial law during the existence of a rebellion. But 
 ' in all such cases a court martial ought to be fully assured that the war- 
 
 * rant or order under which they are assembled is strictly legal, and that 
 ' the prisoners brought before them were actually apprehended in the par- 
 
 * ticular district or country which may have been subjected to martial law, 
 ' and during the period that the proclamation was actually in force. Any 
 
 * error in these particulars would render their whole proceedings illegal." 
 
 In further vindication of my last proposition, I will cite a few 
 
 PRECEDENTS FROM ENGLISH AND AMERICAN PRACTICE. 
 
 1. A Lieutenant Frye, serving in the West Indies in 1743 on board the 
 Oxford, a British man-of-war, was ordered by his superior officer to assist 
 in arresting another officer and bringing him on board the ship as a 
 prisoner. The lieutenant, doubting the legality of the order, demanded 
 what he had, according to the customs of the naval service, a right to de- 
 mand, a written order before he would obey the command. For this he 
 was put under arrest, tried by a naval court-martial, and sentenced to 
 fifteen years imprisonment, and to be forever debarred from serving the 
 King. He was sent to England to be imprisoned, but was released by or- 
 der of the Privy Council. In 1746 he brought an action before a civil 
 court against the president of the court-martial, Sir Chandler Ogle, and 
 damages of iSl,000 were awarded him for his illegal detention and sen- 
 tence; and the learned judge informed him that he might also bring his 
 action against any member of the court-martial. Rear Admiral Mayne 
 and Captain Rentone, who were members of the court that tried him, 
 were at the time, when damages were awarded to Lieut. Frye, sitting on 
 a naval court-martial for the trial of Vice Admiral Lestock. The lieuten- 
 ant proceeded against them, and they were arrested by a writ from the 
 C. B. The order of arrest was served upon them just as the court-martial 
 adjourned, one afternoon. Its members, fifteen in number, immediately 
 re-assembled and passed resolutions declaring it a great insult to the dig- 
 nity of the naval service that any person, however high in civil authority, 
 
8 
 
 should order the arre^^t of a naval officer for any of his official acts. The 
 Lord Chief Justice (Sir John Willes) immediately ordered the arrest of 
 all the members of the court, who signed the resolutions, and they were 
 arrested. They appealed to the King, who was very indignant at the 
 arrest. The judge, however, persevered in his determination to maintain 
 the supremacy of civil law, and after two months' examination and inves- 
 tigation of the cause all the members of the court-martial signed an humble 
 and submissive letter of apology, begging leave to withdraw their reso- 
 lutions, in order to put an end to further proceedings. When the Lord 
 Chief Justice had heard the letter read in open court he directed that 
 it be recorded in the Remembrance Office, "to the end," as he said, 
 *' that the present and future ages may know that whosoever set them- 
 ^ selves up in opposition to the law, or think themselves above the law, 
 
 * will, in the end, find themselves mistaken." The history of the case 
 will be found in McArthur on Courts-martial, Vol. L, pages 268-27L 
 (See also London Gazette for 1745-6, Library of Congress.) 
 
 2. I beg leave to cite the case of Wilson vs. McKenzie, in 7 Hill, New 
 York Supreme Court Reports, page 95. This court will remember the 
 remarkable mutiny in 1842, on board the brig Somers, in which a son of 
 the then Secretary of the Treasury of the United States was tried by court- 
 martial for mutiny, and executed at the yard-arm. It was proved that a 
 mutiny of very threatening aspect had broken out; and that the lives of 
 the captain and his officers were threatened by the mutineers. Among 
 the persons arrested was the plaintiff, Wilson, an enlisted sailor, who being 
 supposed to be in the conspiracy, was knocked down by the captain, 
 ironed, and held in confinement for a number of days. When the 
 cruise was ended, Wilson brought suit against the captain for illegal arrest 
 and imprisonment. The cause was tried before the Supreme Court of 
 New York; and His Honor, Chief Justice Nelson, delivered the opinion 
 of the court. He says, page 97 : " The material question presented in this 
 'case is, whether the common-law courts have any jurisdiction of per- 
 ' sonal wrongs committed by a superior officer of the navy upon a subor- 
 ' dinate, while at sea and engaged in the public service." 
 
 ####* #« « 
 
 " Actions of trespass for injuries to the person have been frequently 
 
 * brought and sustained in the common-law courts of England, against 
 
 * naval as well as military commanders, by their subordinates, for acts done 
 
 * both at home and abroad under pretence and color of naval and military 
 ' discipline. — (See Wall v. McNamara, and Swinton v. Moller, stated in 
 « 1 T. R., 536-7; also Mostyn v. Fabrizas, Cowp. 161; Warden v. 
 ' Bailey, 4 Taunl.,67; 4 Maule and Selw., 400, S. C; and Hannaford v. 
 « Hunn, 2 Carr and Payne, 148.)" 
 
 ## # # *##* 
 
 '* There are also many cases in the books where actions have been sus- 
 
 * tained against members of courts-martial, naval and military, who have 
 
 * exceeded their authority in the infliction of punishment." — "(See4Taunt., 
 
 * 70-75, and the cases there cited.)" * * # # 
 
 ^' It was suggested in the argument that inasmuch as he (Wilson) was in 
 
 * the service of the United States when the acts complained of were done, 
 
 * the courts of this state as a matter of comity and policy should decline 
 ' to take jurisdiction • * * but I am of opinion that the de- 
 
* murrer is well taken and that the plaintiff (Wilson) is entitled to judg- 
 *ment. " 
 
 Ordered accordingly. 
 
 3. As a clear and exhaustive statement of the relation between civil and 
 military courts, I quote from an opinion of this court in the case of Dynes 
 V. Hoover, 20 Howard, 82 : 
 
 *' With the sentences ot courts-martial which have been convened regu- 
 
 * larly, and have proceeded legally, and by which punishments are directed, 
 
 * not forbidden by law, or which are according to the laws and customs of 
 ' the sea, civil courts have nothins to do, nor are they in any way alter- 
 
 * able by them. If it were otherwise, the civil courts would virtually 
 
 * administer the rules and articles of war, irrespective of those to whom 
 'that duty and obligation has been confided by the laws of the United 
 
 * States, from whose decisions no appeal or jurisdiction of any kind has 
 
 * been given to the civil magistrate or civil courts. But we repeat, if a 
 
 * court-martial has no jurisdiction over the subject-matter of the charge it 
 
 * has been convened to try, or shall inflict a punishment /or^iWm by the 
 
 * /aw, though its sentence shall be approved by the officers having a re- 
 
 * visory power of it, civil courts may, on an action by a party aggrieved by 
 
 * it, inquire into the want of the court's jurisdiction and give him redress. 
 
 * (Harman v. Tappenden, 1 East., 555 ; as to ministerial officers, Mar- 
 
 * shall's case, 10 Cr., 76; Morrison v. Sloper, Wells, 30; Parton v. 
 'Williams, B. and A., 330; and as to justices of the peace, by Ld. T^n- 
 < terden, in Basten v. Carew, 3 B. and C, 653; Mules v. Calcott, 6 
 'Bins., 85.) 
 
 " Such is the law of England. By the mutiny acts, courts-martial 
 ' have been created with authority to try those who are a part of the army 
 'or navy for breaches of milit<iry or naval duty. It has been repeatedly 
 ' determined that the sentences of those courts are conclusive in any action 
 'brought in the courts of common law. But the courts of common law 
 ' will examine whether courts-martial have exceeded the jurisdiction given 
 ' them, though it is said, ' not, however, after the sentence has been rati- 
 ' fied and carried into execution.' (Grant v. Gould, 2 H. Black, 69 ; 
 'Ship Bounty, 1 East., 313; Shalford's case, 1 East., 313; Mann v. 
 ' Owen, 9 B. and C, 595 ; in the matter of Poe, 5 B. and A., 681, on a 
 ' motion for a prohibition.)" 
 
 I hold it, therefore, established, that the Supreme Court of the United 
 States may inquire into the question of jurisdiction of a military court ; 
 may take cognizance of extraordinary punishment inflicted by such a court 
 not warranted by law, and may issue writs of prohibition or give such 
 other redress as the case may require. It is also clear that the Constitu- 
 tion and laws of the United States have carefully provided for the protec- 
 tion of individual liberty and the right of accused persons to a speedy trial 
 before a tribunal established and regulated by law. 
 
 The petitioners must, as I have already shown, be placed in one of four 
 categories. First, they were either in the naval service, or s-econd, in the 
 military service, or third, belonged to the militia and were called out to 
 serve by order of the President in the national militia; or if neither of 
 these three, nor so connected with them as to be placed by law under the 
 naval or military jurisdiction, then they were simply civilians, and subject 
 exclusively to the jurisdiction of the civil courts. It is set forth in the pe- 
 tition, and not denied by the opposing counsel, that they were in neither 
 of the first three classes, nor connected with them. They must therefore 
 2 
 
10 
 
 belong to the fourth class, unless a fifth should be added, as the learned 
 counsel on the other side have suggested, and it be declared that they were 
 prisoners of war ; but of that I shall speak hereafter. 
 
 Under such circumstances it is not surprising that the learned counsel 
 should go beyond the Constitution, beyond the civil, the naval, and even 
 the military law, to find a basis on which they may rest the jurisdiction 
 of the tribunal before which the petitioners were tried. They tell us 
 frankly that they do not find its justification either in the civil or military 
 laws of the land. 
 
 The Honorable Attorney General and his distinguished colleague (Gen. 
 Butler) declare in their printed brief, pp. 4 and 5, that — 
 
 I. *'A MILITARY COMMISSION deHves its power and authority wholly 
 ^from martial law; and by that law^ and by military authority only are its 
 ^proceedings to be judged or reviewed;''^ that — 
 
 II. " Martial Law is the will of the commandiny officer of an armed force, 
 ^ or of a geographical military department expressed in time of war, within 
 ^ the limits of his military jurisdiction, as necessity demands and prudence 
 ' dictates, restrained or enlarged by the orders of his military chief or 
 ' supreme executive ruler,^^ and that '^ the officer executing martial law is 
 * at the same time supreme legislator, supreme judge, and supreme executive.'''^ 
 
 To give any color of plausibility to this novel proposition, they were 
 compelled not only to ignore the Constitution, but to declare it suspended; 
 its voice drowned in the thunders of war. Accordingly, with consistent 
 boldness, they declare (Brief, p. 13) that the third, fourth, and fifth articles, 
 of amendments *'are all peace provisions of the Constitution, and like all other 
 ' conventional and legislative laws and enactments are silent Hnter arma,^ 
 ^ when ' salus populi suprema est lex.'' " Applying these doctrines to this 
 cause they hold that from the 5th day of October, 1864, 1o the 9th of May, 
 1865, martial law alone existed in Indiana; that it e^ilenced not only the 
 civil courts, but all the laws of the land, and even the Constitution itself; 
 and during that silence the executor of martial law could lay his hand upon 
 every citizen, could not only suspend the writ of habeas corpus, but could 
 create a court which should have the exclusive jurisdiction over the 
 citizen to try him, sentence him, and put him to death. 
 
 We have already seen that the Congress of the United States raises and 
 supports armies, provides and maintains navies, and makes the rules and 
 regulations for the government of both ; but it would appear from the 
 teachings of the learned counsel on the other side, that when Congress 
 has done all these things — when, in the name of the Republic, and in order 
 to put down rebellion and restore the supremacy of law, it has created the 
 grandest army that ever fought — the power thus created rises above its 
 source and destroys both creator and law. 
 
 They would have us believe that the government of the United States 
 has evoked a spirit which it cannot lay — has called into being a power 
 which at once destroyed and superseded its author, and rode, in uncon- 
 trolled triumph, over citizen and court. Congress and Constitution. 
 
 All this mockery is uttered before this august court, whose every 
 member is sworn to administer the law in accordance with the Constitu- 
 tion ! 
 
 This monstrous assumption I shall now proceed to examine. 
 
 martial law defined. 
 And now what is martial law ? It is a new term to American jurispru- 
 
11 
 
 dence ; and I congratulate this court that never before in the long history 
 of this republic has that word rung out its lawless echoes in this sacred 
 chamber. 
 
 Mr. Butler. Did not the decision in the case of Luther vs. Borden 
 have something to do with martial law ? 
 
 Mr. Garfield. It was not the subject decided by the court, and only 
 remotely analogous to this case. 
 
 The claim to exercise martial law in that case was under the old charier 
 of Charles 11. in Rhode Island, and not under the Constitution. 
 
 1. Sir Matthew Hale, in his History of the Common Law, (Runnington's 
 edition, London, 1820,) pp. 42-3, says : 
 
 " Touching the business of martial law, these things are to be observed, 
 ^ viz : 
 
 " First. — That in truth and reality it is not a law but something indulged 
 
 < rather than allowed as a law ; the necessity of government, order, and 
 
 * discipline in an army is that only which can give those laws a counte- 
 ^ nance quod enim necessiias cogit defendi. 
 
 " Secondly. — This indulged law was only to extend to members of the 
 
 * army, or to those of the opposed army, and never was so much indulged 
 
 * as intended to be executed or exercised upon others, for others who had 
 
 * not listed under the army had no color or reason to be bound by military 
 ' constitutions applicable only to the army, whereof they were not parts, 
 ' but they were to be ordered and governed according to the laws to which 
 
 < they were subject, though it were a time of war. 
 
 <' Thirdly. — That the exercises of martial law, whereby any person should 
 
 * lose his life, or member, or liberty, may not be permitted in time of peace 
 
 * when the king's courts are open for all persons to receive justice accord- 
 
 * ing to the laws of the land. This is declared in the Petition of Right, 3 
 
 * Car., 1, whereby such commissions and martial law were repealed and 
 
 * declared to be contrary to law." 
 
 2. Blackstone quotes the above approvingly, and still further enforces the 
 same doctrine. Book 1, pp. 413-4. 
 
 3. Wharton, in his Law Lexicon, 3d edition, p. 578, says : 
 
 '' Martial law is that rule of action which is imposed by the military 
 
 < power. It has no place in the institutions of this country (Great Britain) 
 
 * unless the articles of war established under the military acts be consid- 
 
 * ered as of that character. The prerogative of proclaiming martial law 
 
 * within this kingdom is destroyed, as it would appear, by the Petition of 
 
 * Right." 
 
 4. Lord Wellington defined martial law as *^The will of the command- 
 ' ing general exercised over a conquered or occupied territory." This defi- 
 nition was given by him in his dispatches from the Peninsula, (vol. V.) and 
 subsequently repeated in Parliament in 1851. In the same debate. Lords 
 Cottenham and Campbell, and the attorney general. Sir. J. Jervis, declared 
 that '* Martial law was the setting aside of all law, and acting under mil- 
 ' itary power, in circumstances of great emergency — a proceeding which 
 ' requires to be followed up by an act of indemnity." 
 
 This is the kind of law tD which the gentlemen appeal to establish the 
 validity of the court that tried the petitioners. 
 
 In order to trace the history and exhibit the character of martial law, I 
 shall refer to several leadinoj 
 
12 
 
 PRECEDENTS IN ENGLISH AND AMERICAN HISTORY. 
 
 1. The Earl of Lancaster. In the year 1322, the Earl of Lancaster and 
 the Earl of Hereford rebelled against the authority of Edward IL They 
 collected an army so large that Edward was compelled to raise 40,000 
 men to withstand them. The rebellious eails posted their forces on the 
 Trent and the armies of the king confronted them. They fought at Bor- 
 oughbridge ; the insurgent forces were overthrown ; Hereford was slain 
 and Lancaster taken in arms at the head of his army, and amid the noise 
 of battle, was tried by a court-martial, sentenced to death, and executed. 
 When Edward HL came into power, eight years later, on a formal petition 
 presented to Parliament by Lancaster's son, setting forth the facts, the 
 case was examined and a law was enacted reversing the attainder and 
 declaring : 
 
 *' L That in time of peace no man ought to be adjudged to death for 
 * treason or any other offence without being arraigned and held to answer. 
 ' 2. That regularly when the king^s courts are open it is a tiine of peace in 
 ^judgment q/'law ; and 3. That no man ought to be sentenced to death, by 
 ' the record of the kino^, without his legal trial per pares. ^^ 
 
 Hale's Pleas of the Crown, pp. 499, 500. Hume, vol. 1, p. 1.59. 
 
 I call attention to this case as a remarkable illustration of some of 
 the points in the cause before us. This man was taken in arms at the 
 head of his army and in battle. He was immediately tried by court-mar- 
 tial and executed ; but it was declared, in the decree that reversed the at- 
 tainder, that he might have been tried by the courts of the land, and 
 therefore, for the purposes of his trial,?/ was a time of peace, that he might 
 have been presented, indicted, and regularly tried before the civil tribunal, 
 and therefore the whole proceeding was illegal. So carefully was the line 
 drawn between civil and martial law five hundred years ago ! 
 
 2. Sir Thomas Darnell. He was arrested in 1625 by order of the King 
 for refusing to pay a tax which he regarded as illegal. He was arrested 
 and imprisoned. A writ of habeas corpus was prayed for, but answer was 
 returned by the court that he had been arrested by special order of the 
 King, and that was held to be a sufficient answer to the petition. Then 
 the great cause came up to be tried in Parliament, whether the order of the 
 King was sufficient to override the writ of habeas corpus, and alter a long 
 and stormy debate, in which the ablest minds in England were engaged, 
 the Petition of Right, of 1628, received the sanction of the King. In that 
 statute it was decreed that the King should never again suspend the writ 
 of habeas corpus ; that he should never again try a subject by military 
 commission — and since that day, no King of England has presumed to 
 usurp that high prerogative which belongs to Parliament alone. 
 
 3. For the purpose of citing a passage in the argument of Counsellor 
 Prynn, I call attention to the trial of Lord Macguire, before the Court of 
 King's Bench, in 1645. The record of the case will be found in 4 State 
 Trials, pages 690-691. 
 
 Lord Macguire was the leader of the great Irish rebellion of 1841, during 
 the progress of which more than 100,000 men, women, and children 
 were murdered under circumstances of the greatest brutality. Lord Mac- 
 guire was arrested and held until order had been restored ; and in 1645 
 was brought before the King's Bench for trial. Mr. Prynn, counsel tor 
 the crown, published his argument in the case, in order, as he says, 
 to vindicate the laws of England ^' in trying this notorious offender, 
 ' guilty of the horridest, universalest treason and rebellion that ever 
 
13 
 
 * broke forth in Ireland ; and that in a time of open war both in Ireland 
 < and England, only by a legal iiidictment and indifferent sworn jury 
 *of honebt and lawful freeholders, according to the known laws and 
 
 * statutes of the realm ; not in a court-martial, or any other new-minted 
 'judicature, bv an arbitrary, summary, illegal, or martial proceeding, 
 
 * without any lawful presentment, indictment, or trial by a sworn, im- 
 
 * partial, able jury, re.^olved to be diametrically contrary to the fundamen- 
 
 * tal laws, customs, great charters, statutes of the realm, and inherent liberty 
 
 * of the subject, especially in time of peace when all other courts of justice 
 
 * are open, and of every dangerous consequence, and thereupon especially 
 ' prohibited and enacted against " 
 
 After giving a long list of references to authorities, he goes on to say 
 that the law is vindicated still more ** in allowing him a free, honorable 
 
 * trial upon an indictment, first found upon oath by the grand jury, and 
 
 * then suffering him to take not only his particular challenges by the poll 
 
 * to every of the jurors returned, upon ^voijre dire, (not formerly heard of, 
 
 * yet allowed him, as reasonable, to take away all color of partiality or 
 
 * non-indifference in the jurors,) whereupon every juryman was examined 
 
 * before he was sworn of the jury, whether he had contributed or advanced 
 
 * any moneys upon the propositions for Ireland, or was to have any share 
 *in the rebeK'^' lands in Ireland, by act of Parliament, or otherwise. But 
 'likewise in permitting him to take his peremptory challenge to thirty-five 
 
 * of the two juries returned, without any particular cauee alleged, which 
 
 * liberty — our laws allowing men, in favor em vifoe, and because there may 
 'be private causes of just exceptions to them, known to the prisoner, not 
 ' fit to be revealed, or for which he wants present proof, and that in case 
 'of high treason, as w^ell as of felony, the court thought just and equal to 
 ' allow the same to him, though a notorious Irish r^bel." 
 
 4. The Bill of Rights of 1688. The house of Stuart had been expelled 
 and William had succeeded to the British throne. Great disturbances 
 had arisen in the realm in consequence of the change of dynasty. Plots were 
 formed in favor of James in all parts of England. The King's person was 
 unsafe in London. He informed the Lords and Commons of the great dan- 
 gers that threatened the Kingdom, and reminded them that he had no right 
 to declare martial law, to suspend the writ oi habeas corpus, or to seize and 
 imprison his subjects on suspicion of treason or intended outbreak against 
 the peace of the realm. He laid the case before them and asked their 
 advice and assistance. 
 
 In answer, Parliament passed the celebrated habeas corpus act. Since 
 that day, no king of England has dared to suspend the writ. It is only 
 done by Parliament. 
 
 /). Governor Wall. In the year 1782, Joseph Wall, governor of the 
 British colony at Goree, in Africa, had under his command about five hun- 
 dred British soldiers. Suspecting a mutiny about to break out in the garrison, 
 he assen.bled them on the parade ground, held a hasty consultation 
 with his officers, and immediately ordered Benjamin Armstrong, a private, 
 and supposed ring-leader, to be seized, stripped, tied to the wheel of an 
 artillery-carriage, and with a rope one inch in diameter to receive eight 
 hundred lashes. The order was carried into execution, and Armstrong died 
 of his injuries. Twenty years afterward Governor Wall was brought before 
 the most august civil tribunal of England to answer for the murder of Arm- 
 strong. Sir Archibald McDonald, Lord Chief Bar't of the Court of the Ex- 
 chequer, Sir Soulden Lawrence, of the King's Bench, Sir Giles Rooke, of 
 
14 
 
 the Common Pleas, constituted the court. Wall's counsel claimed that he 
 had the power of life and death in his hands in time of mutiny ; that the ne- 
 cessity of the case authorized him to suspend the usual forms of law; that 
 as governor and military commander-in-chief of the forces at Goree, he was 
 the sole judge of the necessities of the case. After a patient hearing 
 before that high court, he was found guilty of murder, was sentenced and 
 executed. — (28 State Trials, p. 51; see also Hough's Mil. Law, pp. 
 537-540.) 
 
 I now ask your attention to precedents in our own colonial history. 
 
 6. On the 12th day of June, 1775, General Gage, the commander of the 
 British forces, declared martial law in Boston. The battles of Concord and 
 Lexington had been fought two months before. The colonial army was 
 besieging the city and its British garrison. It was but five days before the 
 battle of Bunker Hill. Parliament had, in the previous Februar}'-, declared 
 the colonies in a state of rebellion. Yet, by the common consent of En- 
 glish jurists. General Gage violated the laws of England, and laid himself 
 li.ible to its penalty, when he declared martial law. 
 
 This position is sustained in the opinion of Mr. Justice Woodbury, in 
 Luther vs. Borden, 7 Howard, p. 65. (For a history of the transaction 
 see Annual Regi-ter for 1775, p. 133.) 
 
 7. On the 7th day of November, 1775, Lord Dunmore, declared martial 
 law throuo-hout the commonwealth of Virofinia. This was lotig after the 
 battle of Bunker Hill, and when war was flaming throughout the colonies ; 
 yet he was denounced by the Virginia Assembly for having assumed a 
 power which the King himself dared not exercise, as it " annuls the law 
 of the land, and introduces the most execrable of all systems, martial law." 
 Mr. Justice Woodbury declares (7 Howard, p. 65) the act of Lord Dun- 
 more unwarranted by British law. 
 
 8. The practice of our Revolutionary fathers on this subject is most in- 
 structive. Their conduct throughout the great struggle for Independence 
 was equally marked by respect for civil law, and jealousy of martial law. 
 Indeed, it was one of the leading grievances set forth in the Declaration 
 of Independence, that the King of Great Britain had '* affected to render 
 the military independent of, and superior to the civil power;" and though 
 Washington was clothed with almost dictatorial powers, he did not pre- 
 sume to override the civil law, or disregard the orders of the courts, ex- 
 cept by express authority of Congress or the states. 
 
 In his file of general orders, covering a period of five years, there are 
 but four instances in which civilians appear to have been tried by a mili- 
 tary court, and all these trials were expressly authorized by resolutions of 
 Congress. 
 
 In the autumn of 1777, the gloomiest period of the war, a powerful 
 hostile army landed at Chesapeake bay, for the purpose of invading 
 Maryland and Pennsylvania. It was feared that the disloyal inhabitants 
 along his line of march would give such aid and information to the British 
 commander as to imperil the safety of our cause. 
 
 Congress resolved "That the executive authorities of Pennsylvania and 
 < Maryland be requested to cause all persons within their respective states, 
 
 * notoriously disaffected, to be forthwith apprehended, disarmed, and secured 
 
 * till such time as the respective states think they can be released without 
 
 * injury to the common cause." 
 
 The governor authorized the arrests, and many disloyal citizens were 
 taken into custody by Washington's officers, who refused to answer the 
 
15 
 
 writ o{ habeas corpus which a civil court issued for the release of the pris- 
 oners. Very soon afterwards the Pennsylvania legislature passed a law 
 indemnifying the governor and the military authorities, and allowing a 
 similar course to be pursued thereafter on recommendation of Congress or 
 the commanding officer of the army. But this law gave authority only to 
 arrest and hold — not to try; and the act was to remain in force only till 
 the end of the next session of the general assembly. So careful were our 
 fathers to recognise the supremacy of civil law, and to resist all preten- 
 sions of the authority of martial law ! 
 
 9. I pass next to notice an event that occurred under the Confeder- 
 ation, before the Constitution was adopted : I refer to Shay's rebellion 
 in 1787 — that rebellion which was mentioned by Hamilton in the Feder- 
 alist as a proof that w^e needed a strong central government to preserve 
 our liberties. During all that disturbance there was no declaration 
 of martial law, and the habeas corpus was only suspended for a limited 
 time and with very careful restrictions. Governor Bowdoin's order to 
 General Lincoln, on the 19th of Januarv, 1787, was in these words : 
 " Consider yourself in all your military offensive operations constantly as 
 < under the direction of the civil officer, save where any armed force shall 
 ' appear to oppose you, marching to execute these orders." 
 
 10. I refer next to a case under the Constitution, the rebellion of 1793 
 in Western Pennsylvania. President VVashington did not march with his 
 troops until the judge of the United States district court had certified that 
 the marshal was unable to execute his warrants. Though the parties were 
 tried for treason, all the arrests were made by the authority ol" the civil 
 officers. The orders of the Secretary of War stated that " the object of 
 the expedition was to assist the marshal of the district to make prisoners." 
 Every movement was made under the direction of the civil authorities. 
 So anxious was Washington on this subject that he gave his orders with 
 the greatest care, and went in person to see that they were carefully 
 executed. He issued orders declaring that " the army should not consider 
 
 * themselves as judges or executioners of the laws, but only as employed 
 
 * to support the proper authorities in the execution of the laws." 
 
 11. I next refer to an incident connected with the Burr conspiracy in 
 1807. The first developments of the plot were exceedingly alarming. 
 Reports were forwarded to President Jefferson, and by him communicated 
 confidentially to the Senate of the United States, with his recommenda- 
 tion that Congress pass a law authorizing the suspension, for a limited 
 period, of the writ of habeas corpus. On the 26th day of January the Sen- 
 ate, by a unanimous vote, passed a bill authorizing the suspension of the 
 writ for three months, in cases of persons who were charged under oath 
 with treason or misprision of treason. Thus carefully limited and restricted, 
 the bill was sent, under the seal of secrecy, to the House of Representa- 
 tives. When it was read, the doors were immediately opened ; a motion 
 was made to reject the bill, that it might not even leach its first reading ; 
 and after a very able debate of five days, it was rejected by a vote of 113 
 to 19. 
 
 Not content, even, with that decided expression of sentiment, two weeks 
 later, on the 17lh of February, a resolution was introduced into the House 
 ordering the Committee on the Judiciary " to bring in a bill more thoroughly 
 to protect the rights of American citizens from arrest and imprisonment 
 under color of authority of the President of the United States." After 
 a very searching and able debate, it was concluded that existing laws 
 
16 
 
 afforded ample protection ; but so anxious were the representatives of the 
 people to place the safety of the citizen beyond the reach of doubt, that 
 the resolution came within two votes of passing in the House. The vote 
 stood 58 yeas to 60 nays ; and that, too, in the very midst of the threatened 
 conspiracy. The full history of this legislative action will be found in 
 Benton's Abridgment of Congressional Debates, vol. 1, pp. 504 to 542. 
 
 I will remark in this connection, that though President Jeff*erson recom- 
 mended the passage of the act referred to, yet, in his correspondence, vol. 
 2, pp. 274 and 291, he subsequently expressed his opinion that it was 
 unwise even in insurrection to suspend the writ of habeas corpus. 
 
 So jealous were our people of any infringement of the rights of the citizen 
 to the j)rivileges of the writ, that in the very midst of the dangers at New 
 Orleans, General Wilkinson was brought before a court there for having 
 neglected promptly to obey a writ of habeas corpus. — (See Annual Regis- 
 ter for 1807, page 84.) 
 
 12. I call the attention of the court for a moment to the discussion in 
 Congress, in relation to the action of General Jackson, in 1815, at New 
 Orler.ns. it will be remembered that notwithstanding flagrant war was 
 blazing around New Orleans when tlie general declared martial law, yet 
 it was held that he had violated the sanctity of the courts, and he w^as 
 fined accordingly. For a full record of the law in the case, see 3 Martin's 
 Lon. Rep., O. S., 520. 
 
 In 1842 a bill was introduced into Congress to reimburse him for the 
 fine. The debate was very able and thorough. 
 
 James Buchanan, then a member of Congress, spoke in its favor, and 
 no one will doubt his willingness to put the conduct of Jackson on the 
 most favorable ground possible. I quote from his speech: 
 
 " It had never been contended on this floor that a military commander 
 
 * possessed the power under the Constitution of the United States to declare 
 ' martial law. No such principle had ever been asserted on this (the 
 
 * Democratic) side of the House. He had then expressly declared (and 
 
 * the published report of the debate, which he had recently examined 
 
 * would justify him in this assertion) that we did not contend, strictly speak- 
 ^ ing, that General Jackson had any constitutional right to declare martial 
 Maw at New Orleans; but that, as this exercise of power w^as the only 
 ' means of saving the city from capture by the enemy, he stood amply 
 ^justified before his country for the act. We placed the argument not upon 
 
 * the ground of strict constitutional right, but of such an overruling neces- 
 
 * sity as left General Jackson no alternative between the establishment of 
 
 * martial law, or the sacrifice of New Orleans to the rapine and lust of the 
 
 * British soldiery. On this ground Mr. B. had planted himself firmly at 
 
 * the last session of Congress ; and here he intended to remain." — Benion^s 
 AbridprmfTit of Debates^ vol. 14, page 628. 
 
 All the leading members took the same ground. It was not attempted 
 to justify, but to palliate and excuse the conduct of Jackson. 
 
 13. I call attention next to the opinions of our own courts in regard to 
 martial law and the suspension of the writ o{ habeas corpus^ and first read 
 from the opinion of Chief Ju-tice Marshall, 4 Cranch, page 101: 
 
 " If at any time the public safety should require the suspension of the 
 ' powers vested in the courts of the United States, it is for the legislature 
 ' to say so. The question depends on political considerations on which 
 ^ the legislature is to decide . Until the legislative will be expressed the 
 
 * court can only see its duty and obey the laws." 
 
17 
 
 I cite also the opinion of the late'Chief Justice in ex parte Merryman, 
 9 American Law Register, page 596, in which it was decided that the 
 legislative authority alone could suspend the writ of habeas corpus. This 
 decision was rendered in 1862, in the Maryland circuit. 
 
 I shall conclude these citations from our own judicial history, by read- 
 ing a few paragraphs from the opinion of Mr. Justice Woodbury, in Luther 
 V. Borden, 7 Howard, page 62. The passage 1 shall cite loses none of its 
 force from the fact that it is a part of a dissenting opinion — for the princi- 
 ples involved in it were not strictly in issue, nor were they denied by the 
 court. After stating his positions at length, the learned justice says: 
 
 " For convincing reasons like these, in every country which makes any 
 
 < claim to political or civil liberty, ' martial law ' as here attempted and as 
 
 * once practiced in J^^ngland against her own people has been expressly 
 
 * forbidden there for near two centuries, as well as by the principles of every 
 
 * other free constitutional government. — (1 Hallam's Const. History, 420.) 
 
 * And it would be not a little extraordinary, if the spirit of our institutions, 
 
 * both state and national, was not much stronger than in England against the 
 
 * unlimited exercise of martial law over a whole people, whether attempted 
 ' by any chief magistrate or even by a legislature." 
 
 *' My impression is that a state of war, whether foreign or domestic, 
 
 * may exist, in the great perils of which it is competent under its rights 
 
 * and on principles of national law for a commanding officer ot troops under 
 
 * the controlling government to extend certain rights of war, not only over 
 
 < his camp, but its environs, and the near field of his military operations. 
 
 * (6 American Archives, 186 ) But no further nor wider. (Johnson v. Davis 
 
 * et al., 3 Martin, 530, 551.) On this rested the justification of one of the 
 
 * great commanders of this country and of the age in a transaction so well 
 
 * known at New Orleans. But in civil strife they are not to extend beyond 
 
 * the place where insurrection exists', (3 Martin, 551,) nor to portions of 
 •the state remote from the scene of military operations, nor after the re- 
 
 * sistance is over, nor to persons not connected with it, (Grant v. Gould 
 
 * et al., 2 Hen. Bl., 69,) nor even within the scene can they extend to 
 ^ the person or property of citizens against whom no probable cause exists 
 'which may justify it, (Sutton v. Johnston, 1 D. & E., 549.)" — Ibid, p. 
 83. 
 
 14. I cannot leave this branch of my argument without fortifying my 
 position by the authority of two of the greatest names on the roll of British 
 jurists. To enable me to do this, I call attention to the celebrated trial of 
 the Rev. John Smith, missionary at Demarara, in British Guiana. In the 
 year 1823 a rebellion broke out in Demarara, extending over some fifty 
 plantations. The governor of the district immediately declared martial 
 law. A number of the insurgents were killed and the rebellion was 
 crushed. It was alleged that the Rev. John Smith, a missionary, sent 
 out by the London Missionary Society, had been an aider and abettor of the 
 rebellion. A court-martial was appointed, and in order to give it the sem- 
 blance of civil law the governor-general appointed the chief justice of the 
 district as a staff officer, and then detailed him as president of the court to 
 try the accused. All the other members of the court were military men, 
 and he was made a military officer for the special occasion. Missionary 
 Smith was tried, found guilty, and sentenced to be hung. The proceedings 
 came to the notice o^ Parliament, and were made the subject of inquiry 
 and debate. Smith died in prison before the day of execution, but the 
 3 
 
18 
 
 trial gave rise to one of the ablest debates of the century, in which the 
 principles involved in the cause now before this court were fully discussed. 
 Lord Broughann and Sir James Mackintosh were among the speakers. In 
 the course of his speech Lord Brougham said : 
 
 *' No such thing as martial law is recognized in Great Britain, and courts 
 
 * founded on proclamations of martial law are wholly unknown. Suppose 
 
 * I am ready to admit that, on the pressure of a great necessity, such as 
 
 * invasion or rebellion, when there is no time for the slow and cumbrous 
 
 * proceedings of the civil law, a proclamation may justifiably be issued for 
 
 * excluding the ordinary tribunals and directing that offences should be 
 
 < tried by a military court, such a proceeding might be justified by neces- 
 
 * sity, but it could rest on that alone. Created by necessity, necessity 
 ' must limit its continuance. It would be the worst of all conceivable 
 
 * grievances, it would be a calamity unspeakable, if the w^hole law and 
 
 * constitution of England were suspended one hour longer than the most 
 
 < imperious necessity demanded. 1 know that the proclamation of mar- 
 
 * tial law renders every man liable to be treated as a soldier. But ihe 
 ' instant the necessity ceases, that instant the state of soldiership ought to 
 ' cease, and the rights, with the relations of civil life, to be restored.'''' 
 
 The speech of Sir James Mackintosh, who was perhaps the very first 
 English jurist of his day, is in itself a magazine of leo;al learning, and 
 treats so fully and exhaustively the subject of martial law and military 
 tribunals that I shall take the liberty of quoting a lengthy passage. I do 
 this with less hesitation because I have found no argument so full and 
 complete, and no authority more perfectly applicable to the cause before 
 this court. I quote from the London edition, 1851, Mackintosh's Mis- 
 cellaneous Works, p. 734: 
 
 *^ Sir, the impregnable speech of my learned friend [Lord Brougham] 
 
 * has left me little if anything to say. The only principle on which the 
 
 * law of England tolerates what is called * martial law ' is necessity. Its 
 
 * introduction can be justified only by necessity; its continuance requires 
 
 < precisely the same justification of necessity, and if it survives the ne- 
 ' cessity, in which alone it rests, for a single minute, it becomes instantly a 
 
 * mere exercise of lawless violence. When foreign invasion or civil war 
 
 * renders it impossible for courts of law to sit, or to enforce the execution 
 
 * of their judgments, it becomes necessary to find some rude substitute lor 
 
 < them, and to employ for that purpose the military, which is the only re- 
 
 * maining force in the community." 
 
 I desire to call particular attention to the next paragraph, which lays 
 down the chief condition that can justify martial law and also marks the 
 boundary between martial and civil law. 
 
 *» While the laws are silenced by the noise of arms, the rulers of the armed 
 ' force must punish, as equitably as they can, those crimes which threaten 
 
 < their own safety and that of society, but no longer ; every moment be- 
 ' yond is usurpation, ^s soon as the laws can act, every other mode of 
 ^ punishing supposed crimes is itself an enormous crime. U argument be 
 
 < not enough on this subject — if, indeed, the mere statement be not the 
 
 < evidence of i's own truth — I appeal to the highest and most venerable 
 ' authority known to our law." 
 
 He proceeds to quote Sir Matthew Hale on martial law and cites 
 the case of the Earl of Lancaster, to which I have already referred, and 
 then declares : .... 
 
 '' No other doctrine has ever been maintained in this country since the 
 
19 
 
 * solemn parliamentary condemnation of the usurpations of Charles I. , which 
 ' he was himself compelled to sanction in the Petition of Right. In none 
 
 * of the revolutions or rebellions which have since occurred has martial 
 
 * law been exercised, however much, in some of them, the necessity might 
 
 * seem to exist. Even in those most deplorable of all commotions which 
 
 * tore Ireland in pieces in the last years of the eighteenth century, in the 
 
 * midst of ferocious revolt and cruel punishment, at the very moment of 
 
 * legalizing these martial jurisdictions in 1799, the very Irish statute, which 
 
 * was passed for that purpose, did homage to the ancient and fundamental 
 
 * principles of the law in the very act of departing from them. The Irish 
 
 * statute, 39 George III., chap. 3, after reciting * that martial law had been 
 ' successfully exercised to the restoration of peace, so far as to permit the 
 
 * course of the common law partially to take place, but that the rebellion 
 
 * continued to rage in considerable parts of the kingdom, whereby it has 
 
 * become necessary for Parliament to interpose,' goes on to enable the 
 
 * Lord Lieutenant ' to punish rebels by courts martial.' This statute is the 
 ' most positive declaration ihdit iv here the common law can be exercised in 
 
 * some parts of the country, martial law cannot be established in others, though 
 
 * rebel/ion actually prevails in those others, without an extraordinary inter- 
 'position of the supreme legislative authority itself ^^ 
 
 " I have already quoted from Sir Matthew Hale his position respecting 
 
 * the two- fold operation of martial law, as it affects the army of the power 
 
 * which exercises it, and as it acts against the army of the enemy. That 
 
 * great judge, happily unused to standing armies, and reasonably preju- 
 ' diced against military jurisdiction, does not pursue his distinction through 
 
 * all its consequences, and asigns a ground for the whole, which will sup- 
 
 * port only one of its parts. ' The necessity of order and discipline in an 
 
 * army' is, according to him, the reason why the law tolerates this de- 
 
 * parture from its most valuable rules ; but this necessity only justifies the 
 
 * exercise of martial law over the army of our own state. One part of it has 
 ' since been annually taken out of the common law and provided for by 
 ' the mutiny act, which subjects the military offences of soldiers only to 
 
 * punishment by military courts even in time of peace. Hence we may 
 
 * be said annually to legalize military law ; which, however, differs essen- 
 
 * tially from martial law, in being confined to offences against military dis- 
 ' cipline, and in not extending to any persons but those who are members 
 
 * of the army. Martial law exercised against enemies or rebels cannot 
 
 * depend on the same principle, for it is certainly not intended to enforce 
 
 * or preserve discipline among them. It seems to me to be only a more 
 
 * regular and convenient mode of exercising the right to kill in war — a right 
 ' originating in self-defence, and limited to those cases where such killing 
 < is necessary as the means of insuring that end. Martial law put in force 
 
 * against rebels can only be excused as a mode of more deliberately and equi- 
 
 * table selecting the persons from whom quarter ought to be withheld in a 
 
 * case where all have forfeited their claim to it. It i§ nothing more than a sort 
 
 * of better regulated decimation, founded upon choice, instead of chance, 
 ' in order to provide for the safety of the conquerors, without the horrors 
 ' of undistinguished slaughter; it is justifiable only where it is an act of 
 
 * mercy. Thus the matter stands by the law of nations. But by the law 
 
 * of England it cannot be exercised except where the jurisdiction of courts 
 
 * of justice is interrupted by violence. 
 
 "Did this necessity exist at Demarara on the 13th of October, 1823 > 
 ' Was it on that day impossible for the courts of law to try offences ? It 
 
20 
 
 ' is clear that, if the case be tried by the law of England, and unless an 
 
 * affirmative answer can be given to these questions of fact, the court-mar- 
 < tial had no legal power to try Mr. Smith." 
 
 After presenting arguments to show that a declaration of martial law was 
 not necessary, the learned jurist continues : 
 
 ''For j-ix weeks, then, before the court-martial was assembled, and for 
 
 * twelve weeks before that court pronounced sentence of death on Mr. 
 ' Smith, all hostility had ceased, no necessity for their existence can be 
 
 * pretended, and every act which they did was an open and deliberate 
 
 * defiance of the law of England. 
 
 " Where, then, are we to look for any color of law in these proceed- 
 
 * ings ? Do they derive it from the Dutch law ? I have diligently exam- 
 
 * ined the Roman law, which is the foundation of that system, and the 
 ' writings of those most eminent jurists who have contributed so much to 
 
 * the reputation of Holland. I can find in them no trace of any such prin- 
 » ciple as martial law. Military law, indeed, is clearly defined ; and pro- 
 
 * vision is made for the punishment by military judges of the purely mili- 
 
 * tary offences of soldiers. But to any power of extending military juris- 
 
 * diction over those who are not soldiers, there is not an allusion. 1 will 
 
 * not furnish a subject for the pleasantries of my right honorable friend, 
 
 * or tempt him into a repetition of his former innumerable blunders, by 
 
 * naming the greatest of these jurists, (B^nkershoek.) lest his date, his 
 
 * occupation, and his rank might be again mistaken ; and the venerable 
 
 * president of the supreme court of Holland might be once more called a 
 ' a 'clerk of the States-General.' ' Persecutio militis,^ says that learned 
 
 * person, ^ periinet ad judicem miltarem quando delictum sit militare, et ad 
 ^judicem communem quando delictum sit commune.'' 
 
 "Far from supposing it to be possible, that those who were not soldiers 
 
 * could ever be tiiable by military courts for crimes not military, he ex- 
 
 * pressly declares the law and practice of the United Provinces to be, that 
 ' even soldiers are amenable, for ordinary offences against society, to the 
 
 * court of Holland and Friesland, of which he was long the chief. The 
 ' law of Holland, therefore, does not justify this trial by martial law. 
 ' Nothing remains but some law of the colony itself. Where is it } It is 
 ' not alleged or alluded to in any part of this trial. We have heard noth- 
 
 * ing of it this evening. So unwilling was I to believe that this court- 
 ' martial would dare to act without some pretence of legal authority, that 
 ' I suspected an authority for martial law would be dug out ot" some daik 
 ' corner of a Guiana ordinance. I knew it was neither in the law of Eng- 
 ' land nor in that of Holland ; and I now believe that it does not exist even 
 ' in the law of Demarara. The silence of those who are interested in 
 ' producing it, is not my only reason for this belief. I happen to have seen 
 ' the instructions of the States-General to their governor of Demarara, in 
 ' November, 1792, probably the last ever issued to such an officer by that 
 ' illustrious and memorable assembly. They speak at large of councils of 
 ' war, both for consultation and for judicature. They authorize these 
 ' councils to try the military offences of soldiers ; and therefore, by an 
 ' inference which is stronger than silence, authorize us to conclude that 
 ' the governor had no power to subject those who were not soldiers to their 
 
 * authority. The result, then, is, that the law of Holland does not allow 
 ' what is called ' martial law' in any case ; and that the law of England 
 ' does not allow it without a necessity, which did not exist in the case of 
 
 * Mr. Smith. If, then, martial law is not to be justified by the law of 
 
21 
 
 * England, or by the law of Holland, or by the law of Demarara, what is 
 
 * there to hinder me from afiu-ming that the members of this pretended 
 
 < court had no more right to try Mr. Smith than any other fifteen men on 
 
 * the face of the earth — that their acts were nullities, and their meeting a 
 
 * conspiracy — that their lenience was a direction to commit a crime — that 
 
 * if it had been obeyed, it would not have been an execution but a murder, 
 
 < and that they, and all other i)arties engaged in it, must have answered 
 
 < for it with their lives." 
 
 May it please the court, many more such precedents as I have already 
 fited, might be added to the list, but it is unnecessary. They all teach 
 the same le^son. 
 
 They enable us to trace from its far off source, the progress and devel- 
 opment of Anglo-Saxon liberty ; its innumerable conflicts with irrespon- 
 sible power ; its victories, dearly bought, but always won — victories which 
 have crowned with immortal honors the institutions of England, and left 
 their indelible impress npon the Anglo-Saxon mind. These principles 
 our fathers brought with them to the new world, and guarded with sleep- 
 less-vigilance and religious devotion. In its darkest hour of trial, during 
 the late rebellion, the republic did not forget them. So con pletely have 
 they been impressed on the minds of American lawyers; so thoroughly 
 have they been ingrained into the very fibre of American character, that 
 notwithstanding the citizens of eleven states went off into wild rebellion, 
 broke their oaths of allegiance to the Constitution, and levied war against 
 their country, yet with all their crimes upon them, there was still in the 
 minds of those men, during all the struggle, so deep and enduring an 
 impression on this great subject, that even during their rebellion, the courts 
 of the Southern states adjudicated causes like the one now before you, 
 in favor of the civil law and against courts-martial established under mil- 
 itary authority for the trial of citizens. In Texas, Mississippi, Virginia, 
 and other insurgent states, by the order of the rebel President, the writ of 
 habeas corpus was suspended, martial law was declared, and provost mar- 
 shals were appointed to administer military authority. But when civilians, 
 arrested by military authority, petitioned for release by writ of habeas 
 corpus, in every case, save one, the writ was granted, and it was decided 
 that there could be no suspension of the writ or declaration of martial law 
 by the executive, or by any other than the supreme legislative authority. 
 
 The men who once stood high in the list of American lawyers, such 
 as Alexander H. Stephens, Albert Pike, and Gen. Houston, wrote letters 
 and made speeches against the practice until it was abandoned. In the 
 year 1862 the commander-in-chief of the rebel armies, compelled, by 
 the force of public sentiment, published a general order, disclaiming any 
 right or claim of right to establish martial law or suspend ttie writ o{ habeas 
 corpus without the authority of the rebel congress. 
 
 1 said there was one exceptional instance. A judge of the supreme 
 court of Texas, in the first excitement of the rebellion, refused to issue a 
 writ of habeas corpus to relea>e from military arrest a citizen charged with 
 disloyalty to the rebel government. He wrote his opinion and delivered 
 it ; but he was so much agitated when he found that he stood alone among 
 judges on that great question of human rights tb.at he went to the book of 
 records, in which his opinion was recorded, and with his own hand plucked 
 the leaves from the volume and destroyed them. He also destroyed the 
 original copy that it might never be put in type ; and having destroyed 
 everything but the lemcmbrance of it, ended his life by suicide. I believe 
 
22 
 
 he alono among rebel judges, ventured to recognize martial law, declared 
 without legislative authority. 
 
 The spirit of liberty and law is well embodied in this one sentence of 
 Delolme (Vol. I., p. 455): ^'The arbitrary discretion of any man is 
 * the law of tyrant- — it is always unknown, it is ditTerent in different men, 
 ' it is casual, and depends upon constitution, temper, and passion ; in the 
 ' best it is oftentimes caprice, in the worst it is every vice, folly, and pas- 
 ' sion to which human nature is liable." 
 
 And yet, if this military commission could legally try these petitioners, 
 its authority rested only upon the will of a single man. It' it had the right 
 to try these petitioners, it had the right to try any civilian in the United 
 States; it had the right to try Your Honors, for you are civilians. The 
 learned gentlemen tell us that necessity justifies martial law. But what 
 is the nature of that necessity. If, at this moment, Lee, with his rebel 
 army at one end of Pennsylvania avenue, and Grant, with the army of the 
 Union at the other, with hostile banners and roaring guns, were approaching 
 this Capitol, the sacred seat of justice and law, I have no doubt they would 
 expel Your Honors from the bench, and the Senate and House of Repre- 
 sentatives from their halls. The jurisdiction of battle would supersede 
 the jurisdiction of law. Ttiis court would be silenced by the thunders 
 of war. 
 
 If an earthquake should shake the City of Washington, and tumble this 
 Capitol in ruins about us, it would drive Your Honors from the bench, and 
 <"or the time, volcanic law would supersede the Constitution. 
 
 It the supreme court of Herculane«un or Pompeii had been in session 
 when the fiery ruin overwhelmed those cities, its authority would have 
 been suddenly usurped and overthrown, but I question the propriety of 
 calling that law, which, in its very nature, is a destruction or &uspension 
 of all law. 
 
 From this review of the history and character of martial law I am war- 
 ranted by the uniform precedents of English law for many centuries ; by 
 the uniform practice of our fathers during the colonial and revolutionary pe- 
 riods ; by the unanimous decisions of our courts, and by the teachings of 
 our statesmen, to coLclude — 
 
 1. Thai ike Executive has no authojiiy to fiuspend the writ of habeas 
 corpuSy or to declare or administer martial law ; much less has any military 
 subordinate of the Executive such authority; but these high functions belong 
 exclusmely to the supreme legislative authority of the nation. 
 
 2. 77mt -if in the presence of great and sudden danger, arid under the 
 pressure of overwhelming ntcessity^ the chief Executive should, without 
 legislative warrant, suspend the writ of habeas corpus or declare martial 
 law, he must not look to the courts J or justification, but to the legislature; 
 
 for indemnification. 
 
 3. Thai no such necessity ca?i be pleaded to Justify the trial of a civilian 
 by a military tribunal when the legally authorized civil courts are open and 
 unobstructed. 
 
 It will be observed that in this discussion I have not alluded to the legal 
 status of citizens of those states which were declared, both by the legisla- 
 tive and executive departments of the government, to be in rebellion 
 again>t the United States. 
 
 It has been fully settled, not only by the other coordinate branches of 
 the government, but by this court, that those states constitute d a belligerent 
 govejnment de facto, against which the federal government might proceed 
 
23 
 
 with all the appliances of war, and might extend absolute military juris- 
 diction over every foot of rebel territory. 
 
 But the military jurisdiction thus conferred by the government does not 
 extend beyond the territory of the rebellious states, except where the tide 
 of war actually sweeps beyond those limits and by its flaming presence 
 makes it impossible for the civil courts to exercise their functions. 
 
 The case before Your Honors comes under neither of these conditions, 
 hence, the laws of war are inapplicable to it. 
 
 The military commission, under our government, is of recent origin. 
 It was instituted by Gen. Scott, in Mexico, to enable him, in the absence 
 of any civil authority, to punish Mexican and American citizens for of- 
 fences not provided for in the rules and articles of war The purpose and 
 character of a military commission may be seen from his celebrated order 
 No. 20, published at Tampico. It was no tribunal with authority to punish, 
 but merely a committee appointed to examine an offender and advise the 
 commanding general what punishment to inflict. It is a rude substitute 
 for a court of justice, in the absence of civil law. 
 
 Even our own military authorities, who have given so much prominence 
 to these commissions, do not claim for them the character of tribunals es- 
 tablished by law. 
 
 In his "Digest of Opinions" for 1866, the Judge Advocate General 
 says, page 131 : 
 
 " Military commissions have grown out of the necessities of the service, 
 ' but their powers have not been defined nor their mode of proceeding 
 * regulated by any statute law." 
 
 Again, p. 133 : 
 
 " In a military department the military commission is a substitute for 
 ^ the ordinary state or United States court, when the Intier is closed by ihe. 
 ' exigencies of war, or is without the jurisdiction of the offence committed." 
 
 The only ground on which the learned counsel attempt to establish the 
 authority of the military commisi«ion to try the petitioners, is that of the 
 necessity of the case. I answer there was no yuch necessity. Neither 
 the Constitution nor Congress recognized it. I point to the Constitution 
 as an arsenal, stored with ample powers to meet every emergency of 
 national life. No higher test of its completeness can be imagined than 
 has been afforded by the great rebellion, which dissolved the municipal 
 governments of eleven states, and consolidated them into a gigantic traitor- 
 ous government de facio, inspired with the desperate purpcs-e of destroy- 
 ing the government of the United States. 
 
 From the beginning of the rebellion to its close, Congress, by its legisla- 
 tion, kept pace with the necessities of the nation. In sixteen carefully 
 considered laws, the national legislature undertook to provide lor every 
 contingency, and arm the executive at every point with the .'•olemn sanc- 
 tion of law. Observe how perfectly the case of the petitioners was cov- 
 ered by the provisions of law. 
 
 The first charge against them was "conspiracy against the government 
 of the United States.'" 
 
 In the act approved July 31, 1861, that very crime was fully defined, 
 and placed within the jurisdiction of the district and circuit courts of the 
 United States. 
 
 Charge 2 : " Affording aid and comfort to the rebels against the author- 
 ity of the United States." 
 
 In the act approved July 17, 1862, this crime is set forth in the very 
 
24 
 
 words of the charge, and it is provided that *^on conviction before any 
 
 * court of the United States, having jurisdiction thereof, the offender shall 
 
 * be punished by a fine not exceeding ten thousand dollars, and by impris- 
 ^onment not less than six months, nor exceeding five years." 
 
 Charge 3 : " Inciting insurrection." 
 
 On pages 191 to 202, Brightly 's Digest, Vol. 2, there is compiled from 
 ten separate acts, a chapter of sixty-four sections on insurrection, setting 
 forth in the fullest manner possible, every mode by which citizens may 
 aid in insurrection, and providing for their trial and punishment by the 
 regularly ordained courts of the United States. 
 
 Charge 4 : '^ Disloyal practices." 
 
 The meaning of this charge can only be found in the specifications under 
 it, which consists in discouraging enlistments and making preparations to 
 resist a draft designed to increase the army of the United States. These 
 offences are fully defined in the thirty-third section of the act of March 3, 
 1863, ''for enrolling and calling out the national forces," and in the 
 twelfth section of the act of February 24, 1864, amendatory thereof. The 
 provost marshal is authorized to arrest such offenders, but he must deliver 
 them over for trial to the civil authorities. Their trial and punishment 
 are expressly placed in the jurisdiction of the district and circuit courts 
 of the United States. 
 
 Charge 5 : " Violation of the laws of war ;" which, according to the 
 specifications, consisted of an attempt, through a secret organization, to 
 give aid and comfort to rebels. This crime is amply provided for in the 
 laws referred to in relation to the second charge. 
 
 But Congress did far more than to provide for a case like this. Through- 
 out the eleven rebellious states it clothed the military department with 
 supreme power and authority. State constitutions and laws, the decrees and 
 edicts of courts were all superseded by the laws of war. 
 
 Even in states not in rebellion, but where treason had a foot-hold, and 
 hostile collisions were likely to occur. Congress authorized the suspension 
 of the writ of habeas corpus, and directed the army to keep the peace. 
 
 But Congress went further still, and authorized the President, during 
 the rebellion, whenever, in his judgment, the public safety should require 
 it, to suspend the privilege, writ of habeas corpus, in any state or territory 
 of the United States, and order the arrest of any persons whom he might 
 believe dangerous to the safety of the republic, and hold them till the civil 
 authorities could examine into the nature of their crimes. But this act of 
 March 3, 1863, gave no authority to try the person by any military tribu- 
 nal, and it commanded judges of the circuit and districts courts of the 
 United. States, whenever the grand jury had adjourned its sessions, and 
 found no indictment against such persons, to order their immediate dis- 
 charge from arrest. All these capacious powers were conferred upon the 
 military department, but there is no law on the Statute Book in which the 
 tribunal that tried the petitioners can find the least recognition. 
 
 1 wish to call the attention of Your Honors to a circumstance showing 
 the sentiment of the House of Representatives of the Thirty-Eighth Con- 
 gress on this subject. Near the close of the last Congress, when the 
 miscellaneous a[)propriation bill, which authorized the disbursement of 
 several millions of dollars for the civil expenditures of the government, 
 was under discussion, the House of Representatives having observed, with 
 alarm, the growing tendency to break down the barriers of law, and desir- 
 
25 
 
 ing to protect the rights of citizens as well as to preserve the Union, 
 added to the appropriation bill the following section : 
 
 ^^ And be it jurlher enacted, That no person shall be tried by court-mar- 
 ' tial or military commission in any state or territory where the courts of 
 
 * the United States are open, except persons actually mustered or commis- 
 ' sioned or appointed in the military or naval service of the United States, 
 
 * or rebel enem.ies charged with being spies. '- 
 
 It was debated at length in the Senate, and though almost every Senator 
 acknowledged its justice, yet, as the nation was then in the very mid-whirl 
 and fury of the war, it was feared that the Executive might thereby be 
 crippled, and the section was stricken out. The bill came back to the 
 House ; conferences were held upon it, and finally, in the last hour of the 
 session, the House defiberately determined that, important as the bill was 
 to the interests of the country, they preferred it should not become a law 
 if that section were stricken out. I beg leave to read some passages from 
 the remarks of one of the noblest, ablest, and most patriotic men that have 
 honored this nation during the war — that great man so lately taken from 
 us, Henry Winter Davis, of Maryland. After reporting the provisions of 
 the bill agreed upon by the committee of conference, he said : 
 
 ^' Under these circumstances it remained for a majority of the House 
 ' committee to determine between the great result of losing an important 
 
 * appropriation bill, or, after having raised a question of this magnitude 
 
 * touching so nearly the right of every citizen to his personal liberty and 
 ' the very endurance of republican institutions, and to insure its consider- 
 ' ation fastened it on an appropriation bill, to allow it to be stricken out 
 
 * of the bill as a matter of secondary importance. The committee thought 
 
 * that their duty to their constituents, to the House, and to themselves, 
 ' would not allow them to provide for any pecuniary appropriations at the 
 
 * expense of so grave a reflection upon the fundamental principles of the 
 < government." 
 
 *' The practice of the government has introduced into the jurisprudence 
 
 * of the United States, principles unknown to the laws of the United 
 
 * States, loosely described under the general term of '■ the rules and usages 
 
 * of wor,^ and new crimes, defined by no law, called ' military ofi'ences ;' 
 ' and without the authority of any statute, constitutional or unconstitu- 
 
 * tional, pointing these laws — confined by the usage of the world to ene- 
 
 * mies in enemies' territory — against our own citizens in our own territory, 
 
 * the government has repeatedly deprived many citizens of the United 
 
 * States of their liberty, has condemned many'to death, who have only 
 
 * been redeemed from that extreme penalty by the kindness of the Presi- 
 
 * dent's heart, aided doubtless by the seri( us scruples he cannot but feel 
 
 * touching the legality of the judgment that assigned them to death. 
 
 ** There have been many cases in which judgments of confinement 
 
 * in the penitentiary have been inflicted for acts not punishable, either 
 
 * under the usages of war, or under any statute of the United States, by 
 ' any military tribunal ; crimes for M'hich the laws of the United States 
 
 * prescribe the punishment have been visited with other and severer pun- 
 ' ishments by military tribunals ; violations of contract with the government, 
 
 * real or imputed, have been construed by these tribunals into frauds, and 
 
 * punished illegally as crimes ; excessive bail has been demanded, and when 
 ' furnished impudently refused ; and the attempt of Congress to discrimi- 
 ' nate between crimes committed by persons in the military forces and 
 
26 
 
 ' citizens not in those forces, has been annulled, and the very offences it 
 
 * specifically required to be tried before the courts of the United States have 
 
 * been tried before inilitary tribunals dependent upon the will of the Pre&i- 
 
 * dent alone." 
 
 #** »###* 
 
 *^The committee remember that such things are inconsistent with the 
 
 * endurance of republican government. The party which tolerates or de- 
 
 * fends them must destroy itself or the republic. They felt they had 
 ' reached a point at which a vote must be cast which may break up politi- 
 
 * cal parties, or, if it do not, will break up or save a great republican gov- 
 ' ernment. Before these alternatives they could not hesitate. They thought 
 ' it best, now, at this time, to leave this law standing as a broken dike in 
 ' the midst of the rising flood of lawless power around us, to show to this 
 
 * generation how high that flood of lawless power has risen in only three 
 
 * years of civil war, as a warning to those who are to come after us, as an 
 
 * awakening to those who are now with us. 
 
 '' They have, therefore, come to the determination, so far as the consti- 
 
 * tutional privileges and prerogatives of this House will enable them to 
 ' accomplish the result, that this bill shall not become a law if these woids 
 ' do not stand as a part of it — the aflirmation by the representatives of the 
 
 * states and of the people of the inalienable birthright of every American 
 
 * citizen ; and on that question they appeal from the judgment of the 
 
 * Senate to th«.' judgment of the American people." — Cong^l Globe, 2nd 
 sess., 38th Cong., Part "id, p. 1,422. 
 
 The appeal was taken; the bill failed; and the record of its failure is an 
 emphatic declaration that the House of Representatives have never con- 
 sented to the establishment of any tribunals except those authorized by the 
 Constitution of the United States and the laws of Congress. 
 
 There was one point suggested rather than insisted upon by the opposing 
 counsel, which it requires but little more than a statement to answer. On 
 page 15 of their briei, the learned gentlemen say that if the military tribu- 
 nal had no jurisdiction, the petitioners may be held as prisoners captured 
 in war, and handed over by the military to the civil authorities, to be tried 
 for their crimes under the acts of Congress, and before the courts of the 
 United States. 
 
 The answer to this, is that the petitioners were never enlisted, commis- 
 sioned, or mustered in the service of the confederacy ; nor had they been 
 w^ithin the rebel lines, or within any theater of active military operations ; 
 nor had they been in any way recognized by the rebel authorities as in their 
 service. Ttiey could not have been exchanged as prisoners of war ; nor, if 
 all the charges against them were true, could they be brought under the 
 legal definition of spies. There appears to bo no ground whatever for 
 calling them prisoners of war. The suggestion of our opponents that the 
 petitioners ^hould be handed over to the civil authorities for trial, is pre- 
 cisely what they petitioned for, and what, according to the laws of Con- 
 gress, should have been done. 
 
 We do not ask that they shall be shielded from any lawful punishment, 
 but that they shall not be unlawfully punished, as they now are, by the 
 sentence of a tribunal which had no jurisdiction over either their persons 
 or the subject-matter of the charges. 
 
 The only color of authority for such a trial, was found in the President's 
 proclamation of September 2-lth, 1862, which was substantially annulled 
 
by the habeas corpus act of March 3d, 1863, and the subsequent Presiden- 
 tial proclamation of September loth, 1863. 
 
 By these acts*, the military authority could only arrest and hold disaf- 
 fected persons till after a session of the United States District Court. 
 
 May it please the court, I have thus reviewed the principles upon which 
 our government was founded; the practice of the fathers who fojnded it; and 
 the almost unaniinous sentiment of its presidents, congresses, and courts. 
 
 I have shown tliat Congress undertook to provide for all the necessities 
 which the rebellion imposed upon the nation. That it provided for the 
 trial and pointed out expressly the mode of punishment for every 
 crime imputed to the petitioners. There is not a single charge or 
 specification in the petition before you, not a single allegation of crime, 
 that is not expressly provided for in the laws of the United States, 
 and the courts are designated before which offenders may be tried. 
 These courts were open during the trial and had never been disturbed 
 by the rebellion. The military commission on the tenth day of its 
 session withdrew from the chamber where it had been sitting, that the 
 circuit court of the United States might hold its regular term in its own 
 building. For the next ten days the commission occupied, by permission, 
 the chamber of the supreme court of the state of Indiana, but removed to 
 another hall when the regular term of that court began. This military com- 
 mission sat at a place two hundred miles beyond the sound of a hostile gun, 
 in a state that had never felt the touch of martial law, that had never been 
 defiled by the tread of a hostile rebel foot, except on a remote border, and 
 then but for a day. That state, with all its laws and courts, with all its 
 securities of personal rights and privileges, is declared by the opposing 
 counsel to have been complete!}' and absolutely under the control of martial 
 1 iw ; that not only the constitution and laws of Indiana, but the Constitu- 
 tion and laws of the United States where wholly suspended, so tliat no 
 writ, injunction, prohibition, or mandate of any district or circuit court of 
 the United States, or even of this august tribunal, was of any binding force 
 or authority whatever except by the permission and at the pleasure of a 
 military commander. 
 
 Such a doctrine, may it please the court, is too monstrous to be tolerated 
 for a moment ; and I trust and believe that when this cause shall have 
 been heard and considered it will receive its just and final condemnation. 
 Your decision will mark an era in American history. The just and 
 final settlement of this great question will take a high place amono; the 
 ^reat achievements which have immortalized this decade. It will es- 
 tablish forever this truth, of inestimable value to us and to mankind, that 
 a republic can wield the vast enginery of war without breaking down the 
 safeguards of liberty; can suppress insurrection and .put down rebellion, 
 however formidable, without destroying the bulwarks of law; can, by the 
 might of its armed millions preserve and defend both nationality and liberty. 
 Victories on the field were of priceless value, for they plucked the life of 
 the republic out of the hands of its enemies, but 
 
 " Peace bath her victories 
 No less renown'd than war," 
 
 and if the protection of law shall, by your decision, be extended over 
 every acre of our peaceful territory, you will have rendered the great 
 decision of the century. 
 
 When Pericles had made Greece immortal in arts and arms, in liberty 
 and law, he invoked the genius of Phidias to devise a monument which 
 
28 
 
 should symbolize the beauty and glory of Alhen?. That artist selected 
 for his theme the tutelar divinity of Athens, the Jove-born goddess, pro- 
 tectress of arts and arms, of industiy and law, who typified the Greek 
 conception of composed, majestic, unrelenting force. He erected on the 
 heights of the Acropolis a colossal statue of Minerva, armed with spear 
 and helmet, which towered in awful majesty above the surrounding tem- 
 ples of the gods. Sailors on far-off ships beheld the crest and spear of 
 the goddess and bowed wath reverent awe. To every Greek she was the 
 symbol of power and glory. But the Acropolis, with its temples and 
 statues is now a heap of ruins. The visible gods have vanished in the 
 clearer light of modern civilization. We cannot restore the decayed em- 
 blems of ancient Greece, but it is in your power, Judges, to erect in 
 this citadel of our liberties a monument more lasting than brass; invisible 
 indeed to the eye of flesh, but visible to the eye of the spirit as the awful 
 form and figure of Justice, crowning and adorning the republic ; rising 
 above the storms of political strife, above the din of battle, above the 
 earthquake shock of rebellion; seen from afar and hailed as protector by 
 the oppressed of all nations; dispensing equal blessings, and covering with 
 the protecting shield of law the weakest, the humblest, the meanest, and, 
 until declared by solemn law unworthy of protection, the guiltiest ot its 
 citizens. 
 
 Note. — The following is the order of the Supreme Court in the above cases, as given 
 on the last day of its session : 
 
 Supreme Court of the United States. — No. 350. — December Term, 1865. 
 
 Ex-parte in the matter of"] On a certificate of division in opinion between the judges 
 Larabdin P. Milligan, V of the Circuit Court of the United States for the District of 
 Petitioner. J Indiana. 
 
 Mr. Chief Justice CHASE announced the order of the Court. 
 
 The following order is directed by a majority of the court to be entered in this caupc, 
 and the like order will be entered in No. 365/ ex-parte in the matter of William A. 
 Bowles, petitioner, and in No. 376, ex-parte in the matter of Stephen Horsey, petitioner. 
 
 This cause came on to be heard on the transcript of the record, from the Circuit Court 
 of the United States for the District of Indiana, and on the points and questions on 
 which the said judges of the circuit court were opposed in opinion, and which were cer- 
 tified in this court for its opinion, agreeably to the act of Congress in such case made 
 and provided ; and was argued by counsel." On consideration whereof this court is of 
 opinion — , 
 
 I. That on the facts as stated in said petition and exhibits, a writ of habeas corpus 
 ought to be issued according to the prayer of said petition. 
 
 II. That on the facts stated in the said petition and exhibits, the said Larabdin P. 
 Milligan ought to be discharged from custody as in said petition is prayed, and according 
 to the act of Congress, passed 3d March, 1863, entitled "An act relating to habeas cor- 
 pus, and regulating judicial proceedings in certain cases." 
 
 III. That on the facts stated in said petition and exhibits, the military commission 
 mentioned therein had no jurisdiction legally to try and sentence said Lambdin P. Mil- 
 ligan in the manner and form as in said petition and exhibits are stated. 
 
 ''And it is therefore now here ordered and adjudged by this court that it be so certified 
 to the said circuit court. 
 
 The Chief Justice also announced that the opinion of the court in these cases will be 
 read at the next term, when such of the dissenting judges as see fit to do so, will state 
 their grounds of dissent. 
 
SUPEEME COUJIT OF THE UNITED STATES. 
 
 No. 365. 
 
 EX PARTE : IN THE MATTER OF WILLIAM A. BOWLES 
 
 PETITIONER. 
 
 ON A CERTIFICATE OF DIVISION IN OPINION BETWEEN THE JUDGES OF 
 THE CIRCUIT COURT OF THE UNITED ^ATES FOR THE DISTRICT OF 
 INDIANA. 
 
 GOVERNMENT PRINTING OFFICE. 
 
'-i!^iQ 
 
 i> 
 
Ex parte, in the matter of William A. Bowles, 
 
 1 Pleas of the circuit court of the United States for the district 
 of Indiana, begun and held at the court-house, at Indianapolis, 
 
 on the 1st Tuesday of May, in the year one thousand eight hundred 
 and sixty-five, before the honorable David Davis, one of the associate 
 justices of the Supreme Court of the United States, and the honorable 
 David McDonald, district judge of the United States for the district 
 of Indiana. 
 
 Ex parte: William A. Bowles, on petition for a writ of habeas corpus. 
 
 Be it remembered, that on the 10th day of May, A. D. 1865, in the 
 court aforesaid, before the judges aforesaid, comes Jonathan W. Gor- 
 don, esq., of counsel for said Bowles, and files here in open court the 
 petition of said Bowles, to be discharged from a certain al- 
 
 2 leged unlawful imprisonment, with three exhibits accompanying 
 the same, marked, respectively, "A,'' ''B,^^and " C." At 
 
 the same time comes also John Hanna, esq., the attorney prosecuting 
 the pleas of the United States in this behalf And thereupon, by 
 agreement, this application is submitted to the court, and day is 
 given, &c. And the said petition follows in these words and figures, 
 to wit: 
 
 The United States of America, District of Indiana, ss- 
 In the circuit court of the United States in and for the eighth cir- 
 cuit and the district of Indiana, term of May, in the year 1865. 
 
 Ex parte: William A. Bowles; application to be discharged from 
 
 Imprisonment. 
 William A. Bowles would respectfully represent unto the honor- 
 able the judges of the circuit court of the United States within and 
 for the district of the State of Indiana, that he is a natural-born citi- 
 zen of the United States, and is now and has been for more than 
 
 3 twenty years last past a citizen of the said district and State 
 of Indiana, and is entitled to all and singular the rights, privi- 
 leges, and immunities of citizens of the United States and of the State 
 of Indiana. 
 
 He further says that he has not been in the military service of the 
 United States at any time during the last fifteen years past, and is not 
 now and never was in the naval service of the United States at any 
 time during his whole life, and is not now, and he expressly says that 
 at the time of the commencement of the grievances hereinafter set 
 forth he was not, in the military or naval service of the United States, 
 and has not been therein at any time since. 
 
 He further says that on the 18th day of September, in the year 
 1864, at and in the district of Indiana aforesaid, and at his own home 
 in Orange county, in said Indiana, he was forcibly seized and arrested 
 by the military power of the United States, and under the authority 
 of the President thereof, in pursuance of the order and command of 
 Brevet Major General Alvin P. Hovey, of the United States 
 
 4 volunteers, who was at that time in command of the military 
 district of Indiana, and was immediately after his said arrest 
 
2 Ex parte, in the matter of William A, Bowles. 
 
 conveyed from his home in said Orange county, in said district, to the 
 city of Indianapolis therein, and was placed in prison and under a 
 military guard, and held as a military prisoner, under the orders and 
 authority of the President aforesaid and s'd General Hovey, and has 
 thenceforward until the present time remained in close confinement 
 as such prisoner, and still remains so in the military prison near the 
 ''Soldiers' Home" in said city of Indianapolis. And further, that 
 within the last few days his imprisonment has been rendered more 
 close and severe than before, by the fastening of a heavy iron ball 
 and chain to one of his legs, by means of an iron clasp or fetter about 
 his ankle. 
 
 He further says that the aforesaid Brevet Major General Alvin P. 
 Hovey, military commander of the district of Indiana, holds him in 
 said military prison in confinement, under the immediate com- 
 5 mand and control of Colonel A. J. Warner, of the 17th regiment 
 
 of the veteran reserve corps, now in the military service of the 
 United States, and inferior officers and soldiers under the command of 
 the said Colonel Warner. 
 
 He further says that after his arrest, transportation to, and im- 
 prisonment at and in said military prison, near the "Soldiers' Home," 
 in said city of Indianapolis and district of Indiana, to wit, on the 
 21st day of October, in the year 1864, one Major "Henry S. Bur- 
 nett, judge advocate, department of the Ohio and northern depart- 
 ment," preferred five several charges, and sixteen several specifica- 
 tions thereunder, against him, the said Bowles, and four other per- 
 sons, to wit, .Andrew Humphreys, Horace Heffren, Lambdin P. 
 Milligan, and Stephen Horsey, which said charges and specifications 
 are made part of this petition, and a printed copy thereof herewith 
 filed, and, for greater certainty of reference, marked "Exhibit A;" 
 and he sa^'S that said Brevet Major General Alvin P. Hovey^ 
 6, military commander of said district of Indiana, as aforesaid, 
 
 afterwards to wit, on the day of October, in the year 1864, 
 approved said charges, and directed the said Wm. A. Bowles, and 
 others against whom said charges were preferred by the said judge 
 advocate, to be arraigned and tried thereon by a certain "military 
 commission," which he, the said Brevet Major General Alvin P. 
 Hovey, commander, <fec., as aforesaid, had previously ordained, ap- 
 pointed, and convened at said Indianapolis for the trial of such 
 uflenders as might be from time to time sent before it for trial; and 
 he hereby makes the order of said Brevet Major General Alvin P. 
 Hovey, military commander, &c., as aforesaid, ordaining, appointing, 
 and convening said military commission, a part of this his petition, 
 and files a copy thereof herewith, which he marks "Exhibit B" for 
 greater certainty of reference. 
 
 He further says that afterwards, to wit, on the 21st day of Octo- 
 ber, in the year 1 864, in pursuance of and obedience to the 
 7 order of said Brevet Major General Alvin P. Hovey, military 
 
 commander as aforesaid, he and the other persons charged 
 with him in said several charges and specifications were brought 
 before said military commission, and were then and there arraigned 
 
\ 
 
 Ex parte f in the matter of William A. Bowles, 8 
 
 upon said several charges and specifications before said commission 
 by the said Henry S. Burnett, judge advocate as aforesaid, and sev- 
 erally pleaded thereto "not guilty'' of said several charges and 
 specifications; but he further says that prior to his pleading to said 
 several charges and specifications as aforesaid, it was expressly under- 
 stood and agreed between the said judge advocate and himself and 
 his attorneys, that his said plea should not in anywise impair his 
 right to object to the jurisdiction of said military commission to try 
 liim upon said charges and specifications, or any of them, upon final 
 argument therein; and that his objection, when so made, should have 
 the same force and effect to which it would have been entitled if 
 
 made prior to putting in said plea. He further says that 
 S after his arraignment and pleading to said charges and specie 
 
 cations as aforesaid, he and others charged with him were 
 put upon trial before and by said military commission, and were all 
 tried by said commission, except the said Horace Heffren, who was 
 released from said charges and specifications by the said judge advo^ 
 €ate in order that he might become a witness on behalf of the govern- 
 ment, as it was then said. And he further says that said trial was 
 fully ended and concluded as early as the 1st day of January, in the 
 year 1865, And he further says that said military commission found 
 him guilty, and sentenced him to be hung, as will more fully and at 
 large appear, reference being had to General Court-Martial Orders 
 No. 214 of the War Department of the government of the United 
 States for 1865, which is made part hereof, and a copy thereof here- 
 with filed, marked "Exhibit C." And he further says that said sen- 
 tence is ordered by the military commander of the district of In- 
 diana aforesaid to be executed upon him on Friday, the 19th day of 
 May, in the year 1865, at a place near Camp Morton, in the county 
 
 of Marion, and in the State and district a,foresaid. 
 
 9 He further says that after the proceedings of said military 
 commission were closed and at an end, and more than twenty 
 
 days after the commencement of his imprisonment aforesaid, to wir, 
 •on the 2d day of January, in the year 1865, the honorable circuit 
 court of the United States for the circuit and district aforesaid con- 
 vened in the United States court-room in the city of Indianapolis, in 
 said district, and a legal and proper grand jury of the United States 
 were then and there in said court duly empanelled, sworn, and 
 charged to inquire within and for the district of Indiana aforesaid, 
 and due presentments make of all crimes and misdemeanors therein 
 committed against the laws of the United States, and the peace and 
 dignity of the same. 
 
 He further says that the said term of said circuit court afterward.-*, 
 to wit, on the 2Tth day of January, in the year 1865, cauie to ,ari. 
 end, and the said court then and there adjourned until the 1st Tues- 
 day in May, 1865, having prior to the adjournment thereof, to wk, 
 on the 27th day of January, in the year 1865, discharged tlu 
 
 10 said grand jury from further service at said term of saiJ 
 court. 
 
 And he expressly aaya that; ss^id grand jury at said tern of* Ea d 
 
4 Ex parte y in the matter of William A, Bowles, 
 
 court adjourned and was discharged by said court without having' 
 found any bill of indictment or made any presentment whatever 
 against him for any oifence whatever against any law of the United 
 States or otherwise; and that no bill of indictment or presentment has 
 ever been found or made against him by any grand jury of the United 
 States since his imprisonment, for any offence whatever, although said 
 grand jury met, inquired, and adjourned as aforesaid at the said 
 term of said circuit court. 
 
 He further says that said military commission had no jurisdiction 
 whatever under the laws and Constitution of the United States to 
 try him upon said charges or upon any charges whatever, he being a 
 citizen of the United States and of the State of Indiana, and never 
 having been at any time since the commencement of the present re- 
 bellion in the United States a resident of any one of the States whose 
 citizens were arrayed against the government of the United States. 
 He further says that owing to the fact that he has all the 
 
 11 time from commencement of said rebellion until his arrest, 
 imprisonment, and trial by said military commission, been an 
 
 inhabitant, resident, and citizen of Indiana, whose government and 
 people have upheld and supported the government of the United 
 States in its conflict with rebels in arms against it, it was, has been, 
 and still is wholly out of bis power to have acquired belligerent rights 
 and placed himself in such relation to government as to have enabled 
 him to violate the laws of war; nor can he ascertain how it is possi- 
 ble for him to have forfeited the rights guaranteed by the Constitu- 
 tion to every citizen of a trial within the State and district in which 
 his alleged offences are charged to have been committed, upon an 
 indictment by a grand jury of such district duly empanelled and 
 sworn, and by an impartial jury of such district empanelled, tried, 
 and sworn according to law. 
 
 12 In order, therefore, that he may have his legal and consti- 
 tutional rights, he prefers this his humble petition to the hon- 
 orable circuit court of the United States for the district of Indiana, 
 and prays that under the act of Congress approved March 3d, 1863, 
 entitled "An act relating to /ia6ea5 co?'jO?<s and regulating judicial 
 proceedings in certain cases,'' he may be brought before this court 
 by writ of habeas corpus, or such other process as the court may award 
 lor that purpose, together with the cause of his caption and deten- 
 tion, to do and receive whatsoever the court may, upon full and final 
 hearing, order and adjudge in relation thereto in pursuance of the act 
 of Congress aforesaid, and that at all events he may be delivered from 
 said military custody and imprisonment, and if found probably guilty 
 of any improper conduct or offence against the United States of Amer- 
 ica, turned over to the proper civil tribunal for inquiry and punish- 
 ment according to law, or for discharge from custody altogether. 
 
 He further prays that said writ may be directed to the said Alvin 
 
 P. Hovey, brevet major general commanding, &c., as aforesaid, the 
 
 said A. J. Warner, colonel, &c., as aforesaid, and to all other 
 
 13 persons under themj or either of them, and that they, each and 
 all, be required to produce in court the body of him, the said 
 
ExpartCy in the matter of William A, Bowles. 5 
 
 William A. Bowles, together with the cause of his caption and de- 
 tention. 
 
 And, as in duty bound, he will ever pray, &c., &c. 
 
 W. A. BOWLES. 
 
 Subscribed and sworn to before me, the undersigned, a notary 
 public in and for the county of Marion and State of Indiana, this 
 10th day of May, in the year 1865. 
 
 In testimony whereof, I have hereunto set my name and affixed 
 notarial seal, at Indianapolis, in said county and State. 
 
 [L. s.] MILTON BELL, Notary PuUic, 
 
 [U. S. 5-ct. revenue stamp.] 
 
 And said Exhibit ' 'A' ^ follows in these words and figures, to wit : 
 Charges and specifications preferred against William A. Bowles^ Andrew 
 Humphreys, Horace Heffren, Lamhdin P. Milligan, and Stephen 
 Horsey, citizens of the State of Indiana, United States of America. 
 
 14 Chaege fiest. — Conspiracy against the government of the 
 United States. 
 
 Specification first. — In this : that the said Wm. A. Bowles, Andrew 
 Humphreys, Horace HefFren, Lambdin P. Milligan, and Stephen 
 Horsey did, among themselves, and with Harrison H. Dodd, of In- 
 diana, Joshua F. Bullitt, of Kentucky, J. A. Barrett, of Missouri, and 
 others, conspire against the government and duly constituted authori- 
 ties of the United States, and did join themselves to and secretly 
 organize and disseminate a secret unlawful society or order known 
 as the order of American Knights or order of the Sons of Liberty, 
 having both a civil and military organization and jurisdiction, for the 
 purpose of overthrowing the government and duly constituted au- 
 thorities of the United States. This at a period of war and armed 
 rebellion against the authority of the United States, at or near In- 
 dianapolis, Indiana, a State within the military lines of the army of 
 the United States, and the theatre of military operations, and 
 
 15 which had been and was constantly threatened to be invaded 
 by the enemy. This on or about the 16th day of May, 1864. 
 
 Specification second. — In this: that the said Wm. A. Bowles, Andrew 
 Humphreys, Horace HefFren, Lambdin P. Milligan, and Stephen 
 Horsey, during an existing rebellion against the government and au- 
 thorities of the United States, said rebellion claiming to be in the 
 name of and on behalf of certain States, being a part of and owing 
 allegiance to the United States, did combine and agree with one 
 Harrison H. Dodd, of Indiana, Joshua F. Ballitt, of Kentucky, J. A. 
 Barrett, of Missouri, and others, to adopt and impart to others the 
 creed or ritual of a secret unlawful society or order known as the 
 order of American Knights or order of the Sons of Liberty, deny- 
 ing the authority of the United States to coerce to submission cer- 
 tain rebellious citizens of said United States, designing thereby to 
 lessen the power and prevent the increase of the armies of the 
 United States, and thereby did recognize and sustain the right of the 
 citizens and States then in rebellion to disregard and resist 
 
 16 the authority of the United States. This at a period of war 
 
6 Ex farte^ in the matter of William A. Bowles, 
 
 and armed rebellion against the authority of the United States, 
 at or near the city of Indianapolis, Indiana, a State within the mili- 
 tary lines of the army of the United States, and the theatre of mili- 
 tary operations, which had been and was threatened to be invaded 
 by the enemy. This on or about the 22d day of February, 1864. 
 
 S}jecification third. — In this: that the said Wm. A. Bowles, Andrew 
 Humphreys, Horace Heifren, Lambdin P. Milligan, and Stephen 
 Horsey, citizens of the State of Indiana, owing true faith and allegi- 
 ance to the government of the United States, and while pretending 
 to be peaceable loyal citizens of the government, did secretly and co- 
 vertly combine, agree, and conspire among themselves, and with one 
 Harrison H. Dodd, of Indiana, Joshua F. Bullitt, of Kentucky, J. A. 
 Barrett, of Missouri, and others, to overthrow and render powerless 
 the government of the United States, and did, in pursuance of said 
 combination, agreement, and conspiracy, form and organize a certain 
 
 unlawful secret society or order, and did extend and assist in 
 IT extending said unlawful secret society or order known as the 
 
 order of American Knights or order of Sons of Liberty, whose 
 intent and purpose was to cripple and render powerless the efforts of 
 the government of the United States, in suppressing a then existing 
 formidable rebellion against said government. This on or about the 
 Ist day of October, 1863, at a period of war and armed rebellion, at 
 or near the city of Indianapolis, Indiana, a State within the military 
 lines of the army of the United States, and the theatre of militaay 
 operations, which bad been and was constantly threatened to be 
 invaded by the enemy. 
 
 ' Specification fourth. — In this: that the said William A. Bowles^ 
 Andrew Humphreys, Horace Heffren Lambdin P. Milligan, and 
 Stephen Horsey did conspire and agree with Harrison H. Dodd, Da- 
 vid T. Yeagle, John C. Walker, and Joshua F. Bullitt, and others, 
 
 (these men at that time holding military positions and rank in 
 
 18 a certain secret unlawful society or organization known as the 
 order of American Knights or order of the Sons of Liberty,) 
 
 to seize by force the United States and State arsenals at Indianapolis, 
 Indiana, Columbus, Ohio, and Springfield, Illinois, to release, by force, 
 the rebel prisoners held by the authorities of the United States at 
 Camp Douglas, Illinois, Camp Morton, Indiana, and Camp Chase, Ohio, 
 and the depot of prisoners of war on Johnson's island, and arm those 
 prisoners with the arms thus seized; and that these said conspirators, 
 with all the forces they were able to raise in the secret order above 
 named, were, in conjunction with the rebel prisoners thus released and 
 armed, to march into Kentucky and Missouri, and co-operate with 
 the rebel forces to be sent to those States by the rebel authorities 
 agEiinst the government and authorities of the United States. This 
 on or about the 20th day of July, 1864, at a period of war and rebel- 
 lion against the authority of the United States, at or near the city of 
 Chicago, Illinois, a State within the lines of the army of the 
 
 19 United States, and the theatre of military operations, and 
 threatened by invasion of the enemy. 
 
 Charge second. ^-Affording aid and comfort to rebels against the 
 
 ,..'>,.:.,,, ,.r.],p, TTr''::.r] State-. 
 
Ex 'parley in the matter of William A, Bowles, 7 
 
 Specification first. — In this: that the said William A. Bowles, An- 
 drew Humphreys, Horace HefFren, Lambdin P. Milligan, and Stephen 
 Horsey, being then members of a certain secret unlawful society or 
 order known as the order of American Knights or order of the Sons 
 of Liberty, the United States being then in arms to suppress a rebel- 
 lion in certain States against the authority of the United States, (said 
 William A. Bowles, Andrew Humphreys, Horace Heffron, Lambdin 
 P. Milligan, Stephen Horsey, and others, then and there acting as 
 members and officers of said secret unlawful society or order,) did 
 design and plot to communicate with the enemies of the United States, 
 -and did communicate with the enemies of the United States, with the 
 intent that they should, in large force, invade the territory of 
 
 20 the United States, to wit, the States of Kentucky, Indiana, 
 and Illinois, with the further intent that the so-called secret 
 
 unlawful society or order aforesaid should then and there co-ope- 
 rate with the said armed forces of the said rebellion against the au- 
 thority of the United States, and did communicate to said armed forces 
 the intent and purposes of said secret unlawful society or order. 
 This at a period of war and armed rebellion against the authority of 
 the United States, at or near the city of Indianapolis, Indiana, a State 
 within the military lines of the army of the United States, and the 
 theatre of military operations, which had been and was constantly 
 threatened to be invaded by the enemies of the United States. This 
 on or about the 16th day of May, 1864. 
 
 Specification second. — In this: that the said William A. Bowles, An- 
 drew Humphreys, Horace HefFren, Lambdin P. Milligan, and Stephen 
 Horsey, while the government was attempting by force of arms to 
 suppress an existing rebellion, while guerillas and other armed 
 
 21 supporters of the rebellion were in the State of Kentucky, did 
 send a messenger and brother member with them of a secret 
 
 unlawful society or order known as the order of American Knights 
 or order of the Sons of Liberty, into said State of Kentucky, with 
 instructions for Joshua F. Bullitt, grand commander of said secret 
 unlawful society or order in said State, and other members of said 
 secret society or order in said State, to select good couriers or run- 
 ners, to go upon short notice, and, for the purpose of assisting those 
 in rebellion against the United States, to call to arms the members of 
 said secret society or order and other sympathizers with the existing 
 rebellion whenever a signal should be given by the authorities of 
 said secret society or order. This on or about the 20th day of July, 
 1864, at a period of war and armed rebellion against the authority of 
 the United States, at or near Indianapolis, Indiana, a State within 
 the military lines of the army of the United States, and the theatre of 
 military operations, and which had been and was constantly threat- 
 ened to be invaded by the enemy. 
 
 Specification third. — In this: that the said William A. Bowles, An- 
 drew Humphreys, Horace HefFren, Lambdin P. Milligan, and 
 
 22 Stephen Horsey, iDcing citizens of the State of Indiana, United 
 States of America, and owing true allegiance to the said 
 
 United States, did join themselves to a certain unlawful secret society 
 
8 Ex parte J in the matter of William A. Bowles, 
 
 or order known as the order of American Knights or order of Sons of 
 Liberty, designed for the overthrow of the government of the United 
 States, and to compel terms with the citizens or authorities of the so- 
 called Confederate States, the same being portions of the United 
 States, and in rebellion against the authority of the United States, 
 and did communicate the designs and intent of said order to those in 
 rebellion against the government of the United States. This on or 
 about the 20th day of July, 1864, at a period of war and armed 
 rebellion against the authority of the United States, at or near In- 
 dianapolis, Indiana, a State within the military lines of the army of 
 the United States, and the theatre of military operations, and which 
 had been and was constantly threatened to be invaded by the enemy. 
 
 Charge third. — Inciting insurrection. 
 
 Sjpecificaiion first . — In this: that the said William A. Bowles, An- 
 drew Humphreys, Horace Heffren, Lambdin P. Milligan, and 
 
 23 Stephen Horsey did, during a time of war between the United 
 States and armed enemies of the United States and of re- 
 bellion against its government, organize and attempt to arm, and did 
 arm, a portion of the citizens of the United States, through an un- 
 lawful secret society or order known as the order of American 
 Knights or order of Sons of Liberty, with the intent to induce them, 
 with themselves, to throw off the authority of the United States, and 
 co-operate with said armed enemies of the United States against the 
 legally constituted authorities of the United States. This on or about 
 the 20th day of July, 1864, at or near Indianapolis, Indiana, a State 
 within the military lines of the army of the United States, and the 
 theatre of military operations, and which had been and was con- 
 stantly threatened to be invaded by the enemy. 
 
 Specification second. — In this: that the said William A. Bowles, 
 
 Andrew Humphreys, Horace Heffren, Lambdin P. Milligan, and 
 
 Stephen Horsey did, by public addresses, by secret circulars and 
 
 communications, and by other means, endeavor to and did 
 
 24 arouse sentiments of hostility to the government of the United 
 States, and did attempt to induce the people to revolt against 
 
 said government, and secretly organize and arm themselves for the 
 purpose of resisting the laws of the United States and the orders of 
 the duly elected President thereof. This on or about the 16th day of 
 February, 1864, at a period of war and armed rebellion against the 
 authority of the United States, at or near Indianapolis, Indiana, a 
 State within the military lines of the army of the United States, and 
 the theatre of military operations, and which had been and was con- 
 stantly threatened to be invaded by the enemy. 
 
 Charge fourth. — Disloyal practices. 
 
 Specification first. — In this: that the said William A. Bowles, An- 
 drew Humphreys, Horace Heffren, Lambdin P. Milligan, and Stephen 
 Horsey, at a time of war and during an armed rebellion against the 
 legally constituted authorities and government of the United States, 
 did counsel and advise citizens of, and owing allegiance and military 
 service to, the United States, to disregard the authority of the 
 
 25 United States, and to resist u call or draft designed to in- 
 
Ex parte f in the matter of William A. Bowles. 9 
 
 crease the army of the United States, and did make preparation 
 and attempt to arm, and did arm, certain citizens of the United 
 States belonging to a certain unlawful secret society or order known 
 as the order of American Knights or order the Sons of Liberty, for 
 the purpose and with the intent of resisting said call or draft. 
 This on or about the 1st day of July, 1864, at or near Shoal's Station, 
 Martin county, Indiana, a State within the military lines of the army 
 of the United States, and the theatre of military operations, and 
 which had been and was constantly threatened to be invaded by the 
 «nemy- 
 
 Specification second. — In this: that the said Wm. A. Bowles, Andrew 
 Humphreys, Horace Hefifren, Lambdin P. Milligan, and Stephen 
 Horsey, at a time of war and during an armed rebellion against the 
 legally constituted authorities and government of the United States, 
 did counsel and advise citizens of, and owing allegiance and military 
 service to, the United States, to disregard the authority of the United 
 States, and to resist a call or draft designed to increase the 
 
 26 army of the United States, and did make preparation and at- 
 tempt to arm, and did arm, certain citizens of the United 
 
 States belonging to a certain unlawful secret society or order known 
 as the order of American Knights or order of the Sons of Liberty, 
 for the purpose and with the intent of resisting said call or draft. 
 This on or about the 1st day of November, 1863, at or near Green 
 Fork township, Randolph county, Indiana, a State within the mili- 
 tary lines of the army of the United States, and the theatre of military 
 operations, and which had been and was constantly threatened to be 
 invaded by the enemy. 
 
 Specification third. — In this: that the said Wm. A. Bowdes, Andrew 
 Humphreys, Horace Heffren, Lambdin P. Milligan, and Stephen 
 Horsey, at a time of war and during an armed rebellion against the 
 legally constituted authorities and government of the United States, 
 did counsel and advise citizens of, and owing allegiance and military 
 service to, the United States, to disregard the authority of the Uni- 
 ted States, and to resist a call or draft designed to increase 
 
 27 the army of the United States, and did make preparation and 
 did attempt to arm, and did arm, certain citizens of the United 
 
 States belonging to a certain unlawful secret society or order known 
 as the order of American Knights or order of Sons of Liberty, for 
 the purpose and with the intent of resisting said call or draft. This 
 on or about the 16th day of May, 1864, at or near Indianapolis, In- 
 diana, a State within the military lines of the army of the United 
 States, and the theatre of military operations, and which had been 
 and was constantly threatened to be invaded by the enemy. 
 
 Specification fourth. — In this: that the said Wra. A. Bowles, Andrew 
 Humphreys, Horace Heffren, Lambdin P. Milligan, and Stephen 
 Horsey, at a time of war and during an armed rebellion against the 
 legally constituted authorities and government of the United States, 
 did counsel and advise citizens of, and owing allegiance and military 
 service to, the United States, to disregard the authority of the Uni- 
 ted States, and to resist a call or draft designed to increase the army 
 
10 Ex parte y in the matter of William A. Bowles. 
 
 of the United States, and did nriake preparation and attempt- 
 
 28 to arm, and did arm, certain citizens of the -United States 
 belonging to a certain unlawful secret society or order known 
 
 as the order of American Knights or order of the Sons of Liberty, 
 for the purpose and with the intent of resisting said call or draft. 
 This on or about the 1st day of August, 1864, at or near Salem, 
 Washington county, Indiana, a State within the military lines of the 
 army of the United States, and the theatre of military operations, and 
 which had been and was constantly threatened to be invaded by the 
 enemy. 
 
 Specification fifth. — In this: that the said Wm. A. Bowles, Andrew 
 Humphreys, Horace HefFren. Lambdin P. Milligan, and Stephen 
 Horsey did accept and hold offices of the military forces for the State 
 of Indiana, in a certain unlawful secret society or order known as the 
 order of American Knights or order of the Sons of Liberty, which said 
 offices and military forces were unknown to the Constitution and lawa 
 of the United States or of the State of Indiana, and were not in aid 
 of, but opposed to, the legally constituted authorities thereof. This 
 on or about the 16th day of February, 1864, at a time of war 
 
 29 and armed rebellion against the authority of the United States, 
 at or near Indian'apolis, Indiana, a State within the military 
 
 lines of the army ot^he United States, and the theatre of military 
 operations, and which had been and was constantly threatened to be^ 
 invaded by the enemy. 
 
 Charge fifth.— Violation of the la^vs of war. 
 
 Specification first. — In this: that the said William A. Bowles, Andrew 
 Humphreys, Horace HefFren, Lambdin P. Milligan, and Stephen 
 Horsey did, while the government of the United States was carrying 
 on a w^ar with the enemies of the United States engaged in rebellion 
 against their authority, ,while pretending to be peaceable loyal citi- 
 zens of the United States^ violate their allegiance, and did, as citizens 
 of said government, attempt to introduce said enemies of the United 
 States into the loyal States of said United States, thereby to over- 
 throw and destroy the authority of the United States. This on or 
 about the 16th day of May, 1864, at or near the city of In- 
 
 30 dianapolis, Indiana, a State within the military lines of the 
 army of the United States, and the theatre of military opera- 
 tions, which had been and was constantly threatened to be invaded 
 by the enemy. 
 
 Specifi,cation second. — In this: that the said William A. Bowles, An- 
 drew Humphreys, Horace Heffren, Lambdin P. Milligan, and Stephen 
 Horsey did, during a war between the United States and the said 
 enemies of the United States engaged in rebellion against their au- 
 thority, and while pretending to be peaceable loyal citizens of the 
 United States, organize and extend a certain unlawful secret society 
 or order known as the order of American Knights or order of the 
 Sons of Liberty, having for its purpost; the same general object and 
 design as the said enemies of the United States, and with the intent 
 to aid and insure the success of said enemies in their resistance to 
 the legally constituted authorities of the United States. This at or 
 
Ex parte, in the matter of William A. Bowles. 11 
 
 near the city of Indianapolis, Indiana, on^or about the 16th day of 
 May, 1864. 
 
 HENRY L. BURNETT, 
 
 Judge Advocate, Department of the 
 
 31 Ohio and Northern Department. 
 
 And said Exhibit B follows, in these words and figures, to wit: 
 
 Copy of order. 
 
 [Special Orders No. 129.] 
 
 Headquarters District of Indiana, 
 
 Indianapolis, September 17, 1864. 
 A military commission is constituted to meet at the United States 
 court-rooms in the city of Indianapolis, on the nineteenth (19th) day 
 of September, 1864, at 10 o'clock a. m., or as soon thereafter as prac- 
 ticable, for the trial of Harrison H. Dodd and such other prisoners as 
 may be brought before it. 
 
 Detail for the commission. — 1. Brevet Brigadier General Silas Col- 
 grove. United States volunteers; 2. Colonel Wm. E. McLean, 43d 
 infantry Indiana volunteers; 3. Colonel Jbbn T. Wilder, ITth infan- 
 try Indiana volunteers; 4 Colonel Thomas J. Lucas, 16th infantry 
 Indiana volunteers; 5. Colonel Charles D. Murray, 89th infantry In- 
 diana volunteers; 6. Colonel Benjamin Spooner, 83d infantry 
 
 32 Indiana volunteers; 7. Colonel Richard P. De Hart, 128th in- 
 fantry Indiana volunteers; Major Henry L. Burnett, judge ad- 
 vocate, department Ohio and northern department, judge advocate. 
 The commission will sit without regard 4o hours. 
 
 By order of Brevet Major General Alvin P. Hovey. 
 
 AND. C. KEMPER, 
 Assistant Adjutant General . 
 
 The said commission was subsequently enlarged by the appoint- 
 ment as members thereof of the following named officers: Colonel 
 Andrew A. Stevens, veteran reserve corps; Colonel Ansel D. Wass, 
 60th infantry Massachusetts volunteers; Colonel Thomas W. Bennett, 
 69th infantry Indiana volunteers; Colonel Reuben Williams, 12th in- 
 fantry Indiana volunteers; and Lt. Colonel Albert Heath, 100th in- 
 fantry Indiana volunteers. 
 
 A true copy. 
 
 J. W. GORDON. 
 
 And said Exhibit C follows, in these words and figures, to wit: 
 
 33 [General court-martial Orders No. 214. ] 
 
 War Department, 
 Adjutant GeneraV s Office, Washington, 3Iay 2, 1865. 
 
 1. Before a military commission w^hich convened at Indianapolis, 
 Indiana, October 19, 1864, pursuant to Special Orders No. 129, dated 
 September 17, 1864; No. 132, dated September 21, 1864; No. 142. 
 dated October 5, 1864; No. 153, dated October 18, 1864; and No. 
 
12 Ex parte, in the matter of William A, Bowles, 
 
 154, dated October 19, 1864, headquarters district of Indiana, In^ 
 dianapolis, and of which Brevet Brigadier General Silas Colgrove, 
 U. S. volunteers, is president, were arraigned and tried William A. 
 Bowles, Lambdin P. Milligan, and Stephen Horsey, citizens of the 
 State of Indiana. 
 
 Charge I. — " Conspiracy against the government of the United 
 States.'' 
 
 Specification 1st. — In this: that the said Wm. A. Bowles, Andrew 
 Humphreys, Horace Heffren, Lambdin P. Milligan, and Stephen Hor- 
 sey did, among themselves, and with Harrison H. Dodd, of Indiana, 
 Joshua F. Bullitt, of Kentucky, J. A. Barrett, of Missouri, and 
 others, conspire against the government and duly constituted authori- 
 ties of the United States, and did join themselves to and secretly or- 
 ganize and disseminate a secret unlawful society or order 
 
 34 known as the order of American Knights or order of the 
 Sons of Liberty, having both a civil and military organization 
 
 and jurisdiction, for the purpose of overthrowing the government and 
 duly constituted authorities of the United States, at or near Indian- 
 apolis, Indiana, a State within the military lines of the army of the 
 United States, and the theatre of military operations, and which had 
 been and was constantlythreatened to be invaded by the enemy. 
 This on or about the IGth day of May, 1864. 
 
 Sjjecification M. — In this: that the said Wm. A.Bowles, Andrew 
 Humphreys, Horace Heffren, Lambdin P. Milligan, and Stephen 
 Horsey, during an existing rebellion against the government and au- 
 thorities of the United States, said rebellion claiming to be in name 
 of and on behalf of certain States, being a part of and owing alle- 
 giance to the UnitedStates, did combine and agree with one Harrison 
 H. Dodd, of Indiana, Joshua F. Bullitt, of Kentucky, J. A. Barrett, 
 of Missouri, and others, to adopt and impart to others the creed or 
 ritual of a secret unlawful society or order known as the or- 
 
 35 der of American Knights or order of the Sons of Liberty, 
 denying the authority of the United States to coerce to sub- 
 mission certain rebellious citizens of said United States, designing 
 thereby to lessen the power and prevent the increase of the armies 
 of the United States, and thereb}^ did recognize and sustain the right 
 of the citizens and States then in rebellion to disregard and resist the 
 authority of the United States. This at a period of war and armed 
 rebellion against the authority of the United States, at or near the 
 city of Indianapolis, Indiana, a State within the military lines of 
 the army of the United States, and the theatre of military operations, 
 which had been and was threatened to be invaded by the enemy. 
 This on or about the 22d day of February, 1864. 
 
 Specification 3c?. — In this: that the said Wm. A. Bowles, Andrew 
 Humphreys, Horace Heffren, Lambdin P. Milligan, and Stephen Hor- 
 sey, citizens of the State of Indiana, owing true faith and allegiance 
 to the government of the United States, and while pretending to be 
 peaceable, loyal citizens of the government, did secretly and 
 
 36 covertly combine, agree, and conspire among themselves, and 
 with one Harrison H. Dodd, of Indiana, Joshua F. Bullitt, of 
 
\ 
 
 Ex parte J in the matter of William A. Bowles* 13 
 
 Kentucky, J. A. Barrett, of Missouri, and others, to overthrow and 
 render powerless the government of the United States, and did, in 
 pursuance of said combination, agreement, and conspiracy, form and 
 organize a certain unlawful secret society or order, and did extend 
 and assist in extending said unlawful secret society or order known 
 as the order of American Knights or order of Sons of Liberty, 
 whose intent and purpose was to cripple and render powerless the 
 efforts of the government of the United States in suppressing a then 
 existing formidable rebellion against said government. This on or 
 about the 1st day of October, 1863, at a period of war and armed re- 
 bellion, at or near the city of Indianapolis, Indiana, a State within 
 the military lines of the army of the United States, and the theatre 
 of military operations, which had been and was constantly threatened 
 to be invaded by the enemy. 
 
 37 Specification 4:th. — In this: that the said William A. Bowles, 
 Andrew Humphreys, Horace Ileffren, Lambdin P. Milligan, 
 
 and Stephen Horsey did conspire and agree with Harrison H. Dodd, 
 David P. Yeagle, John C. Walker, and Joshua F. Bullitt, and others, 
 (these men at that time holding military positions and rank in a cer- 
 tain secret unlawful society or organization known as the order of 
 American Knights or order of the Sons of Liberty,) to seize by force 
 the United States and State arsenals at Indianapolis, Indiana, Colum- 
 bus, Ohio, and Springfield, Illinois; to release by force the rebel 
 prisoners held by the authorities of the United States, at Rock Island 
 and Camp Douglas, Illinois, Camp Morton, Indiana, and Camp Chase, 
 Ohio, and the depot of prisoners of war on Johnson's Island, and arm 
 those prisoners with the arms thus seized; and that then said con- 
 spirators, with all the forces they were able to raise in the secret 
 order above named, were, in conjunction with the rebel prisoners 
 thus released and armed, to march into Kentucky and Missouri, and 
 co-operate with the rebel forces to be sent to those States by 
 
 38 the rebel authorities against the govefliment and authorities 
 of the United States. This on or about the 20th day of July, 
 
 1864, at a period of war and rebellion against the authority of the 
 United States, at or near the city of Chicago, Illinois, a State within 
 the lines of the rrmy of the United States, and the theatre of military 
 operations, and threatened by invasion of the enemy. 
 
 Charge II. — Affording aid and comfort to rebels against the au- 
 thority of the United States. 
 
 Specification 1st. — In this: that the said William A. Bowles, Andrew 
 Humphreys, Horace Ileffren, Lambdin P. Milligan, and Stephen 
 Horsey, being then members of a certain secret, unlawful society or 
 order known as the order of American Knights or order of the Sons 
 of Liberty, the United States being then in arms to suppress a re- 
 bellion in certain States against the authority of the United States, 
 (said William A. Bowles, Andrew Humphreys, Horace Heffren, Lamb- 
 din P» Milligan, Stephen Horsey, and others, then and there 
 
 39 acting as members and officers of said secret unlawful society 
 or order,) did design and plot to communicate with the enemies 
 
 of the United States, with the intent that they should in large forc& 
 
14 Ex parte J in the matter of WiUiam A. Bowles, 
 
 invade the territory of the United States, to wit, the States of Ken- 
 tucky, Indiana, and Illinois, with the further intent that the so-called 
 secret unlawful society or order aforesaid should then and there co- 
 operate with the said armed forces of the said rebellion against the 
 authority of the United States, and did communicate to said armed 
 forces the intent and purposes of said secret unlawful society or 
 order. This at a period of war and armed rebellion against the au- 
 thority of the United States, at or near the city of Indianapolis, Indi- 
 ana, a State within the military lines of the army of the United 
 States, and the theatre of military operations, which had been and was 
 constantly threatened to be invaded by the enemies of the United 
 States. This on or about the 16th day of May, 1864. 
 
 Specification 2d. — In this: that the said William A. Bowles, An- 
 drew Humphreys, Horace Heffren, Lambdin P. Milligan, and 
 
 40 Stephen Horsey, while the government was attempting by 
 force of arras to suppress an existing rebellion, while guer- 
 rillas and other armed supporters of the rebellion were in the State 
 of Kentucky, did send a messenger and brother member with them 
 of a secret unlawful society or order known as the order of American 
 Knights or order of the Sons of Liberty, into said State of Kentucky, 
 with instructions for Josl^a F. Bullitt, grand commander of said se- 
 cret society or order in said State, to select good couriers or runners, 
 to go upon short notice, and, for the purpose of assisting those in re- 
 bellion against the United States, to call to arms the members of said 
 secret society or order and other sympathizers with the existing re- 
 bellion whenever a signal should be given by the authorities of said 
 secret society or order. This on or about the 20th day of July, 1864, 
 at a period of war and armed rebellion against the authority of the 
 United States, at or near Indianapolis, Indiana, a State within the 
 
 military lines of the army of the United States, and the theatre 
 
 41 of military operations, and which had been and was constantly 
 threatened to ba.invaded by the enemy. 
 
 Specification 3(i. — In this : that the said William A. Bowles, An- 
 drew Humphreys, Horace Heffren, Lambdin P. Millijran, and Ste- 
 phen Horsey, being citizens of the State of Indiana, United States 
 of America, and owing true alle2;iance to the said United States, did 
 join themselves to a certain unlawful secret society or order known 
 as the order of American Knights or order of Sons of Liberty, de- 
 signed for the overthrow of the government of the United States, 
 and to compel terms with the cit'zens or authorities of the so-called 
 Confederate States, the same being portions of the United States, 
 and in rebellion against the authority of the United States, and did 
 communicate the designs and intent of said order to those in rebel- 
 lion against the government of the United States. This on or about 
 the 20th day of July, 18(i4, at a period of war and armed rebellion 
 against the authority of the United States, at and near lu- 
 
 42 dianapolis, Indiana, a State witin the military lines of the 
 army of the United States, and the theatre of military opera- 
 tions, and which had been and was constantly threatened to be in- 
 vaded by the enemy. 
 
Ex parte, in the matter q^ William A, Bowles, 15 
 
 Charge III. — Inciting insurrection. 
 
 Specification \st. — In this .: that the said William A. Bowles, An- 
 "drew Humphreys, Horace HefFren, Lambdin P. Milligan, and Stephen 
 Horsey did, during a time of war between the United States and armed 
 enemies of the United States, andof rebellion against its government, 
 organize and attempt to arm, and did arm, a portion of the citizens of 
 the United States, through an unlawful secret society or order known 
 as the order of American Knights or ord'er of Sons of Liberty, with 
 the intent to induce them, with themselves, to throw off the authority 
 of the United States and co-operate with said armed enemies of the 
 United States against the legally constituted authorities of the Uni- 
 ted States. This on or about the 20th day of Jul}^, 1864, 
 
 43 at or near Indianapolis, Indiana, a State within the military 
 lines of the army of the United States, aud the theatre of mil- 
 itary operations, and which had been and was constantly threatened 
 to be invaded by the enemy. 
 
 Specification 2d. — In this : that the said William A. Bowles, An- 
 drew Humpreys, Horace Heffren, Lambdin P. Milligan, and Stephen 
 Horsey did, by public addresses, by secret circulars and communica- 
 tions, and by other means, endeavor to and did arouse sentiments 
 of hostility to the government of the United States, and did attempt 
 to induce the people to revolt against said government, and secretly 
 organize and arm themselves for the purpose of resisting the laws of 
 the United States and the orders of the duly elected President 
 thereof. This on or about the 16th day of February, 1864, at a pe- 
 riod of war and armed rebellion against the authority of the United 
 States, at or near Indianapolis, Indiana, a State within the 
 
 44 military lines of the army of the United States, and the thea- 
 tre of military operations, and which had been and was cod- 
 
 «tantly threatened to be invaded by the enemy. 
 
 Charge IV. — Disloyal practices. 
 
 Specification \st. — In this : that the said William A. Bowles, An- 
 drew Humphreys, Horace Heffren, Lambdin P. Milligan, and Ste- 
 phen Horsey, at a time of war and during an armed rebellion against 
 the legally constituted authorities and government of the United 
 States, did counsel and advise citizens of, and owing allegiance 
 and military service to, the United States, to disregard the authority 
 of the United States, and to resist a call or draft designed to increase 
 the array of the United States, and did make preparation and attempt 
 to arm, and did arm, certain citizens of the United States, belonging 
 to a certain unlawful secret society or order known as the order of 
 American Knights or order of the Sons of Liberty, for the purpose 
 and with the intent of resisting said call or draft. This on or 
 
 45 about the 1st day of July, 1864, at or near Shoal's Station, 
 Martin county, Indiana, a State within the military lines of 
 
 the army of the United States, and the theatre of military operations, 
 and which had been and was constantly threatened to be invaded by 
 the enemy. 
 
 Specification 2d. — In this: that the said William A. Bowles, An- 
 drew Humphreys, Horace Heffren, Lambdin P. Milligan, and Stephen 
 
16 Ex parte, in the matter; of William A, Bowles, 
 
 Horsey, at a time of war and during an armed rebellion against the 
 legally constituted authorities and government of the United States, 
 did counsel and advise citizens of, and owing allegiance and military 
 service to, the United States, to disregard the authority of the United 
 States, and to resist a call or draft designed to increase the army of 
 the United States, and did make preparation and attempt to arm, and 
 did arm, certain citizens of the tJnited States belonging to a certain 
 unlawful secret society of order known as the order of American 
 Knights or order of the Sons of Liberty, for the purpose and 
 
 46 with the intent of resisting said call or draft. This on or about 
 the 1st day of November, 1863, at or near Green Fork town- 
 ship, Randolph county, Indiana, a State within the military lines of 
 the army of the United States, and the theatre of military operations, 
 and which had been and was constantly threatened to be invaded by 
 the enemy. 
 
 Specification 3(i. — In this: that the said Wm. A. Bowles, Andrew 
 Humphreys, Horace Heffren, Lambdin P. Milligan, and Stephen 
 Horsey, at a time of war and during an armed rebellion against the 
 legally constituted authorities and government of the United States, 
 did counsel and advise citizens of, and owing allegiance and military 
 service to the United States, to disregard the authority of tbe United 
 States, and to resist a call or draft designed to increase the army 
 of the United States, and did make preparations and did attempt to 
 arm, and did arm, certain citizens of the United States belonging to 
 a certain unlawful secret society or order known as the order 
 
 47 of American Knights or order of Sons of Liberty, for the 
 purpose and with the intent of resisting said call or draft. 
 
 This on or about the 16th day of May, 1864, at or near Indianapolis, 
 Indiana, a State within the military lines of the army of the United 
 States, and the theatre of miliary operations, and which bad been 
 and was constantly threatened to be invaded by the enemy. 
 
 Specification Uli. — In this: that the said Wm.A. Bowles, Andrew Hum- 
 phreys, Horace Heffren, Lambdin P. Milligan, and Stephen Horsey^ 
 at a time of war and during an armed rebellion against the legally 
 constituted authorities and government of the United States, did 
 counsel and advise citizens of, and owing allegiance and military ser- 
 vice to, the United States, to disregard the authority of the United 
 States, and to resist a call or draft designed to increase the army of 
 the United States, and did make preparation and attempt to arm, 
 and did arm, certain citizens of the United States belonging to a cer- 
 tain unlawful secret society or order known as the order of 
 
 48 American Knights or order of the Sons of Liberty, for the 
 purpose and with the intent of resisting said call or draft. 
 
 This on or about the 1st day of August, 1864, at or near Salem, 
 Washington county, Indiana, a State within the military lines of the 
 army of the United States, and the theatre of military operations, 
 and which had been and was constantly threatened to be invaded 
 by the enemy. 
 
 Specification 5th. — In this: that the said Wm. A. Bowles, Andrew 
 Humphreys, Horace Heffren, Lambdin P. Milligan, and Stephen Hor- 
 
 I 
 
 1 
 
Ex parte, in the matter of William A. Bowles, IT 
 
 sey did accept and hold offices of the military forces for the State of 
 Indiana, in a certain unlawful secret society or order known as the 
 order of American Knights or order of the Sons of Liberty, which 
 said offices and military forces were unknown to the Constitution and 
 laws of the United 'States or of the State of Indiana, and were not 
 in aid of, but opposed to, the legally codHltnted authorities thereof. 
 This on or about the 16th day of Fi^ruary, 1864, at a time of 
 49 war and armed rebellion against the' authority of the United 
 States, at or near Indianapolis, Indiana, a State within the 
 military lines of the army of the United States, and the theatre of 
 military operations, and which had been and was constantly threat- 
 ened to be invaded by the enemy. 
 
 Charge Y. — Violation of the laws of war. 
 
 Specification 1st. — In this: that the said William A. Bowles, An- 
 drew Humphreys, Horace Heflfren, Lambdin P. Milligan, and Ste- 
 phen Horsey did, while the government of the United States was car- 
 rying on war with the enemies of the United States engaged in re- 
 bellion against their authority, while pretending to be peaceable, 
 loyal citizens of the United States, violate their allegiance, and did, 
 as citizens of said government, attempt to introduce said enemies of 
 the United States into the loyal States of said United States, thereby 
 to overthrow and destroy the authority of the United States. This 
 on or about the 16th day of May, 1^64, at or near the city of Indian- 
 apolis, Indiana, a State within the military lines of the army of the 
 United States, and the theatre of military operations, which 
 60 had been and was constantly threatened to ba^ invaded by 
 the enemy. 
 
 Specification 2d. — In this : that the said William A. Bowles, An- 
 drew Humphreys, Horace Heffren, Lambdin P. Milligan, and Ste- 
 phen Horsey did, during a war between the United States and the 
 said enemies of the United States engaged in rebellion against their 
 authority, and while pretending to be peaceable, loyal citizens of the 
 United States, organize and extend a certain unlawful secret society or 
 order known as the order of American Knights or order of the Sons 
 of Liberty, having for its purpose the same general object and de- 
 sign as the said enemies of the United States, and with the intent to 
 aid and insure the success of said enemies in their resistance to the 
 legally constituted authorities of the United States. This at or near 
 the city of Indianapolis, Indiana, on or about the 16th day of May, 
 1864. 
 
 To which charges and specifications the accused, William A. Bowles, 
 jLambdin P. Milligan, and Stephen Horsey, citizens of the State of 
 
 Indiana, pleaded "not guilty.^' 
 51 Finding. — The court having maturely considered the evi- 
 
 dence adduced, finds the accused, William A. Bowles, Lambdin 
 P. Milligan, and Stephen Horsey, citizens of the State of Indiana, as 
 follows : 
 
 In the cases of William A. Bowles and Lambdin P. Milligan, citizens 
 of the State of Indiana : 
 Kec. 365—2 
 
18 Ex parte, in the matter of William A, Bowles. 
 
 Charge 1. — Of the 1st specification, "guilty;" of the 2d specifica- 
 tion, "guilty j'^ of the 3d specification, "guilty/' of the 4th 
 specification, " guilty ;'' of the charge, "guilty/ ' 
 
 Charge 11. — Of the 1st specification, "guilty ;" of the 2d specifi- 
 cation, "guilty f of the 3d specification, "guilty j'' of the charge, 
 "guilty/-' IM 
 
 Charge III. — Of the Is^ specification, " guilty ;'' of the 2d speci- 
 fication, "guilty;'' of the charge, "guilty." 
 
 Charge IV. — Of the |^ specification, "guilty;" of the 2d speci- 
 fication, "guiltj^P of the 3d specification, "guilty;" of the 
 
 52 4th specification, "guilty;" of the 5th specification, "guilty;" 
 of the charge, "guilty." 
 
 Charge V. — Of the 1st specification, "guilty;" of the 2d specifica- 
 tion, "guilty;" of the charge, "guilty." 
 
 In the case of Stephen Horsey, of the State of Indiana : 
 
 Charge I. — Of the 1st specification, "guilty;" of the 2d specifica- 
 tion, "guilty;" of the 3d specification, "guilty;" of the 4th speci- 
 fication, "guilty;" of the charge, "guilty." 
 
 Charge 11. — Of the li8^p%#fiftation, "guilty;" of the 2d specifica- 
 tion, "guibj-;" of the 3d specification, "guilty;" of the charge, 
 "guilty."*^ 
 
 Charge 111. — Of the 1st specification, "guilty;" of the 2d speci- 
 fication, "guilty;" of the charge, "guilty." 
 
 Charge III. — Of the 1st specification, "guilty;" of the 2d speci- 
 fication, "guilty;" of the 3d specification, "guilty;" of the 
 
 53 4th specification, "guilty;" .of the 5th specification, "not 
 guilty;" of the charge, "guilty." 
 
 Charge V. — Of the 1st specification, "guilty;" of the 2d specifica- 
 tion, " guilty;" of the charge, "guilty." 
 
 Sentence. — And the commission does therefore sentence them, Wil- 
 liam A. Bowles, Lam^ii^'P. Milligan, and Stephen Horsey, citizens 
 of the State of Indiana, as follows : 
 
 In the case of William A. Bowles, gitizen of the State, of Indiana: 
 " To be hanged by the neck until he be dead, at such time and place 
 as the commanding general of this district shall designate; two-thirds 
 of the members of the commission concurring therein." 
 
 In the case of Lambdin P. Milligan, citizen of the State of Indi- 
 ana: " To be hanged by the neck until he be dead, at such time and 
 place as the commanding general of this district shall designate; two- 
 thirds of the members of the commission concurring therein." 
 
 54 In the case of Stephen Horsey, citizen of the State of In- 
 diana: "To be hanged by the neck until he be dead, at such 
 
 time and place as the commanding general of this district shall desig- 
 nate; two-thirds of the members of the commission concurring 
 therein." 
 
 II. The proceedings, findings, and sentences of the commission in 
 the cases of William A. Bowles, Lambdin P. Milligan, and Stephen 
 Horsey, citizens, were approved by the proper commanders, and the 
 records forwarded for the action of the President of the United 
 States, who approves the sentences and directs that they be carried 
 
Ex 'parte, in the matter of WiUiam A, Bowles, 19 
 
 into execution by the commanding general of the district of Indiana, 
 under the orders of the department commander, without delay. 
 By order of the Secretary of War. n 
 
 W. A. NICHOLS, 
 
 Official 
 
 Report receipt and execution. 
 
 
 istant Adjutant General, 
 
 . A. NICHOLS, 
 Assistant Adjutant General, 
 
 Com^d^g Gen^l Northern DepH. 
 
 55 And afterwards, to wit, at the court aforesaid, and before 
 the judges aforesaid, such proceedings were had in the cause 
 
 above entitled that on the llth day of May, in the year 1865, comes 
 the said William A. Bowles, by J. A. Gordon, his attorney, and moves 
 the court that a writ of habeas corpus do issue, according to the prayer 
 of said petition; and said Bowles, by his attorney aforesaid, also 
 prays that he be ordered to be discharged, according to the prayer 
 of said petition. «»; 
 
 And these motions coming on to be argued at this term, it occurred 
 as a question whether, upon the facts set forth in said petition and 
 exhibits, a writ of habeas corpus^ as prayed in said petition, ought to 
 be issued; and also, whether on the facts stated in said petition and 
 exhibits, the said Bowles ought to be discharged, as in ^;aid petition 
 prayed; and also, whether upon the facts stated in said f)etition and 
 exhibits, the said military commission mentioned therein had any 
 jurisdiction to try and sentence said Bowles in manner and form as in 
 said petition and exhibits stated. 
 
 56 On which questions the opinions of the judges were op- 
 posed. 
 
 Whereupon, on motion of the said Bowles, by his attorney afore- 
 said, it is ordered that the said petition and exhibits, together with 
 the following questions, be certified to the Supreme Court of the 
 United States for their decisions, according to the act of Congress in 
 such case made and provided; which questions are these: 
 * 1. On the facts stated in said petition and exhibits, ought a writ 
 of habeas corpus to be issued according to the prayer of said petition ? 
 
 2. On the facts stated in said petition and exhibits, ought the said 
 William A. Bowles to be discharged from custody, as in said petition 
 prayed ? 
 
 3. Whether, upon the facts stated in said petition and exhibits, the 
 military commission mentioned therein had jurisdiction to try and 
 sentence said Bowles in manner and form as in said petition and ex- 
 hibits is stated. 
 
 57 In the eighth judicial circuit, district of Indiana. 
 
 I, John D. Howland, clerk of the circuit court of the United States 
 in the circuit and district aforesaid, do hereby certify that the above 
 
20 Ex parte, in the matter of William A. Boioles. 
 
 and foregoing is a full, true, and complete transcript of the record of 
 the case above entitled, and of all entries and papers therein, as 
 fully as the same remain of ^ord and on file in my office. 
 
 In testimony whereof, I JK hereto set my hand and affix the seal 
 of said court, at Indianapoli^Rhis 13th day of May, A. D. 1865. 
 
 [SEAL.] J ^B J. D. ROWLAND, Chrh.. 
 
 0^6, 
 
 [5-cent revenue stamp, c 
 
 Filed January 12,48 
 
 © 
 
]omj^y 
 
 
 SUPREME COURT 
 
 
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 II, 
 
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 m tlxt mwxUA states 
 
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 IN THE MATTER OF 
 Under Sentence hy Military Commission. 
 
 15 AEGUMENT OF DAVID DUDLEY FIELD, ESQ. 
 
 FOR THE PETITTOXKR!<. 
 
 JVCa^rcln. IS aiad 13^ 1866. 
 
 [Eepoeted by D. F. Murphy.] 
 
 NEW YORK: 
 PRINTED BY WILLIAM J. READ, 
 
 AT BROWNSON'S STEAM BOOK, AND JOB PRINTING OFFICE. 
 
 No. 45 Fulton Street (near Pearl). 
 
 1866. 
 
 
 
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 Division 
 Range 
 
 Shelf 
 
 Received 
 
 PRESENTED TO TfitE i^ 
 
 |L!b|oftyniversit|ofCalitta,l 
 
 I .^^.^.^^.. t:t:^jji_ 
 
 
ARGUMENT 
 
 OF 
 
 DAVID DUDLEY FIELD, ESQ, 
 
 BEFORE THE 
 
 ^ttpteme &mxt 0f t\u %. 3. 
 
 March 12th mid ISthy 1866, 
 
 IN THE MATTER OF 
 
 L. P. MILLIGAN, Petitionee, ex pa rie, 
 W. A. BOWLES, 
 STEPHEN HORSEY, " 
 
 [Reported by D. F. Murphy.] 
 
Mr. Field — If the Court please : 
 
 Before I say anything else, let me, on behalf of my 
 brethren and myself, thank the Court for its indulgence, 
 both in respect to the early argument of these cases, and 
 in respect to the time allowed for their discussion. While 
 we are aware that, but for the magnitude of the eases 
 themselves, this indulgence would not have been granted, 
 we are none the less sensible of your courtesy and kind- 
 ness. 
 
 Let me say next, that some things have been brought 
 into this discussion which have no proper place in it, 
 and which, for my part, I shall endeavor to keep out of 
 it. I shall presently state what I suppose the question 
 to be ; I will first state what it is not : 
 
 It is not a question of the discipline of camps ; it is 
 not a question of the government of armies in the field ; 
 it is not a question respecting the power of a conqueror 
 over conquered armies or conquered States. What 
 may or may not be the rightful interference of the mili- 
 tary in the States lately in rebelHon — to what extent they 
 may go, how long continue, and when and how cease to 
 act — are not questions in this case. 
 
 Nor is it a question, as my learned friend who opened 
 the cause on the other side (Gen. Butler) stated, what 
 shall be the condition of the emancipated slaves. Tbeir 
 freedom is placed beyond all peradventure by the great 
 constitutional amendment, if we shall be so happy as to 
 preserve the Constitution itself intact and supreme. 
 
 Nor is it a question, how far the legislative department 
 of the government can deal with the question of niarti.d 
 rule. Whatever has been done in these cases nas been 
 done by the executive department alone. It did not w^ait 
 for Congress to act, and when Congress acted it did not 
 regard its action. When the judiciary acted, it did not 
 respect its mandate. It disregarded the authority of 
 ihe learned judge in the First Circuit; it disregarded 
 
the authority of the late Chief Justice in the Fourth 
 Circuit ; and I believe it is well understood, that if the 
 habeas corpus in these cases had been issued, it would 
 have been disregarded. 
 
 Nor, may it please the Court, is it a question of the patri- 
 otism, or the character, or the services of the late Chief 
 Magistrate, or of his constitutional advisers. It is known 
 to you, sir (addressing the Chief Justice), that I ven- 
 tured to call myself a personal friend of the late President, 
 and I was happy to believe that he so regarded me. I did 
 not conceal from him my dislike and fear of the extent 
 to which some of his subordinate officers were carrying 
 the military power ; but this did not diminish my per- 
 sonal regard for him, nor, as I believe, his friendship for 
 me. His great heart, his forgiving spirit, his sagacious 
 touch of the chords of public sentiment, and his unex- 
 ampled patience made him a popular idol, and the 
 manner of his death canonized him. He is far above any 
 praise or blame of miue. The quiet grave where he re- 
 poses after the storm of this awful conflict, will be a 
 shrine for his countrymen, so long as they have a country ; 
 and the swarthy race, which he did so much to emanci- 
 pate, will visit it in long succession, through uncounted 
 ages, as the burial place of their deliverer. 
 
 Nor do we cast any reflection upon the Secretary of 
 War. It has been my fortune to be with him in some 
 of the darkest hours of the tempest, and I can bear 
 personal witness to his indomitable energy, to the erect 
 tront which he maintained against all disaster, to his 
 industry which knew no weariness, and his absolute 
 devotion to the public service. Next to the President 
 himself, and to the illustrious man who organized that 
 gigantic system of finance which carried us through the 
 war without a shock to the public credit, to the amaze- 
 ment of the Old World, and the admiration of the New ; 
 next, I say, after the great President and his minister of 
 finance, the countr}^ owes more to the Secretary of War 
 than to any other civilian. His services may be, for 
 the time, lost in the blaze of military glory. His la- 
 borious days, and the plain building where he passed 
 
tlieiii, are now eclipsed by the clouds that rolled from 
 the fields of Yicksburg and Shiloh, from Oettysburgh 
 and Antietam, from Atlanta and Petersburg ; but when 
 history writes the record of this war, we shall find 
 there, in light, the name of Edwin M. Stanton. 
 
 It would hardly be respectful in me to disclaim, for 
 these cases, in this presence, all political significance 
 whatever. The characters, and the general party 
 affinities of the different counsel, are, of themselves, a 
 sufficient guarantee against it. Not to speak of the 
 other counsel, we have, on one hand, the General, 
 (Butler,) whose services in the beginning of the war, 
 and his promptitude in coming to the rescue of this 
 capital, and whose administration in the department of 
 tiie Gulf, make a part of the history of the country ; 
 while, on the other hand, we have the General (Garfield) 
 who, in the disastrous day of Chickamauga, stood by 
 the side of Thomas, when, with his indomitrable infantry 
 he rolled back the successive charges of the rebel bat- 
 talions. 
 
 This is a question which concerns the future, rather 
 than the past ; what is to be, more than wTiat has been. 
 What is done, is done ; gone forever into the unchange- 
 able and inexorable past. But the present is here, and 
 the future is before us. For one, so glad am I to have 
 emerged from the thick darkness of war, into this abun- 
 dant light of peace, and so confident am I of the policy 
 of forgiveness or oblivion, that I am willing to agree, 
 with all my brethren, to let by-gones be by-gones, now 
 and evermore. 
 
 Hire are three men suffering in prison, who claim that 
 they are held by unlawful force. This claim must be 
 heard. The American people, speaking through an 
 amendment of their organic law, have just proclaimed 
 with a louder voice than ever the right of every human 
 being to be free, except in punishment for crime, whereof 
 he shall have been duly convicted. 
 
 For the future, who can tell what may happen in a 
 year, or a month, or a day. Our country is ninety years 
 old, and sixteen of them were years of war. It is hardly 
 
6 
 
 supposable, that we are to have hereafter so large a pro- 
 portion of peaceful days. Even now a warlike nation is 
 encamped upon our southern border, and it requires all 
 tlie wisdom of the most prudent men at this capitol to 
 prevent a collision on the Kio Grande. It behoves us to 
 know what are to be our rights if war breaks out with 
 France. 
 
 Is it true that the moment a declaration of war is made, 
 the executive department of this government, without an 
 Act of Congress, becomes absolute master of our liber- 
 ties and our lives ? Are we then subject to martial rule, 
 administered by the President upon his own sense of the 
 exigency, with nobody to control him, and with every 
 magistrate and every authority in the land subject to his 
 will alone ? 
 
 We may have bad Presidents, arbitrary Secretaries of 
 War, and cruel generals. Let us understand beforehand 
 whether a state of war makes them our masters. These 
 are the considerations which give to these cases their 
 greatest significance. 
 
 But we are met with the peeliminaey objection, that 
 great and pressing as they are, you cannot consider 
 them for want of jurisdiction. The objection is two- 
 fold : first, that the Circuit Court of Indiana had not 
 jurisdiction to hear the cases there presented ; and, 
 second, that this Court has not jurisdiction to hear and 
 decide the questions thus certified. 
 
 First, as to the jurisdiction of the Circuit Court. That 
 depended on the 14th Section of the judiciary act of 
 1789, and on the Habeas Corpus Act of 1863. 
 
 The first clause of the I4th Section is as follows : " All 
 the before-mentioned Courts of the United States shall 
 liave power to issue writs of scire facias, habeas corjnis, 
 and all other writs not specially provided for by sta- 
 tutes, which may be necessary for the exercise of their 
 respective jurisdictions and agreeable to the principles 
 and usages of law." This was held in Bollman's case, 
 4 C ranch, 75, to authorize the writ only in aid of a juris- 
 diction otherwise given. Then comes the second clause 
 in these words : 
 
" And that either of the justices of the Supreme Court, 
 as well as the judges of the District Courts shall have 
 power to grant writs of habeas corpus for the purpose of 
 an inquiry into the cause of commitment." This clause 
 was, in the same case, held to authorize the Courts, as 
 well as the judges, to issue the writ for the purpose of 
 enquiring into the cause of commitment. 
 
 "It would be strange," said Chief Justice Marshall, 
 " if the Judge, sitting on the Bench, should be unable to 
 hear a motion for this writ, when it might be openly 
 made and openly discussed, and might yet retire to his 
 chamber, and decide upon the motion. This is not con- 
 sistent with the genius of our legislation, nor with the 
 course of judicial proceedings." Under this section, 
 therefore, the jurisdiction of the Circuit Court should 
 seem to be complete. 
 
 The Act of March 3, 1863, after providing that the Sec- 
 retaries of State and of War shall furnish to the Judges 
 of the Circuit and District Courts a list of political and 
 State prisoners, and of all others, except prisoners of war, 
 goes on to declare, that if a Grand Jury has had a ses- 
 sion, and has adjourned without finding an indictment, 
 thereupon " it shall be the duty of the Judge of said 
 Court forthwith to make an order that any such prisoner 
 desiring a discharge from said imprisonment, be brought 
 before him to be discharged." The next section provides 
 that, if the list is not furnished, any citizen may apply 
 for the relief of the person imprisoned, "by a petition 
 alleging the facts aforesaid." 
 
 Upon this act, the objection of my learned friend 
 is, first, that the application of the petitioner should 
 have been made to one of the Judges of the Circuit, in- 
 stead of the Court itself ; and second, that the petition 
 does not show whether it was made under the second or 
 the third section. 
 
 To the former objection the answer is, first, that the 
 decision in BoUman's case, just mentioned, covers this 
 case, and that the same reasoning which gives the 
 Court power to proceed under the fourteenth section of 
 the Act of 1789, gives the Court power to proceed under 
 
8 
 
 the second and third sections of the act of 1863. The 
 second answer is that, by the provisoes of the second 
 section, the Court is expressly- mentioned as having the 
 power, thus— 
 
 ''Provided, Jwivever, That no person shall be discharged 
 by virtue of the provisions of this act, until after he or 
 she shall have taken an oath of allegiance to the Govern- 
 ment of the United States, and to support the Constitu- 
 tion thereof ; and that he or she will not hereafter, in 
 any way, encourage, or give aid and comfort to the pres- 
 ent rebellion, or the supporters thereof." 
 
 "And provided also, That the Judge or Court before 
 whom such person may be brought, before discharging 
 him or her from imprisonment, shall have power, on ex- 
 amination of the case, and, if the public safety shall re- 
 quire it, shall be required to cause liim or her to enter 
 into recognizance, with or without surety, in a sum to 
 be fixed by said judge or Court, to keep the peace and 
 be of good behavior towards the United States and its 
 citizens, and from time to time, and at such times as such 
 Judge or Court may direct, appear before said Judge .or 
 Court to be further dealt with, according to law, as the 
 circumstances may require." 
 
 My learned friend's other objection to the jurisdiction 
 of the Circuit Court, is, that the petition does not show 
 under which section of the Act it was presented. It states 
 that the petitioner is held a prisoner under the authority 
 of the President ; that a term has been held, and that a 
 grand jury has been in attendance and has adjourned 
 without indicting ; that is all. It does not state whether 
 a list has been furnished to the Judges by the Secretary 
 of State and the Secretary of War, and therefore argues 
 the learned counsel, the Court has no jurisdiction. That 
 is to say, the judges knowing themselves whether the list 
 has or has not been furnished, cannot proceed, because 
 forsooth we have not told them by our petition what they 
 already know% and what w^e ourselves might not know^, 
 and perhaps could not know, because the law does not 
 make it necessary that the list shall be filed or that any- 
 body shall be informed of it but the judges. 
 
There is an old maxim of the law which would disjjense 
 with the averment, even if the fact were known to the 
 petitioners : " lex non requirat verificari quod appo/ret 
 curice/'—Si maxim as old, at least, as Coke, and given by 
 him in 9th Esports, p. 54. I think, therefore, I need not 
 argue any further, that the Circuit Court of the United 
 States for tlie District of Indiana had jurisdiction upon 
 upon this petition. 
 
 Next; as to the jurisdiction of this Court. Supposing 
 the Circuit Court to have had jurisdiction, has this Court 
 jurisdiction to hear these questions as tJiey are certified ? 
 There are various objections. First, it is said that a di- 
 vision of opinion can be certified only in a caiisej and 
 that this is not a cause. You remember the Act of 1802, 
 which authorized a certificate of division. It is in these 
 words: "Whenever any question shall occur before a 
 Circuit Court, upon which the opinion of the Judges 
 shall be opposed, the point upon which the disagreement 
 shall happen, shall, during the same term, upon the re- 
 quest of either farty or their counsel, be stated under the 
 direction of the Judges, and certified under the seal of 
 the Court, to the Supreme Court, at their next session, to 
 be held thereafter, and shall, by the said Court, he finally 
 decided. And the decision of the Supreme Court and 
 their order in the premises shall be remitted to the Cir- 
 cuit Court, and be there entered of record, and shall have 
 eftect, according to the nature of the said judgment 
 and order ; provided, that nothing herein contained shall 
 prevent tlie cause from proceeding, if, in the opinion of 
 the Court, further proceedings can be, without prejudice 
 to the merits," <fec. 
 
 It was decided by this Court, in Holmes vs. Jennison, 
 14 Peters, 566, that a proceeding on habeas corpus is a 
 suit, and suit is a more comprehensive word than cause. 
 
 Mr. Stanberry : Will the gentleman allow me a word ? 
 
 Mr. Field : Certainly. 
 
 Mr. Stanberry : I never said that a habeas corpus, 
 after the return, when the parties appear, and begin to 
 to try the case, is not a suit ; and that was Holmes and 
 Jennison. 
 2 
 
10 
 
 Mr. Field : Then the argument is that it is not 
 a cause until the adverse party comes in. Is not 
 a suit commenced before the defendant is brought 
 into Court ? Is the defendant's appearance the first 
 proceedng in a cause ? When a writ is issued to 
 the Sheriff, we understand that the statute of limita- 
 tions ceases to run. But mj^ learned friend must allow 
 me to read some other provisions of the statutes about 
 hahecs corpus. There have been three acts, in respect to 
 this writ. The first, of 1789, which I have already read ; 
 then the Act passed in 1833 ; and finally the Act of 1842. 
 From the last act I will read the following passage : 
 
 " Either of the justices of the Supreme Court of the 
 United States, or judge of any District Court of the 
 United States, in which a prisoner is confined, in addi- 
 tion to the authority already conferred by law, shall have 
 power to grant writs of habeas corpus in all cases of any 
 prisoner or prisoners in jail or confinement, where he, 
 she, or they being subjects ar citizens of a foreign State, 
 and domiciled therein, shall be committed or confined, 
 or in custody, under or by any authority or law, or pro- 
 cess founded thereon, of the United States or of any one 
 of them, for or on account of any act done or omitted 
 under any alleged right, title, authority, privilege, protec- 
 tion, or exemption, set up or claimed under the commis- 
 sion or order, or sanction of any foreign state or sover- 
 eignty, the validity and effect whereof depend upon the 
 law of nations, or under color thereof. And upon the re- 
 turn of said writ, and due proof of the service of notice 
 of the said proceeding to the Attorney General or other 
 officer prosecuting the pleas of the State under whose au- 
 thority the petitioner has been arrested, committed, or is 
 held in custody, to be prescribed by the said justice or 
 judge at the time of granting said writ, the said justice 
 or judge shall proceed to hear the said cause,'' &g.^ 
 
 The second objection of my learned friend is that there 
 must be parties, that is, at least two parties, and that here 
 is only one. This argument is derived from the direction 
 in the act, that the point must be stated " upon the re- 
 quest of either party" or their counsel. My friend says, 
 
li 
 
 tliat "either party" imports two, and if there are not 
 two, there can be no certificate. This strikes me as al- 
 together too literal : "g?<?' liceret in litera hceret in cortice.'* 
 The learned gentleman insists upon the grammar, but 
 he cannot render the language grammatical as it stands. 
 It is "either party or their counsel." This is elliptical ; 
 what is meant is, "any party or parties, his or their 
 counsel." Again : " eithei*," if precisely used, w'ould ex- 
 clude all over two, because ^' either " strictly means " one 
 of two;" and if there are three parties or more, as there 
 may be, you cannot have a certificate ! It is not unusual 
 in proceedings in rem to have several iritervenors find 
 claimants ; what are we to do then ? The answer must 
 be, that " either" is an equivalent word for " any ;" and 
 that whoever may happen to be a party, whether he 
 stand alone or with others, may ask for the certificate. 
 
 The words "either party" were introduced not for 
 restriction but enlargement. The purpose was to enable 
 any party to bring the case here ; otherwise it might have 
 been argued perhaps that all the parties must join in 
 asking for the certificate. No, said Congress, any party 
 having anything to do with the case may have it certified. 
 
 The reasoning of Chief Justice Marshall, in respect 
 to the habeas corpus, is here applicable. The words, 
 "either of the Justices of the Supreme Court," in the 
 14th Section of the Act of 1739, were understood by him 
 to have been used by way of enlargement, to provide for 
 cases w^hen the Court was not sitting ; and he construed 
 them, therefore, to embrace the Court, as well as the 
 Judge. So, here, the language was introduced for the pur- 
 pose of giving a more extended application to the Statute. 
 The purpose of the Act was to prevent a failure of justice, 
 when the two Judges of the Cirx3uit Court were divided 
 in opinion. The reason of the rule is as applicable to a 
 case with one party as if there were two. Whether 
 a question shall be certified to this Court, depends upon 
 the point in controversy. If it concerns a matter of 
 right, and not of discretion, there is as much reason for 
 its being sent ex parte, as for its being sent inter partes. 
 This very case is an illustration. Here a writ is applied 
 
12 
 
 for, or an order is asked. The Judges do not agree 
 abaut the issue of the writ, or the granting of the order. 
 U|3on their action, the lives of these men depend. Shall 
 there be a failure of justice ? The question presented to 
 the Circuit Court was not a merely formal one ; whether 
 an initial writ should issue. It is the practice, upon 
 petitions for habeas corpus, to consider whether, upon the 
 facts presented, the prisoners, if brought up, could be 
 remanded. The presentation of the petition brings 
 before the Court, at the outset, the merits, to a certain 
 extent, of the whole case. That was the course pursued 
 in Passmore Williamson's case, 1st Casey ; in Rex vs. 
 Ennis, 1 Burrows, 765 ; in the case of the Three Spanish 
 Sailors, reported in 2 Wm. Blackstone, 1324 ; Hobhouse's 
 case, reported in 2 Barnewall & Alderson, 420 ; Husted's 
 case, reported in 1 Johnson, 326 ; Ferguson's case, 9 
 Johnson, 139 ; and in this Court, in Watkins' case, 
 reported in 3 Peters, 202, where the disposition of the 
 case turned upon the point whether, if the writ were 
 issued, the petitioner would be remanded upon the facts 
 as they appeared. 
 
 There may, indeed, be cases w^here only one party can 
 appear, cases, that are at first, and must always remain 
 ex parte. What shall be done with them? Such a case 
 occurred not long ago in New York. A statute was 
 passed, directing that students who received a diploma 
 from Columbia CoUege, should be admitted to the bar, 
 without further examination. A student applied to the 
 Supreme Court of New York to be admitted. The ap- 
 plication was refused. He appealed to the Court of Ap- 
 peals, and the order was reversed. Here was a case 
 where there could be but one party. There was no one 
 but the applicant before the Court, no defendant, no 
 contestant. Suppose that a question similar to that 
 which has been argued here, in Mr. Garland's case, 
 were to come before a Circuit Court, and that the learned 
 Judges should be divided in opinion, upon the constitu- 
 tionality of the test-oath, I should like to be informed, 
 by my learned friend, whether he thinks that case could 
 not be certified to this Court. Must the applicant be 
 told that his application cannot be decided ? 
 
13 
 
 There is one view of this case in which it is to be ro- 
 garded as essentiallj ex parte. You will observe that the 
 application was for a writ of habeas corpus or for such 
 other order or process as the Court might make for the 
 deliverance of the party. If you allow the writ under the 
 Judiciary Act, there may be a contestant ; if you pro- 
 ceed under the Act of 1863, there may not be a contest- 
 ant, because the Judges are bound to discharge upon the 
 fact of continued imprisonment, without indictment. 
 The language of the act is, that if the list is furnished, 
 "it shall be the duty of the Judge of said Court, forth- 
 with to make an order that any such prisoner desiring a 
 discharge from said imprisonment, be brought before him 
 to be discharged," The third section declares, that the 
 same thing shall be done on the application of a citizen, 
 if the list is not furnished. Suppose that the party had 
 asked simply for the order.. It would have been ex parte 
 of necessity; the Government would have had no right to 
 be heard ; no rights would have been determined, except 
 that the man should go discharged of the particular impris- 
 onmentfor which he was held. He might havebeen arrested 
 the next day ; he might have been indicted. The law- 
 giver says, you shall not keep a man in prison longer than 
 through the session of a Grand Jury, if it has not found 
 an indictment against him ; and the moment the Grand 
 Jury adjourns, if the Judge does not see that there is an 
 indictment, he is bound to discharge him. Neither 
 General Hovey, nor the President, nor any other officer 
 of the Government has a right to be heard against it. 
 
 Thus far, I have argued against this objection as if 
 there had been but one party before the Court ; but 
 there w^ere, in fact, two parties. Who were they ? The 
 record tells us, in these words : 
 
 " Be it remembered, that on the 10th day of May% 
 A. D. 1865, in the Court aforesaid, before the Judges 
 aforesaid, comes Jonathan W. Gordon, Esq., of counsel 
 for said Bowles, and files here in open Court the petition 
 of said Bowles to be discharged ^ * -s^- -2^ * 
 At the same time comes also John Hanna, Esq.j the attorney 
 jprosecuting the pleas of the United States in this behalf. 
 
14 
 
 And thereupon, by agreement, tins application is sub- 
 mitted to the Court, and day is given," &c. 
 
 The next day the case came on again, and the cer- 
 tificate was made. My learned friend asks : Who is 
 ''John Hanna, prosecuting the pleas of the United 
 States ?" Who is John Hanna? May I not as well ask 
 who is the Attorney General of the United States ? I 
 need not say, that this Court, judicially, knows who is 
 the Attorney General ; and so the Circuit Court, judi- 
 cially, knew that John Hanna was the District Attorney 
 of the United States for the District of Indiana ; and 
 their judicial knowledge is your judicial knowledge, 
 because you are to take all that they knew. But 
 *' prosecuting the pleas" is an expression which my 
 friend does not understand. He asks what is meant by 
 prosecuting the pleas of the United States. Let me 
 see if I cannot find something to satisfy him on that 
 point. Here is tlie Haheas Corpus Act of 1842, which 
 thus speaks : 
 
 " And upon the return of the said writ, and due proof 
 of the service of notice of the said proceeding to the 
 Attorney General, or other officer prosecufing the pleas of 
 the State, under whose authority the petitioner has been 
 arrested," <fec. 
 
 It would not be proper for me to say what took place 
 in the Circuit Court, except so far as I get it from the 
 record, I can imagine that, in a case of this gravity, 
 the learned Judges, when the petition w^s presented, 
 directed notice to be given to the law officer of the 
 Government, 
 
 Notice, in like cases, is directed to be given by the 
 Statutes of Indiana. They provide that, "when any 
 person has an interest in the detention, the prisoners 
 shall not be discharged, until the person having such 
 interest is notified ;" as you will find, if you look at the 
 Kevised Statutes of Indiana, page 196, Section 728. 
 
 In point of fact, therefore, this great cause had all the 
 solemnity w^iich two parties could give it. The Gov- 
 ernment came into Court and submitted the case in 
 Indiana, for the very purpose of having it brought to 
 Washington. 
 
15 
 
 It lias come here and argued the case, by the ablest 
 counsel that could be had. It has brought here, from 
 the east, an able lawyer and gallant general, more 
 interested in the question than any other person in the 
 country ; and, from the west, one of its greatest advo- 
 cates ; and with these appears the Attorney General of 
 the United States. After all this, is it not trifling with 
 the Court, to say that it cannot hear and decide this 
 cause, because, forsooth, there is only one party be- 
 fore it ! 
 
 The third objection which the learned counsel makes 
 to the jurisdiction of this Court is, that no questions can 
 be certified except those which arise upon the trial. 
 
 To this I answer first, that there has been a trial, in its 
 proper sense, as applicable to this case. The facts are 
 all before the Court, A return could not vary them. 
 The case has been heard upon the petition, as if that 
 contained all that need be known, or could be known. 
 The practice is not peculiar to habeas corpus ; it is the 
 same on application for maudamuSj or for attachments in 
 cases of contempt, in both which cases the Court some- 
 times hears the whole matter on the first motion, and 
 sometimes postpones it till formal pleadings are put in. 
 In either case, the result is the same. 
 
 But, secondly, if it were not so, is it correct to say 
 that a certificate can onl}- be made upon a trial. To 
 sustain this position, the counsel refers to the case 
 of Davis vs. Bruden, 10 Peters, 289. But that case 
 expressly reserves the question. Let me read from 
 page 290 : " We do not mean to decide," say the Court, 
 " definitively, that no question can be brought here upon 
 a certificate of division of opinion, unless the point arose 
 upon the trial of the cause ; but we are very much 
 inclined to think that such is the true construction of 
 the act ; but, from the general words used, cases may 
 possibly arise that we do not foresee. " The question, 
 however, brought up in the present case being one rest- 
 ing entirely in the discretion of the Court, is clearly not 
 within the act." 
 
 So that it has not been decided, that the point must 
 
16 
 
 arise upon the trial of a cause. I concede that it must 
 arise in some part of the cause, some place in its pro- 
 gress, where a material question is brought before the 
 Court, not a question resting in discretion, but a ques- 
 tion of right material to the merits involved, and that I 
 suppose to be the meauing of the learned judge, Mr. Jus- 
 tice Thompson, in that opinion. 
 
 My learned friend admits that the question of jurisdic- 
 tion is a question that may be certified. The qualifica- 
 tion which he insists upon is, that no question can be 
 certified, unless it arose upon the trial of the cause, or be 
 a question of jurisdiction. Well, this is a question of 
 jurisdiction. It is a question of the jurisdiction of the 
 Circuit Court to grant the writ of habeas corpus, and to 
 liberate these men, and that question, as I shall show 
 you by and by, brings up all the other questions in 
 the cause. 
 
 The fourth objection to the jurisdiction of this Court 
 is that the case must be one in which the answer to the 
 questions when given shall he final ; that is to say, the 
 questions come here to be finally decided. What does 
 that mean ? Does it mean that the same thing can 
 never be debated again ? Certainly not. It means that 
 the decision shall be final for the two judges who cer- 
 tified the difference of opinion, so that when the answer 
 goes down from this Court they shall act according to its 
 order, as if they had originally decided in the same way. 
 That is all it means. 
 
 Mr. Justice Nelson : Final upon the point ? 
 
 Mr. Field : Yes, sir ; final upon the point. Why, 
 says the learned gentleman, would it not be a monstrous 
 hardship, if we were to have an argument here by amici 
 curice, and he thus calls himself and his associates, 
 which should conclude the government in any future 
 controversy. I answer, the Court will deal wdtli this 
 decision, as they would deal with any other under like 
 circumstances. It will not be res adjudicala in the tech- 
 nical sense, except in respect to parties before the Court : 
 and if any new party comes in, his rights will not stand 
 pre-judged. 
 
17 
 
 Mr. Stanberry : Will you allow me, Mr. Field, to ask 
 you a question ? 
 
 Mr. Field : Certainly. 
 
 Mr. Stanberry : If the question certified here, whether 
 the military commission had jurisdiction to try these 
 men, be answered in the affirmative or in the negative, 
 do you mean to say, that when they are brought in after- 
 wards on the writ and a return is made, they are con- 
 cluded or not ? 
 
 Mr. Field : I mean to say that the Court will deal with 
 the case, just as the Courts dealt with Passmore William- 
 son's case, and the case in Burrows, the case in Barnewall 
 and Alderson, and the other cases mentioned. The 
 determination will be as final as any determination on 
 granting a habeas corpus can be. When a habeas corpus 
 is applied for, the Courts do consider in the first in- 
 stance, whether it appears upon the facts stated, that 
 upon the coming in of the return, the prisoner would 
 be remanded. If the learned counsel's reasoning is 
 good, it would prevent a Judge from considering the le- 
 gality of the imprisonment on the application for the writ, 
 because that question ought to be kept open till the party 
 is brought in, and the return is made. It is, however, as 
 well settled as anything can be settled, not only in the 
 State Courts, and in the Courts of England, but in this 
 Court, that when an application is made for a habeas 
 corpus, unless the Court see that there is color of right 
 for the man to be discharged, they will not grant 
 the writ, and therefore they will go into an examination 
 of the question, more or less complete. Whether that 
 shall be so far conclusive, as that there shall never be any 
 more debate on the subject in the progress of the cause, 
 is a question which I need not now consider. 
 
 Mr. Black : They are not concluded upon any ques- 
 tion that may be raised by the return. 
 
 Mr. Field : They are not concluded on any question, 
 raised by the return, which has not been debated, and in 
 respect to which they are not parties. Whether in this 
 case, after the argument of my learned friends, after the 
 efforts of the Government to have the cause thoroughly 
 3 
 
18 
 
 defended, the question would be reopened, and reargued, 
 depends upon the Judges, and rests in their breasts. 
 
 All the effect to be given to the decision here is, that 
 the answer is to stand as the judgment of the Circuit 
 Court, and is final there. But the case is always open 
 to be changed, by any new state of facts ; just as 
 questions certified upon a demurrer, or a plea to the 
 jurisdiction, ma}' be affected by new facts, and the deci- 
 sion once given may fail of ending the cause. 
 
 The fifth objection to the jurisdiction of this Court is, 
 that the wdiole case is certified. I answer, that no 
 question is certified, except those which actually arose 
 before the Court, at the time, and without considering 
 which it could not move at all. That is my first answer. 
 The second is, that if too much is certified, the Court will 
 divide the questions, and answer only those which it 
 finds to be properly certified, as it did in the Albany 
 Bridge case, 1st Black, 583. There were several ques- 
 tions in that case, some of which you held ought not to have 
 been certified, and you answered only those that were 
 properly here. If, therefore, you do not choose to look 
 into the question of military commissions — though I 
 suppose you will do so, for reasons which I have in part 
 given, and shall give more by and by — if you merely 
 look at the question of issuing the habeas corpus, or of 
 granting the order for discharge, the other question may 
 remain open for future debate. I will only stop to 
 observe, that my learned friend can, with poor grace, 
 take an objection of this sort here, since he himself 
 argued, that the application for the writ necessarily 
 brought up the question of the jurisdiction of the 
 military tribunal ; and my learned friends, the Attorney 
 General and his associate, General Butler, in their 
 printed brief, have put themselves upon that point 
 distinctly. This is their language, as I read it from 
 their brief before me : 
 
 " It is assumed to be the well settled practice of the 
 Courts of the Uaited States, upon application for a writ 
 of habeas corpus, that if it appear upon the facts stated 
 by the petitioner, all of which shall be taken to be true. 
 
19 
 
 that he could not be discliarged upon a return of tlie 
 writ, then no writ will be issued. Therefore the ques- 
 tions resolve themselves into Iwo, which, for convenience 
 of argument, may be reversed thus : 
 
 1. Has the Military Commission jurisdiction to hear 
 and determine the case submitted to it ?" 
 
 Before I leave this point let me refer you to a text- 
 book which contains a great number of authorities, 
 Hurd on haheas covpus, page 222, (where there is a list of 
 cases too long for me to mention,) further to show, that it 
 is the well settled law of every State in this Union, as 
 well as of the United States, that, upon an application 
 for a writ of habeas corpus, you will at least look into and 
 decide to a certain extent the question of the regularity 
 or legality of the commitment, from which the party 
 seeks to be relieved. 
 
 The last objection of my learned friend to tlie jurisdic- 
 tion of this Court, is that the case is ended ; yes, encleJ^ 
 because, says he, it is to be presumed, that these poor 
 unfortunate men have been hanged. Is it to be presumed^ 
 that any executive officer of tlais ct)untry, though he may 
 claim to himself this awful power of military government, 
 would venture to put to death three men, who claim that 
 they are unjustly convicted, and whose case is considered 
 of such gravity by the Circuit Court of the United States, 
 that it certifies the question to the Supreme Court ? 
 
 The suggestion is disrespectful to the executive, and I 
 am glad to believe that it has no foundation in fact. 
 
 I have thus gone through with the preliminary objec- 
 tions to the hearing and decision of these cases, and I 
 submit that I have answered all the objections. There is 
 nothing then in the way of my proceeding to the merits, 
 and entering upon the main argument. 
 
 The petitioners are natives of the United States, and 
 have been many years citizens of Indiana, Though not 
 "in the land or naval forces of the United States," or 
 connected in any way with the public service, they were 
 arrested in September and October, 1864, at their homes 
 in Indiana, by order of General Hovey, commanding the 
 .onilitarj district of Indiana, taken to Indianapolis^ and 
 
20 
 
 there, in October following tried by a military commis- 
 sion and sentenced to be hung. The sentences were 
 commuted to imprisonment for life, and they are now in 
 the penitentiary undergoing this imprisonment. The 
 charges upon which they were tried were live, viz : 
 
 1. " Conspiracy against the Government of the 
 United States ;" 
 
 2. "Affording aid and comfort to rebels against the 
 authority of the United States ;" 
 
 3. " Inciting Insurrection ;" 
 
 4. " Disloyal practices ;" and 
 
 5. " Violation of the laws of war." 
 
 Under the first charge there were four specifications ; 
 under the second, three ; under the third, two ; under 
 the fourth, five ; and under the fifth, two. The sub- 
 stance of these various specifications, was joining and 
 aiding at different times between October, 1863, and 
 August, 1864, a secret society known as the order of 
 American Knights or Sons of Liberty, " for the purpose 
 of overthrowing the government and duly constituted 
 authorities of the United States," * * " * " at a 
 period of war and armed rebellion against the authority 
 of the United States, at or near Indianapolis, Indiana," 
 [or " at or near Shoals' Station, Martin County, In- 
 diana," or " at or near Green York Township, Randolph 
 County, Indiana," or "at or near Salem, Washington 
 County, Indiana,"] a State wdthin the military lines of the 
 army of the United States, and the theatre of military 
 operations and which had been and was constantly 
 threatened to be invaded by the enemy," or " at or near 
 the City of Chicago, Illinois, a State within the lines of 
 the army of the United States, and the theatre of military 
 operations, and threatened by invasion of the enemy." 
 These were amplified and stated with various circum- 
 stances, thus : 
 
 In the First Specification of the Fiest Chabge : 
 
21 
 
 Conspiring against the duly constituted authorities of the 
 United States." 
 
 Second Specification of the First Charge : Com- 
 bination with certain persons to " adopt and impart to 
 others the ritual of the society ;" " denying the au- 
 thority of the United States to coerce to submission 
 certain rebellious citizens of the United States." 
 
 Third Specification of the First Charge : The soci- 
 ety's intent and purpose "to cripple and render power- 
 less the efforts of the Government of the United States in 
 suppressing a then existing formidable rebellion against 
 the said government ;" and in the 
 
 Fourth Specification of the First Charge : Con- 
 spiracy " to seize by force the United States and State 
 Arsenals at Indianapolis, Indiana ; Columbus, Ohio ; and 
 Springfield Illinois ; to release by force the rebel prison- 
 ers held by authority of the United States," ^ ^ * * 
 " arm those prisoners with the arms thus seized, and that 
 these said conspirators with all the forces they were 
 able to raise in the secret order above named, and were 
 in conjunction with the rebel prisoners thus released and 
 armed to march into Kentucky and Missouri, and co- 
 operate with the rebel forces to be sent to those States 
 by the rebel authorities, against the government and au- 
 thorities of the United States." 
 
 In the First Specification of the Second Charge : 
 " Communicating with the enemies of the United States, 
 with intent that they should * * invade the States 
 of Kentucky, Indiana and Illinois, with the further intent, 
 that the order aforesaid should * ^ co-operate with 
 the said armed forces of the rebellion * * and 
 communicating" to them that intent. 
 
 Second Specification of the Second Charge : Send- 
 ing a member of the said order " with instructions for 
 * * * other members * ^' to select good 
 
22 
 
 couriers or runners ^ ^ « for the purpose of 
 assisting those in rebellion against the United States, to 
 call to arms the members of the order and other sympa- 
 thizers with the existing rebellion, whenever a signal 
 should be given by the order." 
 
 Third Specification of the Second Charge : " Joining 
 -themselves in an unlawful secret society, * -^ •» 
 designed for the overthrow of the Government of the 
 United States, and to compel terms with the * -^ •2<- 
 Confederate States ^ ^ ^ and communicating 
 the designs of that society to those in rebellion." 
 
 In the First Specification of the Third Charge : "Or- 
 ganizing, and attempting to arm, and arming a portion 
 of the citizens of the United States, through an unlawful 
 secret society, known as the Order of American Knights 
 * ^ with intent to induce them, with themselves, to 
 throw off the authority of the United States, and to co- 
 operate with their armed enemies." 
 
 In the Second Specification op the Third Charge : 
 *'By public addresses, <fcc., arousing sentiments of hos- 
 tility to the Government of the United States, and at- 
 tempting to induce the people to revolt ^ * and 
 secretly arm and organize themselves to resist the laws 
 of the United States," 
 
 In the First, Second, Third and Fourth Specifications 
 OF the Fourth Charge: Advising citizens to resist a 
 draft * ^ and arming citizens of the United States? 
 belonging to the Order of American Knights for the pur- 
 pose of resisting the draft" * * * -5^ (JqI^ 
 25,) at four different places named. 
 
 In the Fifth Specification of the Fourth Charge : 
 *' Accepting and holding offices in the military forces for 
 the State of Indiana, in an unlawful society, known as 
 the Order of American Knights, ^ * being offices 
 and forces unknown to the Constitution and laws of the 
 
23 
 
 United States, and of Indiana ^ ^ and in opposi- 
 tion to the legally constituted authorities thereof." 
 
 In the First Specification of the Fifth Charge : 
 " Violating their allegiance ^' and attempting to intro- 
 duce enemies of the United States into the loyal States, 
 thereby to overthrow and destroy the authority of the 
 United States." 
 
 Second Specification of the Fifth Charge : "Organ- 
 izing and extending an unlawful secret society ^ * 
 having for its purpose the same general object and de- 
 sign as the enemies of the United States, and with the 
 intent to aid and insure the success of said enemies, in 
 their resistance to the authorities of the United States." 
 
 I will not here stop to call attention to the great mis- 
 application of language in connecting the last charge 
 with the two specifications under it. It is called a " vio- 
 lation of the laws of war," for a citizen to violate his al- 
 legiance, and to attempt the introduction into the country 
 of its enemies. It is also called a " violation of the laws of 
 war," for a citizen to organize a secret society, " having 
 for its purpose the same general object and design as the 
 said enemies of the United States, and with the intent to 
 aid and insure the success of the said enemies in their 
 resistance." Nor will I stop to remark upon the strange 
 medley of acts and opinions contained in the other 
 specifications. Thus, for example, the second specifi- 
 cation of the first charge accuses the petitioners of a 
 combination to adopt and impart the creed of a secret 
 society, " denying the authority of the United States to 
 coerce to submission certain rebellious citizens of the 
 said United States ; " and the first four specifications of 
 the fourth charge accuse them of advising citizens to 
 resist the draft, and of attempting to arm, and arming 
 certain citizens, " for the purpose and with the intent of 
 resisting said call or draft;" and the fifth specification 
 of the same charge accuses them of holding offices of the 
 mihtary forces of this secret society, which "are unknown 
 to the constitution and laws of the United States, or of 
 
24 
 
 the State of Indiana, and are not in aid of, but opposed 
 to the legally constituted authorities thereof." These 
 are but specimens of what we may expect from tlie pre- 
 valence of military commissions. 
 
 While the petitioners were in prison, and nine days 
 before the time appointed for their execution, each of 
 them presented a petition to the Circuit Court of the 
 United States for the District of Indiana, setting forth 
 the foregoing facts, with a copy of the charges, specifi- 
 cations, finding and sentence, and praying, that under the 
 *'Act of Congress, approved March 3d, 1863," entitled 
 "An Act relating to Habeas Corpus, and regulating 
 judicial proceedings in certain cases," he may [might] be 
 brought before this Court, by writ cf Habeas Corpus, or 
 such other writ or order as the Court [might] award for 
 that purpose, together with the cause of his caption and 
 detention, to do and receive whatever the Court [might] 
 upon full and final hearing, order and adjudge in relation 
 thereto, in pursuance of the Act of Congress aforesaid, 
 and that at all events he [might] be delivered from said 
 military custody and imprisonment, and if found probably 
 guilty of any improper conduct or offence against the 
 United States of America, turned over to the proper civil 
 tribunals for inquiry and punishment according to law, 
 or for discharge from custody altogether." 
 
 Upon this application the Judges were divided in 
 opinion, and they sent to this Court a certificate of their 
 division, upon the following three questions : 
 
 1. " On the facts stated in said petition and exhibits, 
 ought a writ of Habeas Corpus to be issued, ac- 
 cording to the prayer of said petition ? ' ' 
 
 2. " On the facts stated in said petition and exhibits, 
 ought the said [Lambkin P. Milligan] to be dis- 
 charged from custody, as in said petition prayed ?" 
 
 3. "Whether, upon the facts stated in said petitioi 
 and exhibits, the military commission mentionec 
 therein, had jurisdiction to try and sentence sai( 
 [Milligan,] in manner and form as in said petitioi 
 and exhibits is stated ?" 
 
25 
 
 The argument upon these questions naturally divides 
 itself into two parts : 
 
 First. — Was the military commission a competent 
 tribunal for the trial of the petitioners upon the charges 
 upon which they were convicted and sentenced ? 
 
 Second. — If it was not a competent tribunal, could the 
 petitioners be released by the Circuit Court of the United 
 States for the District of Indiana, upon writs of Habeas 
 Corpus or otherwise ? 
 
 The discussion of the competency of the Military 
 Commission, is first in order, because, if the petitioners 
 were lawfully tried and convicted, it is useless to inquire 
 how they could be released from an unlawful imprison- 
 ment. 
 
 If, on the other hand, the tribunal was incompetent, 
 and the conviction and sentence nullities, then the means 
 of relief become subjects of inquiry, and involve the 
 following considerations : 
 
 [1.] Does the power of suspending the privilege of 
 the writ of Habeas Corpus appertain to all the 
 great departments of government concurrently, or 
 to some only, and which of them ? 
 
 [2.] If the power is concurrent, can its exercise by 
 the executive or judicial department be restrained 
 or regulated by Act of Congress ? 
 
 [3.] If the power appertains to Congress alone, or 
 if Congress may control its exercise by the other 
 departments, has that body so exercised its func- 
 tions, as to leave to the petitioners the privilege of 
 the writ, or to entitle them to their discharge ? 
 
 In considering the first question, that of the compe- 
 tency of the military tribunal for the trial of the peti- 
 tioners, upon those charges. 
 
 Let me first call attention to the dates of the transac- 
 tions. The commission was created by general order, 
 4 
 
26 
 
 dated the 17tli of September, 1864, directing a military 
 commission to convene at Indianapolis, for the trial of 
 Harrison H. Dodd, and such other persons as might be 
 brought before it. The arrest of Bowles was made on 
 the 18th of September ; of Milligan, on the 5th of Octo- 
 ber; and of Horsey, on the 14th of October. The peti- 
 tioners were brought before the commission on the 21st 
 of October ;, the trial lasted to January 1, 1865. On the 
 first Tuesday of November, 1864, the Circuit Court of the 
 United States convened at Indianapolis ; it continued by 
 adjournment to the 2d of January, 1865, remained in ses- 
 sion till the 27th of January, and then adjourned for the 
 term. The Circuit Court for the Southern District of 
 Illinois sat at Springfield in June, 1864, and January, 
 1865, and for the Northern District, at Chicago, on the 
 first Monday of July and the third Monday of December, 
 1864. The record of this military trial slept in the War 
 Department from January to the 2d day of May, 1865, on 
 which day it for the first time appeared, as an authentic 
 document, containing an approval of the finding and sen- 
 tence, and an order for the execution. On the 10th of 
 the mouth the petitioners made their application to the 
 Circuit Court. 
 
 Bearing in mind, that the promulgation of the proceed- 
 ings by the War Department was on the 2d May, 1865 ; 
 let me refer to certain facts of public notoriety, of which 
 the Court will take judicial notice. 13 Peters, 590. Bk. 
 of Augusta V. Earle, 2 Kob. Lou, 468 ; 3 Mart. Lou, 546 ; 
 1 Greenl. Ev., 4, 5, 6, On the 3d of April, 1865, the power 
 of the Confederacy was crushed to atoms ; when the rebels 
 fled from Kichmond. On the 9th of April, Lee surren- 
 dered. The chief of the rebel government was a fugitive, 
 closely pursued by horsemen, till he was finally captured 
 on the 11th of May. Mobile was taken on the 13th of 
 April ; Johnston surrendered on the 25th of April ; and 
 Taylor gave up the last rebel force east of the Mississippi 
 on the 4th of May. 
 
 On the morning of the day, when these men were to 
 have been hanged at Indianapolis, upon the plea of 
 miHtary necessity, there was not an arm raised against 
 
27 
 
 tlie Government between the Atlantic and the Father of 
 Bivers : all was submission, from the Bio Grande to 
 Katahdin. Three days later — that is, on the 22d of May 
 — the victorious armies, returning from their fields of 
 glory, passed, for the last time, in review before the 
 President, when you saw nearly two hundred thousand 
 veterans defiling through the avenues of the capital, with 
 triumphant music and banners, and, to repeat the descrip- 
 tion of an eminent statesman of Ohio, now deceased, 
 sweeping along, as if they were lords of the world. 
 
 There had not been a hostile foot in the State of 
 Illinois, from the beginning of the war, if I am correctly 
 informed, and in Indiana never but once, if we except 
 guerrillas crossing the Ohio and returning within a few 
 hours, and that once was on the occasion of Mtu^gan's 
 raid in Jul}', 1863. This raid was n total faikire ; its 
 leader was captured, his band dispersed, and he, Limself, 
 sent to the penitentiary. Managing to escape, he at- 
 tempted again to get up a raid into Kentucky, but was 
 defeated and killed on the 12th of April, 1864. 
 
 On the 21st of October, 1864, when this military trial 
 began, there was not only no enemy in arms within the 
 States of Indiana and lUinois, but none within hundreds 
 of miles. Price was retreating from Missouri, and was 
 overtaken and utterly routed on the 22d of October. The 
 valley of the Shenandoah was finally cleared of the rebels 
 by the decisive victory of Sheridan on the 19th of Octo- 
 ber. Sherman had been seven weeks at Atlanta pre- 
 paring for his grand march to the sea. Grant had pinned 
 Lee's army to Eichmond, where he finally ground it to 
 powder. 
 
 Let it be observed next, that for the same offenses as 
 those set forth in these charges and specifications, the 
 petitioners could have been tried and punished by the 
 ordinary civil tribunals. For " conspiring against the 
 government of the United States ;" for " affording aid 
 and comfort to rebels against the authority of the 
 United States ;" for " inciting insurrection ;" for the 
 "disloyal practices" set forth in the five specifications 
 under that charge^ and for the " violation of the laws of 
 
28 
 
 war," set forth in the two specifications under the fifth 
 charge, penalties considered sufficient b}^ the law-making 
 power had been already declared, and ample provision 
 had been made for indictment and trial in the or- 
 dinary courts. 
 
 Treason, as everybody knows, is defined by the Consti- 
 tution, and its punishment is prescribed by Act of Con- 
 gress. " Treason against the United States shall consist 
 only in levying war against them, or in adhearing to their 
 enemies, giving them aid and comfort." " The Congress 
 shall have power to declare the punishment of treason." 
 By the Act of April 30, 1790, Congress declared the pun- 
 ishment of treason to be death. 
 
 By the act of July 31, 1861 (12 U. S. Sfat, 284), it is 
 declared, that — 
 
 § 1 : "If two or more persons within any State or Ter- 
 ritory of the United States shall conspire together, to 
 overthrow or to put down, or to destroy by force, the 
 Government of the United States ; or to levy war against 
 the United States ; or to oppose by force the authority 
 of the Government of the United States ; or by force to 
 prevent, hinder or delay the execution of any law of the 
 United States ; or by force, to seize, take or possess any 
 property of the United States, against the will, or con- 
 trary to the authority of the United States ; or by force, 
 intimidation, or threat, to prevent any person from hold- 
 ing any office, or trust, or place of confidence under the 
 United States ; each, and every person so offending, shall 
 be guilty of a high crime, and upon conviction thereof, 
 in any district or circuit court of the United States, 
 having jurisdiction thereof, or district or supreme court 
 of any Territory of the United States, having jurisdiction 
 thereof, shall be punished by a fine not less than five 
 hundred dollars, and not more than five thousand dol- 
 lars ; or by imprisonment, with or without hard labor, as 
 the court shall determine, for a period not less than six 
 months, nor greater than six years, or by both such fine 
 and imprisonment." 
 
 By the Act of August 6, 1861 (12 U. S. Stat., 317), 
 § 1 : "If any person shall be guilty of the act of re- 
 cruiting soldiers or sailors in any State or Territory of 
 the United States to engage in armed hostility against 
 the United States, or who shall open a recruiting station 
 for the enlistment of such persons, either as regulars or 
 
29 
 
 volunteers, to serve as aforesaid, sliall be guilty of a high 
 niisdenieanor, and upon conviction in any court of record 
 liavino- jurisdiction of the offence, shall be fined a sum 
 not less than two hundred dollars nor more than one 
 thousand dollars, and confined and imprisoned for a 
 period not less than one year, nor more than five years. 
 
 § '2>. " The person so enlisted, orj|engaged as a^regular 
 or volunteer, shall be fined in a like manner a sum of one 
 hundred dollars, and imprisoned not less than one nor 
 more than three years." 
 
 By the Act of July 19, 1862 (12 U. S. Stat., 590), 
 § 2 : " If any person shall incite or set on foot, assist 
 or engage in any rel)ellion or insurrection against the 
 authority of the United States or the lavi^s thereof, or 
 shall give aid or comfort thereto, or shall engage in or 
 give aid a'ld co nfort to any such existing rebellion or 
 insurrection, and be convicted thereof, such person shall 
 be punished by iuiprisonment for a period not exceeding 
 ten years, or by a tine not exceeding $10,000, and by the 
 liberation of all his slaves, if any he have ; or by both of 
 said punishments, at the discretion of the Court." 
 
 By the Act of Feb. 25, 1863 (12 U. S. Stat., 696), 
 § 1 : "If any person, being a resident of the United 
 States, or being a citizen thereof, and residing in any 
 foreign country, shall, without the permission or authority 
 of the Government of the United States, and with the 
 intent to defeat the measures of the said government, or 
 to weaken in any way their efficacy, hold or commence, 
 directly or indirectly, any correspondence or intercourse, 
 written or verbal, with the present pretended rebel gov- 
 ernment, or with any officer or agent thereof, or with any 
 other individual acting or sympathizing therewith ; or if 
 any such person above mentioned, not duly authorized, 
 shall counsel or assist in any such correspondence or 
 intercourse, with intent as aforesaid, he shall be deemed 
 guilty of a liigh misdemeanor, and, on conviction before 
 any Court of the United States having jurisdiction there- 
 of, shall be punished by a tine not exceeding ten thousand 
 dollars, and by imprisonment not less than six months, 
 nor exceeding five years." 
 
 And by the Act of March 3, 1863 (12 U. S. Stat., 731), 
 § 25 : " That if any person shall resist any draft, of 
 men enrolled under this act, into the service of the 
 United States, or shall counsel or aid any person to 
 resist any such draft ; or shall assault or obstruct any 
 officer in making such draft, or in the performance of 
 
30 
 
 any service relating thereto ; or shall counsel any person 
 to assault or obstruct any such officer, or shall counsel 
 any drafted men not to appear at the place of rendezvous, 
 or wilfully dissuade them from the performance of mili- 
 tary duty as required by law, such person shall be sub- 
 ject to summary an^est by the Provost Marshal, and 
 shall be forthwith delivered to the civil authorities, and, 
 upon conviction thereof, be punished by a fine not ex- 
 ceedinf]^ five hundred dollars, or by imprisonment not 
 exceeding two years, or by both of said punishments." 
 
 There has, indeed, been no lack of legislation in 
 respect to any matter connected with the rebellion. The 
 title on " Insurrection," in Brightly's Supplementtuy 
 Digest, fills a dozen closely printed pages. 
 
 Let it also be remembered, that Indiana, at the time 
 of this trial, was a peaceful State ; the Courts were all 
 open ; their processes had not been interrupted ; the 
 laws had their full sway. How do we know that ? We 
 know it, first, from the most authentic acts of the 
 government, Indiana participated in the presidential 
 election of 1864, and gave her full vote. She has been 
 all the time fully represented in both houses of Congress. 
 That body, in 1862, passed an act declaring, that when, 
 in any State or Territory-, or in any portion thereof, by 
 reason of insurrection or rebellioia^ the civil authority of 
 the Government of the United States was obstructed, so 
 that the provisions of the act to provide increased reve- 
 nue could not be peaceably executed, the taxes should be 
 charged upon the real estate therein, and providing by 
 the Second Section of the Act (12 U. S. Stat., 422), 
 
 " That before the first day of July next the President, 
 by his proclamation, [should] declare in what States and 
 parts of States said insurrection" existed. 
 
 The President, in pursuance of this Act of Congress, 
 issued a proclamation, dated July 1, 1862, reciting that, 
 by the act which I have just quoted, it was made his 
 duty to declare, on or before the first day of July, by his 
 proclamation, in what State or parts of States insurrec- 
 tion existed, and proceeding to declare : 
 
 "I, Abraham Lincoln," ->^ ^ ^ ^ ''hereby 
 declare and proclaim that the States of South Carolina^ 
 
31 
 
 Florida, Georgia, Alabama, Louisiana, Texas, Missis- 
 sippi, Arkansas, Tennessee, North Carolina, and the 
 State of Virginia, except the following Counties," ^ 
 " v:- "aj.g iiow in insurrection and rebellion, and by 
 reason thereof the civil authority of the United States is 
 obstructed," &c. 
 
 Indiana and Illinois were therefore not considered by 
 the President to be in a state of insurrection. The execu- 
 tive department of the Government declared in effect, that 
 in every part of those States the taxes could be peaceably 
 collected. 
 
 But we know from other sources that Indiana and Illi- 
 nois were at peace. Appeals have been regularly brought 
 hither from the Courts of those States. You, Mr. Justice 
 Davis, and your associates in those districts, know, from 
 the records of 3^our own Courts, whether or not cases 
 have been regularly , tried, and the laws have had their 
 course in Indiana and Illinois ; and of that you are, for 
 good reasons, the best judges. Long ago, the law pro- 
 vided for the solution of just such a question. In the 
 third book of his Institutes, section 412, in the chapter 
 on descents. Coke states it thus : -- 
 
 "First, it is necessarie to be known, what shall be 
 said time of peace, tempus pads ; and what shall be said, 
 iempus belli sive guerrce, time of war. Tempiis pads est 
 quando cancellaria, et alice cur ice regis sunt apertce, quihus 
 lex fiehat cuicunque pr out fieri consuevit. And so it was 
 adjudged in the case of Boger Mortimer, and Thomas 
 Earle of Lancaster. Utritni terra sit guerrina necne, natu- 
 raliter delet Judicari per recorda regis, et eorum, qui curias 
 regis per legem terra? costodiunt, et guhernant, sed non alio 
 indilo.'' 
 
 By the records of the Courts, and in no other manner ! 
 
 Those records are the evidence whether your Courts 
 vrcro open. 
 
 The charges and specifications do not even suggest 
 that the regular course of justice had been once im- 
 peded. All that they pretend is, that the acts were 
 done " at a period of war and armed rebellion against the 
 authority of the United States, at or near Indianapolis, 
 
\\9. 
 
 Indiana, [or Chicago, Illinois,] a State loithui the mili- 
 tary lines of the army of the United States, and the theatre 
 of military operations, and luhich had been and luas con- 
 stantly threatened to he invaded by the enemy." This 
 allegation is a gross perversion of the facts. To be 
 within military lines is to be within the lines of sentinels 
 which mark the boundary of military occupation, and 
 within which the discipline of the camp, under the con- 
 trol of the Provost Marshal, alone prevails. The judges 
 to whom this petition was addressed know, that this was 
 not true then, and had never been true of the State of 
 Indiana, or of the State of Illinois. 
 
 How is it that an officer of the Government, one who, 
 presumably at least, can have no interest to oppress the 
 citizen, should dare to put upon a public record, for the 
 purpose of bringing men to death, an allegation like that ! 
 You know, we all know, because you know and we know 
 the public history of the country, that during all this 
 war the civil governments of Indiana and Illinois have 
 been uninterrupted. Industry has followed its accustomed 
 channels ; the fields have been plouglied ; the harvests 
 have been gathered, the people have been prosperous, 
 throughout these two vigorous States of the West, which 
 repose in conscious greatness between the great rivers 
 and the lakes. 
 
 Chicago, a place within the military lines ! That city, 
 the queen city of the North, looking like another Venice 
 upon the waters of the Michigan, with her harbor crowded 
 with ships, and the lake before her white with sails ; that 
 city, to which long lines of heavily laden cars were daily 
 and hourly bringing the products of all the West, whose 
 granaries were the storehouses for the world ; that city 
 had never known w^ar ! 
 
 Then let it be remembered, that the petitioners were 
 simple citizens not belonging to the army or navy ; not 
 in any official position ; not connected in any manner 
 with the public service. They were in the condition of 
 any other citizen who might fall under suspicion ; any 
 judge, lawyer, physician, or clergyman of the State of 
 Indiana. The assumption of the right to try them upon 
 
33 
 
 these charges, was the assumption of the right to try other 
 citizens of Indiana, whoever they might be, upon the 
 same charges. The evidence against the petitioners is 
 not to be found in this record, and it is immaterial. 
 Their guilt or their innocence does not affect the question 
 of the competency of the tribunal, by w^hich they were 
 judged. What they dispute, and what I dispute, is the 
 jurisdiction of the militarj^ commission to decide the 
 issue of gailt or innocence. They may, for aught I know, 
 have been as guilty as fiends or as pure as angels. If 
 they were in heart disloyal to their country, I abhor and 
 despise them ; if they have been guilty of any act of 
 treason, let them be tried for it before the judges of the 
 land ; if they have conspired against the safety or the 
 honor of the nation, there is the Act of Congress for their 
 punishment ; and if by reason of any defect in the law 
 of evidence, or of juries, they are likely to escape convic- 
 tion before the civil tribunals, h(fre are the two Houses of 
 Congress sitting in the wings of this Capitol, who can 
 amend the laws. I am not seeking to screen the guilty, 
 but I contend for the right of every man to be judged 
 according to the laws, for thereby only can it be certainly 
 known who is guilty or who is innocent. I am struggling, 
 not for the escape of guilt, but for the safeguard of inno- 
 cence. 
 
 Bearing in mind, therefore, the nature of the charges, 
 and the time of the trial and sentence ; bearing in mind 
 also the presence and undisputed authority of the civil 
 tribunals and the civil condition of the petitioners, I ask 
 by what authority they were withdrawn from their natu- 
 ral judges, by what authority another kind of tribunal was 
 constituted. By what authority does it purport, on the 
 face of the proceedings, to have been constituted ? It 
 was established by special order of General Hovey, of 
 the United States Volunteers, who was at that time in 
 command of the military district of Indiana ; which order 
 named one brigadier general and six colonels to hold a 
 military commission at Indianapolis. The commission 
 was subsequently enlarged by the addition of four colonels 
 and one lieutenant colonel. What was the general juris- 
 5 
 
34 
 
 diction of this commission ? Whom it was to try, and 
 for what offences, does not appear further than that it 
 was to try " Harrison H. Dodd, and such other prisoners 
 as might be brought before it." The only special direc- 
 tion was this — ^" the commission will sit without regard 
 to hours." 
 
 It was called a military commission. What is a mili- 
 tary commission? Is it a body known to the laws? Is 
 it a court martial under another name, or what is the 
 difference between them ? Originally, a military commis- 
 sion appears to have been nothing more than an advisory 
 board of officers, convened for the purpose of informing 
 the conscience of the commanding officer, in cases where 
 he might act for himself if he chose. Its constitution and 
 functions were not defined by law, because strictly it had 
 no legal existence, any more than a council of war. Gen- 
 eral Scott resorted to it in Mexico for his assistance in 
 governing conquered places. The first mention of it in 
 an Act of Congress appears to have been in the Act of 
 July 22, 1861, where the general commanding a sepa- 
 rate department, or a detached army, was authorized 
 to appoint a military board, or commission, of not less 
 than three, or more than five officers, to examine the 
 qualifications and conduct of commissioned officers of 
 volunteers. 
 
 Subsequently, military commissions are mentioned in 
 four acts of Congress, but in none of them is any pro- 
 vision made for their organization, regulation, or juris- 
 diction, farther than that it is declared that in time of 
 war or rebellion, spies may be tried by a general court 
 martial or military commission ; and that " persons who 
 are in the military service of the United States, and sub- 
 ject to the articles of war," may also be tried by the same, 
 for murder and certain other infamous crimes. 
 
 These acts do not confer upon military commissions 
 jurisdiction over any persons other than those in the 
 military service and spies. Is there any other act of 
 Congress which confers it ? None is pretended, unless 
 it is inferred from the Act of March 3d, 1863. This act, 
 it has been sometimes said, though not now much 
 
35 
 
 insisted on, gives the sanction of Congress to the 
 President's Proclamation of September 24th, 1862. That 
 proclamation ordered, that " during the existing insur- 
 rection, and as a necessary means for suppressing the 
 same, all rebels and insurgents, their aiders and abettors, 
 within the United States, and all persons discouraging 
 volunteer enlistments^ resisting militia drafts^ or guilty of 
 any disloyal practice^ affording aid and comfort to rebels, 
 against the authority of the United States, shall be 
 subject to martial law, and liable to trial and punish- 
 ment by courts martial, or military commission." The 
 4th Section of the Act of Congress 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 defence, in all Courts, to any action or prose- 
 cution, civil or criminal, pending or to be x3ommenced, 
 for any search, seizure, arrest or imprisonment, made, 
 done or committed, or acts omitted to be dune, under 
 and by virtue of such order, or under color of any law of 
 Congress, and such defence may be made by special plea, 
 or under the general issue." 
 
 Assuming this section to be constitutional, though I 
 suppose it is clearly unconstitutional, it goes only to the 
 length of making the President's order a defence to an 
 action or prosecution, civil or criminal, for a search, 
 seizure, arrest or imprisonment. It gives no other validity 
 or vitality to any presidential order. Suppose, for ex- 
 ample. General Hovey had executed the petitioners and 
 been therefor indicted for murder, under the laws of 
 Indiana, the President's order and this Act of Congress 
 would not have sufficed for his defence. Or suppose there 
 had been a writ of prohibition sued out from the Supreme 
 Court of Indiana to restrain the military commission from 
 acting, the President's order and the Act of Congress 
 would not have been of themselves a sufficient answer to 
 the writ. 
 
 There being, then, no Act of Congress for the estab- 
 lishment of the commission, it depended entirely upon 
 the executive will, for its creation and support. This 
 brings up the true question now before the Court 
 
36 
 
 Has the President, in time of war, by his own mere will 
 and judgment of the exigency, the power to bring before 
 his military officers, any man or woman in the land, to 
 be there subject to trial and punishment, even to death ? 
 The proposition is stated in this form, because it really 
 amounts to this ; for even though these military officers 
 were infallible, and would never misjudge or mistake the 
 innocent for the guilty, yet their power to try, is their 
 power to judge all ; which means that all, without 
 distinction, may, upon charge of disloyal practices, be 
 brought before them, for trial and sentence. 
 
 If the President has this awful power, whence does he 
 derive it ? From the Constitution ? He can exercise no 
 authority whatever, but that which the Constitution of 
 the country gives him. Bej'ond it, he has no more power 
 than any other citizen. Our system knows no authority 
 beyond or above the law. We may, therefore, once for 
 all, dismiss from our minds every thought of the Presi- 
 dent's having any prerogative, as representative of the 
 people, or as interpreter of the popular will. He is 
 elected by the people to perform those functions, and 
 those only, which the Constitution of his country, and 
 the laws made pursuant to that constitution, confer. 
 
 The plan of argument which I propose to myself is, 
 first, to examine the text of the Constitution. That 
 instrument, framed with the greatest deliberation, after 
 thirteen ^^ears' experience of war and peace, should be 
 accepted as the authentic and final expression of the 
 public judgment, regarding that form and scope of 
 government, and those guarantees of private rights, 
 which legal science, political philosophy and the expe- 
 rience of previous times had taught as the safest and 
 most perfect. All attempts to explain it away, or to 
 evade or pervert it, should be discountenanced and 
 resisted. Beyond the line of such an argument, every- 
 thing else ought, in strictness, to be superfluous. But, 
 as our previous discussion has taken a wider range, I 
 shall endeavor to show% further, that the theory of our 
 Government, for which I am contending, is the only one 
 compatible with civil liberty ; and, lastly, by what I may 
 
37 
 
 call an historical argument, that this theory has the 
 concurring testimony of the judges, lawyers and states- 
 men of this country down to the time of the rebellion ; 
 and that, even in the constitutional monarchies of Eng- 
 land and France, that theory of executive power, which 
 would uphold military commissions, like the one against 
 which I am speaking, has never been admitted. 
 
 What are the powers and attributes of the presidential 
 office ? They are written in the Second Article of the 
 Constitution, and, so far as they relate to the present 
 question, they are these : He is vested with the " execu- 
 tive power;" he is "commander in chief of the army 
 and navy of the United States, and of the militia of the 
 several States, when called into the actual service of the 
 United States;" he is to "take care that the laws be 
 faithfully executed;" and he takes this oath: "I do 
 solemnly swear that I will faithfully execute the office of 
 President of the United States, and will, to the best of my 
 ability, preserve, protect and defend the Constitution of 
 the United States." Here are all the words from which 
 the power to try civilians before military commissions 
 can be derived, if it exist at all. Is it possible to derive 
 it from any of tliem? The " executive power" mentioned 
 in the Constitution, is the executive power of the United 
 States. The President is not clothed with the executive 
 power of the States. He is not clothed with any executive 
 power, except as he is specifically directed by some other 
 part of the Constitution, or by an Act of Congress ; in 
 other words, the expression, "executive power," standing 
 by itself, and without a specification of what he is to exe- 
 cute, would not enable him to execute at all. The same 
 expression is used in the State Constitutions, and with 
 the same result. For example, the Constitution of New 
 York declares thai " the executive power shall be vested 
 in a Governor," and that he " shall take care that the 
 laws are faithfully executed," while, in truth, he executes 
 very little. The State officers, as they are called, cor- 
 responding with those which make the Cabinet of the 
 President, are chosen by the people, and are quite 
 independent of the Governor. There is no portion of 
 
38 
 
 the Constitution of the United States which prescribes 
 what the President shall do, in the exercise of his 
 *' executive power," and which affects the present ques- 
 tion, except those which I have quoted. 
 
 We must recur, then, to the other parts of the Con- 
 stitution which have been mentioned. The President is 
 to " take care that the laws be faithfully executed." He 
 is to execute the laws, by the means, and in the manner, 
 which the laws themselves prescribe. For example, an 
 Act of Congress authorizing him, by the machinery of 
 custom-houses, to collect the revenues, would not em- 
 power him to stop ships at sea, and there exact the 
 customs. An Act of Congress authorizing him to get up 
 a navy, by building ships and enlisting seamen, would 
 not authorize th« impressment of seamen. The laws 
 provide not only what is to be done, but the manner of 
 doing it ; and all these the President is to execute. 
 
 The oath of office cannot be considered as a grant of 
 power. Its effect is merely to superadd a religious sanc- 
 tion to what would otherwise be his official duty, and to 
 bind his conscience against any attempt to usurp power 
 or overthrow the Constitution. 
 
 There remains, then, but a single clause to discuss, 
 and that is the one which makes him the commander in 
 chief of the army and navy of the United States, and of 
 the militia of the States, when called into the federal ser- 
 vice. The question, therefore, is narrowed down to this : 
 Does the authority to command an army carry with it 
 authority to arrest and try by court martial civilians ? by 
 which I mean persons not in the martial forces ; not im- 
 pressed by law with a martial character. The question 
 is easily answered. To command an army, whether in 
 camp, or on the march, or in battle, requires the control 
 of no other persons than the officers, soldiers, and camp 
 followers. It can hardly be contended that, if Congress 
 neglects to find subsistence, the commander in chief may 
 lawfully take it from our own citizens. It cannot be sup- 
 posed that, if Congress fails to provide the means of 
 recruiting, the commander in chief may lawfully force 
 the citizens into the ranks. What is called the war 
 
39 
 
 power of the President, if indeed there be any such thing, 
 is nothing more than the power of commanding the 
 armies and fleets which Congress causes to be raised. To 
 command them is to direct their operations. 
 
 Much confusion of ideas has been produced by mis- 
 taking executive power for I'mgly power. Because, in 
 monarchical countries, the kingly office includes the 
 executive, it seems to have been sometimes inferred, that, 
 conversely, the executive carries with it the kingly pre- 
 rogative. Our executive is in no sense a king, not even 
 for four years. The difference between his office and 
 that of the most constitutional king on earth, does not 
 consist in the one being hereditary and the other elective, 
 or in one Being responsible and the other irresponsible, 
 or in the one being for life and the other for four years, 
 but in the essential attributes of the two offices. 
 
 Thus far I have reasoned upon that article of the Con- 
 stitution, the second, which creates and regulates the 
 executive power. If we turn to the other portions of the 
 original instrument (I do not now speak of the amend- 
 ments) the conclusion already drawn from the second 
 article will be confirmed, if there be room for confirmation. 
 Thus, in the first article. Congress is authorized " to 
 declare war, and make rules concerning captures on land 
 and water ;" " to raise and support armies ;" " to provide 
 and maintain a navy ;" " to make rules for the govern- 
 ment and regulation of the land and naval forces;" "to 
 provide for calling forth the militia, to execute the law^s 
 of the Union, suppress insurrections, and repel invasions ;" 
 " to provide for organizing, arming, and disciplining the 
 militia, and governing such part of them as may be in the 
 service of the United States, reserving to the States 
 respectively the appointment of the officers, and the 
 authority of training the militia according to the disci- 
 pline prescribed by Congress;*' "to exercise exclusive 
 legislation in all cases Avhatsoever over ^' ^ * all 
 places purchased * ^- ^ for the erection of forts, 
 magazines, arsenals, dockyards ;" " to make all laws 
 which shall be necessary and proper for carrying into 
 execution the * * * powers vested by this Con- 
 
40 
 
 stitution in the government of tlie United States, or in 
 any department or office thereof." 
 
 These various provisions of the first article would show, 
 if there were any doubt upon the construction of the 
 second, that the powers of the President do not include 
 the power to raise or support an army ; or to provide or 
 maintain n nsiVj ; or to call forth the militia, tg repel an 
 invasion, or to suppress an insurrection, or execute, the 
 laivs ; or even to govern such portions of the militia as 
 are called into the service of the United States ; or to 
 make law for any of the forts, magazines, arsenals, or 
 dockyards. If the President could not, even in flagrant 
 war, except as authorized by Congress, call forth the 
 militia of Indiana to repel an invasion of that State, or, 
 when called, govern them, it is absurd to say that he 
 could nevertheless, under the same circumstances, govern 
 the whole State and every person in it by martial rule. 
 
 The jealousy of the executive powder prevailed with our 
 forefathers. They carried it so far that, in providing for 
 the protection of a State against domestic violence, they 
 required, as a condition, that the Legislatnre of the State 
 should ask for it, if it could be convened. Const., Art. 4, 
 Sect. 4. 
 
 I submit, therefore, that upon the text of the original 
 Constitution, as it stood when it was ratified, there is no 
 color for the assumption that the President, by his mere 
 wall, without act of Congress, could create military com- 
 missions for the trial of persons not military for any 
 cause or under any circumstances whatever. But as we 
 well know, the Constitution, in the process of ratification, 
 had to undergo the severest ordeal which any instrument 
 ever yet underwent from discussion and criticism alone, 
 before actual experiment. Objections w^ere started by 
 jealousy and by fear ; dangers were supposed ; evil con- 
 sequences predicted, and great apprehension and alarm 
 created. To quiet these apprehensions, as well as to 
 guard against any possible dangers, ten amendments 
 were proposed by the first Congress sitting at New York, 
 in 1789, and were duly ratified by the States. The third 
 and fifth of these amendments are as follows : 
 
41 
 
 "Art. III.— No soldier shall, in time of peace, be quar- 
 " tered in any house, without the consent of the owner, 
 "nor in time of tear, but in a manner to be prescribed by 
 " lata:' 
 
 "Art. V. — 'JVb person shall be held to anstver for a 
 *' capital or otherwise iiifamous crime, unless on a present- 
 " ment or indictment of a grand jury, except in cases arising 
 " in the land or naval forces, or in the militia ivhen in actucd 
 " service, in time of tear or public danger ; nor shall any 
 " person be subject, for the same offence, to be twice put 
 " in jeopardy of life or limb, nor shall be compelled in 
 " any criminal case to be a witness against himself, nor 
 " be deprived of life, liberty, or property, without due 
 " process of law, nor shall private property be taken for 
 " public use without just compensation." 
 
 If there could have been any doubt whatever, whether 
 military commissions or courts martial for the trial of 
 persons not " in the land or naval forces, or the militia" 
 in actual service, could ever be established by the Presi- 
 dent, or even by Congress, these amendments would have 
 removed the doubt. They were made for a state of war 
 as well as a state of peace ; they were aimed at the mili- 
 tary authority, as well as the civil ; and they were as 
 explicit as our mother tongue, the language of freemen, 
 could make them. "No soldier shall * * * be 
 quartered in any house * ^ ^ in time of ivar, 
 but in a manner to be prescribed by law." " No person 
 shall be held to answ^er for a capital or otherwise infa- 
 mous 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 war 
 or public danger'' The phrase " in time of war or public 
 danger," qualifies the member of the sentence relating 
 to the militia ; as otherwise, there could be no court 
 martial in the army or navy during peace. Here is a 
 clear, unequivocal command of all the people, in contem- 
 plation of a state of war, no less than a state of peace, 
 and stamped, as with types of iron, into their organic 
 law, that at no time shall any person w^hatever be subject 
 to military trial, except in these specif ed cases. 
 6 
 
42 
 
 These amendments were proposed, as I have ah-eady 
 stated, in the first Congress held under the Constitution ; 
 they were brought in by Mr. Madison, and their history, 
 the form in wdiich they were introduced, and the changes 
 which they underwent are most instructive. His propo- 
 sition in this respect was in the following words : 
 
 " The trial of all crimes (except in cases of impeach- 
 ment and cases arising in the land or naval forces, or the 
 militia when on actual service in time of war or public 
 danger) shall be by an impartial jury of freeholders of 
 the vicinage, wdth the requisite of unanimity for convic- 
 tion, of the right of challenge and other accustomed 
 requisites ; and f in all crimes punishable with loss of life 
 or member, presentment or indictment by a grand juiy 
 shall be an indispensable preliminary ; provided, that in 
 cases of crimes committed within any county which may 
 be in] possession of the enemy, or in wdiich a general 
 insurrection may prevail, the trial may by law be author- 
 ized in some other county of the same State, as near as 
 may be to the seat of the offence. 
 
 " In cases of crimes not committed within any county, 
 the trial may by law be in such county as the laws shall 
 have prescribed. In suits at common law between man 
 and man, the trial by jury, as one of the best securities 
 to the rights of the people, ought to remain inviolable." 
 
 This w^as referred to a committee of eleven, which 
 struck out the part in brackets and substituted therefor 
 the following : 
 
 " No person shall be held to answer for a capital or 
 otherwise infamous crime, unless on a presentment 
 or indictment by a grand jury ; but if a crime be com- 
 mitted in a place in the." 
 
 The whole proviso was struck out in the Committee 
 of the Whole, and finally the proposition was reduced 
 between the two houses to the form in wdiich it now 
 stands. 
 
 This completes my argument upon the text of the 
 Constitution. The language of that instrument should 
 set the matter at rest forever. There is no room left for 
 interpretation. The words are direct and plain. It would 
 be difficult to make them plainer or more direct. If one 
 should set himself to the task of expressing most clearly 
 the intention to limit and restrain military jurisdiction, 
 
43 
 
 lie would find it hard to choose a better form of words. 
 If he were to exclude military commissioDS bj name, 
 that would perhaps leave the door open to the same 
 thing, in another form. The language used is general 
 and comprehensive. " No person shall be held to answer 
 for a capital or otherwise infamous crime, unless on a 
 presentment or indictment of a grand jury," <fec. This 
 solemn declaration of the whole people, set in their great 
 organic charter, ought forever to command obedience 
 and preclude debate. 
 
 Kespect for the constitution, and absolute conformity 
 to all that it enjoins, are indispensible to the preservation 
 of our freedom. Kespect for the constitution is but one 
 form of respect for law. The constitution is the highe!<t 
 of all human laws. The respect, of which I speak, is not 
 regard for a mere instrument, nor a blind devotion to 
 forms, but a sentiment and a conviction founded in nature 
 and justified by political philosophy and the profound est 
 policy. Loyalty with us is not of that lower form which 
 attaches itself to an individual or a family, but of that 
 which is higher, and attaches itself to the state and the 
 nation ; when these speak, they speak through the laws ; 
 and he who treats them with disregard, is disloyal to his 
 sovereign. 
 
 Pardon me for referring to these truisms. We have 
 fallen upon evil times ; we have fallen upon times when 
 there is less respect than there used to be for the consti- 
 tution and the laws. We know that the mention of the 
 constitution almost provokes a sneer or a smile in some 
 parts of the country, and in some political bodies. Our 
 forefathers thought and felt diff'erently. Washington, in 
 his farewell address, gave us this advice : 
 
 " This government, the offspring of our own choice, un- 
 influenced and unawed, adopted upon full investigation 
 and mature deliberation, completely free in its principles, 
 in the distribution of its powers, uniting security witJi 
 energy, and containing within itself a provision for its 
 own amendment, has a just claim to your confidence and 
 your support. Respect for its authority, compliance 
 with its laws, acquiescence in its measures^ are duties en- 
 
44 
 
 joined by the fundamental maxims of true liberty." 
 In our abundant prosperity, in the peace and order with 
 which affairs have proceeded in this country up to the 
 period of the rebellion, we have appeared almost to forget 
 the fundamental maxims of liberty. It is good for us to 
 recur to them. As expressed in the original Constitution 
 of Massachusetts, " a frequent recurrence to the princi- 
 ples of the constitution is one of the things absolutely 
 necessary to preserve the advantages of liberty, and to 
 maintain a free government." It is the great problem 
 of the time, whether we can govern ourselves so far as 
 to adhere inflexibly to the written constitution we have 
 ourselves prescribed. Union we are certain of. The 
 Almighty has impressed upon this continent the features 
 which will always make us a people one and indivisible. 
 The great central valley of the Mississippi will lay its 
 hands upon the Atlantic and Pacific slopes, and keep 
 them together as with clamps of iron. The problem is, 
 how we shall be governed ; what rights we shall possess. 
 A consolidated government cannot exist on this con- 
 tinent, unless it be monarchical. To maintain a govern- 
 ment under which we can be free, we must preserve the 
 Union and the States, all in the plenitude of their rightful 
 powers ; indestructible elements and parts of the system 
 E Plurihus Unum,, must be the motto on our hearts, as 
 on our escutcheon ; one Union and many States, each 
 essential to all the rest. 
 
 A pure democracy, that is to say a government in 
 which all the people in their primary assemblies make 
 the laws is possible only in small towns. Representative 
 government can be preserved only through the restraint 
 of a written constitution or the restraint of hereditary 
 power. Where the representative can do as he pleases 
 or as his constituents please, without one of these re- 
 straints, anarchy will follow and then despotism. 
 
 The true end of government is to leave each individual 
 in the enjoyment of his natural freedom, to the utmost 
 extent possible, consistently with the like freedom for all 
 the rest. That government only is tolerable, in which 
 I can sit by my own fireside, and no man shall dare to 
 
45 
 
 e]iter but with my leave, except by virtue of a legal warrant 
 prescribed in known and standing laws. Such cannot 
 continue to be our condition, unless we preserve forever 
 intact and intangible that sentence of the fundamental 
 law ; " 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." 
 Whoever therefore counsels, encourages or acquiesces in 
 a departure from the fundamental law, strikes at the 
 foundation of our freedom. 
 
 Having thus gone through with the argument upon the 
 text of the Constitution, and shown, that it not only gives 
 no sanction to such extraordinary tribunals as this mili- 
 tary commissKm, but that it expressly prohibits them ; I 
 will proceed further, and show tliat military tribunals for 
 civilians, or non-military persons, whether in war or peace, 
 are inconsistent with the liberty of the citizen, and 
 can have no place in constitutional government ; and that 
 just in proportion as the government of a country becomes 
 constitutional, in that proportion the possibility of martial 
 rule, except for martial persons, is limited or taken away. 
 
 This is a legitimate argument even upon a question of 
 interpretation ; for if there be, as I think there is not, 
 room left for interpretation of what seem to be the plain 
 provisions of the Constitution, then the principles of 
 liberty, as they were understood by the Fathers of the 
 Republic ; the maxims of free government, as they were 
 accepted by the men who framed and those who adopted 
 the Constitution ; and those occurrences in the history of 
 older states, which they had profoundly studied, may be 
 called in to show us what they must have meant by the 
 words they used. 
 
 In the first place, let us consider for a moment w^hat 
 would be the condition of the country, if the fundamental 
 law were otherwise than as I have stated it. The Presi- 
 dent would become in time of war, foreign or domestic, 
 an actual dictator. He could swallow up every other 
 power in the State. 
 
 Our learned opponents so understand it. They boldly 
 avow it. Here are three extracts from the printed brief 
 of the Attorney General and General Butler : 
 
46 
 
 " Martial law is the will of tho commandiug oiiicer of 
 an armed force, or of a geographical military department, 
 expressed in time of war within the limits of his military- 
 jurisdiction, as necessity demands and prudence dictates, 
 restrained or enlarged by the orders of his military chief, 
 or supreme executive ruler, ^ ^^ » 
 
 ^ 4f ^f '« r^i^Q officer executing martial law is a^ 
 the same time supreme legislator,^ supreme judge, and 
 supreme executive. As necessity makes his will the law, 
 he only can define and declare it ; and whether or not it 
 is infringed, and of the extent of the infraction, he alone 
 can judge ; and his sole order punishes or acquits the 
 alleged offender. ^- « ^ 
 
 ^ * * " It is a familiar exercise of martial law 
 to allow the Courts of a country, when it may be done 
 with safety, to perform their ordinary functions in regard 
 to crimes committed among the people toward each other, 
 but rarely, if ever, is any jurisdiction permitted of crimes 
 affecting the safety, well-being, or movements of the 
 t^ccupying army. 
 
 " But such exercise of civil poAver is wholly permissive, 
 and subordinate to the military power ; and whether it 
 shall be exercised at all, is entirely within his discretion." 
 
 That notion of executive power which would make it 
 competent to bring civilians before military commissions. 
 Tests upon the theory, that the commander in chief may 
 do whatsoever is necessary to promote the success of his 
 armies, and that he is the sole judge of that necessity. If 
 any Governor of any State, or any State Legislature, or 
 any of the Courts of the States stand in his way, the 
 military tribunal is at hand to try, and the military 
 platoon to arrest and execute. I know not, indeed, why 
 Congress or the Supreme Court are sacred. Certainly, 
 the individual members of Congress, and the individual 
 members of this Court, must be answerable to military 
 tribunals, like other civilians. For if the war power may 
 judge civilians, it uisij judge all civilians. 
 
 Do not say, that no person will be brought before 
 these military judges, but disloyal persons, who interfere 
 with the operations of the armies. Who is to decide this 
 
47 
 
 very question of disloyalty or interference? I leave yonr 
 presence and as I pass out of the portico of this capitol, I 
 meet a lieutenant, with a file of soldiers. He says to me, 
 " You are a disloyal citizen, sir ; you have interfered with 
 the operations of the troops." I deny it. But he replies, 
 "I will organize a drumhead court martial, or military 
 commission," — for I dare say he will give the milder 
 name — " and I will try you." Such a trial can have but 
 one result. " Courts martial are organized to convict," 
 says a high authority. 
 
 If this power belongs to the commander in chief, 
 as commander of the whole army, it belongs to every 
 other commander in his own sphere ; for, if it exists at 
 all, it is an incident of the command of military forces. 
 Acts of Congress do not give it ; Acts of Congress cannot 
 take it away. It inheres in the military office, and goes 
 with it wherever it goes. 
 
 This will not only be true of the national forces, but it 
 will be true of the State forces. The Governor of each 
 State is as much commander in chief of the State forces, 
 as the President is commander in chief of the national 
 forces. The Constitution of New York, for example, 
 declares that "the Governor shall be commander in 
 chief of the military and naval forces of the State." 
 And again : " When the Governor shall, with the consent 
 of the Legislature, be out of the State in time of war, at 
 the head of a military force thereof, he shall continue 
 commander in chief of all the militarj^ force of the State." 
 Any State, it will be remembered, may, according to the 
 Constitution of the United States, " engage in war," at 
 any time, with the consent of Congress ; and without it, 
 when " actually invaded, or in such imminent danger as 
 will not admit of delay." Upon the theory of the war 
 powder which I am now combatting, the condition of this' 
 federal republic of ours would be singularly deplorable 
 and perilous, with our one federal commander in chief, 
 our thirty-six State commanders in chief, and any 
 number of subordinate commanders, all armed with the 
 power to supersede every other tribunal but their own ; 
 and their own to constitute, when they please, of whom 
 they please, and /o?^ ivhom they please. 
 
48 
 
 If the power exists independent of Congress, it may be 
 exercised in any form which the commander may choose ; 
 persons may be arrested with or without warrant ; they 
 may be imprisoned with or without information of the 
 cause of imprisonment ; they may be brought to trial 
 before a board of officers or privates ; their judges may 
 be partial or impartial ; the evidence may be legal or 
 illegal, or there may be none at all ; the sentence may be 
 verbal, and carried into effect without written order of 
 any kind. It is not an answer, to say that this is most 
 unlikely to happen — nay, that it is most improbable. 
 We are not considering probabilities, but possibilities. 
 It might happen. The will of the commander in chief, 
 or of his subordinates, could not be controlled by Con- 
 gress, and miglit be exerted in an irregular and tyrannical 
 manner. 
 
 It would not be a legal argument in favor of military 
 commissions for civilians, even if it could be proved that 
 civil tribunals are inadequate to administer that swift 
 justice which the exigencies of war may sometimes 
 demand. That would be an argument for amending the 
 Constitution, not for perverting it. But it has not been 
 proved that the civil tribunals are not sufficient for the 
 trial of civilians. Congress can create as many Courts 
 as it will ; can endow them with functions adequate to 
 any emergency ; can make their processes as short and 
 effective as the fiercest lover of quick justice could desire^ 
 and can prescribe such qualifications for jurors, wherever 
 juries are necessary, as to insure a decision according to 
 the law and the evidence. Whoever desires more than 
 that, desires not justice, but injustice ; not freedom and 
 safety, but tyranny and peril. 
 
 If the law were otherwise, if our system of government 
 did really sanction or tolerate such a use or abuse of 
 military power, then I know not how we can condemn 
 either the theory or the practice of the governments of 
 continental Europe, or boast of our superiority in either. 
 What is it that separates us from them ? What is it that 
 gives us a right to boast that we are superior in our 
 guarantees of civil rights ? Private rights are as well pro- 
 
49 
 
 tectecl in many parts of that continent as tliev are here. 
 Justice between man and man has long been administered 
 by upright magistrates and under impartial laws. Why, 
 then, the difference between them and us? It is because 
 the regal power, commanding military forces there exer- 
 cises military jurisdiction over the citizens. In time of 
 war, say my learned friends, these powers may be exer- 
 cised here. If so, thegovernments are right there. Their 
 normal condition, it might almost be said, is that of 
 war, foreign or domestic. For the last hundred and 
 sixty-fiTe years, that is, since the beginning of the war of 
 the Spanish Succession, there has not been tranquility 
 throughout that continent for a single decade. France 
 was at war with for ign nations with scarcely an interval 
 down to 1815, and was convulsed by civil wars for many 
 years. Spain, Austria, Prussia, and Eussia had a like 
 experience of foreign war. Armies, on a gigantic footing, 
 have been constantly maintained. From Archangel to 
 Gibraltar, Europe has been a vast camp. If a republican 
 president, because he is commander in chief of the army 
 and navy, can rightfully create military tribunals for the 
 trial of civilians in time of war, much more rightfully 
 could the kings of the elder continent do the same at the 
 head of their great armies, in the plenitude of their kingly 
 offices, and with scarcely a restraint in the shape of con- 
 stitutions, parliaments, diets, or states general. If the 
 doctrine or the practice is to be enforced among us, let 
 us hear less of the military prisons of Austria and Spain. 
 
 The source and origin of the power to establish military 
 commissions, if it exist at all, is in the assumed power to 
 declare what is called 'martial laiu. I say what is called 
 martial law ; for strictly, there is no such thing as martial 
 law ; it is martial rule; that is to say, the will of the com- 
 manding officer and nothing more, nothing less. Let us 
 see if there be under our system any such power vested 
 in the President, and if there be, whence is it derived, 
 and what are its limits. 
 
 On this subject, as on many others, the incorrect use of 
 a word has led to great confusion of ideas and to great 
 abuses. People imagine, when they hear the expression, 
 7 
 
5a 
 
 martial law, that there is a system of law known by that 
 name, which can upon occasion be substituted for the 
 ordinary system ; and there is a prevalent notion, tbat 
 under certain circumstances a military commander may, 
 by issuing a proclamation, displace one system, the civil 
 law, and substitute another, the martial. A moment's 
 reflection will show that this is an error. Law is a rule 
 of property and of conduct, prescribed by the sovereign 
 power of the State. The civil code of Louisiana defines 
 it as '' a solemn expression of legislative will." Black- 
 stone calls it " a rule of civil conduct prescribed by the 
 supreme power in the State," ^ ^ ^ " not a tran- 
 sient, sudden order from a superior to or concerning a 
 particular person, but something permanent, uniform, 
 and universal." Demosthenes thus explains it: "The 
 design and object of laws is to ascertain what is just, 
 honorable, and expedient ; and when that is discovered, 
 it is proclaimed as a general ordinance, equal and impar- 
 tial to all." 
 
 There is a system of regulations known as the rules 
 and articles of war, prescribed by Congress for the gov- 
 ernment of the army and navy, under that clause of the 
 Constitution which empowers Congress " to make rules 
 for the government and regulation of the land and naval 
 forces." This is generally known as military law. See 
 Mills agt. Martin, 19 John., 722 ; Martin agt. Mott, 12 
 Wheat., 19 ; 1 Kent's Com,, 370, note. 
 
 There are also certain usages^ sanctioned by time, for 
 the conduct towards each other of nations engaged in 
 war, known as the usages of war, or the jus belli, accepted 
 as part of the law of nations, and extended from national 
 to all belligerents. These respect, however, only the 
 conduct of belligerents towards each other, and have no 
 application to the present case. 
 
 What is ordinarily called martial law, is no law at all. 
 Wellington, in one of his despatches from Portugal in 
 1810, explained it in this manner : 
 
 " I think it would be desirable to define with precision 
 our ideas respecting the establishment of military law 
 before we determine to alter the established law of the 
 country in any case. 
 
51 
 
 " The following questions are worth consideration and 
 decision on this topic. What is military law ? Military 
 law, as applied to any persons, excepting the officers, 
 soldiers, and followers of the army, for whose government 
 there are particular provisions of law in all well regulated 
 countries, is neither more nor less than the will of the 
 general of the army. He punishes either with or without 
 trial, for crimes either declared to be so, or not so de- 
 clared by any existing law, or by his own orders. This 
 is the plain and common meaning of the term military 
 law. Besides the mode of proceeding above described, 
 laws have been made in different countries, at different 
 times, to establish and legalize a description of military 
 constitution. 
 
 " The commander in chief, or the Government, has been 
 authorized to proceed by military process — that is, by 
 court martial, or council of war — against persons offend- 
 ing against certain laws, or against their own orders, 
 issued generally for the security of the army, or for the 
 establishment of a certain government or constitution 
 odious to the people among whom it is established. 
 
 " Of both descriptions of military law, there are nu- 
 merous instances in the history of the operations of the 
 French army during the Eevolution ; and there is an 
 instance of the existence, both of the first mentioned 
 description and of the last mentioned, in Ireland, during 
 the rebellion of 1798, when the people were in insurrec- 
 tion against the Government, and were to be restrained 
 by force." 
 
 And in his speech on the Gey Ion affair, he repeats the 
 description : 
 
 "I contend, that martial law is neither more or less 
 than the will of the general who commands the army. 
 In fact, martial law means no law at all ; therefore, the 
 general who declares martial law, and commands that it 
 shall be carried into execution, is bound to lay down 
 distinctly the rules, and regulations, and limits, according 
 to which his will is to be carried out. Now, I have, in 
 another country, carried out martial law ; that is to sa}^, 
 I have governed a large proportion of the population of 
 
52 
 
 a country by my own will. But then, what did I do ? I 
 declared that the country should be governed according 
 to its own national law, and I carried into execution that, 
 my so declared will." 
 
 There can be no pretence that a military constUation, 
 such as IS mentioned by the Duke of Wellington, in his 
 dispatch, or any like it, was ever established in this 
 country. Congress has never made the attempt ; and 
 if it had, it could not have succeeded, for lack of power 
 under the Constitution of the United States. The other 
 description of military government is the one with which 
 we have here to deal ; that is to say, the loill of the general 
 commanding the armj^ or. as I think it should be desig- 
 nated, martial rule. 
 
 Let us call the thing by its ' right name ; it is not 
 martial laiv, but martial ride. And when we speak of it, 
 let us speak of it as abolishing all law, and substituting 
 the will of the military commander, and we shall give a 
 true idea of the thing, and be able to reason about it, 
 with a clear sense of what we are doing. Thus explained, 
 the proposition for which the counsel on the other side 
 argue, and against w^hich we argue, is, that the President, 
 in a time of war, has the power to abrogate all law, and 
 substitute his own will in its place. 
 
 Another expression, much used in relation to the same 
 subject, has led also to misapprehension ; that is, the 
 declaration, or proclamation^ of martial rule ; as if a formal 
 promulgation made any difference. It makes no differ- 
 ence whatever. If a general or commander in chief has 
 the right to enforce martial rule, upon those who are not 
 members of his army, be may enforce it without, as well 
 as with, a proclamation. All the purpose Avhich that 
 effects, is to give notice of the fact. 
 
 What, it may be asked, may a general never in any 
 case use force but to enforce submission in the opposite 
 army and obedience in his own ! I answer, yes ; there 
 are cases in which he may. There is a maxim of our 
 law which gives the reason and the extent of the power. 
 '' Necessitas quod cogit dcfendit.'' This is a maxim not 
 peculiar in its application to military men ; it applies to 
 
53 
 
 all men under certain circumstances. If Grant, witli his 
 arm}^ were at one end of Pennsylvania Avenue, and Lee 
 with his at the other, and it were a necessity, in the stress 
 of battle, to take possession of this building, you might 
 be driven from your seats, and the members of the two 
 houses of Congress from theirs ; and so, too, if a fire were 
 here raging, and the firemen found it necessary to take 
 possession in order to extinguish the flames, they might 
 drive judges, senators, and representatives from their 
 chambers. These actions, both of the military and of the 
 firemen, would be justified by the same rule of necessity, 
 and be lawful under the same rule of law ; but this would 
 not be because there was such a law as martial law or 
 firemen's law. 
 
 Private persons may lawfully tear down a house, if 
 necessaiy, to prevent the spread of a fire. Indeed, the 
 maxim is not confined in its application to the calamities 
 of war and conflagration. A mutiny, breaking out in a 
 garrison, may make necessary for its suppression, and 
 therefore justify, acts which would otherwise be unjusti- 
 fiable. In all these cases, however, the person acting 
 under the pressure of necessity, real or supposed, acts at 
 his peril. The correctness of his conckision must be 
 judged by courts and juries whenever the acts and the 
 alleged necessity are drawn in question. 
 
 The creation of a commission or board to decide or advise 
 upon the subject, gives no increased sanction to the act. 
 As necessity compels, so that necessity alone can justify 
 it. The decision or advice of any number of persons, 
 whether designated as a military commission, or board of 
 officers, or council of war, or as a committee, proves 
 nothing but greater deliberation ; it does not make legal 
 what would otherwise be illegal. In this view, the mil- 
 itary commission in the present case had no vitality, 
 except as representing the commanding officer ; what he 
 might do in execution of their sentence, he might do 
 without it. The petitioners might liave been executed 
 by him on the spot, without any form of trial, with the 
 same legal justification as they could have been executed 
 upon the finding and sentence actually rendered. 
 
54 
 
 Passing now from these topics, if the Court please, I 
 will proceed to the Idstorical part of this argument ; in 
 the course of which I propose first, to ask your attention 
 to occurrences in our own country, and afterwards to 
 what has taken place in England and in France. 
 
 First, as to our oion country. The nation began its life 
 in 1776, with a protest against military usurpation. It 
 was one of the grievances set forth in the Declaration of 
 Independence, that the king of Great Britain had 
 *' affected to render the military independent of and 
 superior to the civil power." The attempts of General 
 Gage, in Boston, and of Lord Dunmore, in Virginia, to 
 enforce martial rule, excited the greatest indignation. 
 Our fathers never forgot their principles ; and though 
 the war by which they maintained their independence 
 was a revohi'djjiary one, though their lives depended 0:1 
 their success in arms, they always asserted and enforced 
 the subordination of the military to the civil arm. 
 
 The commission by which Washington was made 
 "General and Commander in Chief of the American 
 Forces," began thus : 
 
 " We, reposing special trust and confidence in your 
 patriotism, valor, conduct, and fidelity, do, by these pres- 
 ents, constitute and appoint you to be General and Com- 
 mander in Chief of the army of the United Colonies,, and 
 of all the forces now raised, or to be raised by them, and 
 of all others who shall voluntarily offer their services and 
 join the said army for the defence of American liberty, 
 and for repelling every hostile invasion thereof: and you 
 are hereby vested with full power and authority to act as 
 you shall think for the good and welfare of the service." 
 
 And his instructions closed with these memorable 
 words : 
 
 "And whereas all particulars cannot be forseen, nor 
 positive instructions for such emergencies so beforehand 
 given, but that many thhigs must be left to your prudent 
 and discreet management, as occurrences may arise upon 
 the place, or from time to time fall out, you are, there- 
 fore, upon all such accidents, or any occasion that may 
 happen, to use your best circumspection ; and, advising 
 
55 
 
 with your council of war, to order and dispose of the said 
 army under your command as may be most advantageous 
 for the obtaining of the end for which these forces have 
 been raised, making it your special care, in discharge of 
 the great trust committed unto you, that the liberties of 
 America receive no detriment." 
 
 These last words were nearly the formula of the Romans 
 when they chose a dictator. 
 
 Here was the plenitude of military power. If there 
 was ever one who, by virtue of supreme command, had 
 the legal and moral right to exercise martial rule over 
 civilians ; who, with any show of reason, could turn to a 
 military purpose that much abused maxim, ficdus populi 
 supreuia lex, it was Washington, in those perilous days 
 when tories surrounded his camp, carried intelligence to 
 his enemies, and sowed distrust among his own people. 
 The autumn of 1777, and the succeeding winter, were the 
 darkest times of the Revolution. Then, if ever, supreme 
 military command might have claimed the prerogative of 
 taking to itself absolute control. 
 
 There were, indeed, committees of public safety, and 
 other irregular bodies. Yet I do not find that Washing- 
 ton ever subjected civilians to military trial or military 
 control, except in execution of particular and express 
 injunctions from Congress or other civil authority. When, 
 on one occasion, the arrest and detention of disaffected 
 persons was thought necessary, Congress requested the 
 interposition of the civil authority, by the following reso- 
 lution : 
 
 " JVhercas, The States of Pennsylvania and Delaware 
 are threatened with immediate invasion from a powerful 
 army, who have ah^eady landed at the head of Chesapeake 
 Bay ; And whereas, principles of policy and of self-pre- 
 servation require that all persons who may be reasonably 
 suspected of aiding or abetting the cause of the enemy, 
 may be prevented from pursuing measures injurious to 
 the pubhc weal : 
 
 " RcHolvei^, That the executive authority of the States 
 of Pennsj'lvauia aud Delaware be requested to cause all 
 persons within their respective States, notoriously dis- 
 
affected, forthwith to be apprehended, disarmed, and 
 secured, till such time as the respective States think tliej 
 can be released without injury to the common cause." 
 
 The Legislature of Pennsylvania, thereupon, passed an 
 act to empower the Supreme Executive Council of this 
 Commonwealth to provide for the security thereof in 
 special cases where no provision is already made by law, 
 as follows : 
 
 " Whereas the preservation of this State and of all its 
 members, and of the army acting in support thereof at 
 the time of a hostile invasion, may require the imme- 
 diate interposition of the Supreme Executive Council, 
 when the judicial powers of the Government cannot, in 
 the ordinary course of law, sufficiently provide for its se- 
 curity ; 
 
 " And whereas for this important purpose the Supreme 
 Executive Council of this Commonwealth have lately, at 
 the recommendation of Congress, taken up several per- 
 sons who have refused to give to the State the common 
 assurance of their fidelity and peaceable behavior, as re- 
 quired by law, and it is apprehended that there are still 
 more such persons among us who cannot, at this juncture? 
 be safely trusted with their freedom without giving proper 
 security to the public : 
 
 " Be it therefore enacted, and it is hereby enacted, by 
 the Representatives of the freemen of the Commonwealth 
 of Pennsylvania in General Assembly met, and by the 
 authority of the same, That it may and shall be lawful 
 for the President or Yice President, and the members of 
 the Supreme Executive Council of this State, or any two 
 of them, either upon the recommendation of Congress, or at 
 the requisition of the Commander in Chief of the army, or 
 the commander of a division or corps in the same, or upon 
 the information of any credible subject of this or any 
 other of the United States, to arrest any person or per- 
 sons within this Commonwealth who shall be suspected 
 from any of his or her acts, writings, speeches, conversa- 
 tions, travels, or other behavior, to be disaffected to the 
 commuuity of this, or all, or any of the United States of 
 America, or to be an harbinger of the common enemy who 
 
is at our gates, or to give mediate or immediate intelli* 
 gence and warning to their commanders by letters, mes- 
 sengers, or tokens, or by discouraging people from taking 
 up arms for the defense of the country, or spreading false 
 news, or doing any other thing to subvert the good order 
 and regulations which are or may be pursued for the 
 safetj^ of the country, and to seize and examine such 
 papers in their possession as shall in anywise affect the 
 public ; and the same persons being arrested, to confine 
 and remove them to any distant place, where it will be out 
 of their power to disturb the peace and safety of the 
 States ; or to tender to them the oath or affirmation of 
 allegiance or fidelity to the State, as directed by law, and 
 upon taking or subscribing the same, to enlarge them, 
 or to demand and take such other and further security 
 and assurance from them as the said President or Vice 
 President and Council, or any two of them in their dis- 
 cretion shall think proper, or as the particular circum- 
 stances of the case may require." 
 
 Tliis act then went on to indemnify for past transac- 
 tions. 
 
 This was all superfluous, if the argument of our 
 friends on the other side rests on a good foundation. 
 The military arm was already competent to do as 
 much, and more ; and the ceremony of a " requisition 
 of the commander in chief of the army," made to the 
 civil authority, to enable them to do what he could 
 have done without, was as meaningless as it was 
 unnecessary. 
 
 Even amid the destitution and suffering of Valley 
 Forge, it does not appear to have occurred to Wash- 
 ington, that his military command gave him the right of 
 military control over the citizen. 
 
 I have in my hand a little book, published by an 
 adjutant of the Revolution, containing the orders of 
 Washington during the years 1778, 1780, 1781 and 1782. 
 There are but four that relate to the military trial of 
 civilians ; and especial pains appear to have been taken 
 to make known, that even these were authorized by 
 express resolution of Congress. Thus it is stated, in a 
 
58 
 
 note, that the trials were had under the following 
 authority : 
 
 " Wednesday, October 8th, 1777. 
 
 " A motion was made, to prevent an intercourse 
 between the towns in the possession of the enemy and 
 the inhabitants of the country. 
 
 " Ordered, That it be referred to a committee of 
 three. 
 
 " The members chosen ; Mr. R. H. Lee, Mr. J. Adams, 
 and Mr, Chase, 
 
 '' Four o'clock, P. M. 
 
 " The committee to who-m was referred the motion 
 for preventing an intercourse between the towns in 
 the possession oi the enemy and the inhabitants of the 
 country, brought in a resolution for that purpose, which 
 was agreed to as follows : 
 
 " Whereas, it is of essential consequence to the general 
 welfare that the most effectual measures should be 
 forthwith pursued for cutting off all communications 
 of supplies, or intelligence, to the enemy's army now 
 in and near the City of Philadelphia ; and whereas, it 
 has been found, by the experience of all States, that, in 
 times of invasion, the process of the municipal law is 
 too feeble and dilatory to bring to a condign and 
 exemplary punishment persons guiltj^ of such traitorous 
 practices : 
 
 " Resolved, That any person, being an inhabitant of 
 any of these States, who shall act as a guide or pilot 
 by land or water for the enemy, or shall give or send 
 intelligence to them, or in any manner furnish them 
 with supplies of provisions, money, clothing, arms, 
 forage, fuel, or any kind of stores, be considered and 
 treated as an enemy and traitor to these United States ; 
 and that General Washington be empowered to order 
 such persons, taken within thirty miles of any city, 
 town, or place in the State of Pennsylvania, Jersey, 
 or Delaware, which is, or may be, in the possession 
 of any of the enemy's forces, to be tried by a court 
 martial, and such court martial are hereby authorized 
 to sentence any such persons convicted before them 
 
59 
 
 of any of the offences aforesaid, to suffer deatli or such 
 other punishment as to them shall seem meet. 
 
 "This resolve to remain in force until the first day 
 of January next, unlesss sooner revoked by Congress." 
 
 These precedents are evidence of the highest charac- 
 ter to show that, though the Congress of the Eevolution 
 in this instance, gave power to try by court martial citi- 
 zens who were found prowling about the armies, and 
 giving intelligence or supplies to the enemy, yet that the 
 commander in chief had not this power without the special 
 and express authority of Congress ; Avhich authority, it 
 may be observed, was given withal in terms so guarded, 
 that it w^as limited in its operation to less than three 
 months. 
 
 The first constitutions of the States were framed with 
 the same jealous care. By the Constitution of New 
 Hampshire, it was declared that " in all cases, and at all 
 times, the military ought to be under strict subordination 
 to and governed by the civil power ;" by the Constitution 
 of Massachusetts of 1780, that "no person caa in any 
 case be subjected to law martial, or to any penalties or 
 pains, by virtue of that law, exeept those employed in 
 the army or navy, and except the militia in actual service, 
 but by the authority of the legislature ;" by the Constitu- 
 tion of Pennsylvania of 1776, " that the military should 
 be kept under strict subordination to, and governed by 
 the civil power ;" by the Constitution of Delaware of 
 1776, "that in all cases, and at all times, the military 
 ought to be under strict subordination to, and governed 
 by the civil power ;" by that of Maryland of 1776, " that 
 in all cases, and at all times, the military ought to be 
 under strict subordination to, and control of the civil 
 power ;" by that of North Carolina, 1776, " that the mili- 
 tary should be kept under strict subordination to, and 
 governed by the civil power ;" by that of South Carolina, 
 1778, " that the military be subordinate to the civil power 
 of the State ;" and by that of Georgia, 1777, that " the 
 principles of the Habeas Corpus Act shall be part of this 
 Constitution ; and freedom of the press, and trial by jury% 
 to remain inviolate forever." 
 
60 
 
 What was meant by these declarations of the Bills of 
 Rights promulgated in that revolutionary period? Was 
 it meant that the military must be subordinate in time of 
 peace, but paramount in time of war? Were our fathers 
 guarding against abuse, when there was no danger uf it, 
 or against it where there was danger ; when the military 
 w^ero weak, or when they were strong ; when the country 
 had less need of their services, or when it had greater ? 
 
 The federal constitution was afterwards formed, with the 
 provisions and guarantees which have been already con- 
 sidered, and as if to make more sure, that these were in- 
 tended for war as well as peace, the letter with which 
 Washington communicated that instrument to the con- 
 gress of the confederation, began as follows : 
 
 " We have now the honor to submit to the con- 
 sideration of the United States in Congress assembled, 
 that Constitution which has appeared to us the most 
 advisable. 
 
 " The friends of our country have long seen and de- 
 sired that the pozver of maldng tvar, peace, and treaties, 
 that of levying money and regulating cemmerce, and the 
 correspondent executive and judicial authorities, should be 
 fully and effectually vested in the General Government of 
 the Union." 
 
 When this Constitution came before the people for 
 ratification, its friends, as we know, exerted themselves 
 to refute the objections made against it. The federal 
 executive was, es2:)ecially, an object of attack. In the 
 sixty-ninth number of the Federalist, is an elaborate 
 examination of his powers, as compared with those of 
 the King of Great Britain, on the one hand, and the 
 Governor of New York on the other : in the course of 
 Avhich it is said : 
 
 " The President is to be commander in chief of 
 the army and navy of the United States. In this 
 respect, his authority would be nominally the same 
 as the King of Great Britain ; but, in practice, much 
 inferior to it. It Avould amount to nothing more than 
 the supreme command and direction of the military and 
 naval forces, as first general and admiral of the Con- 
 
Gl 
 
 federacj ; while that of the British king extends to the 
 declaring of war, and to the ramiig and eqnipplng of 
 fleets and armies ; all which, by the Constitution under 
 consideration, would appertain to the legislature'' 
 
 Even these assurances were not enough ; and though 
 the Constitution was ratified, the amendments, which 
 had been already discussed, were immediately proposed, 
 and adopted. 
 
 Two insurrections occurred ; one, Shay's rebellion, 
 shortly before, and the other the Whiskey insurrection, 
 shortly after the adoption of the Constitution. Both 
 were suppressed by the military ; but, on both occasions, 
 the greatest care was exhibited to hold the military 
 always in subordination to the civil power. 
 
 Burr's conspiracy happened in 1805. On that occa- 
 sion, Mr. Jefferson sought from Congress authority to 
 suspend the privilege of the writ of habeas corpus. But 
 though the Senate passed the bill, as he desired, the 
 House of Representatives rejected it with disdain. 
 
 The embargo gave rise to some questions, which, though 
 not military, have a bearing on the present subject. One 
 of them was examined and decided in the case of Brown 
 against the United States, 8 Cranch, 126. In that case, 
 the question was whether enemies' property, found here 
 on land upon the breaking out of war, could be con- 
 demned without a legislative act ? Mr. Justice Stoey, from 
 whose judgment the appeal was taken, thought that and 
 President, as an incident of his office, and especially by 
 virtue of the Act of Congress declaring war, had authorit}^ 
 to employ all the usual means acknowledged in war to 
 carry it into effect; among which was condemnation of 
 enemies' property. But this Court reversed the judg- 
 ment. Chief Justice Marshall giving the opinion ; in the 
 course of which he said : 
 
 "That the declaration of war has only the effect of 
 placing the two nations in a state of hostility, of produc- 
 ing a state of war, of giving those rights which war con- 
 fers ; but not of operating, by its own force, any of those 
 results, such as a transfer of property, which are usually 
 produced by ulterior measures of government, is fairly 
 
62 
 
 deducible by the enumeration of powers which accom- 
 pany that of declaring war. * Congress shall have power ' 
 * to declare war, grant letters of marque and reprisal, and 
 make rules concerning captures on land and water ' 
 
 "It would be restraining this clause within narrower 
 limits than the words themselves import, to say that the 
 power to make rules concerning captures on land and 
 water is to be confined to captures which are extra-territo- 
 rial. If it extends to rules respecting enemies' property 
 found within the territory, then we perceive an express 
 grant to Congress of the power in question, as an inde- 
 pendent, substantive power not included in that of de- 
 claring war, 
 
 ^' The Acts of Congress furnish many instances of an 
 opinion that the declaration of war does not of itself 
 authorize proceedings against the persons or property of 
 the enemy found at the time within the territory. 
 
 " War gives an equ 1 right over persons and property ; 
 and if its declaration is not considered as prescribing a 
 law respecting the person of an enemy found in our 
 country, neither dous it prescribe a law for his property. 
 The act concerning alien enemies, which confers on the 
 President vary great discretionary powers respecting 
 their persons, affords a strong implication that he did 
 not possess those powers by virtue of the declaration of 
 w\ar." 
 
 " The 'act for the safe keeping and accommodation of 
 prisoners of war,' is of the same character.' " 
 
 I now^ come to the war of 1812. A proposition was 
 then made in Congress to subject to martial trial Ameri- 
 can citizens found acting as spies. This brought a 
 speech from Mr. Webster, part of which I beg leave to 
 read. 
 
 It will be found in the annals of Congress, 1813, 1811, 
 Yol. 1, p. 885. 
 
 He said : " If the proposition were to considei- 
 whether it was necessary to provide additional legal pun- 
 ishments for any description of offense, he should see 
 no objection to the reference of the subject to a com- 
 mittee. If illegal intercourse existed with tlie enemy, he 
 
63 
 
 sliould go iis far as any one in applying constitutional 
 remedies to that evil. But this resolution proposes, in 
 effect, to consider whether it is not expedient to try accu- 
 sations for treason before military instead of civil tribu- 
 nals. However glaring may be the idea, yet such is in 
 truth the real nature of the proposition ; it is to change the 
 forum for the trial of treason. The mover of the resolution 
 and the gentleman from the State of Georgia (Mr. Troup) 
 have not left any doubt on this subject. They have al- 
 luded to cases which they suppose the resolutions to 
 embrace, and for which they deem it necessary to pro- 
 vide military punishment. But Avhat is the nature of 
 those cases? Are they not cases of treason? It is said 
 information has been communicated to the enemy, very 
 material to him, respecting the operations of our own 
 forces, by citizens of the United States. Signals are said 
 to have been made for this purpose on the St. Lawrence 
 and elsewhere. Do gentlemen suppose that the act of 
 communicating to the enemy important intelligence, 
 whether by signals or otherwise, whereby he is better 
 able to defend himself or attack his adversarj'^ is not 
 treason? Is not this giving aid and comfort to the 
 enemy ? May it not be in many cases the most import- 
 ant service which can be rendered him ? Certainly, sir, 
 all such offences as gentlemen have mentioned are pro- 
 vided for by law, and adequate penalties annexed to the 
 commission. The simple question before us is, whether 
 we will consider the propriety of taking tke power of 
 trying these offenses from the courts of law, where the 
 Constitution has placed it, and confer it on the military. 
 Sir, the proposition strikes me as monstrous. It cannot 
 consent to entertain the consideration of it even for a 
 moment. It goes to destroy the plainest constitutional 
 provisions. If it should prevail I should not hesitate to 
 pronounce it a most enormous stride of usurpation." 
 
 In Stacy's case, which occurred during the same 
 war with Great Britain, a writ of liaheaa corpus was 
 issued to Commodore Chauncey and General Lewis, 
 commanding on the frontiers, to bring u]) the body 
 of Stacv. General Lewis stated " that he believed the 
 
64 
 
 said Stacy had been guilt}^ of treasonable practices, 
 in carrying provisions and giving information to the 
 enemy, and that he believed a court martial was the 
 proper tribunal to try the said Stacy, though he was a 
 citizen." Observe, now, what was the language of the 
 Court, as delivered by Kent. " This is a case which 
 concerns the personal liberty of the citizen." ^' - - 
 " The pretended charge of treason (for, upon the facts 
 before us, we must consider it a pretext), without being- 
 founded upon oath, and without any specification of the 
 matters of w^hich it might consist, and tvlthout any color 
 of authority in any military tribunal, to try a citizen for 
 that crime, is only aggravation of the oppression of 
 the imprisonment!" ^ "^ ■•' "If ever a case 
 
 called for the most prompt interposition of the Court 
 to enforce obedience to its process, this is one. A 
 military commander is here assuming crimincd jurisdiction 
 over a private citizen, is holding him in the closest 
 confinement, and contemning the civil authority of the 
 State." 
 
 Smith agt. Shaw, also in the Supreme Court of New 
 York (12 Johns., 257), was an action growing out of the 
 same war, and brought against a military officer for 
 confining the plaintiff on charges of "exciting insur- 
 rection and mutiny among the good citizens of the' 
 United States;" "violating his parol as a prisoner of 
 the enemy, and engaging in an illicit trade, to furnish 
 the enemy with necessaries from the United States ;" 
 and "being an enemy's spy, in time of war, between 
 Great Britain and the United States." It was argued 
 for the defendant that the power to arrest in such a case 
 was "essential to the public safety — ' Salus populi 
 supremo lex.' This is not a doctrine dangerous to 
 liberty, or to the rights of citizens, qualified as it is with 
 the requisites that there must be a case of necessity, a 
 probable cause for the arrest — Silent leges leges inter 
 arma.'' For the plaintiff, it was replied : " It cannot, 
 surely, be pretended, that the plaintiff, a naturalized 
 citizen, could be treated as a spy. The plaintiff is 
 entitled to all the benefits of our Constitution and Bill of 
 
(j5 
 
 Bights. It is one of tlie very grievanc. s enumerated in 
 the Declaration of Independence, that the king had 
 affected to render the military independent of aad supe- 
 rior to the civil power. It is matter of astonishment, 
 that in less than forty years, and in the life of the men 
 who framed that instrument, it should be argued in a 
 court of justice, that this military power can be exer- 
 cised in this country ; in England it would not even 
 be debated." Thompson, Chief Justice, delivered the 
 opinion of the Court, and among other things said : 
 "None of the offences charged against Shaw are cogni- 
 zable by a court martial except that which related to his 
 being a spy ; and if he was an American citizen, he could 
 not be charged with such an offence. He might be 
 amenable to the civil authority for treason, but could not 
 be punished under martial law as a spy." And again : 
 " The conduct of the defendant in this case does not 
 appear to have been harsh and oppressive. But it is the 
 ])rinciple involved in it, which renders the question im- 
 portant. If the defendant was justifiable in doing what 
 he did, every citizen of the United States would in time 
 of war be equally exposed to a like exercise of military 
 power and authority." 
 
 Lamb's case, 1 N. C. Laiv BeposUory, related to the 
 extension of the rules and articles of war to the militia 
 during the same contest. Judge Bay, giving the opinion 
 of the Court, said : " The constitutionality of martial law 
 has been called in question. If by martial law is to be 
 understood that dreadful system, the law of arms, which 
 in former times was exercised by the -King of England 
 and his lieutenants, when his word was the law and his 
 will the power by which it was exercised, I have no hes- 
 itation in saying, tljat such a monster could not exist in 
 the land of liberty and freedom ^ ^ ^- ^ 
 
 But if by this military code is meant to be understood 
 the rules and regulations for the government of our men 
 in arms, when marshaled in defence of our country's 
 rights and honor, then I am bound to say there is noth- 
 ing unconstitutional in such a system." 
 
 In Johnson agt. Duncan, 3 Martin's Lou. Rep., 0. S., 
 9 
 
6Q 
 
 520, a question arose respecting the validity of martial 
 rule, as established by General Jackson, at New Orleans, 
 in December 1814. Martin, Justice, delivering the opin- 
 ion of the Court, made at the outset, the following observa- 
 tion : " At the close of the argument on Monday last, we 
 thought it our duty, lest the smallest delay should coun- 
 tenance the idea that this Court entertain any doubt on 
 the first ground, instantly to declare viva voce (although 
 the practice is to deliver our opinioiis in writing) that the 
 exercise of our authority vested by the law in this Court 
 could not be suspended by any man, 
 
 " In any other State but this, in the population of which 
 are many individuals, who, not being perfectly acquainted 
 with their rights, may easily be imposed on, it could not 
 be expected that the judges of this Court should, in com- 
 plying with the constitutional injunction, in all cases to 
 adduce the reasons on luhich their judgment is founded, take 
 up much time to show that this Court is bound utterly to 
 disregard what is thus called martial laiv ; if anything be 
 meant thereby but the strict enforcing of the rules and 
 articles for the government of the army of the United 
 States established by Congress, or any act of that body 
 relating to military matters on all individuals belonging 
 to the army or militia in the service of the United States. 
 Yet we are told that by this proclamation of martial 
 law, the ofiicer who issued it has conferred on himself, 
 over all his fellow citizens (within the space which he has 
 described;, a supreme and unlimited power, which being 
 incompatible with the exercise of the functions of civil 
 magistrates, necessarily suspends them." The whole 
 opinion is worthy of the most careful consideration. 
 
 Perhaps I ought not here to omit some mention of the 
 subsequent resolution of Congress to refund the fine im- 
 posed upon General Jackson. This piece of history has 
 been perverted into the sanction and support of martial 
 rule. In reality, it gives no such sanction or support. 
 The refunding of the money was only a testimony to the 
 good intentions of the General, but not in the least evi- 
 dence of the legality of his action, or an argument for it. 
 At the utmost, it fell far short of an act of indemnity, 
 
67 
 
 such as the British Parliament often gives to an act, 
 illegal in itself, but done in anticipation of its subsequent 
 ratification by an omnipotent legislature. The legal 
 invalidity of General Jackson's action in that case bear- 
 ing no analogy to the circumstances of the j^resent, can- 
 not be better demonstrated than by the judgment of the 
 Supreme Court of Louisiana, in the case of Johnson 
 agt. Duncan, which I have just quoted. 
 
 In the year 1836 there arose a debate in the House of 
 Representatives, in which the war power of the Federal 
 Government was discussed by John Quincy Adams, and 
 his speeches have been referred to now and then, as 
 giving some countenance to the notion, that it conferred 
 very large discretionary- authority upon the Executive. A 
 slight examination, however, will show that this is a mis- 
 take. He was referring to the war power of Congress 
 ratlier than of the President. 
 
 Six years later came the Ehode Island troubles. There 
 was a contest between two rival governments; one under 
 a colonial charter, and the other under a convention as- 
 sembled in opposition to it. In the course of the contest, 
 the legislature of the charter government passed " An Act 
 establishing martial law in this State." Borden was a 
 militiaman who, by the order of his superior officer, en- 
 tered Luther's house to arrest him. Luther, thereupon, 
 sued Borden in the Circuit Court of the United States. 
 The case came here, and the main question was, which 
 of the two governments was the legal one. It was held 
 that the charter government having been recognized by 
 the other departments of the Federal Government, that 
 recognition was conclusive upon this Court. The justi- 
 fication of the defendant was complete, when it was de- 
 cided that the Government under which he acted was the 
 lawful one. The question, whether that government could 
 place the State under martial rule did not probably 
 arise; and if it had arisen, it would have been a different 
 question from that which arises in this case. The charter 
 of Charles II. imposed no restraint in this respect upon 
 the Legislature of Rhode Island. That legislature, in 
 its own sphere, was as omnipotent as the British Parlia- 
 
08 
 
 meiit. There could arise for diseiissioii in that case no 
 question about martial rule under the the Federal Gov- 
 ernment. The Courts of Rhode Island had already de- 
 cided in favor of the charter constitution, and of the act 
 of the legislature ; and this Court, in deciding upon 
 State constitutions and State laws, follows, as everybody 
 knows, the State Courts. The mention of the question 
 of martial rule, however, dreAv the following observations 
 from the Chief Justice, which are very significant in their 
 bearing upon the present case : 
 
 " The remaining question is, whether the defendants, 
 acting under military orders, issued under the authority 
 of the Government, were justified in breaking and enter- 
 ing the plaintift"s house. In relation to the act of the 
 legislature declaring martial law, it is not necessary in the 
 cause he/ore us to irKjiiire to lohat extent, or under what cir- 
 c^onstances that power maij he exercised hy a State. 
 
 " Unquestionably a military government, established 
 as the permanent government of the State, would not be 
 a republican government, and it would be the duty of 
 Congress to overthrow it. But the law of Rhode Island 
 evidently contemplated no such government. It was in- 
 tended merely for the crisis, and to meet the peril in 
 which the existing government was placed by the armed 
 resistance to its authority. It was so understood and 
 construed by the State authorities. 
 
 " And unquestionably a State may use its military 
 power to put down an armed insurrection, too strong 
 to be controlled by the civil aiithority. The power is es- 
 sential to the existence of every government, essential 
 to the preservation of order and free institutions, and is 
 as necessary to the States of this Union as to any other 
 government. The State itself must determine what 
 degree of force the crisis demands. And if the Govern- 
 ment of Rhode Island, deemed the armed opposition so formi- 
 dable, and so ramijied throngh the State, as to require the 
 use of its military force, and, the declaration of marticd laio, 
 we see no ground upon irhich this Court can question its 
 authority. 
 
 " It was a state of war ; and the established gov- 
 
t u 
 
 onimeiit resorted to tlio liglits ami usages of war to 
 maintain itself, and to overcome the unlawful opposition. 
 And in that state of things, the officers engaged in its 
 militaiy service might lawfully arrest any one, who, 
 from the information before them, they had reasonable 
 grounds to believe, was engaged in the insurrection ; and 
 might order a house to be forcibly entered and searched 
 when there were reasonable grounds for supposing he 
 might be there concealed. Without the power to do 
 this, martial law and the military array of the govern- 
 ment would be mere parade, and rather encourage 
 attack than repel it. No more force, however, can be 
 used than is necessar}^ to accomplish the object. And 
 if the power is exercised for the purposes of oppression, 
 or any injury wilfully done to person or property, the 
 party by whom or by whose order it is committed would 
 undoubtedly be answerable. 
 
 " J Ve fori car to reinavl- uj on the cases nferred to in the 
 iinjuinad hi relation to the eoruritissions ancieidly issued by 
 KinijS of Ei,[jJand, to Commissiohers, to proceed agcnnst 
 certain descriptions of 'persons in. certain places by the laio 
 martial. 
 
 " These conimissioris icere ioSLcd by the hiity cd his 
 pleasure, icithoid the concurrence or authority (f Parliament, 
 andtccic often abused for the most despotic and oppressive 
 purposes. They were lised before the regal poicer (f Englaral 
 was icell defi^id, ahd- it ere finally cdjolished and prohibited 
 ly tie petition of rigid in tie reign of C],arles the First. 
 But they bear no analogy, in any respect, to the de- 
 claration of martial law by the legislative authority of 
 the State, made for the purposes of self-defence, when 
 assailed by an armed force ; and the cases and com- 
 mentaries concerning these commissions, cannot, there- 
 fore, influence the construction of the Bhode Island law, 
 nor furnish any test of the lawfulness of the authority 
 exercised by the government." 
 
 Four years later, came the Mexican war ; in the 
 course of which General Scott, having to occupy 
 certain conquered places, and therefore to keep order 
 therein, instituted a body of regulations, in which he 
 
70 
 
 mentioned militarj commissions as one of tlie instru- 
 ments of bis government. This was, however, wholly 
 the exercise of a belligerent right over a territory 
 eonqured ; like the exercise of it in California, on its 
 conquest. In Cross a<jt. Harrison (18 How,, 164), it 
 was held that the establishment of civil government in 
 California, was the lawful exercise of a belligerent right 
 over a conquered country. 
 
 Harmony's case (13 How., 116), grew out of this 
 Mexican war. Mitchell, being an officer of the army, 
 was sued by Harmony for seizing his property in the 
 Mexican State of Chihuahua. Mitchell insisted, among 
 other things, that the seizure was an act of military 
 necessity. This question was submitted to the jury, 
 and a point was made whether the law on that subject 
 had been correctly laid dov/n, " We are clearly of 
 opinion," say the Court, speaking by Chief Justice 
 Taney, " that, in all of these cases, the danger must 
 be immediate and impending ; or the necessity urgent 
 for the public service, such as will not admit of delay, 
 and when the action of the civil authority would be too 
 late, in providing the means which the occasion calls for. 
 It is impossible to define the particular circumstances 
 of danger, or necessity, in which this power may be 
 lawfully exercised. Every case must depend on its own 
 circumstances. It is the emergency that gives the 
 right ; and the emergency must be shoivu to exist, before 
 the taking can be justified." 
 
 In th-e year 1855, hostilities with the Indians broke 
 out in Oregon, then a territory, and the Governor 
 thought it proper to declare martial rule. His conduct in 
 this respect became the subject of review at Washington, 
 wh^r« it was disapproved. * An opinion was then given 
 by Mr. Cushing, Attorney General, containing some 
 novel views regarding the subject of martial rule, and 
 discountenancing, as I think, its assumption by the ex- 
 ecutive department. 
 
 This summary brings us to the period of our civil war. 
 How far Congress has sanctioned or r,C|uiesced in the 
 assumption hj the Executive of military control over 
 
71 
 
 civilians, wo Lave already seen to some extent. It re- 
 mains only to take notice of a debate, which occurred in 
 the House of Representatives in the closing hours of the 
 last Congress, a year ago, on an amendment to one of the 
 appropriation bills proposed by Henry Winter Davis, to 
 the effect, that when the civil courts w^ere open, no person 
 should be subject to mihtary trial but those in the mili- 
 tary or naval service, or rebel enemies charged with be- 
 ing spies. The amendment was adopted by the House ; 
 but it was stated in the debate, that though a majority of 
 the Senate concurred in the principle involved, they re- 
 fused to pass it as part of the appropriation bill. The 
 debate is remarkable not only for its condemnation of 
 military trials for civilians, but for it? exposure of the 
 abuses which had sprung up. We have been told here 
 that the power which we are opposing has never been 
 abused ; that none have ever been convicted before a court 
 martial or military commission, except the guilty. In 
 pro])osing this amendment, Mr. Davis said : 
 
 " I do not desire at this period of the session to detain 
 the House even by an argument in favor of the amend- 
 ment I have submitted. I desire to state merely what it 
 contemplates, and to beg the House to give a direct vote 
 upon it. It is a measure which touches the very founda- 
 tion of republican government — the liberty of the citizen 
 — nothing more, nothing less. 
 
 "I do not think it is exclusively, perhaps not chiefly, 
 the fault of those in authority, that military commissions 
 have tried, contrary to the Constitution and laws of the 
 United States, many of its citizens. It began first in the 
 rebel States, then spread to the border States, the thea- 
 atre of armed conflicts, then invaded Pennsylvania, In- 
 diana, and New York, amid the general acclaim of the 
 people ; and now that it reaches as far north as Boston, 
 we hear the first murmur of i,ts advocates or instigators. 
 What that amendment contemplates is, not to cast impu- 
 tation upon any administration or any officer, but re- 
 cognizing the error which the people as well as the Gov- 
 ernment have in common committed against the founda- 
 tion of their own safety, now, before the very idea of the 
 supremacy of the law has faded from the country,. to 
 restore it to its power. 
 
 " This amendment is confined rigidly to the loyal 
 States, to the States in which the Courts of the United 
 
States are open ; to the States whose governments the 
 United States guaranty ; so that it does not strip the 
 Government of any power, legal or usurped, which it has 
 thought necessarj^ in its eff)rts to suppress the rebellion. 
 It leaves everybody to be tried by court martial who is 
 actually in the military service of the Government, or 
 who, being a r3bel enemy, is arrested as a spy. But it 
 annuls everything that has been done heretofore under 
 illegal military commissions ; directs all persons now in 
 illegal confinement, under sentence of illegal military 
 commissions, to be either discharged or delivered to the 
 civil tribunals, to be there proceeded against according 
 to law. There the amendment stops. 
 
 " I desire to make an imputation on no one. This 
 amendment is proposed for the benefit of every party 
 and of every administration. And I trust that the House 
 will allow it to be incorporated into this bill, that it may 
 become the acknowdedged, as it is now the supreme, law 
 of this land and the right of the citizen." 
 
 Mr. Dawes, of Massachusetts, who still is and has been 
 for many j-ears at the head of the Committee on Elections, 
 and than w^hom there is not a more loyal and true man 
 in all the country, said : 
 
 " I believe that during the time I have served in Con- 
 gress I have, to the extent of my ability, devoted myself 
 to the effort to ferret out and punish those who have 
 been engaojed in defrauding the gavernment. During 
 the last Congress I devoted, I think, some part of my 
 strength, I know I did a great deal of my time, to that 
 kind of work, calling down upon myself the curses of 
 those wdio had been engaged as contractors, and other- 
 wise in supplying the government. In carrying out wdiat 
 I W'as endeavoring to do, I, in co-operation with others, 
 reported to the House a bill which became a law, making- 
 contractors with the government, and those engaged in 
 supplying it, subject to trial by court martial. I was 
 aware that it w^as an extreme measure ; but I felt at that 
 time that it was necessary to check what seemed to be a 
 growing and an alarming evil. In putting into the hands 
 of the officers of the government this extreme power, I 
 had confidence that they would exercise it with modera- 
 tion and reason. But, Mr. Chairman, I am sorry to say 
 that my observation of the administration of that law, of 
 which I take to myself some part of the responsibility, 
 has been such during the past year or two as to compel 
 me to support this amendment. Sir, we seem to have 
 lost sight in the execution of that law, of the guaranties 
 
73 
 
 of the Constitution. We seem to forget that civilians 
 charged with offenses have any right to trial by jury, or a 
 knowledge of the offenses for which they are frequently 
 incarcerated in prison. 
 
 " Sir, we seem to be taking very little note of the 
 direction in which we are drifting. Day before yesterday 
 I voted for a bill, and I will read its title. It seemed 
 harmless enough. It is a bill ' to provide for the better 
 organization of the pay department of the navy.' It be- 
 came a law so far as votes in this House were needed for 
 that purpose. There was nothing in its title to attract 
 attention. But to my astonishment, on turning to the 
 last section I found a provision which I did not and 
 could not suspect from anything indicated by the title, 
 and which is of so extraordinary a character that I am 
 glad that a motion has been entered to reconsider the 
 vote by which it passed this House that I can expose its 
 enormous character. I now call the attention of mem- 
 bers to this section to show how unconcernedly we are 
 drifting along in this current without seeming to be 
 aware of it, into the strangest state of things that ever 
 existed under a free government. In a bill with the title 
 which I have given, it is enacted in the third and last 
 clause that every one, not only in the naval service, but 
 every servant of everybody in the employ of the Navy 
 Department, every little servant who goes in. and out of 
 the doors of the Navy Department, every -driver of a 
 team which happens to be loaded with supplies for the 
 Navy Department, every one, and every one's agent or 
 servant who happens to deal with the Navy Department, 
 shall be subject to trial by court-martial for any alleged 
 offense in such dealing. Every man in the employ of the 
 Navy Department, every agent, employee, or servant con- 
 nected with that department, in all its ramifications, is 
 subject to be tried by court-martial. And the punish- 
 ment to be inflicted by. that court-martial, without trial 
 by jury in the form guarantied by the Constitution, is to 
 be a fine not exceeding $10,000, and imprisonment in any 
 penitentiary of the United States not exceeding ten years. 
 I understand from high authority in the Navy Depart- 
 ment, from which this section has come, that courts- 
 martial are not organized like courts of law, to guard the 
 rights of the accused and secure justice, but are organ- 
 ized to convict." 
 
 " I have, in the last fortnight, had the painful duty 
 devolved upon me to read the proceedings of a court- 
 martial under the law, which I reported to the House 
 some two years ago. It is one, which, I venture to say, 
 
 10 ^ 
 
74: 
 
 lias hardly a parallel for the bitter malignity, which 
 seems to run through the whole proceedings, and for 
 wider departure from old and established rules of law, 
 of which the accused were the victims, and by which 
 they were hunted, 'since the days of Jeffreys." 
 
 Mr. Schenck, the Chairman of the Military Committee, 
 and a General in the Union army, said : 
 
 " We again here, the other day, passed a section in an 
 appropriation bill, infringing in the same way on the right 
 of the citizen to be tried only by the civil courts, and 
 not by military tribunals. I understand that it was done 
 inadvertently ; I was not in the Hall at the time ; and I 
 should cheerfully vote to reconsider in order to get rid of 
 the section referred to." 
 
 Mr. Ganson, a member from New York, without whose 
 vote and efforts the Constitutional Amendment would 
 hardly have passed the lower House of Congress, took 
 similar ground. Mr. Davis said in a subsequent part of 
 the debate : 
 
 " But, sir, what do you say with reference to trials for 
 things that are not crimes under any law, for things that 
 are not defined to be crimes, civil or military? "W'hat 
 do you say to the trial of a loyal citizen, in the city of 
 Baltimore, upon the charges and specifications which I 
 hold in my iTTinds, for forging Jefi'erson Davis's currency? 
 One of my constituents is noiv in jail under these sjiecificn- 
 tions, having been tried and condemned by a military 
 tribunal for attempting to break down the rebel currency ! 
 I can state no other fact that will better illustrate the 
 insolence of irresponsible military tribunals, known to no 
 law, appointed under no law, restrained by no law, au- 
 thorized by nobod}', bound by no law but the will of the 
 men who sit in their uniforms to try the rights of Ameri- 
 can citizens, according to the law of the sword." And 
 again : "The public safety never has required these illegal 
 and summary trials ; it now requires that they cease. 
 The past, men are ready to forget — the American people 
 most of all ; they instigated or tolerated the usurpa- 
 tions of those in authority : but they now have felt the 
 sharpness of military justice, and demand of their rulers 
 a return to the Constitution and laws. If heretofore 
 they have violated the law and Constitution — I do not 
 say criminally, I do not say with intent to oppress, I 
 do not say, even knowing it to be criminal — it was the 
 common error ; and they may plead the error of the 
 TieoT)le which misled the leaders of the jjeople at the 
 
beginning of the rebellion. More firmness, more knowl- 
 edge, more coolness in high places, might perhaps have 
 arrested the popular current, and silenced the popular 
 tumult, and kept the torrent within the bounds of law. 
 It was not found in places of authority ; all bowed before 
 the storm ; all floated with the current." 
 
 This brings the history of this question in our American 
 annals down to the present time. Nothing which I might 
 say could add to the impression which these authorities 
 and this history must leave on the mind of every candid 
 man ; that, whatever may be the law in other countries, 
 in this, a military commission, such as we are considering 
 in the present case, is a gross and monstrous usurpation. 
 It is manifest, that the toleration of it for a moment is 
 something new, and it is marvellous that it should ever 
 have received the smallest countenance. That it vshould 
 have been so, is owing to the new and extraordinary cir- 
 cumstances in which we were suddenly placed ; to our 
 previous unacquaintance with large armies ; to our inex- 
 perience of the evils of military rule ; and, above all, to 
 the absorption of almost every man's thought, will and 
 action in the one great vital task of sustaining and 
 augmenting the physical forces of the country for its 
 struggle with rebellion. 
 
 I wdll, however, now proceed a step further, and show 
 that in England, from which country we have received all 
 her legal guarantees, and have added to them, as we 
 think, many more; in constitutional England the his- 
 torical argument would be also conclusive. 
 
 The constitutional history of England is the history of 
 a struggle on the part of the crown to obtain or to exer- 
 cise a similar power in the country of our forefathers. 
 The power claimed by the king was as much in virtue 
 of his royal prerogative and of his feudal relations to his 
 people as lord paramount, as of his title as com- 
 mander of the forces. How that struggle w\as carried on 
 from the days of Runnymede, down ; with what various 
 fortune, what alternations of success and defeat, till its 
 final settlement, it were needless to recount in this pres- 
 ence. 
 
 More than five hundred j^ears ago, in the reign of Ed- 
 
76 
 
 ward the Second, during a violent civil commotion, mucli 
 more like war than anything that has ever been seen in 
 the States of Indiana and Illinois, the Earl of Lancaster, 
 at the head of a large army, being defeated by the supe- 
 rior forces of the king, was condemned by court-martial 
 and beheaded. This proceeding was reversed on petition 
 of error in the first parliament of Edward the Third, and 
 the following declared : 
 
 "1. That in time of peace, no man ought to be adjudged 
 to death for treason, or anj^ other offence, without being 
 arraigned and held to answer ; 2. That regularly, ivJien the 
 khujs cO'irts are open, it is a time of pea^^e, in judgment of 
 Imv ; and 3. That no man ought to be sentenced to death, 
 by the resord of the king, without his legal trial per pares." 
 
 Three hundred years later, Charles the First, in time 
 of war, finding the means wanting for its vigorous prose- 
 cution, had resort to forced loans, and, by warrant of his 
 priv}^ counsellors, committed Sir Thomas Darnell and 
 three other gentlemen to the Tower for refusing. They 
 brought a Jtabeas corpus for their deliverance, but it being 
 argued that the commitment by the king, for reasons of 
 state, was sufficient cause, the petitioners were remanded. 
 The first Parliament, however, that was afterwards sum- 
 moned, called the judges to account for this judgment, 
 and after a severe struggle between the commons and the 
 crown, which lasted from March to June, 1628, during 
 which Coke and Solden maintained the debate on the 
 part of the subject, it was finally resolved, by the Petition 
 of Right, amjiig other things, that whereas divers com- 
 rnlsiioris have been issued, "by which certain persons 
 have been assigned and appointed commissioners, with 
 pj-.ver and authority to proceed within the land accord- 
 iug to the justice of martial law," "the aforesaid commis- 
 sions for proceeding by martial law, should be revoked 
 and annulled, and that thereafter no commissions of like 
 nature should issue forth to any person or persons what- 
 soever." Sir IVioinas DarneWs case, 7 Hargrave's State 
 Trials, HI, and 3 HoioelVs State Trials, 1-174, 225, 230, 
 234. 
 
 The champions of the Parliament in the contest over 
 
the Petition of lliglit declaied : "Without all question, 
 he very point, scope, and drift of Magna Charta was to 
 reduce the regal to a legal power, in matter of imprison- 
 ment, or else it had not l)een worthy so much contending 
 for." 'i^ HoiceWs State Trudys, 171; Sir Benjamin Bud- 
 yar<rs Ilej^Jy. 
 
 From the day when die answer of the sovereign 
 was given in assent to this Petition of Eight, Courts 
 Martial for the trial of civilians, upon the authority of 
 the Crown alone, have always been held illegal. During 
 the great rebelHon, when the whole land was ravaged 
 by the opposing armies of the Parliament and the King, 
 irregular and illegal trials sometimes occurred, but only 
 to be pointed at and condemned by the historian. Hume 
 observes, upon the history of the commonwealth : 
 
 " The Earl of Derby, Sir Timothy Featherstone, 
 and Bemboe, being taken prisoners after the battle of 
 Worcester, were put to death by sentence of a Court 
 Martial ; a method of proceeding declared illegal by 
 that very petition of right, for which a former parlia- 
 ment had so strenuously contended, and which, after 
 great efforts, they had extorted from the King." 
 
 Tliis trial is narrated in 5th State Trials, 294, where it 
 appears to have been ordered by Cromwell, not by virtue 
 of his executive or military authority, but by direction of 
 Parliament ; as was also the trial of Waller and others, 
 narrated in 4 State Trials, 626. In both cases, the 
 Court was composed partly of civilians, and was de- 
 nominated a High Commission, or council of war. 
 
 Hale, in his history of the common law, says (page 
 34) : " Touching the business of martial law, these 
 things are to be observed, viz. : 
 
 First. — That, in truth and reality, it is not a laiv, 
 but something indulged, rather than allowed as a 
 law ; the necessity of government, order and disci- 
 pline in an army, is that only which can give 
 those laws a countenance, quod enim necesitas cogit 
 de/'endit. 
 
 Secondly. — This indulged laiv ivas only to extend to 
 
78 
 
 members of the army, or to fJtosc of the oppo-^ed army 
 and never was so much indulged as intended to 
 be executed or exercised upon others, for others 
 who ivere not listed wider the army held no eolor or 
 reason to he hound by military constitutions, appli- 
 cable only to the army, whereof thev were not 
 parts, but they were to be ordered and governed 
 according to the laws to which they were subject, 
 though it ivere a time of loar. 
 
 Thirdly.— That the exercise of martial law, whereby 
 any person should lose his life, or member, or 
 liberty, may not be permitted in time of peace." 
 
 After the restoration of Charles, notwithstanding the 
 severity shown to the adherents of the commonwealth ; 
 during the reaction of James the Second, and the 
 introduction of William of Orange; notwithstanding 
 the cruelties arising out of the invasion of the Pretender, 
 and out of the Irish rebellion, I do not. find the case of 
 a single person, not connected with the army, suffering 
 death from a court martial. I find, indeed, only four 
 cases of courts martial in the State trials : the two 
 which I have mentioned as occurring in the time of the 
 commonwealth, and two others occurring in the time 
 of the Irish rebellion. In one of these, that against 
 Devereux (27 State Trials, 1138), the sentence was 
 transportation ; and in the other, that of AVolfe Tone 
 (27 State Trials, 614), though the sentence was death, 
 the Court of King's Bench in Ireland issued a writ of 
 habeas corpus, and ordered the Sherifi to take the 
 prisoner and the Provost Marshal into custod}^ and 
 prevent the execution. Even these courts martial in 
 Ireland, I infer from the Duke of Wellington's dispatch, 
 already quoted, must have been authorized by an act 
 of the Irish parliament. Whether that were so or not, 
 the proceedings of the Irish government at that period, 
 begotten partly of cruelty and partly of fear, cannot justly 
 be drawn into precedent. Even in respect to the gov- 
 ernment of troops in England, and the establishment 
 
79 
 
 of courts martial for military offences committed by 
 military men, the sovereign has no authority, except 
 as derived from the annual " Mutiny Act." 
 
 Upon the accession of William and Mary to the throne 
 of England, whenever extraordinary measures were 
 thought necessary for the public safety, application was 
 made to parliament. Witness the following on the first 
 of March, 1688 : •' Mr. Hamden, one of his majesty's 
 Inost honorable privy council, acquainted the House that 
 he had a message from his majest}^, 'that his majesty had 
 had credible information, that there are several persons 
 in and about this town, that keep private meetings and 
 cabals, to conspire against the government, and for the 
 assistance of the late King James ; that his majesty has 
 caused some of those persons to be already apprehended 
 and secured upon suspicion of high treason, and that he 
 thinks he may see cause to do so by others, within a little 
 time ; but his majesty is between two great difficulties 
 in this case ; for that, if he should set those persons at 
 liberty that are apprehended he would be wanting to his 
 own safety, and the safety of his government and people ; 
 on the otheii. hand, if he should detain therh, he is un- 
 willing to do anything but what shall be fully warranted 
 by law, which he hath so often declared he will preserve ; 
 and that, therefore, if those persons should deliver them- 
 selves by the act of Habeas Corpus, there would be 
 another difficulty. That his majesty is likewise unwilling 
 that excessive bail should be taken in this case, his ma- 
 jesty rem^tmbering that to be one article of the grievances 
 presented to him ; that oidinary bail will not be sufficient, 
 for men that carry on such designs, in hopes of succeed- 
 ing, will not stick at forfeiting a small sum ; and that this 
 falling out when the parliament is sitting, his majesty 
 therefore, thought fit to ask the advice of this House 
 therein, and intends to advise with the Lords also.' 
 
 ''Resolved, iiem, con., That the humble thanks of this 
 House be returned to his majesty for his most gracious 
 message in desiring the advice of this House. 
 
 " Resolved, That a temporary bill be brought in to em- 
 power his majesty to apprehend and detain all such per- 
 
80 
 
 sons as he shall have just cause to suspect are consinnng 
 against the government. 
 
 ''Ordered, That Mr. Hamden, Sir Eichard Temple, 
 Mr. Pollexfen, Mr. Sacheverell, Sir Thos. Lee, Sir Thos. 
 Clarges, Sir John Holt, Mr. Brewer, do immediately with- 
 draw into the Speaker's Chamber, and prepare the said 
 bill, and bring the same in with all convenient speed." 
 
 Of this Act Mr. Mj^caulay writes : " The malcontents 
 out of doors did not fail to remark, that in the late reign 
 the Habeas Corpus Act had not been one day suspended,' 
 and in another place, III. Vol., 37, he says : " Even 
 James did not venture to inflict death by a sentence of a 
 court-martial." 
 
 BlacJcsforie (BooJ{ 1, ff. 413, 414), says : " For martial 
 law, which is built upon no settled principles, but is 
 entirely arbitrary' in its decisions, is, as Sir Matthew 
 Hale observes, in truth and reality, no law, but some- 
 thing indulged, rather than allowed as a law. The 
 necessity of order and discipline in an army, is the only 
 thing which can give it countenance, and therefore it 
 ought not to be permitted in time of peace, when the 
 king's Courts are open for all persons to receive justice 
 according to the laws of the land. Wherefore Thomas, 
 Earl of Lancaster, being condemned at Pontefract, 15 
 Edw. II., by martial law, his attainder w^as reversed, 
 1 Edw. III., because it was done in time of peace. 
 And it is laid dow^n, that if a lieutenant, or other that 
 hath commission of martial authority, doth, in time of 
 peace, hang or otherwise execute any man, by color 
 of martial law, this is murder, for it is against Magna 
 Charfa. The petition of right, moreover, enacts that no 
 soldier shall be quartered on the subject without his 
 own consent, and that 7?o commismon shall issue to j^^oceed 
 ivithin tins land according to niarficd law.'' 
 
 Lord Loughborough, delivering the judgment of the 
 King's Bench, in Grant v. Sir Charles Gould (2 H. 
 Black., 69, 98), says : 
 
 " Martial Icnv, such as it is described by Hale, and 
 such also as it is marked by Mr. Justice Blackstone, 
 does not exist in England at all. Where martial law is 
 established and prevails in any country, it is of a 
 
81 
 
 totally different nature from that which is inaccurately 
 called martial law, merely because the decision is by a 
 court martial, but w-hich bears no affinity to tlicit luhicli 
 tvas formeiiy attempted to he exercised in this Idngdom, 
 which wris contrary to the Constitution, and, ivldch has hee7i 
 for a century totally exploded.'^ 
 
 " In the reign of King William there was a conspiracy 
 against his person in Holland, and the persons guilty 
 of that conspiracy were tried by a council of officers. 
 There was also a conspiracy against him in England, 
 but the conspirators were tried by the common law. 
 And wdthin a very recent period, the incendiaries who 
 attempted to set fire to the docks at Portsmouth, were 
 tried l)y the common law. In this country, all the 
 delinquencies of soldiers are not triable as in most 
 countries in Europe, by martial law, but, where they 
 are ordinary offences against the civil peace, they are 
 tried by the common law Courts. Therefore it is totally 
 inaccurcde to state martial laio as having any place ivhatever 
 ivlthin the realm of Greed Britainy 
 
 " The object of the Mutiny xlct therefore, is to create a 
 Court invested with authority to try those who are a part 
 of the army, in all their different descriptions of officers 
 and soldiers, and the object of the trial is limited to mili- 
 tary duty. Even by the extensive power granted by the 
 Legislature to his Majesty, to make articles of war, those 
 articles are to be for the better government of his forces, 
 and can extend no further than they are, though neces- 
 sary to the regularity and discipline of the army." 
 
 The case to which Lord Loughborough refers, as occur- 
 ring at Portsmouth, is, doubtless, the case of Hill, given in 
 20, State Trials, 1320. This man had the audacity to 
 pretend that he was encouraged by Silas Deane to set fire 
 to the English docks, and even intimated that this enter- 
 prise had the countenance of Dr. Franklin ! It is a 
 curious instance of the delusion which sometimes takes 
 possession of whole communities, that the English people 
 really believed this absurd pretence. 
 
 The preamble to the first Mutiny Act, passed in the 
 time of "William and Marv, recorded that : '* Whereas no 
 11 
 
82 
 
 man may be forejudged of life or limb or subjected to any 
 kind of punishment b}' martial law, or in any other 
 manner than by the judgment of his peers and according 
 to the known and established laws of this realm." In 
 subsequent acts the words "in time of peace" are in- 
 serted after the word " subjected," but this must be un- 
 derstood as referring to the time of peace defined by 
 Coke. 
 
 The Acts which have been framed at different periods 
 for the suspension of the privilege of Habeas Corpus, and 
 for indemnity to the ministers against prosecutions for 
 extreme measures, give no sanction, in any shape, to 
 Courts MartiaL The suspension extends only to the 
 privilege of relief from temporary imprisonment, and the 
 indemnity is from the consequences of ordering it. 
 
 The case of the Eev. Mr. Smith, which occurred in 
 Demarai a in 1823, gave rise to a debate in the British Par- 
 liament, that will be forever famous for the speeches of 
 Brougham and Mackintosh. The latter, especially, took 
 occasion to examine the foundation to the claim to exer- 
 cise martial rule ; and his explanation and reasoning 
 will always be accounted high authority. 
 
 Subsequently, a case under Lord Torrington occurred 
 in CeyloD. Here again arose a debate in the British 
 Parliament, during which Wellington made the speech 
 from which I have quoted ; and there was also an elabor- 
 ate examination of the subject before a Committee of the 
 Commons in 1849. 
 
 There have been also proclamations of martial rule, by 
 other English colonial governors, in a few instances : 
 twice in New Zealand, and twice in Australia; but 
 thes.e exhibitions of a little brief authority in remote 
 dependencies have received great animadversion in the 
 mother country. In the English Law Magazine, of 
 November, 1861, is an exposure of the lawlessness of the 
 the authority, which these colonial governors took upon 
 themselves to exercise. 
 
 Lastly, within six months Gordon's case in Jamaica 
 has renewed the discussion about the legality of martial 
 rule. There was a statute of the Colonial Legislature, 
 
83 
 
 providing for its establishment : but nevertheless the 
 opinion of English counsel, and of the English public, 
 appears to be that the act of the Governor of Jamaica 
 was without warrant in law, and that he ought for it to 
 be brought to exemplary punishment. 
 
 These various debates, discussions, and opinions are 
 abundant evidence, that martial rule for others than mar- 
 tial persons, will never be tolerated bj the free people of 
 England. 
 
 Even when courts martial have been authorized, their 
 abuses have been punished with great severity. The 
 case of Governor Wall, who was hanged in England, in 
 1802, for causing a sergeant, at Goree, in Africa, in 1782, 
 to be whipped till he died, is given in the State Trials, 
 Vol. 28. There is also a case of Wright agt. Fitzgerald, 
 27 State trials, where the plaintiff recovered £500 for 
 cruelties practised during the Irish rebellion under color 
 of the despotic power given by the Irish Parliament and 
 the Lord Lieutenant. The case of Lieutenant Erye, men- 
 tioned in McArthuron Courts-martial, is refreshing to all, 
 who love to see the law vindicated, the dignity and inde- 
 pendence of the judiciary maintained, and the insolence 
 of power humbled. 
 
 Let us turn now to France, as France was when she 
 had a constitutional government. I have shown what 
 the King of England cannot do. Let me show^ what the 
 constitutional King of France could not do. 
 
 On the continent of Europe, the legal formula for put- 
 ting a place under martial rule is to declare it in a state 
 of siege ; as if there were in the minds of lawyers every- 
 where, no justification for such a measure but the exi- 
 gencies of impending battle. The charter established 
 for the government of France, on the final expulsion of 
 the first Napoleon, contained these provisions: 
 
 Art. — " The king is the supreme chief of the state ; 
 he commands the forces by sea and land ; declares war ; 
 makes treaties of peace, alliance and commerce ; appoints 
 to every oflice and agency of public administration ; and 
 makes rules end ordinances necessary for the execution 
 of the laws, without the power ever of suspending them^ 
 or dispensing with their execution." 
 
84 
 
 Art. — " Tlie king alone sanctions and promulgates 
 the laws." Art. — " No person can be withdrawn from 
 his natural judges." Art. — " Therefore there cannot 
 be erected commissions or extraordinary tribunals." 
 AVhen Charles the Tenth was driven from the kingdom, 
 the last Article was amended by adding the words, "under 
 what name or denomination soever ;" Dupin, giving the 
 reason thus : " In order to prevent every possible abuse, 
 we have added to the former text of the charter ' under 
 what name or denomination soever,' for specious names, 
 have never been wanting for bad things, and without this 
 precaution the title of * ordinary tribunal ' might be con- 
 ferred on the most irregular and extraordinary of courts." 
 
 Now, it so happened, that two years later the strength 
 of these constitutional provisions was to be tested. A 
 formidable insurrection broke out in France. The king 
 issued an order, dated June 6th, 1832, placing Paris in a 
 state of siege, founded " on the necessity of suppressing 
 seditious assemblages which had appeared in arms in the 
 capital, during the days of June 5th and 6th ; on attacks 
 upon public and private property; on assasinations of 
 national guards, troops of the line, municipal guards and 
 officers in the public service ; and on the necessity of 
 prompt and energetic measures to protect public safety 
 against the renewal of similar attacks." On the 18tli of 
 June, one Geoffroy. designer, of Paris, was by a decision 
 of the second militarj^ commission of Paris declared 
 " guilty of an attack, with intent to subvert the govern- 
 ment and to excite civil war," and condemned to death. 
 
 He appealed to the Court of Cassation. Odilon 
 Barrot, a leader of the French Bar, undertook his case, 
 and after a discussion memorable forever for the spirit 
 and learning of the advocates, and the dignity and inde- 
 pendence of the judges, the court gave judgment, that 
 " Whereas, Geoffroy brought l>efore the 2d military 
 commision of the first military division is neither in 
 the army nor impressed with a military character, yet 
 nevertheless said tribunal has implicitly declared itself to 
 have jurisdiction and passed upon the merits, wherein it 
 has committed an excess of power, violated the limits of 
 
So 
 
 its jurisdiction and (he provisions of Articles 53 and 54 
 of the charter and those of the laws above cited : On 
 these grounds the court -reverses and annuls the proceed- 
 ings instituted against the appellant before the said 
 commission, whatsoever has followed therefrom, and es- 
 pecially the judgment of condemnation of the 18tli of 
 June, instant ; and in order that further proceedings be 
 had according to law, remands him before one of thf 
 judges of instruction of the court of first instance oe 
 Paris," &G. 
 
 Thereupon, this king, invested with the purple, born of 
 a race of kings, the descendant of St. Louis, with all the 
 traditions of the monarchy to uphold him, with the mar- 
 shals of France, commanding, in the streets of Paris, 
 a large and veteran army, this king nevertheless bowed 
 before the judges, and released the prisoner from military 
 custody. 
 
 Mark now the change which has taken place in France. 
 When the government of Louis Philippe was replaced by 
 a republic, the power of declaring a state of siege was 
 taken from the executive and given to tlie legislature. 
 But when Louis Napoleon began his usurpation his 
 first step was to issue this decree of the 2d of December. 
 " The President of the Kepublic decrees — 
 
 1st. — " The National Assembly is dissolved. 
 
 2d. — " Universal suffrage is re-established. 
 
 3d. — " The French people are convoked in their 
 various districts from the 14th to the 21st of 
 December, 
 
 4th. — " The state of siege is declared in the ivhole 
 extent of the first military division. 
 
 5th.—" The Council of State is dissolved." 
 
 By these means he was enabled to plant his foot on the 
 necks of thirty millions of the French. And when he 
 afterwards came to frame the Constitution of his empire, 
 he inserted this article : " He (the emperor) has the right 
 
86 
 
 of declaring a state of siege in one or more departments, 
 provided that he inform the Senate thereof with the least 
 delay." 
 
 This brief account of the practice of the three great 
 constitutional governments of modern times, shows us 
 that in the degree in which a country becomes iree, in 
 that degree the military is made dependent upon and 
 subordinate to the civil power. Siloit le.gej^ infer arma 
 was never the maxim of free and brave men. Let us rather 
 recur to that older and better maxim, cedant anna togce ; 
 which prevailed when Roman citizenship was a sigh of 
 freedom as well as glory, and the proud words, " I am a 
 Roman citizen," were a protection, against lawless power, 
 in the depths of Scythian forests or under the shadow of 
 African mountains. May we not expect, that fmm this 
 day forth the prouder claim, " I am an Atnericaii citizen," 
 will bo a title and guaranty of freedom from all human 
 rule but of the law of the land. 
 
 Here, then, if the Court please, I close my argument 
 against the competency of the military commission which 
 was convened at Indianapolis in the Autumn of 1864, for 
 the trial of the petitioners. 
 
 It remains to consider what remedy, if any, tliey had 
 against this unlawful judgment and its threatened ex- 
 ecution. 
 
 The great remedj^ provided by our legal and political 
 system for unlawful restraint, whether upon pretended 
 judgments, decrees, sentences, warrants, orders, or other- 
 wise, is the writ of habeas corpus. 
 
 The writ of prohibition from Circuit Courts is not 
 authorized by Congress, except to the District Courts. 
 Probably the State Courts might issue it, but that course 
 would be more likely to lead to a collision, than if the 
 remedy came from the Federal Tribunals. And it would 
 be at the best, but a dilatory proceeding ; and before its 
 termination the mischief might be remediless. The writ 
 of mandamus is altogether inappropriate. 
 
 The remedy which each of the petitioners asked in 
 the present case was, " that under the Act of Congress 
 approved March 3, 1863, entitled 'An Act relating to 
 
87 
 
 HaleciH Corpus and regulating judicial proceedings in 
 certain cases,' he may [might] be brought before this 
 Court by writ of habeas corpus, or such other process as 
 the Court [might] award for that purpose ; together with 
 the cause of his caption and detention ; to do and receive 
 whatsoever the Court [might], upon full and final hear- 
 ing, order and adjudge in relation thereto, in pursuance 
 of the Act of Congress aforesaid ; and that, at all events, 
 he [might] be delivered from said military custody and 
 imprisonment ; and if found probably guilty of any im- 
 proper conduct or offence against the United States of 
 America, turned over to the proper civil tribunal for 
 inquiry and punishment, according to law, or for dis- 
 charge from custody altogether." 
 
 The Act of Congress, referred to in this prayer, has been 
 already referred to, biit a little more detail may be now 
 necessary. After declaring that " a list of the names of 
 all persons, citizens of States in which the administration 
 of the law has continued unimpaired in the said Federal 
 Courts, who are now or may hereafter be held as pris- 
 oners of the United States, by order or authority of 
 the President of the United States, or eitht^' of said 
 secretaries, in any fort, arsenal, or other place, as State 
 or poltical prisoners, or otherwise than as prisoners of 
 war," it proceeds to enact that "in all cases where a 
 grand jury, having attended any of said Courts having 
 jurisdiction in the premises, after the passage of this 
 Act, and after the furnishing of said list as aforesaid 
 has terminated its session wdthout finding an indictment 
 or presentment, or other proceeding against any such 
 person, it shall be the duty of the Judge of said Court 
 forthwith to make an order, that an}^ such prisoner, 
 desiring a discharge from said imprisonment, be brought 
 before him to be discharged ; and any officer of the 
 United States having custody of such prisoner is hereby 
 directed immediately to obey and execute such order ; 
 and in case he shall delay, or refuse so to do, he shall 
 be subject to indictment for a misdemeanor, and be 
 punished by a fine of not less than five hundred dollars, 
 and imprisonment in the county jail for a period not less 
 
88 
 
 than six months, in the discretion of the Court." By 
 the third section, it is provided that if the list is not 
 furnished, any citizen may apply, on oath, for the 
 order. 
 
 Whether, therefore, in the present case, the remedy 
 should be by the technical writ of habeas corpus, or by 
 a still more summary order in the nature of the writ, 
 does not appear to be material. The questions certified, 
 relating to the remedy, are : 1st. Whether the writ of 
 habeas corpus ought to be issued ; and, 2d. Whether the 
 petitioner ought to be discharged. 
 
 The writ and the order may be equally efficacious, but 
 inasmuch as the order may certainly take the form of 
 the wTit, and as the proceedings upon the w^rit are well 
 understood, and as that great writ of freedom lies as 
 deep in the foundations of the law as in the heai»ts of 
 freemen, the argument may be addressed chiefly to 
 that. Recurring, therefore, to the three propositions 
 concerning the remedy which I stated at the outset 
 of my argument, I shall proceed to discuss them. The 
 argument will, of course, be much abridged, by what 
 has been already observed respecting the nature and 
 extent of martial power. 
 
 The authority to suspend the privilege of the habeas 
 corpus is derived, it is said, from tw^o sources : first, 
 from the martial power ; and, second, from the second 
 subdivision of the Ninth Section of the First Article of 
 the Federal Constitution. 
 
 As to the martial power, I have already discussed it 
 so fully that I need not discuss it again. I trust it has 
 been shown, that this powder — the war power, as it is 
 fashionable to call it--belongs to Congress, and not to 
 the President ; and that his function is to execute, in 
 that respect, the wdll of Congress. His power is no 
 more the war power than is that of General Grant, 
 or any other subordinate ; for the President, as com- 
 mander in chief, is only, as Hamilton describes him, 
 the "first general and admiral of the confederacy." 
 
 If the President, as commander in chief of the army, 
 navy, and militia in federal service, has not the power of 
 
89 
 
 martial rule over others than martial persons, he cannot 
 control them by either trial or arrest, or detain them, 
 against the interposition, or in defiance of the judicial 
 power. As a question, therefore, under what has been 
 incorrectly called the War Power of the President, I 
 submit that it is no longer worth considering. 
 
 How, then, stands the question, upon the text of the 
 Constitution ? This is the language : " The privilege of 
 the writ of habeas corpus shall not be suspended unless 
 when in cases of rebellion or invasion the public safety 
 may require it." My argument will be confined to this 
 phrase, and its true interpretation. Its importance, 
 upon the present occasion, consists in this : If the 
 President, and he alone, is invested by this clause 
 with the power of suspending the privilege — if he cannot 
 be controlled by Congress in its exercise — ^then I know 
 not how the petitioners could be relieved from the 
 custody of the Provost Marshal, however illegal their 
 trial and conviction may have been. 
 
 Each of the three great departments of government 
 is independent in its own sphere, and if it be once 
 granted, that the power in this respect belongs to the 
 President alone, I am unable to perceive that Congress 
 can rightfully control him in its exercise, or subject his 
 discretion to theirs. 
 
 The clause in question certainly either grants the 
 power or implies that it is already granted, and in either 
 case it belongs to the legislative, executive and judicial 
 departments, concurrently, or to some excluding the 
 rest. 
 
 There have been four theories : one that it belongs to 
 all the departments ; a second, that it belongs to the 
 legislature ; a third, that it belongs to the executive ; and 
 the fourth, that it belongs to the judiciary. 
 
 Is the clause a girint or di, limitation of power? Look- 
 ing only at the form of expression, it should be regarded 
 as a limitation ; like the next subdivision which is in 
 these words : " No bill of attainder or ex post facto law 
 shall be passed." 
 
 In no other part of the Constitution is such a plirase 
 12 
 
90 
 
 used to express a grant of power. The advocates of such 
 a construction are obliged te say, that the clause is ellip- 
 tical, and should be read as if it were as follows : The 
 privilege shall not be suspended, unless, when in cases 
 of rebelUion or invasion, the public safety may require it, 
 and then it may be suspended. This is a strained construc- 
 tion, not at all in harmony with the general simplicity of 
 the Constitution. 
 
 Next as a grant of power it would be superfluous, for 
 it is clearly an incident of others which are granted. 
 Take for example the power to raise and support armies. 
 In a time of war, the unrestrained issue of the writ might 
 seriously embarrass the Government in keeping together 
 under proper discipline either recruits or drafted men > 
 for which reason it might be necessary or proper to 
 suspend the privilege during the exigency. Can it be 
 doubted that Congress would have the power to enact 
 that, while the exigency lasted, no soldier should be 
 brought before a State Court on habeas corpus ? 
 
 Then regarding the clause, according to its place in the 
 Constitution, it should be deemed a limifation ; for it is 
 placed with six other subdivisions in the same section, 
 every one of which is a limitation. li implies that the 
 power has been already granted, just as in the 4th and 
 6th subdivisions, a power is implied. Thus the 4th de- 
 clares that " No capitation or other direct tax shall be 
 laid unless in proportion to the census, or enumeration 
 hereinbefore directed to be taken," and the 6th, that " no 
 money shall be drawn from the treasury, but in conse- 
 quence of appropriations made by law." 
 
 If the sentence respecting the habeas corpus be, as I 
 contend, a limitation, and not a grant of power, we must 
 look into other parts of the Constitution to find the grant; 
 and if we find none making it to the President beyond 
 his appointment as commander in chief, and it has been 
 shown that there is none in that, it follows that the power 
 is in the legislative or the judicial department. How it 
 should be in the judiciary, it is not easy to see. That 
 department has no other function than to judge. It can- 
 not refuse or delay justice. But if it were assumed, that 
 
91 
 
 tlie power of suspending the privilege of the writ belongs 
 to the judicial department, it is quite clear that the pres- 
 ent is a case, where the writ would 'not be denied bj the 
 Courts, or any of its privileges withheld. 
 
 If the clause in question be deemed a gnmt of power, 
 the question occurs, to whom is the grant made? The 
 following considerations go to show that is to be deemed 
 as made to Congress : 
 
 First. — The debates in the Convention which framed 
 the Constitution seem, at least to suppose, that the power 
 was given to Congress, and to Congress alone. 
 
 Second. — The debates in the various State Conventions 
 which ratified the Constitution do most certainly proceed 
 upon that supposition. 
 
 Third. — The place in which the provision is left, indi- 
 cates, if it does not absolutely decide, that it relates only 
 to the powers of Congress. It is not in the second article 
 which treats of the executive department. It is not in 
 the third, which treats of the judicial department. It is 
 in the first article, which treats of the legislative depart- 
 ment. There is not another subdivision in all the seven 
 subdivisions of the ninth Section, which does not relate 
 to Congress in part, at least, and most of them relate to 
 Congress alone. 
 
 Thus, the first is : " The migration or importation of 
 such persons as any of the States now existing shall think 
 proper to admit, shall not be prohibited by the Congress 
 prior to 1808," (fee. That is clearly a restriction upon 
 Congress. The second is : " The privilege of the writ of 
 habeas corpus shall not be suspended," etc. Third : " No 
 bill of attainder, or ex pod facto law, shall be passed." 
 That is clearly a limitation on Congress. Fourth : " No 
 capitation, or other direct tax, shall be laid, unless in pro- 
 portion to the census," <fec. That is a limitation upon Con- 
 gress. Fifth : " No tax or duty shall be laid on articles 
 exported from any State." That also is a limitation upon 
 Congress. Sixth : " No preference shall be given by any 
 regulation of commerce or revenue to the ports of one State 
 
92 
 
 over those of another," etc. That is a restriction on the 
 powers of Congress. Seventh : "No money shall be drawn 
 from the Treasury, but in consequence of appropriations 
 made by law," &g. That is a restriction upon all depart- 
 ments of Government ; upon Congress not less than the 
 others ; and finds its proper place here, because it is Con- 
 gress that appropriates mone^^ Eighth : " No title of no- 
 bility shall be granted by the United States." Does any 
 body suppose that to be a restriction on the President? 
 Could he grant a title of nobility ? And then follows a 
 general restriction : " No person holding any office of profit 
 or trust under them " [the United States] " shall, without 
 the consent of the Congress, accept of any present, 
 emolument, office, or title, of any kind whatever, from any 
 king, prince or foreign state." 
 
 The Constitution is remarkable for its arrangement 
 of the subjects embraced in it. There is scarcely 
 another instrument to which the rule, noscitur a sociis, 
 can be better applied, for its interpretation. The 
 different topics are grouped together, with a careful 
 regard to their proper places. Thus it begins, in its 
 first article, with creating, empowering and restricting 
 the legislative department ; passing, in the tenth section, 
 to restrictions upon the States, in matters which, for the 
 most part, pertain to Congress, or in which the States 
 might thwart the policy of Congress. If the clause 
 respecting the habeas corpus be a grant of power to the 
 President, it is the only one in the whole article. Not 
 only does the article contain no grant to that officer, 
 but the ninth section contains no grant to any of the 
 departments of government. 
 
 Fourth. — The constitutional law of the mother country 
 had been long settled, that the power of suspending the 
 privilege of the writ, or, as it w^as sometimes called, 
 suspending the writ itself, belonged only to Parliament. 
 With this principle firmly seated in the minds of lawyers, 
 it seems incredible that so vast a change, as conferring 
 the grant upon the executive, should have been so loosely 
 and carelessly expressed. 
 
93 
 
 Fifth. — The ]n'e vailing sentiment of the time when 
 the Constitution was framed, was a dislike and dread of 
 executive authority. It is hardly to be believed, that so 
 vast and dangerous a power would have been conferred 
 upon the President, without providing some safeguards 
 against its abuse. 
 
 Sixth. — Every judicial opinion, and every commentar}' 
 on the Constitution, up to the period of the rebellion, 
 treated the power as belonging to Congress, and to that 
 department alone. 
 
 Taking thus the context,* the universal understanding 
 of the time, the contemporaneous exposition, the subse- 
 quent commentaries, and the political reasons which 
 may be supposed to have affected the statesmen of 
 that day, the argument should seem to be conclusive, 
 that the power of suspending the privilege of the writ 
 of habeas corpus appertains to the legislative department 
 of the Government, and to that alone. It has, I know, 
 been argued that there is an incongruity in authorizing 
 Congress to suspend its own law. This is too narrow 
 a view of the subject. The States have judicial estab- 
 lishments which can and do issue writs of hal)eas corpus, 
 an hundred-fold more in number than the w^'its issued 
 from the federal Courts. Indeed, it may be regarded 
 as a provision made, rather in reference to the writ of 
 habeas corpus in the States, than to the writ as likely to 
 be issued under the authority of Congress. 
 
 The straits to which the country was reduced during 
 the late wicked rebellion, and the omission of Congress 
 for two years to authorize the suspension of the privilege, 
 gave rise to a series of discussions on the subject. Most 
 of the writers — indeed, I believe, all but three — took 
 decided ground for the interpretation, which, I submit, 
 is the true one. One of the three supposed the power 
 to reside in the judicial department. Among those who 
 thought it belonged to the executive, there was one so 
 able and distinguished that I cannot forbear mentioning 
 
94 
 
 Lis name in this connection. Horace Binney, " clarum 
 et venerabile nomcn,'' argued, with all his ability, for that 
 interpretation which gave the power to the President, 
 to be exercised, not in a military, but m a civil capacity. 
 The authority of that great man, the acknowledged head 
 of the Bar of his country, is such, that if it ctnild not 
 give the interpretation an adequate sanction, nothing 
 else may be expected to do it. 
 
 Supposing, then, the power to belong to Congress, as 
 I have endeavored to show that it does, we find it exer- 
 cised by the Act of March 3, 1863, and by none other. 
 The first section of that Act is as follows : 
 
 " 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 privi- 
 lege of the writ of haleas corpus in any case throughout 
 the United States, or any part thereof. And whenever 
 and wherever the said privilege shall be suspended, as 
 aforesaid, no military or other offic-er shall be compelled, 
 in answer to any writ of habeas corpus, to return the body 
 of any person or persons detained by him by the authority 
 of the President ; but upon the certificate, under oath, of 
 the officer having charge of any one so detained, that 
 such person is detained by him as a prisoner, under 
 authority of the President, further proceedings under the 
 writ of habeas corpus shall be suspended by the Judge or 
 Court having issued the said writ, so long as said suspen- 
 sion by the President shall remain in force, and said 
 rebellion continue." 
 
 "Without stopping to consider whether the power could 
 be delegated by Congress, or, if it could, whether the. 
 delegation could be made in terms so general, I pass to 
 an examination of the President's action under the Act. 
 There were two proclamations on the subject issued by 
 him afterwards. One was on the 15th of September, 
 1863, and declared : 
 
 " That the privilege of the said writ shall now be sus- 
 pended throughout the United States, in the cases where, 
 by the authority of the President of the United States, 
 military, naval, and civil officers of the United States, or 
 
\)o 
 
 any of them, bold persons under their command, or in 
 their custody, either as prisoners of war, spies, or aiders 
 or abettors of the enemy, or officers, soldiers, or seamen 
 enrolled or drafted, or mustered, or enlisted in, or belong- 
 ino- to the land or naval forces of the United States, or 
 as deserters therefrom, or otherwise amenable to military 
 law, or the rules and articles of war, or the rules and 
 regulations prescribed for the military or naval forces, by 
 authority of the Presiclent of the United States, or for 
 resisting a draft, or for any other offence against the 
 military or naval service." 
 
 The proclamation of July 5, 1864, related only to the 
 State of Kentucky. 
 
 If therefore, for the sake of the argument, we admit, 
 that when the petitioner was first arrested, the privilege 
 of the writ was suspended as to him, by virtue of the Act 
 of March, 1863, and the President's proclamation of Sep- 
 tember 15, 1863, it is nevertheless certain, that under the 
 First Section of the Act the writ ought to issue, leaving 
 the further disposition of the case to depend upon the 
 return or certificate mentioned in the section, and that 
 under the Third Section of the Act, the suspension ceased 
 at the end of twenty days from the 27th of January, 1865, 
 that is on the 17th of February of that year. A term of 
 the Circuit Court of the United States was held on the 
 2d of January, 1865, and adjourned on the 27th of the 
 same month. At this term a grand jury was empanneled, 
 sworn, and charged, and adjourned without finding any 
 indictment or presentment against the petitioners. The 
 sentence against them was approved and promulgated 
 more than two months afterwards. Therefore, by this 
 Act of Congress, duly passed and approved by the Presi- 
 dent, the petitioners were entitled to the writ, or an order 
 in the nature of the writ, that they might be discharged. 
 
 And so we submit to the Court, that the answers to the 
 three questions, certified by the Court below, should be, 
 to the first, that, on the facts stated in the petition and 
 exhibits, a writ of habeas corpus ought to be issued ac- 
 cording to the prayer of the petition ; to the second, 
 that, on the same facts, the petitioners ought to be dis- 
 
iMi 
 
 cliargecl ; and to the third, that the military commission 
 had not jurisdiction to try and sentence the petitioners, in 
 manner and form as in the petition and exhibits is 
 stated. 
 
 Thus, may it please the Court, have I performed the 
 part assigned me in the argument of these cases. The 
 materials were abundant. I only fear that I may have 
 wearied you with the recital or erred in the selection. ,1 
 could not look into the pages of English law — -I could 
 not turn over the leaves of English literature — I could 
 not listen to the orators and statesmen of Engbind, with- 
 out seeing everywhere an almost unbroken denunciation 
 of martial usurpation, and the declaration of the un- 
 doubted right of everj^ man, high or low, to be judged 
 according to the known and general law^, by a jury of his 
 peers, before the"judges of the land. And w^hen I turned 
 to the history, legal, political and literary, of my own 
 country — my own undivided and forever indivisible coun- 
 try — I found the language of freedom intensified. Our 
 fathers brought with them the liberties of Englishmen. 
 Throughout the colonial history, we find the colonists 
 clinging, wdth immovable tenacity, to trial by jury. 
 Magna Charta and the Petition of Eight. They had 
 won them in the fatherland in many a high debate and 
 on many a bloody field ; and they defended them here 
 agatnst the emissaries of the Crown of England and 
 against the veteran troops of France. We, their children, 
 thought we had superadded to the liberties of English- 
 men the greater and better guarded liberties of Ameri- 
 cans. 
 
 These great questions, than wdiich greater never yet 
 came before this most august of human tribunals, are 
 now to receive their authoritative and last solution. Your 
 judgment will live when all of us are dead. The robes 
 which you wear will be worn by others, who will occupy 
 your seats, in long succession, through, I trust, innumer- 
 able ages ; but- it will never fall to the lot of any to pro- 
 nounce a judgment of greater consequence than this. It 
 wdll stand, when the statue, which with returning peace 
 we have raised above the dome of the Capitol, shall have 
 
97 
 
 fallen from its pedestal, its sword broken, and its shield 
 scattered in pieces ; nay, when the dome itself, which, 
 though uplifted into the air, seems immovable as the 
 foundation of the earth, shall have crumbled ; it will stand 
 as long as that most imperishable thing of all, our 
 mother tongue, shall be spoken or read among men. 
 
 That judgment, I hope and I believe, will establish the 
 liberty of the citizen on foundations never more to be 
 shaken, and will cause the future Iiistorian of our greatest 
 struggle to write that, great as were the victories of our 
 war, they were equalled in renown by the victories of our 
 peace. 
 
APPENDIX. 
 
 I. 
 
 Earl of Lancaster's Case. ^ 
 
 1 Blacksfone Com., 413. 
 
 " Martial law, which is built upon no settled principles, 
 but is entirely arbitrary in its decisions, is, as Sir Mat- 
 thew Hale observes (Hist. C. L., c. 2), in truth and reality 
 no law, but something indulged rather than allowed as a 
 law. The necessity of order and discipline in an army is 
 the only thing which can give it countenance ; and there- 
 fore it ought not to be permitted in time of peace, when 
 the king's courts are open for all persons to receive jus- 
 tice, according to tlie laws of the land. Wherefore 
 Thomas Earl of Lancaster being condemned at Ponte- 
 fract, 15 Ed. XL, by martial law, his attainder was reversed 
 1 Ed. 3, because it was done in time of peace (2 Brad. 
 App. 59). And it is laid down (3 Inst. 52) that if a lieu- 
 tenant or other that hath commission of martial autho- 
 rity doth in time of peace hang or otherwise execute any 
 man by colour of martial law, this is murder, for it is 
 contrary to Magna Carta (cap. 29)." 
 
 1 Hale Pleas of the Croian (Dogherty's Ed. London, 1800), 
 pp. 499, 500. 
 
 " If in time of peace a commission issue to exercise 
 martial law% and such commissioners condemn any of the 
 King's subjects (not being listed under the military 
 power), this is without all question a great misprision 
 and an erroneous proceeding, and accordingly adjudged 
 in parliament in the case of the Earl of Lancaster, Pari. 
 1 Ed, 3. 
 1 
 
2 Appendix, 
 
 IK, p. 344. 
 
 " Claus. 1 i7. 3, part. 1, m. 21 dors. Thomas Earl of 
 Lancaster was condemned to death, as a traitor by Ed- 
 ward II., at Pontefract. Henry, his brother, brought a 
 petition of error in the parliament of 1 E. 3 upon that 
 judgment ; the record was removed in these words : 
 
 " ' Pleas of the Crown before our lord the King Edward, 
 son of our lord the King Edward, held in the presence of 
 our lord the king himself at Pontefract on the day of 
 June next before the Feast of the Annunciation of the 
 Blessed Virgin Mary, in the fifteenth year of his reign. 
 
 " ' Thomas Earl of Lancaster being taken for treasons, 
 homicides, arsons, robberies and divers other felonies, 
 and being brought before our lord the king himself, in 
 the presence of Edmund Earl of Kent [and six others 
 named] the barons and other magnates of the king, our 
 lord the king, remembered that the same Thomas, a 
 liege man* of our lord the king, came at Burton-on- 
 Trent, together with Humphrey de Bohun, formerly 
 Earl of Hereford, found to be a traitor to the king and 
 kingdom, with colors flying at Boroughbridge, in war 
 against our lord the king, and there slain, and Roger 
 Damory adjudged to be a traitor, and other traitors and 
 enemies of the king and kingdom, with colors flying, 
 and resisted and impeded in hostile force as of war, for 
 the space of three days, our lord the king himself and 
 his men and servants from passing over the bridge of the 
 said town of Burton, &c. And hence, our lord the king, 
 having respect to the thus great crimes of said Earl 
 Thomas, and his misdeeds and his great ingratitude, had 
 no cause to extend in the premises any grace to the said 
 Earl Thomas, to pardon him the aforesaid punishments 
 adjudged against him ; yet because the same Earl 
 Thomas was born of an excellent and most noble family, 
 our lord the king of his regard for the said family, of his 
 special grace remits to the said Earl Thomas the execu- 
 tion of two of the punishments adjudged, as aforesaid, to 
 wit : that the same Earl Thomas be not drawn nor hung, 
 but that execution only be done upon the same Earl 
 Thomas, that he be beheaded. 
 
 " ' Thereupon the record being read in presence of our 
 lord the king, the nobles and great men of the kingdom, 
 and others in this parliament, he assigned these errors : 
 1. That there was error in this : that although when any 
 liege man whatever of the king be taken in time of 
 peace for seditions, homicides, robberies, arsons and 
 other felonies, and be brought into any court whatever of 
 our lord the king, he ought for such seditions and other 
 
Eiui of Lanca-sttr's Case. 5 
 
 Monies charged against him, by th« law and custom of 
 the kingdom, to be arraigned, and put to answer, and 
 then by the law, &g., to be convicted, before he be ad- 
 judged to death ; yet the said Earl Thomas, a liege man 
 of our lord and father the king, aforesaid, &c., was taken 
 in time of peace, and brought before the king himself ; 
 and the said our lord and father the king, &c,, remembered 
 that the same Thomas was guilty of the seditions and 
 other felonies in the aforesaid record contained ; without 
 this, that he arraigned him therefor or put him to answer 
 as is the custom according to the law, &c., and thus, with- 
 out arraignment and answer, the same Thomas, of error 
 and contrary to the law of the land was in time of peace 
 adjudged to death, notwithstanding that it is notorious 
 and manifest that the whole time in which the said mis- 
 deeds and crimes contained in the said record and pro- 
 ceedings were charged against the said Earl, and also the 
 time in which he was taken, and in which our said lord 
 and father the king remembered him to be guilty, &c., 
 and in which he was adjudged to death, was a time of 
 peace, and the more especially as throughout the whole 
 time aforesaid the Chancery and other courts of pleas of 
 our lord the king were open, and in which right was done 
 to every man, as it was used to be; nor did the same lord 
 the king in that time ever ride with standard unfurled ; 
 the said lord and father the king, &c., in such time of 
 peace ought not against the same Earl thus to have re- 
 membered nor to have adjudged him to death without 
 arraignment and answer. He says also : 2. That there 
 is error in this, that although the said Earl Thomas was 
 one of the lords and magnates of the kingdom, and it 
 was contained in the great charter of the liberties of 
 England ' that no free man be taken, imprisoned, or be 
 disseised of his freehold or liberties or free customs, or 
 outlawed or exiled, or any otherwise destroyed ; nor will 
 our lord the king 23ass upon him nor condemn him but 
 by lawful judgment of his peers or by the law of the 
 land ;' the said Earl Thomas, by the record of the king, 
 as is aforesaid ' in time of peace ' was of erroradjudged to 
 death, without arraignment or answer or lawful judg- 
 ment of his peers against the law, &c., and against the 
 tenor of the said great charter; and therefore, as brother 
 and heir of Thomas, prays that the judgment be annulled 
 and he restored to his inheritance ; and the aforesaid re- 
 cord and proceedings, &c., being seen and more fully 
 understood, for the errors aforesaid and others in the 
 same record and proceedings found, therefore, it is con- 
 sidered by our lord the king himself, the lords, magnates, 
 
4 Appendix. 
 
 and all the commang of the kingdam in this parh'ament, 
 that the said judgment rendered against tlie said Thomas^ 
 for error be revoked and held for nought, and that the 
 said Henr^% as brother and heir of the said Earl Thomas, 
 be admitted to sue for and have due process hereupon to 
 be made as is used, and have a writ out of chancery ; 
 and that the justices in whose pleas the said record and 
 proceedings are enrolled cause the same record and pro- 
 ceedings to be avoided and held for nought, ttc' (P. 15, 
 Ed. 2, B. E, Kot, 69, and R 39, Ed, 3, Kot, 49/coram 
 Bege.) 
 
 " This notable record even before the statute of 25 Ed, 
 3 [the statute of treasons], gives us an account of these 
 things : 1. That in time of peace no man ought to be ad- 
 judged to death for treason or any other often se, without 
 being arraigned and put to answer, 2. That regularly, 
 wdien the king's courts are open, it is a time of peace in 
 judgment of law. 3. That no man ought to be senten- 
 ced to death by the record of the king without his legal 
 trial per pares/' 
 
 HumCf History of Englcind, Ch. 14, voL 2, p. 159, 
 
 *' The king had now got the start of the barons, an ad- 
 vantage which, in those times, was commonly decisive ; 
 and he hastened with his army to the marches of Wales, 
 the chief seat of power of his enemies, whom he found 
 totally unprepared for resistance. Many of the barons 
 in tliose parts endeavored to appease him by submission ; 
 their castles were seized, and their persons committed to 
 custody, But Lancaster, in order to prevent the total 
 ruin of his party, summoned together his vassals and re- 
 tainers ; declared his alliance with Scotland, which had 
 long been suspected ; received the promise of re-enforce- 
 ment from that country, under the command of Eandolf, 
 Earl of Murray, and Sir James Douglass ; and being 
 joined by the Earl of Hereford, advanced with all his 
 forces against the king, who had collected an army of 
 thirty thousand men, and was superior to his enemies. 
 Lancaster posted himself at Burton-upon-Trent, and 
 endeavored to defend the passage of the river ; but 
 being disappointed in that plan of operations, this 
 prince, who had no military genius, and whose personal 
 courage was even suspected, fled with his army to the 
 north, in expectation of being there joined by his Scottish 
 allies. He was pursued by the king, and his army di- 
 minished daily, till he came to Boroughbridge, where he 
 found Sir Andrew Harcla posted with some forces on 
 
Military Commissions of Chas, I. 5 
 
 the opposite side of tlio rivor, and ready to dispute the 
 passage with him. He was repulsed in an attempt which 
 he made to force his way ; the Earl of Hereford was 
 killed ; the whole army of the rebels was disconcerted : 
 Lancaster himself was become incapable of taking any 
 measures either for flight or defence ; and he was seized 
 without resistance by Harcla and conducted to the king. 
 In those violent times, the laws were so much neglected 
 on both sides, that, even when they might, without any 
 sensible inconvenience, have been observed, the con- 
 querors deemed it unnecessary to pay any regard to them. 
 Lancaster, who was guilty of open rebellion, and was 
 taken in arms against his sovereign, instead of being 
 tried by the laws of his country, which pronounced the 
 sentence of death against him, was condemned by a court 
 martial and led to execution." 
 
 II. 
 
 MiTiTARY Commissions of Chas. I. 
 
 Rymer's Foedera XVI 11. 254. 
 
 " Chaeles by the Grace of God &c. To our right 
 trusty and well beloved cousin Edward, Viscount Wim- 
 bleton. Lord Marshall of our Army and to our trustie and 
 welbeloved Sir William St. Leger Knight, Serjeant Major 
 of our Army [and 23 others] : 
 
 " Whereas upon the Eetourne of Our Fleete, Wee have 
 alreadie directed that non of the Soldiers imployed in 
 that Service, and which shall retourne in any of those 
 Shipps shall be disbanded or departe from their Colours, 
 but shall continue under the Commaund of those under 
 whom they then served. Wee having present occasion to 
 use their Services again, and yet Wee shall be inforced 
 for a time to lodge and billett the said Soldiers in severall 
 Places in and about Our Towne of Plymouth and in Our 
 Counties of Devon and ComeivaU where, with most Con- 
 venience for the Soldiers and least Trouble to the 
 Countrey itt may be best performed, untill Wee shall 
 have Opportunitie to ymploye them, which We intend to 
 doe with all Expedition ; And to the end that all Dis- 
 orders and Outrages, to the Disturbance of Our Peace 
 and the Prejudice of our loveing Subjects may be tymely 
 
6 Appendix. 
 
 prevented, Wee being more desireous. to keepe Our 
 People from doeing Miscliiefe than to have cause to 
 punish them for doeing the same : 
 
 " Have, of the speciall Trust and Confidence We have 
 reposed in your approved Wisdomes and Fidelities, 
 appointed you to be our Commissioners and by tlieis 
 Presents doe give unto you or any three or more of you, 
 full Power and Authoritie in all Places within Our said 
 Counties of Devon and Cormvall and either of them, as 
 well within the said Town of Plymouth or anie other 
 Towne Libertie or Place as without, within Our said 
 Counties of Devon and Cornwall or either of them, to 
 proceede according to the Justice of Marshall Lawe 
 against such Soldiers or other dissolute Persons joining 
 with them or anie of them, as dureing such Time that 
 anie of our said Troopes or Companies of Soldiers shall 
 remayne or abyde thereabouts, and not be transported 
 thence, shall within any the Places or Precincts aforesaid 
 att anie Time after tbe Publication of this Our Commis- 
 sion, committ any Robberies, Felony es, or Mutynies, or 
 other Outrages or Misdemeanors, which by Marshall 
 Lawe should or ought to be punished with Death, and by 
 such summarie Course and Order as is agreeable to Mar- 
 shall Lawe, and is used in Armies in tyme of Warres, to 
 proceed to the Triall and Condempnation of such Delin- 
 quents and Offendors, and them to cause to be executed 
 and putt to Death according to the Lawe Marshall for an 
 Example of Terror to others, and to keepe the rest in due 
 Awe and Obedience. 
 
 " To which Purpose Our Will and Pleasure is that you 
 cause to be erected such Gallowes and Gibbetts, and in 
 such Places Avithin the said Counties or either of them, 
 as you shall think fitt, and thereupon to cause the same 
 Offenders to be executed in open View, that others may 
 take warning thereby to demeane themselves in such due 
 Order and Obedience as good Subjects ought to do, 
 straightlie chargeing and commaunding all Mayors, Sher- 
 iffs, Justices of Peace, Constables, Bayliffs and other 
 Officers, and all other Our loveing Subjects whatsoever 
 upon their Allegiance to Us and Our Crowne, to be be 
 {sic) ay ding and assisting to you or such three or more of 
 you as aforesaid in the due Execution of this Our Royall 
 Commaundment, and theis Presents shal be unto you and 
 everie of you sufficient Warrant and Discharge for the 
 doeing and executing and causing to be done and exe- 
 cuted all and everie such Act and Acts, Thing and 
 Things as anie three or more of you as aforesaid shall 
 find requisite to be done concerning the Premises. 
 
Extracts from the Petition of Right. 7 
 
 " In Witnes whereof ^fec. 
 Witnes, &c 
 
 Teste Eege Apud Hampton Court vicesimo 
 octavo Die Decembris. 
 
 Per Breve cle Privato SIgilJo, d'c. 
 A. D. 1625." 
 
 //;., 763. 
 
 Similar Commission " to proceed according to the 
 Justice of Martiall La we against sucli Soldiers or 
 Marriners, or other dissolute Persons joyneing with 
 them or any of them as within the said County [of Kent] 
 or any Parte thereof, shall at any tyme after the Publi- 
 cation of this Our Commission committ any Bobbery, 
 Felony, Mutiny or other Outrage or Misdemeanour or 
 which shall withdrawe themselves from their Places of 
 Service or Charge as aforesaid or shal be found within 
 the said Countie or any Parte thereof, wdiich by the 
 Martiall Lawe should or oughte to be punished with 
 Death and by such summary Course " &c nt supra. 
 
 " Witnes Our Selfe at Canbury the fourth day of 
 October [1626J. Per ipsum Regtm." 
 
 III. 
 
 Extracts feom the Petition of Right. 
 
 The Petition of Bight (5 Statutes of the Realm, fol. 24), 
 
 '• Whereas also by authority of Parliament in the 25th 
 year of the reign of King Edward III., it is declared and 
 enacted, That no man shall stand fore-judged of life or 
 limb against the form of the Great Charter and the laws 
 and statutes of this Realm ; And by the said Great 
 Charter and other the laws and statutes of this your 
 Realm, no man ought to be adjudged to death but by 
 the laws established in this your Realm, either by the 
 customs of the same realm or by acts of Parliament ; 
 
 *' Whereas no offender of what kind soever is exempted 
 from the proceedings to be used, and punishments to be 
 inflicted by the laws and statutes of this your Realm ; 
 Nevertheless of late, divers Commissions, under your 
 Majesty's great Seal, have issued forth, by which certain 
 persons have been assigned and appointed Commissioners 
 with power and authority to proceed, wdthin the land, 
 
8 Appendix. 
 
 nccording to the justice of murtwl J<nr, against such sol- 
 diers and mariners, or other dissohite persons joining 
 with them, as should commit any murder, robbery, felony, 
 mutiny, or other outrage, or misdemeanor whatsoever ; 
 and by such summarj^ course and order as is agreeable 
 to martial law, and is used in armies in time of war, to 
 proceed to the trial and condemnation of such offenders, 
 and them to cause to be executed and put to death 
 according to the law martial : 
 
 *' By pretext whereof some of your majesty's subjects 
 have been by some of the said Commissioners put to 
 death, when and where if by the laws and statutes of the 
 land they had deserved death, by the same laws and sta- 
 tutes also they might and by no other ouglit to have been 
 judged and executed : 
 
 " And also sundry grievous offenders by color thereof 
 claiming an exemption have escaped the punishment due 
 to them by the laws and statutes of this your realm, by 
 reason that divers of your officers and ministers of jus- 
 tice have unjustly refused or forborn to proceed against 
 such offenders according to the same laws and statutes, 
 upon pretence that the said offenders were punishable 
 only by martial law, and by authority of such commis- 
 sions as aforesaid ; which commissions and all other of 
 like nature are wholly and directly contrary to the said 
 laws and statutes of this your realm : 
 
 *' They do therefore humbly pray your most excellent 
 majesty ^ ^ ^ {^j^g^^l; ^i^q aforesaid commis- 
 sions for proceeding by martial law may be revoked and 
 annulled ; and that hereafter no commissions of like 
 nature may issue forth to any person or persons whatso- 
 ever to be executed as aforesaid, lest by color of them 
 any of your majesty's subjects be destroyed or put to 
 death contrary to the laws and franchise of the land." 
 
 " The petition was read, and then the clerk read this an- 
 swer : ' Soit droit fait comme il est desire.' " (8 Pari. 
 Hist. 202, 7th June, 1628.) 
 
 IV. 
 
 English Acts suspending the Privilege of the Writ 
 OF Habeas Corpus. 
 
 Lid of English Acts " to empower his Majesty to se- 
 cure and detain such persons as his Majesty shall 
 
Eng. Acts suspending Prlv. of Writ of Habeas Corpus. 9 
 
 suspect are conspiring against his Majesty's person 
 or government." 
 
 1 W, and M, St. 1, Ch. 7, 19. 
 7 and 8 W. 3, Ch, 11. 
 6 Anne, Ch. 15. 
 
 I Geo. 1, Ch. 8, 30. 
 17 " 2, Ch. 6. 
 
 19 '' " " 1. 
 
 17 " 3, " 9. 
 
 34 " " " 54 
 
 35 '' " '' 1. 
 
 38 " " " 36. 
 
 39 '' " " 44. 
 
 39 and 40 Geo. 3, Ch. 32. 
 41 Geo. 3, Ch. J6. 
 
 57 Geo. 3, Ch. 3 and 55, p. 193 (which see 
 below). 
 
 II and 12 Yict., Ch. 35. 
 
 These acts are generally in the form of which the fol- 
 lowing (57 Geo. 3, Ch. 55) is a specimen : 
 
 " An act to continue an act, to empower his Majesty to 
 secure and detain such persons as his Majesty shall 
 suspect on conspiring against his person and gov- 
 ernment (30th June, 1817)." 
 
 § 1. Enacts that " all or any person or persons, that 
 are or shall be in prison, w^ithin that part of the United 
 Kingdom called Great Britain, at or upon the day on 
 which this act shall receive his Majesty's royal assent, or 
 after, b}" warrant of his said Majesty's most hon. privy 
 council, signed by six of the said privj^ council, for high 
 treason, suspicion of treason or treasonable practices, or 
 by w^arrant signed by any of his Majesty's Secretaries of 
 State, for such causes as aforesaid, may be detained in 
 safe custody without bail or mainprize, until the 1st day 
 of March, 1818, and that no judge or justice of the peace 
 shall bail or try any such person or persons so committed, 
 without orders from his said Majesty's privy council, 
 signed by six of the said privy council, until the first day 
 of March, 1818, any law or statute to the contrary not- 
 withstanding. 
 
 § 2. " That the act made in Scotland, in the year of 
 our Lord, 1701, intitled an act for preventing wrongous 
 imprisonment, and against undue delays in trials, in 
 so far as the same may be construed, to relate to the 
 cases of treason, and suspicion of treason, with rope ct to 
 2 
 
10 Appendix, 
 
 persons so committed as aforesaid, be suspended until 
 the first day of March, 1818, and until ' said day ' no 
 judge, justice of the peace, or other officer of the law of 
 Scotland, shall liberate, try, or admit to bail, any person 
 or persons that is, are, or shall be in prison in Scotland, 
 under a waiTant or warrants, signed as aforesaid, for such 
 causes as are aforesaid, without orders from his said Ma- 
 jesty's privy council, signed by six of the said privy 
 council 
 
 § 3. " Provided always, that from and after the first 
 day of March, 1818, the said persons so committed, shall 
 have the benefit and advantage of all laws and statutes 
 in any way relating to, or providing for ' the liberty of the 
 subjects of this realm,' '* 
 
 Act for lrekmd.~The 11 and 12 Vict., CL 36, p. 165, 25th 
 July, 1848, provides that : 
 
 § 1. Persons imprisoned in Ireland at the date of this 
 Act or after, by warrant of six privy councillors, "for high 
 treason, or treasonable practices, or suspicion of high trea- 
 son or treasonable practices," may be " detained in safe 
 custody without bail or main prize, until March 1st, 1849," 
 and not to be bailed or tried without order of the Irish 
 privy council, until March 1st, 1849. 
 
 § 2. The persons to whom such warrants are directed 
 shall detain such persons, as lawful prisoners. 
 
 T. 
 
 Geoffeoy's Case, in Fkance, 
 
 Cozirt of Cassation, June 29tk, 1832 (24 Journal du Palais, 
 p. 1218, seqq). 
 
 " The laivs and decrees in regard to creating a state of 
 siege, must he carried into execution in cdl points not con- 
 trary to the Constitutional Charter. 
 
 " But Art. 103, Decree of 24: Dec. 1811, being irreconcileahle 
 icith Art 53 and 54 of the Charter of 1830, placing a city in 
 a state of siege, cannot have the effect of conferring jurisdic- 
 tion on military commissions (conseils de guerre) over persons 
 tvho are not in the army, nor impressed ivith a military 
 character. Laio 22 Messidor, year IV, Art. 1. 
 
 " Geoffroy vs. Le Ministeee Public. 
 " A royal order dated June 6th, 1832, had put Paris in 
 a state of siege ; it was based on the necessity of repress- 
 
Geoffroy^s Case^ in France, 11 
 
 ing seditious assemblages wliich bad appeared in arms in 
 the capital, during the days of June 5th and 6th ; on 
 attacks upon public and private property ; on assassina- 
 tions of national guards, troops of the line, municipal 
 guards and officers in the public service ; and on the ne- 
 cessity of prompt and energetic measures to protect pub- 
 lic safety against the renewal of similar attacks. 
 
 " The Cour Eoyale, called to meet in extra session by 
 order of the first president, to pass by way of review 
 {evocation) or otherwise, upon the political occurrences 
 of the 5th and 6th of June, rendered the following judg- 
 ment on the 7th of June, all the chambers being united : 
 On hearing the Procureur General on his motion, decid- 
 ing on the proposition of one of its members to cause to 
 be transmitted for review, the record relative to criminal 
 acts committed on the 5th and 6th of the present month ; 
 Whereas, by the order dated yesterday, the city of Paris 
 has been placed in a state of siege, and wdiereas, by the 
 terms of Art. 101, of the Decree of Dec. 24, 1811, passed 
 to carry out the laws of July 8, 1791, and 10th Fructidor, 
 year Y, the effect thereof is to transfer to the military 
 commandant, the power vested in the civil judges for the 
 maintainance of order and police- 
 
 " ' And whereas, the occurrences which occasioned the 
 placing of the City of Paris in a state of siege, must be 
 subjected to this rule of law, although anterior thereto : 
 
 " ' It is declared that no ground for a review exists'. 
 
 " The publicity encountered by this decision raised the 
 question of the constitutionality of the order, and the no 
 less weighty question of the jurisdiction of military com- 
 missions over acts done and ended before the order de- 
 claring the state of siege was inserted in the Moniteur 
 and the Bulletin des Lois, 
 
 " As early as June 10th, the Gazette des Trihunaux 
 published a carefully considered opinion on these points 
 by Mo. Ledru Eollin, of the Paris bar. The ball thus 
 being opened, the opposition press soon after collected 
 the opinions of several notabilities of the order of advo- 
 cates of the Court of Cassation, and the concurring opin- 
 ions of a number of the bars of the kingdom. All these 
 opinions increased the arguments against the constitu- 
 tionality of the order, its retroactive force, and the juris- 
 diction of military commissions. 
 
 " The military commissions having taken cognizance 
 of the cases, the successive defendants at their bar ex- 
 cepted in vain to their jurisdiction. The exceptions were 
 -entered of record, saving the right to pass upon them in 
 deciding upon the merits. But it must be noted that this 
 
12 Aypemlix. 
 
 answer to the exception on the ground of want of jnrisclic^ 
 tion, did not afford a decision on the exceptions. Accord- 
 ing to the law of the 13th Brnmaire, year V, which pre- 
 scribes the procedure to be pursued before military commis- 
 sions, the latter must give judgment without adjournment ; 
 military judges are both judges and juries ; they have but 
 one question to answer, (Art. 30^ of the law cited) : 'Is N., 
 the accused, guilty?' Being thus bound under the law 
 which created them, by the double dut}^ of giving judg- 
 ment without adjournment, and of answering a complex 
 question, the question of their jurisdiction could not be ex- 
 plicitly decided by the jnilitary commissions themselves ; 
 judgments of not guilty left the point vaguely undecided ; 
 on the other hand the counsel for the defence being un- 
 able after discussing it, to avoid a discussion of the merits 
 without putting the fate of the accused in jeopardy, re- 
 lied upon the exercise of the discretionary power which 
 might be adopted by military judges from the new law, 
 permitting juries to put questions upon trials for the pur- 
 pose of discovering extenuating circumstances. 
 
 " However, more than one capital sentence was pro- 
 nounced. Among the accused, Michael Augustus Geof- 
 frey , designer, of Paris, was by a decision of the second 
 military commission of Paris, on the 18th of June, by a 
 majority of 6 to 1, declared guilty of an attack with in- 
 tent to subvert the government and to excite civil war. 
 He was consequently condemned to death, in accordance 
 with Art. 87, 89 and 91, of the Penal Code and the law of 
 iHth Germinal, year YI. 
 
 " Geoffroy immediately appealed to the Council of Pie- 
 vision and the Court of Cassation." 
 
 [The latter court made an interlocutory order that the 
 record should be brought into their clerk's office to await 
 their further judgment. This having been done and the 
 reporting counsellor having stated the question raised, 
 M. Odilon Barrot, of counsel for the appellant, stated 
 and argued three propositions as the grounds of his ap- 
 peal, as follows :] 
 
 1st. " Placing the City of Paris in a state of siege by a 
 mere Order, when the city has not been invested and the 
 communications have not been interrupted is an illegal act, 
 and deemed not to exist. 2d. In case the state of siege 
 be considered legal and constitutional, it is impossible 
 that it should result in withdrawing citizens from their 
 natural judges and in obliterating, as regards them, the 
 53d and 54th Articles of the Charter." 
 
 [The third point related to the retroactive effect of the 
 Order.] 
 
Geoffroys Cki.se, in France. 13 
 
 " 1st. How is the question in this case to be stated ? 
 Can any one ask whether the government is authorized 
 to despoil its citizens of the guaranties of a jury, not only 
 for ordinary misdemeanors but even for violations of the 
 laws of the press ? This would be doing violence to the 
 Charter which establishes trial by jury. Will any one 
 put the question thus: Is the City of Paris besieged? 
 This would be doing violence to common sense. Where, 
 I ask, are the rebels investing the city and putting it in 
 a state of siege ? Are not the communications unob- 
 structed ? No, the city is not besieged ; there is no state 
 of siege ; the siege is a fiction ; this fiction is not lawful. 
 
 " 2d. The laws of Prairial, year III, and Ventose, year 
 IV, are those on wliich the pretended jurisdiction of military 
 commissions is founded. A military commission, it is said, 
 is not an extraordinary, special tribunal. It is a perma- 
 nent court. This assertion is refuted by the statutes and de- 
 cisions. The laws of the years III and IV, were re-cast and 
 re-enacted by the law of Pluviose, year IX, which created 
 special tribunals, and subsequently by that of 1815, 
 which created provost's courts as a part of the ordinary 
 administration of justice. This has been distinctly de- 
 cided by the Court of Cassation in the cases of military 
 emissaries and spies ; of enticements to desert ; of high- 
 way robbers ; and of all persons brought within the scope 
 of the laws conferring special jurisdiction. I add, that 
 according to these laws, the decisions of this court did 
 not bring within the jurisdiction of military courts such 
 individuals as were prosecuted for having formed a part 
 of an armed assemblage, except in those cases where they 
 were taken in the assemblage itself. 
 
 " Therefore, as regards the persons placed by the 
 events of June in the hands of the executive, some excep- 
 tional, extraordinary jurisdiction was required, and it is 
 this very jurisdiction which the 58d and 54th articles of 
 the Charter have banished never to return. Listen to M. 
 Dupin commenting on these articles from the rostrum : 
 ' In order to prevent every possible abuse, we have added 
 to the former text of the Charter ' under Avhat name or 
 denomination soever ;' for specious names have never been 
 wanting for bad things, and without, this precaution the 
 title of 'ordinary tribunal' might be conferred on the most 
 irregular and extraordinary of courts.' This is the prin- 
 ciple which was applied in the ordinance of 1830, relating 
 to juries in Corsica. This ordinance declares that the 
 acts of the government which had created in Corsica — 
 not a military tribunal but — a supreme court, an ordinary 
 jurisdiction, created by a senatus-consultum, confirmed 
 
14 A^jpemJlx. 
 
 by clivers decrees, and sanctioned bj a crowd of deci- 
 sions, be and remain abrogated. Then, if the jurisdiction 
 of judges for life, surrounded by guaranties, deciding 
 with the solemnity of ordinary justice, has been consi- 
 dered extraordinary, what shall military commissions be 
 called, which decide without adjournment, as soon as the 
 case is before them, without any body similar to a grand 
 jury having first declared the existence of the indictment, 
 which decides without confronting witnesses, without a 
 challenge, and whose judgments are executed withiu 
 twenty-four hours ? The most enormous of exceptions, 
 the most monstrous of special jurisdictions is a court 
 which judges a non-military person by accidental au- 
 thority. This tribunal, to use the epithet of the decree 
 of the Convention of the 28th Thermidor, year III, can 
 render nothing but revolutionary judgments ; judgments 
 which, by returning to true principles, were declared null 
 and void by the Convention itself. 
 
 " It is objected that the special laws concerning states 
 of siege have survived the Charter, and that they compel 
 the establishment of military justice. No ; even putting 
 aside the Charter of 1830, there is no law^ which, within the 
 land, and excepting the case of an investment, permits a 
 military chief to place a people beyond the pale of their 
 constitutional guaranties. There are three laws which re- 
 late to a state of siege, that of 1791 , that of the vear V, and 
 the Decree of Dec. 24th, 1811. The law of 1791 provides 
 w^hat shall be done as regards places of strength, in the 
 three situations in which they may be placed ; peace, 
 war, siege ; it derogates in no respect from the Constitu- 
 tion of 1791, according to which no person can be accu- 
 sed or condemned except in virtue of a declaration of a 
 jury on the facts, and of judges on the law. The law of 
 the 17th Fructidor, year V, fills a void in the law of 1791; 
 it provides for the case where a place of strength in the 
 interior should be in an analogous position to that of a 
 place of strength, that is, invested by forces of the ene- 
 my, or by rebels. How is it possible to make out of a war 
 measure, a measure of public safety ; a measure of sus- 
 pending the constitution, and of creating a dictatorship 
 towering above thi3 institutions of the country? Can 
 any one at this day, give the name of law to an act 
 which sanctioned the 18th of Fructidor, and the establish- 
 ment of renewed proscriptions? As to the decree of 1811 ; 
 that, in its letter, and in its spirit, was no measure of pub- 
 lic safety, but an act of military police prescribing a rule 
 in regard to places of strength ; this decree has perished 
 like all exceptional measures, by which the head of the 
 
Geoffroys Case, in France. 15 
 
 government had arrogated to himself the power of modi- 
 fying the Constitution ; it was one of the causes of his 
 downfall." 
 
 [The public prosecutor replied to the first ground taken 
 by the defence, as follows :J 
 
 '^ ^'' " ^' " The right to declare a state of siege 
 is confided exclusively to the chief magistrate, or the 
 executive power ; to the king, under the responsibility of 
 his ministers, by the law of 1791 ; to the executive direc- 
 tory by the laws of the year V, under the duty of inform- 
 ing the legislative body, which, at that time, was to be in 
 permanent session ; to the emperor by the decree of 1811 ; 
 in a word, always to the executive power, as governed by 
 the necessities of the case and the law of public safety, 
 and solely capable of appreciating the demand for the 
 measure." 
 
 1 To the second ground :] 
 
 " " ^^" " " Yfhat is the character and nature 
 of the Charter ? It is the usual and ordinary constitu- 
 tion of the country, the basis of our public law. What is 
 a state of siege ? A violent, extraordinary state of things 
 based upon the necessity of defence, and of providing for 
 the common safety, attacked or threatened to be attacked 
 by a war, or aggression of some kind. At such a time 
 ordinary misdemeanors and crimes may become military 
 misdemeanors and crimes, subject to the laws of war, and 
 triable by its courts. The authority of mihtary commis- 
 sions is therefore necessarily connected with a state of 
 siege. Without it a. state of siege would be nothing but 
 an abstraction ; the laws which govern it belong to a 
 state of things entirely outside of ordinary law\ The 53d 
 and 54th x^rticles of the Charter are cited against us. 
 Art. 53 merely reproduces Art. 62 of the Charter of 1814, 
 and it has alw^ays been held that the ' natural judges' of 
 a person accused, are those fixed by the law for the case 
 or person to be judged. Art. 54 strengthens the prohi- 
 bition contained in Art. 53. But, in the first place, per- 
 manent military commissions are not extraordinary com- 
 missions, newly and specially created for specific cases ; 
 they are recognized by a. course of legislation ; they are 
 not abolished by the Charter. This has been held seve- 
 ral times by this court under the Charter of 1830, as well 
 as that of 1814. These tribunals are not an exception to 
 the usual order of things, they are the usual rule of a 
 different order of things. The Charter did not, and could 
 not provide for a state of siege ; and never intended that 
 the government should stand disarmed, wdiere circum- 
 stances have once showed the necessity of this excep- 
 
16 Ajspi'ndix, 
 
 tional state, outside of ordinary law. It follows that mili- 
 tary commissions do not take cognizance by force of the 
 order of the 6th of June, but as a consequence of the 
 state of siege, and because military tribunals belong to 
 ti state of siege, and are the usual judges, recognized as 
 such by law, in cases by which this state is created and 
 constituted, which is not the normal state provided for 
 by the Charter." 
 
 [On the '29tli of June the Court gave judgment as fol- 
 lows : I 
 
 '• Ptr Car. (After advisement in the council-chamber). 
 Whereas neither the Charter nor any subsequent law 
 treats of the laws and decrees which govern a state of 
 siege, and whereas these laws and decrees must therefore 
 be carried into execution in all points not contrary to the 
 Charter ; having considered the Art. 77, L. 27 Yentose, 
 year VIII, in these words : ' No appeal can be taken 
 against final judgments of jugts de paix, except for want 
 of jurisdiction or for exceeding the same, nor against the 
 judgments of military tribunals of land and sea, except 
 for the said causes, taken by a citizen not in the army 
 and not impressed by law with a military character by 
 reason of his duties ;' Art. 1, L. 22 Messidor, year IV, as 
 follows : ' No crime is military, unless committed by a 
 person forming a part of the army ; no other person can 
 be brought, as a defendant, before judges appointed by 
 military law ;' Art. 53, 51 and 56 of the Charter : ' No 
 person can be withdrawn from his natural judges.' ' Con- 
 sequently extraordinary commissions and tribunals can- 
 not be created under what title or name soever.' ' The 
 institution of juries is continued ;' Art. 69 which extends 
 the cognizance of juries to crimes of the press, and poli- 
 tical crimes, and the law of October 8, 1831, which defines 
 political crimes ; Art. 103, Decree of December 24, 1811, 
 as follows : ' As regards all crimes the cognizance of 
 which the commandant has not decreed fit to be left to 
 the ordinary courts, the duties of officers of judiciary 
 police are performed by a military provost, chosen as far 
 as possible from the officers of gendarmerie, and the or- 
 dinary courts are repLaced by the military courts ;' and 
 whereas this provision is irreconcileable with the letter 
 and the spirit of the above cited articles of the Charter ; 
 and whereas military commissions are ordinarj^ tribunals 
 solely for the judging of crimes committed by the military 
 or persons impressed by law with a military character, and 
 become extraordinary tribunals when they extend their 
 jurisdiction to crimes or misdemeanors committed by 
 non-military citizens ; and whereas Geoffroy, brought be- 
 
Geoffroffs Case, in France. 17 
 
 fore the 2d military commission of the first Military Divi- 
 sion, is neither in the array nor impressed with a military 
 character, yet nevertheless said tribunal has implicitly 
 declared itself to have jurisdiction and passed upon the 
 merits, wherein it has committed an excess of power, 
 violated the limits of its jurisdiction and the provisions 
 of Art. 53 and 54 of the Charter, and those of the laws 
 above cited : On these grounds, the court reverses and 
 annuls the proceedings instituted against the appellant 
 before the said commission, whatsoever has followed 
 therefrom and esp.^cially the judgment of condemnation 
 of the 18th Juno, instant. And in order that further pro- 
 ceedings be had according to law, remands him before 
 one of the judges of instruction of the court of first in 
 stance of Paris," &c. 
 
 Supplement a la Ripsrtoire dn Journal du Palais (1857), 
 vol. L, p. 101, Art. 50, 54, 55. 
 
 " The questions of jurisdiction, etc., discussed in 1832, 
 arose again in consequence of the events of June, 1848, 
 and new appeals were taken to the Court of Cassation ; 
 the Court was no longer confronted by the Charter of 
 1830, and this time declared that military commissions 
 had jurisdiction to try persons though not of the army, 
 accused of having taken part in the insurrection of June, 
 1848. {Journ. du P(dais, vol. /., 1850, p. 223.) 
 
 " Art. 106 of the Constitution of 1848, for the purpose 
 of putting end to all judicial controversies as to the le- 
 gality of a state of siege and its consequences, declared 
 that a law should be passed to fix the cases in which a 
 state of siege might be declared and determined at the 
 same time the forms and effects of this measure. This 
 lav/ w^as ])assed by the Legislative Assembly and promul- 
 gated August 9, 1849, [which enacts as follows : ' Art, 2. 
 The National Assembly solely can declare a state of siege, 
 except as in hereafter excepted. Art. 3. In case of pro- 
 rogation of the National Assembly, the President of the 
 Kepublic may declare a state of siege, with the advice of 
 the council of ministers. The President, when he has 
 declared a state of siege, must immediately inform the 
 commission created by virtue of Art. 32 of the Constitu- 
 tion, thereof, and, according to the importance of the 
 circumstance, convoke the National Assembly. The Na- 
 tional Assembly from the time when it meets, maintaines 
 or abolishes the state of siege'], and still governs this 
 impartant matter, except however one modification result- 
 ing from Art. 12 of the Constitution of June 14, 1852, as 
 3 
 
18 Appendix. 
 
 regards the authority invested with the right of declaring 
 a state of siege. By the terms of the Constitution of 
 1852, ' the Emperor has the right of declaring a state of 
 siege in one or more departments^ provided that he in- 
 form the Senate thereof, with the least delay.' " 
 
 VI. 
 
 Extracts from the Debates in the Federal Conven- 
 tion, SHOWING HOW the PROVISION AS TO THE HABEAS 
 
 Corpus came into its present shape. 
 
 {May 29th, 1787.) " Mr. Charles Pinckney, one of the 
 deputies of South Carolina, laid before the house for 
 their consideration, the draft of a Federal Government, 
 to be agreed upon between the free and independent 
 States of America." (1 Ellioffs Deh., 145.) ^ "" . "" 
 
 •' Art. yi. [Las-t clause but one.] All laws regulating 
 commerce shall require the assent of two thirds of the 
 members present in each house. The United States shall 
 not grant any title of nobility. Tlie Legislature of the 
 United States, shall pass no law on the subject of reli- 
 gion, nor touching or abridging the liberty of the press ; 
 nor shall the privilege of the writ of Habeas Corpus ever 
 be suspended, except in case of rebellion or invasion." 
 (1 //;., 148.) ^ ^ ^ ^ ^ ^ 
 
 "Art. IX. [Last clause.] All criminal offences (except 
 in cases of impeachment) shall be tried in the State 
 where they shall be committed. The trials shall be open 
 and public, and be by jury." (1 lb., 149.) 
 
 July 26. " The propositions offered to the Convention 
 by Mr. C. Pinckney, ^ ^ were referred to the com- 
 mittee " [of five]. (1 lb., 223.) 
 
 " Draft of a Constitution, reported by the committee of five^ 
 Aug. 6, 1787. {lb., 224.) 
 
 " Art. XL Sect. 4. The trial of all criminal offences 
 (except in cases of impeachments) shall be in the State 
 where they shall be committed, and shall be by jury." 
 (1 lb., 229.) 
 
 " Monday, Aug. 20, 1787. In Convention.— Mr. Pinck- 
 ney submitted to the House, in order to be referred to 
 the committee of detail, the following proj^ositions 
 (5/^., 445): ^ ^ ^ ^ 
 
Debates in Federal Convention on Haheas Corpus, 19 
 
 ""^ ' Tlie privileges and benefits of the writ of haheas corpus 
 shall be enjoyed in this government in the most expedi- 
 tious and ample manner, and shall not be suspended by 
 the Legislature, except upon the most urgent and press- 
 ing occasions, and for a limited time, not exceeding 
 
 months. 
 
 ^' ' The liberty of the press shall be inviolably pre- 
 served. 
 
 " ' No troops shall be kept up in time of peace, but by 
 consent of the Legislature. 
 
 " ' The military shall always be subordinate to the civil 
 power ; and no grants of money shall be made by the 
 Legislature, for supporting military land forces, for more 
 than one year at a time. 
 
 " ' No soldier shall be quartered in any house, in time 
 of peace, without consent of the owner.' (1 lb., 249. ) 
 
 " These propositions were referred to the committee of 
 detail, without debate or consideration of them by the 
 House.' " (5 lb., 446.) 
 
 " Tuesday, Aug. 28, 1787. It was moved and seconded 
 to amend the 4th section of the 11th article, to read as 
 follows : 
 
 " ' The trial of all crimes (except in cases of impeach- 
 ment) shall be by jury ; and such trial shall be held in 
 the State where the said crimes shall have been commit- 
 ted ; but w^hen not committed w^ithin any State, then the 
 trial shall be at such place or places as the Legislature 
 may direct;' which passed in the affirmative." (1 Jb., 270.) 
 
 " Mr. PiNCKNEY, urging the propriety of securing the 
 benefit of the habeas corpus in the most ample manner, 
 moved, that it should not be suspended^ but on the most 
 urgent occasions, and then for a limited time, not ex- 
 ceeding twelve months. 
 
 " Mr KuTLEDGE was for declaring the habeas corpus in- 
 violate. He did not conceive that a suspension could 
 ever be necessary, at the same time, through all the 
 States. 
 
 " Mr GouvEBNEUR Morris moved" (5 lb., 484) to *' add 
 the following amendment to the 4tli section, 11th article; 
 
 " The privilege of the writ of habeas corpus shall not be 
 suspended, unless where, in cases of rebellion or invasion, 
 the public safety may require it" (1 lb., 270.) 
 
 " Mr. Wilson doubted whether in any case a suspen- 
 sion could be necessary, as the discretion now exists 
 with judges, in most important cases, to keep in gaol or 
 admit to bail. 
 
 " The first part of Mr. Gouverneur Morris's motion, 
 to the word ' unless,' was agreed to nem. con. On the 
 
20 Appendix, 
 
 remaiuing part, New Hampshirey Massachusetts, Connec- 
 ticut, Pennsylvania, Delaware, Maryland, Virginia, ay, 
 7 ; North Carolina, South Carolina, Georgia, no, 3/' 
 (5 II)., 484.) 
 
 " Saturday, Sept. 8, 1787. — A committee was then ap- 
 pointed by ballot to revise the style of, and arrange, the 
 articles which had been agreed to by the House. The 
 committee consisted of Mr. Johnson, Mr. Hamilton, Mr, 
 Gouverneur Morris, Mr. Madison, and Mr. King.'^' (5 Ib.y 
 530 ; 1 Ik, 295.) 
 
 " Bevised Draft of the Constitution j reported Sepiemher 12, 
 1787, by the Committee of Revision : 
 
 "Art. I, Sect. 9, (Clause 2.)— The privilege of the 
 writ of habeas corpus shall not be suspended, unless 
 when, in cases of rebelKon or invasion, the public safety 
 may require it." (1 //>., 298, 301.) 
 
 '■'Art. Ill, Sect. 2, (Clause 3.)— The trial of all crimes, 
 except in cases of impeachment, shall be by jury ; and 
 such trial shall be held in the State where the said 
 crime I s] shall have been committed ; but when not com- 
 mitted within any State, the trial shall be at such place 
 or places as the Congress may by law have directed." 
 (1 IK, 304.) 
 
 " Thursday, Sept. 13, 1789.— ^ '' It was moved 
 and seconded to proceed to the comparing of the report 
 from the committee of revision with the articles which 
 were agreed to by the House, and to them referred 
 for arrangement ; which passed in the affirmative. 
 '^ ^ ^ And the same was read by paragraphs, 
 compared, and in some places corrected and amended." 
 (1 It)., 307.) 
 
 [The extracts last cited reappear unaltered, in word or 
 position, in the Constitution submitted to the States, ex- 
 cept the word "crime," which was changed to "crimes," 
 but on whose motion it does not appear. (5 lb., 535 to 
 553.)] 
 
 VII. 
 
 Extracts from the Debates in the State Conventions, 
 
 RELATIVE TO THE HaBEAS CoRPUS. 
 
 Massachusetts. 
 
 January 26th, 1788. " The paragraph which provides 
 
Debates in State Convention on Haleas Corpus. 21 
 
 that ' the privilege of the writ of haheas corpus shall not 
 be suspended, unless in cases of rebellion or invasion/ 
 was read, when 
 
 " Gen. TuoMrsoN asked the President to please to pro- 
 ceed. We have, said he, read the book often enough ; it 
 is a consistent piece of inconsistency. 
 
 " Hon. Mr. Adams, in answer to an inquiry of thS Hon. 
 Mr. Taylor, said that this power given to the general 
 government to suspend this privilege in cases of rebellion 
 aad invasion, did not take away the power of the several 
 states to suspend it, if they shall see fit. 
 
 " Dr. Tayloe asked, why this darhng privilege was not 
 expressed in the same manner it was in the Constitution 
 of Massachusetts. (Here the honorable gentleman read 
 tl:e paragraph respecting it, in the Constitution of that 
 Slate, and then the one in the proposed Constitution.) 
 He then remarked on the diiference of expression, and 
 asked why the time was not limited. 
 
 " Judge Dana said, the answer, in part, to the honorable 
 gentleman, must be, that the same men did not make both 
 Constitutions ; that he did not see the necessity or great 
 benefit of limiting the tvme. Supposing it had been as in 
 our Constitution, ' not exceeding twelve months,' yet as 
 our Legislature can, so might the Congress, continue the 
 suspension of the writ from time to time, or from year to 
 year. The safest and best restriction, therefore, arises 
 fiom the nature of the cases in which Congress are au- 
 thorized to exercise that power at all, namely, in those of 
 rebellion or invasion. These are clear and certain terms, 
 facts of public notoriety, and w^henever these cases shall 
 cease to exist, the suspension of the writ must necessarily 
 cease also. He thought the citizen had a better security 
 for his privilege of the writ of habeas corpus under the 
 Federal than under the State Constitution ; for our Legis- 
 lature may suspend the wTit as often as they judge ' the 
 most urgent and pressing occasions call for it.' He hoped 
 these short observations would satisfy the honorable 
 gentleman's inquiries ; otherwise, he should be happy to 
 do it by going more at large into the subject. 
 
 " Judge Sumner said, that this was a restriction on 
 Congress, that the writ of haleas corjMS should not be 
 suspended, except in cases of rebellion or invasion. The 
 learned judge then explained the nature of this writ. 
 ■^' * ^ ^' This privilege, he said, is essential 
 to freedom, and therefore the power to suspend it is 
 restricted. On the other hand, the State, he said, 
 might be involved in danger ; the worst enemy may lay 
 plans to destroy us, and so artfully as to prevent any 
 evidence against him, and might ruin the country, with- 
 
22 Appendix. 
 
 out the power to suspend the writ was thus given. Con- 
 gress have only power to suspend the privilege to persons 
 committed by their authority. A person committed un- 
 der the authority of the States will still have a right to 
 this writ." (2 Eli Deb., 108, 109.) 
 
 February 1, 1788. " Mr. Mason. ^ "" ^ The 
 paragraph that gives Congress power to suspend the 
 writ of haleas corpus claims a little attention. This is a 
 great bulwark, a great privilege indeed. We ought not, 
 therefore, to give it up on any slight pretence. Let us 
 vsee : How long is it to be suspended ? As long as rebel- 
 lion or invasion shall continue. This is exceeding loose. 
 Why is not the time limited as is [in] our Constitution ? 
 But, sir, ' its design would then be defeated.' It w^as the 
 intent ; and by it we shall give up one of our greatest 
 privileges." (2 //., 137.) 
 
 New Yobk : " The committee then proceeded through 
 sections 8, 9 and 10 of this article [i^rt. I.] with little or 
 no debate. As the Secretary read the paragraphs, amend- 
 ments were made in the order and form hereinafter re- 
 cited (2 EIL DdK, 40(i) :''.*.'' 
 
 " Sec, 9. — Eespecting the privilege of habeas corpus : 
 
 " ' Provided, That whenever the privilege of habeas cor- 
 pus shall be suspended, such suspension shall in no ca;se 
 exceed the term of six months, or until the next meeting 
 of Congress.' Moved by Mr. Lansing." (2 lb., 407.) 
 
 The ratification convention of the State of New York 
 *' declared and made known" among other things 
 ■^' ^ * " That every person restrained of his 
 
 liberty is entitled to an inquiry into the lawfulness of 
 such restraint, and to a removal thereof if unlawful ; and 
 that such inquiry ought not to be denied or delayed, ex- 
 cept when, on account of public danger, the Congress 
 shall suspend the privilege of the writ of habeas corpus'' 
 (1 EIL Deb., 328) ; and that " Under these impressions, 
 and declaring that the rights aforesaid cannot be 
 abridged or violated, and that the explanations aforesaid 
 are consistent with the said Constitution and in confidence 
 that the amendments which shall have been proposed to 
 the said Constitution will receive an early and mature 
 consideration, we * * * ratify the said Consti- 
 tution." (1 lb., 329.) 
 
 The convention " enjoin it upon their representatives 
 in Congress, to exert all their influence and use all rea- 
 sonable means, to obtain a ratification of the following 
 amendments to the said Constitution (//'.) : * * * 
 
Debates in State Convention on Habeas Corpus. 23 
 
 " That the privilege of the habeas corpm shall not, by 
 any law, be suspended for a longer term than six months, 
 or until twenty days after the meeting of the Congress 
 next following the passing the act for such suspension." 
 (Ik, 330.) 
 
 Virginia. v 
 
 " Mr. Wilson Kicholas. "^ * But it is complained 
 that they may suspend our laws. The suspension of the 
 writ of habeas corpus is only to take place in cases of re- 
 bellion or invasion. This is necessary in those cases ; 
 in every other case Congress is restrained from suspend- 
 ing it. In no other case can they suspend our laws ; 
 and this is a most estimable security." (3 Ell. Deb., 102.) 
 
 " Mr. Grayson thought it questionable whether rights 
 not given uj) were reserved. - * He further re- 
 marked that there were some negative clauses in the Con- 
 stitution which refuted the doctrine contended for by the 
 other side. For instance : the 2d clause of the 9th Sec- 
 tion of the 1st article provided that ' the privilege of the 
 Avrit of habeas corpus shall not be suspended, unless 
 when, in cases of rebellion or invasion, the public safety 
 may require it.' And, by the last clause of the same 
 section, ' no title of nobility shall be granted by the 
 United States.' Now, if these restrictions had not been 
 here inserted, he asked whether Congress would not 
 most clearly have had a right to suspend that great and 
 valuable right, and to grant titles of nobility ? When, in 
 addition to these considerations, he saw they had an in- 
 definite power to provide for the general welfare, he 
 thought tliere were great reasons to apprehend great 
 dangers. He thought, therefore, that there ought to be 
 a bill of rights." (3 lb., 449.) 
 
 "Mr. Henry. * * What will be the result if 
 Congress, in the course of their legislation, should do a 
 thing not restrained by this 9th Section ? It will fall as 
 an incidental power to Congress, not being prohibited 
 expressly in the Constitution. The first prohibition is, 
 that the privilege of the writ of hab?as coriAis shall not be 
 suspended, but when, in case of rebellion or invasion, 
 the public safety may require it. It results clearly that, 
 if it had not said so, they could suspend it in all cases 
 whatever." (3 lb., 461.) 
 
 " Mr Eandolph. ^ ^ But the insertion of the 
 negative restrictions has given cause of triumph, it 
 seems, to gentlemen. They suppose that it demonstrates 
 that Congress are to have powers by implication. I will 
 
 t 
 
'24 Ap[>endi.i\ 
 
 meet them on that ground. I persuade myself that 
 every exception here mentioned is an exception, not from 
 general powers, but from the particular powers therein 
 vested. ^ ^ He asks, Where is the power to which 
 the prohibition of suspending the habeas corpus is an ex- 
 ception ? I contend that, by virtue of the power given 
 to Congress to regulate courts, they could suspend the 
 writ of habeas corpus. This is therefore an exception to 
 that power." * * ^ (SEIL Deb., 464.) 
 
 Till. 
 
 Instances in which the Peivilege has been sustained, 
 
 AND HOW Understood. 
 Marshall, G. J., Ex p. B oilman, 4 Cranch, 101. 
 
 " If at any time the public safety should require the 
 suspension of the powers vested by this Act in the Courts 
 of the United States, it is for the Legislature to say so. 
 The question depends on political considerations, on 
 which the Legislature is to decide. Until the legislative 
 will be expressed, the Court can only see its duty and 
 obey the laws." • 
 
 Taney, G. J., Ex p. John Merriman, 9 Am. Law Beg. (1861), 
 536. 
 
 " I can add nothing to these clear and emphatic words 
 of my great predecessor." 
 
 1 Tucker.^ Blackstonc, App., 292. 
 
 " In the United States it (the writ of habeas corpus) can 
 be suspended only by authority of Congress ; but not 
 w^henever Congress may think proper ; for it cannot be 
 suspended, unless in cases of actual rebellion or invasion." 
 
 Story Gon^t., Sjc. 1342, an I no'ei 2 and 3. 
 
 " It would seem, as the power is given to Congress to 
 suspend the writ of habeas corpus, that the right to judge 
 whether the exigency had arisen must belong exclusively 
 to that body. Martin v. Motf, 3 Wheat, 19. See also 
 1 Tucker s Cowm., App., 292 ; 1 Kenfs Comm., Led. 12, 
 2d ed., pp. 262-5." * ''^ "^ "The only attempt 
 ever made in Congress to suspend the writ of habeas 
 corpus was during his (Jefferson's) administration, on 
 occasion of the supposed treasonable conspiracy of Col. 
 Aaron Burr." 
 
History of 3(J, htlt and Wi Amendments. 25 
 
 Raicle on the Constitution, 114. 
 
 " Of this the Constitution probably intends that the 
 Legislature of the United States shall be the judges, 
 charged as thej are Avith the preservation of the United 
 States from both these evils, and it seems not unreason- 
 able that this control over the writ of habeas corpus should 
 rest with them." 
 
 Smith's Comm,, 364 
 
 " * * * The restrictions laid u| on the legisla- 
 tive power of this Union, under express prohibitions 
 found in the same instrument ; and among them is that 
 which forbids the habeas corpus to be suspended." 
 
 Sedgwick's Stat, and Const. Lcnv, 598. 
 
 " It is understood that, as the unlimited power, in 
 cases of rebellion and invasion, is vested in Congress, 
 the right to judge of the expediency of the exercise is 
 also vested absolutely in that body." 
 
 IX. 
 
 History of the Third, Fifth and Sixth Amendments 
 TO THE Constitution. 
 
 Jn the State Conventions. 
 Massachusetts. 
 
 [The Constitution was fii-st discussed by paragraphs. 
 In the course of this debate the following remarks were 
 made : | 
 
 " January 30, 1787. — Mr. Holmes : Mr. President, [John 
 Hancock,] I rise to make some remarks on the paragraph 
 under consideration, which treats of the judiciary power. 
 
 " It is a maxim universally admitted that the safety of 
 a subject consists in having a right to a trial as free and 
 impartial as the lot of humanity will admit of. Does the 
 Constitution make provision for such a trial ? I think 
 not ; for in a criminal process, a person shall not have a 
 right to insist on a trial in the vicinity where the fact was 
 committed, where a jury of his peers would, from their 
 local situation, have an opportunity to form a judgment 
 of the character of the person charged with the crime, 
 4 
 
26 Appendix, 
 
 and also to judge of the credihility of the witnesses. There 
 a person must be tried by a jury of strangers ; a jury who 
 maij be interested in his conviction ; and where he mmjy 
 by reason of the distance of his residence from the place 
 of trial, be incapable of making such a defence, as he is, 
 in justice^ entitled to, and which he could avail himself of, 
 if his trial was in the same county where the crime is 
 said to have been committed. 
 
 " These circumstances, as horrid as they are, are ren- 
 dered still more dark and gloomy, as there is no provi- 
 sion made in the Constitution to prevent the attorney- 
 general from filing information against any person, 
 whether he is indicted by the grand jury or not ; in con- 
 sequence of which, the most innocent person in the com- 
 monwealth may be taken by virtue of a warrant issued in 
 consequence of such information, and dragged from his 
 home, his friends, his acquaintance, and confined in pri- 
 son, until the next session of the court which has juris- 
 diction of the crime with which he is charged, (and how 
 frequent those sessions are to be we are not yet informed 
 of,) and after long, tedious, and painful imprisonment, 
 though acquitted on trial, may have no possibility to ob- 
 tain any kind of satisfaction for the loss of his liberty, 
 the loss of his time, great expenses, and perhaps cruel 
 sufferings. 
 
 " And what makes the matter still more alarming is, 
 that the mode of criminal process is to be pointed out by 
 Congress, and they have no constitutional check on them, 
 except that the trial is by {ijury; but who this jury is to 
 be, how qualified, where to live, how appointed, or by 
 what rules to regulate their procedure, we are ignorant 
 of as yet : whether they are to live in the county where 
 the trial is ; whether they are to be chosen by certain 
 districts, or whether they are to be appointed by the 
 sheriff, ex-officio ; whether they are to be for one session 
 of the court only, or for a certain term of time, or for 
 good behavior, or during pleasure, are matters which we 
 are entirely ignorant of as yet. 
 
 " The mode of trial is altogether undetermined ; 
 whether the criminal is to be allowed the benefit of coun- 
 sel ; whether he is to be allowed to meet his accuser face 
 to face ; whether he is to be allowed to confront the wit- 
 nesses, and have the advantage of cross-examination, we 
 are not yet told. 
 
 " These are matters of by no means small consequence ; 
 yet we have not the smallest constitutional security that 
 we shall be allowed the exercise of these privileges, 
 neither is it made certain in the Constitution that a 
 
History of M, 5th and Qth Amendments, 27 
 
 person charged with the crime shall have the privilege of 
 appearing before the Court or jury which is to try him. 
 
 " On the whole, when we fully consider this matter, and 
 fully investigate the 'powers granted, explicitly given, and 
 specially delegated, we shall find Congress possessed of 
 powers enabling them to institute judicatories little less 
 inauspicious than a certain tribunal in Spain, which has 
 long been the disgrace of Christendom : I mean that dia- 
 bolical institution the Inquisition. ^ ^' "^ ^ 
 
 " There is nothing to prevent Congress from passing 
 laws which shall compel a man who is accused or sus- 
 pected of a crime to furnish evidence against himself, and 
 even from establishing laws which shall order the Court 
 to take the charge exhibited against a man for truth, 
 unless he can furnish evidence of his innocence. 
 
 " I do not pretend to say Congress tvitl do this ; but, 
 sir, I undertake to say that Congress (according to the 
 powers proposed to be given them by the Constitution) 
 may do it ; and if they do not, it will be owing entirety — I 
 repeat it, it will be owing entirely — to the goodness of the 
 men, and not in the least degree to the goodness of the 
 Constitution. 
 
 " The framers of our State Constitution took particular 
 care to prevent the General Court from authorizing the 
 judicial authority to issue a warrant against a man for a 
 crime, unless his being guilty of the crime was supported 
 by oath or affirmation, prior to the warrant being granted ; 
 why it should be esteemed so much more safe to intrust 
 Congress with the power of enacting laws, which it was 
 deemed so unsafe to intrust our State Legislature with, I 
 am unable to conceive." (2 Ell Deb., 109 to 112.) 
 
 " Mr. GoEE observed, in reply to Mr. Holmes, that 
 * " * very few governments (certainly not this) 
 can be interested in depriving the people of trial b}" ji^ry, 
 in questions of meum et tuum. In criminal cases alone are 
 they interested to have the trial under their own control ; 
 and, in such cases, the Constitution expressly stipulates 
 for trial by jury ; but then, says the gentleman from 
 Rochester, (Mr. Holmes,) to the safety of life it is indis- 
 pensably necessary the trial of crimes should be in the 
 vicinity ; and the vicinity is construed to mean county ; 
 this is very incorrect, and gentlemen will see the impro- 
 priety, by referring themselves to the different local 
 divisions and districts of the several States. But further, 
 said the gentleman, the idea that the jury, coming from 
 the neighborhood and knowing the character and circum- 
 stances of the party, is promotive of justice, on reflection 
 will appear not founded in truth. If the jury judge from 
 any other circumstances but what are part of the cause in 
 
28 Appendix, 
 
 question, they are not impartial. The great object is to 
 determine on the real merits of the cause, uninfluenced 
 by any personal considerations ; if, therefore, the jury 
 could be perfectly ignorant of the person in [on] trial, a 
 just deciS'ion would be more probable. From such motives 
 did the wise Athenians so constitute the famed Areopagus, 
 that, when in judgment, this Court should sit at midnight, 
 and in total darkness, that the decision might be on the 
 thing, and not on the person. Further, said the gentle- 
 man, it has been said, because the Constitution does not 
 expressly provide for an indictment by grand jury in 
 criminal cases, therefore some officer under this govern- 
 ment will be authorized to file informations, aud bring 
 any man to jeopardy of his life, and indictment by grand 
 jury will be disused. If gentlemen who pretend such 
 fears, will look into the Constitution of Massachusetts, 
 they will see that no ]3rovision is therein made for an in- 
 dictment by grand jury, or to oppose the danger of an 
 attorney-general filing informations ; 3^et no difficulty or 
 danger has arisen to the people of this Commonwealth 
 from this defect, if gentlemen please to call it so. If gen- 
 tlemen w^ould be candid, and not consider that, wherever 
 Congress may possibly abuse power they certainly will, 
 there would no difficulty in the minds of any in adopting 
 the proposed constitution." (2 lb., 112, 113.) 
 
 [The disciission of the separate paragraphs being 
 ended, Mr. Hancock submitted several propositions to 
 the Convention, the text of which is not given. (2 lb., 
 123.) On the sixth proposition, the following remarks 
 w^ere made :] 
 
 " Febrnanj 1, 1788— Mr. Adams : ^ ^ ^ Your 
 Excellency's next proposition is, to introduce the indict- 
 ment of a grand jury before any person shall be tried for 
 any crime by which he may incur infamous punishment 
 or loss of life ; and it is followed by another, which 
 recommends a trial by jury in civil actions between 
 citizens of different States, if either of the parties shall 
 request it. These, and several others which I have 
 mentioned, are so evidently beneficial as to need no 
 comment of mine. And they are all, in every particular, 
 of so general a nature, and so equally interesting to 
 every State, that I cannot but persuade myself to think 
 they would all readily join with us in the measure pro- 
 posed by your Excellency, if we should now adopt it." 
 (2 lb., 132, 133.) 
 
 [Mr. Hancock's propositions were referred to " a com- 
 mittee, wdio reported some amendments" [lb., 148), ap- 
 parently in the form finally adopted. (lb.)] 
 
Histonf of 3d,_5thjajid 6f/( Amendments. 29 
 
 " VI. That no person shall be tried for any crime by 
 which he may incur an infamous punishment, or loss of 
 life, until he bel^firstj indicted by a grand jury, except in 
 such cases as may arise in the government and regulation 
 of the land forces." (2 Ell Deh., 177.) 
 
 NewJ^Hampshihe. 
 
 VI. (Same as Massachusetts, supra, 1 Ih., 326.) 
 "X. That no" standing army shall be kept up in time 
 of peace, unless with the consent of three-fourths of the 
 members of each branch of Congress ; nor shall soldiers, 
 in time, of peace, be quartered upon private hou.ses, with- 
 out the consent of the owners." 
 
 New Yoek. 
 
 ''July 2, 1788.— Mr. Teeadwell. ^ '' ^ It 
 appears to me that, in forming this Constitution, we 
 have run into the same error which the lawyers and 
 Pharisees of old were charged with ; that is, while we 
 have secured the tithes of mint, anise and cumin, we 
 have neglected the weightier matters of the law — judg- 
 ment, mercy, and faith. Have we not neglected to 
 secure to ourselves the weighty matters of judgment or 
 justice, by empowering the general government to estab- 
 lish one supreme, and as many inferior Courts as they 
 please, whose proceedings they have a right to fix and 
 regulate as they shall think fit, so that we are ignorant 
 whether they shall be according to the common, civil, the 
 Jewish, or Turkish law ? What better provisions have 
 we made for mercy, when a man, for ignorantly passing 
 a counterfeit continental note, or bill of credit, is liable 
 to be dragged to a distant county, two or three hundred 
 miles from home, deprived of the support and assist- 
 ance of friends, to be tried by a strange jury, ignorant 
 of his character, ignorant of the character of the 
 witnesses, unable to contradict any false testimony 
 brought against him, by their own knowledge of facts, 
 and with whom the prisoner, being unacquainted, he 
 must be deprived totally of the benefit of his challenge ? 
 And besides all that, he may be exposed to lose his 
 life, merely for want of property to carry his witnesses 
 to such a distance ; and after all this solemn farce and 
 mockery of a trial by jury, if they should acquit him, it 
 will require more ingenuity than 1 am master of, to show 
 that he does not hold his life at the will and pleasure of 
 the Supreme Court, to which an appeal lies, and conse- 
 quently depend on the tender mercies, perhaps, of the 
 
30 Appendix. 
 
 wicked (for judges may be wicked) ; and what those 
 tender mercies are, I need not tell you. You may read 
 them in the history of the Star Chamber Court of England, 
 and in the Courts of Philip, and in your Bible." (2 Ell. 
 Deh., 399, 400.) 
 
 New York. 
 - The Convention " declared and made known \ ^ ^ ^ 
 
 *' That the militia should not be subject to martial law, 
 except in time of war, rebellion, or insurrection. 
 
 " That standing armies, in time of peace, are dangerous 
 to liberty, and ought not to be kept up, except in cases of 
 necessity ; and that at all times the militar}^ should be 
 under strict subordination to the civil power. 
 
 " That, in time of peace, no soldier ought to be quar- 
 tered in any house, without the consent of the owner ; 
 and, in time of war, only by the civil magistrate, in such 
 manner as the laws may direct. 
 
 " That no person ouglit to be taken, imprisoned, or 
 disseized of his freehold, or be exiled, or deprived of his 
 privileges, franchises, life, liberty, or property, but by 
 due process of law. 
 
 " That no person ought to be twice put in jeopardy of 
 life or limb, for one and the same offence ; nor, unless in 
 case of impeachment, be punished more than once for 
 
 the same offence. 
 
 it t^ ^ 
 
 " That (except in the govemment of the land and naval 
 forces, and of the militia when in actual service, and in 
 cases of impeachment) a presentment or indictment by a 
 grand jury ought to be observed as a necessary prelimi- 
 nary to the trial of all crimes, cognizable by the judiciary 
 of the United States ; and such trial should be speedy, 
 public, and by an impartial jury of the county where the 
 crime w^as committed ; and that no person can be found 
 guilty without the unanimous consent of such jury. But 
 in cases of crimes not committed wdthin any county of 
 any of the United States, and in cases of crimes commit- 
 ted within any county in wdiich a general insurrection 
 may prevail, or, which may be in possession of a foreign 
 enemy, the inquiry and trial may be in such countj^ as 
 the Congress shall by law direct ; which county, in the 
 two cases last mentioned, should be as near as conveni- 
 ently may be to that county in which the crime may have 
 been committed ; and that, in all criminal prosecutions 
 the accused ought to be informed of the cause and nature 
 of his accusation, to be confronted with his accusers and 
 
History of 3d, 5tJi and 6fJt Ainendmenfs. 31 
 
 the witnesses against him ; to have the means of pro- 
 ducing his witnesses ; and the assistance of counsel for 
 his defence ; and should not be compelled to give evidence 
 against himself. 
 
 " That the trial by jury, in the extent that it obtains by 
 the common law of England, is one of the greatest secu- 
 rities to the rights of a free people, and ought to remain 
 inviolate." (Ih., 328.) 
 
 Maryland. 
 
 * -x- -jc- jipril 25, 1788. — A committee was ap- 
 pointed to report " a draft of such amendments and alter- 
 ations as may be thought necessary." (Address to the 
 people of Maryland, (2 i^7^. i>e/>., 549.) - ^ ^- 
 
 " The following amendments to the proposed Constitu- 
 tion were separately agreed to by the committee, most of 
 them by an unanimous vote, and all of them by a great 
 majority. (2 lb., 549, 550.) ^ ^ ^- "' 
 
 " ' 2. That there shall be a trial by jury in all criminal 
 cases, according to the course of proceeding in the State 
 where the offence is committed ; and that there be no ap- 
 peal from matter of fact, or second trial after acquittal ; 
 but this provision shall not extend to such cases as may 
 arise in the government of the land and naval forces.' 
 (2 7/>., 550.) * ^ * * 
 
 " The great objects of these amendments were to secure 
 the trial by jury in all cases, the boasted birthright of 
 Englishmen and their descendants, and the palladium of 
 civil liberty ; and to prevent the appeal from fact, which 
 not only destroys that trial in civil cases, but b}' construc- 
 tion, may elude it in criminal cases. {lb.) ^' ^ 
 
 " ' 10. That soldiers be not quartered in time of peace 
 upon private houses, without the consent of the owners.' 
 (2 7/>., 552.) * ''..'' 
 
 " ' 13. That the militia shall not be subject to martial 
 law, except in time of war, invasion or rebellion.' 
 
 " This provision to restrain the powers of Congress 
 over the militia, although by no means so ample as that 
 provided by Magna Carta, and the other great fundamen- 
 tal and constitutional laws of Great Britain, (it being con- 
 trary to Magna Carta to punish a freeman by martial law 
 in time of peace, and murder to execute him,) yet it may 
 prove an inestimable check ; for all other provisions in 
 favor of the rights of men would be vain and nugatory, if 
 the power of subjecting all men able to bear arms, to 
 martial law at any moment should remain vested in 
 Congress. 
 
i^'I Appendix. 
 
 " Thus far ths ain3n:lrn3nts were agreed to/' (2 Ih., 
 
 552.) 
 
 Virginia, 
 
 " Mr. Kandolph, ^ ^ ^ It is also objected 
 
 that the trial by jury, the writ of habeas corpus, and the 
 liberty of the press, are insecure. But I contend that 
 the habeas eorpus is at least on as secure and good a footing 
 as it is in England. In that country, it depends on the 
 will of the Legislature. That privilege is secured here by 
 the Constitution, and it is only to be suspended in cases 
 of extreme emergency. Is not this a fair footing ?" * ^^ 
 (3 ElU Deh., 203.) 
 
 "Mr. Madison. ^ ;-* - The Enghsh Parliament 
 never passes a mutiny bill but for one year. This is ne- 
 cessary, for otherwise the soldiers would be on the same 
 footing with the officers, and the army would be dissolved. 
 One mutiny bill has been here in force since the revolu- 
 tion. I humbly conceive there is extreme danger of es- 
 tablishing cruel martial regulations. If at any time our 
 rulers should have unjust and iniquitous designs against 
 our liberties, and should wdsh to establish a standing 
 army, the first attempt would be to render the service 
 and use of the militia odious to the people themselves, 
 subjecting them to unnecessary severity of discipline in 
 time of peace, confining them under martial law, and dis- 
 gusting them so much as to make them cry out, 'Give 
 us a standing army !' I would wish to have some check 
 to exclude this danger ; as, that the militia should never 
 be subject to martial law but in time of war." (lb., 381.) 
 
 * * 4f <c rjy^^Q Hon. mcmbcr - '^ ^^ wishes 
 martial law to be exercised only in time of war, under an 
 idea that Congress can establish it in time of peace. 
 The states are to have the authority of training the mili- 
 tia according to the congressional discipline ; and of gov- 
 erning them at all times when not in the service of the 
 Union. Congress is to govern such part of them as may 
 be employed in the actual service of the United States, 
 and such part only can be subject to martial law." (//;., 
 383.) 
 
 "Mr. Mason. * * The gentleman has said that 
 they would be only subject to martial law ^dien in actual 
 service. He demanded what was to hinder Congress 
 from inflicting it always, and making a general law for 
 the purpose. If so, said he, it must finally produce, 
 most infallibly, the annihilation of the state governments. 
 These were his apj^rehensions ; but he prayed God they 
 might be groundless. 
 
History of the Zd, bth and &h Amendments. 33 
 
 *' Mr. Madison replied, that the obvious explanation 
 was, that the states were to appoint the officers, and gov- 
 ern all the militia, except that part which was called into 
 the actual service of the United States." (lb., 416.) 
 
 " Mr Heney. " - ^^ " That paper tells you that 
 the trial of crimes shall be by jury, and held in the State 
 where the crime shall have been committed. Under this 
 extensive provision, they may proceed in a manner ex- 
 tremely dangerous to liberty ; a person accused may be 
 carried from one extremity of the state to another, and be 
 tried, not by an impartial jury of the vicinage, acquain- 
 ted with his character and the circumstances of the fact, 
 but by a jury unacquainted with both, and who may be 
 biased against him. Is not this sufficient to alarm men?" 
 (7^., 447.) 
 
 "Mr Grayson. - - ■• The allusion another 
 gentleman has made to this trial, as practiced in Eng- 
 land, is improper. It does not justify this regulation. 
 The jury ma^come from any part of the state. They 
 possess an absolute, uncontrollable power over the venue. 
 The conclusion, then is, that they can hang any one they 
 please, by having a jury to suit their purpose. They 
 might on particular, extraordinary occasions, suspend 
 the privilege. The Romans did it on creating a dictator. 
 Tlie British Government does it when the habeas corpus 
 is to be suspended ; when the salus popidi is affected. I 
 will never consent to it unless it be properly defined." 
 (lb., 569.) 
 
 " Mr. Randolph. — I beg leave to differ from my honor- 
 able friends in answering this objection. They said, that 
 in case of a general rebellion, the jury was to be drawn 
 from some other part of the country. I know this prac- 
 tice is sanctified by tlie usages in England. But I always 
 thought that this was one of those instances to which 
 that country, though alive to liberty, had unguardedly 
 submitted. I hope it will never be so here. If the whole 
 country be in arms, the prosecutor for the commonwealth 
 can get a good jury by challenging improper jurors. The 
 right of challenging, also, is sufficient security for the 
 person accused. I can see no instance where this will be 
 abused. It will answer every purpose of the government, 
 and individual security." [lb., 574.) 
 
 Declaration op Rights. 
 
 " 8th. That, in all criminal and capital prosecutions, a 
 man hath a right to demand the cause and nature of his 
 accusation, to be confronted with the accusers and wit- 
 5 
 
34 Appendix, 
 
 nesses, to call for evidence, and be allowed counsel in 
 his favor, and to a fair and speedy trial by an impartial 
 jury of his vicinage, without whose unanimous consent he 
 cannot be found guilty (except in the government of the 
 land and naval forces) ; nor can be compelled to give 
 evidence against himself, 
 
 " 10th. That every freeman restrained of his liberty is 
 entitled to a remedy, to inquire intO' the lawfulness 
 thereof, and to remove the same if unlawful :, and that 
 such remedy ought not to be denied or delayed. 
 
 " 18th. That no soldier in time of peace ought to be 
 quartered in any house, without the consent of the 
 owner ; and, in time of war, in such manner only as 
 the law directs." {Ih.y 658, 659.) 
 
 Amendments to the Constiitjiton. 
 
 *^' 11th. That the militia shall not be subject to martial 
 law, except when in actual service, in time of war, inva- 
 sion, or rebellion ; and when not in the actual service of 
 the United States, shall be subject only to such fines, 
 penalties and punishments as shall be directed or inflicted 
 by the laws of its own State. 
 
 " 15th. That in criminal prosecutions, no man shall be 
 restrained in the exercise of the usual and accustomed 
 right of challenging or excepting to the jury." (lb., 660, 
 661.) 
 
 Debates ik Congress^. 
 
 [The amendments were considered in the House, as 
 follows : The proposed amendments were referred to a 
 Committee of Eleven (July 21), reported upon (July 28), 
 referred to the Committee of the Whole on the state of 
 the Union (1 Gale, 793), and then reported to the House 
 (76., 765), debated there (76., 765 to 777), referred to a 
 Committee to arrange and report (76., 778), which report 
 was agreed to, August 24, 1789 (76., 779), and engrossed 
 and sent to the Senate (76. and 71);, there considered 
 (76., 74, 76), amendments- proposed (76., 83), which were 
 amended by the House (76., 903, 905) ; finally agreed to 
 by the Senate (76., 88).] 
 
 Mr. Madison made the following propositions of 
 amendment : 
 
 " [4, Clause 5.] — No soldier shall, in time of peace, be 
 quartered in any house, without the consent of the 
 owner ; nor at any time, but in a manner warranted 
 by law. 
 
History of (he ^d, hth and ijth Amendments. 85 
 
 *' [4, Clause 6. ] — No person sliall be subject except in 
 cases of impeachment to more than one punishment or 
 one trial for the same offence ; nor shall be compelled to 
 be a witness against himself ; nor be deprived of life, lib- 
 erty or property without due process of law, nor be 
 obliged to relinquish his property when it may be neces- 
 sary for public use, without a just compensation. 
 
 " [4, Clause 8.] — In all criminal prosecutions, the ac- 
 cused shall enjoy the right to a speedy and public trial ; 
 to be informed of the cause and nature of the accusation ; 
 to be confronted with his accusers and the witnesses 
 against him ; to have a compulsory process for obtaining 
 witnesses in his favor ; and to have the assistance of 
 counsel for his defence. 
 
 " [7, Clause 1. ] — The trial of all crimes (except in cases 
 of impeachment and cases arising in the land or naval 
 forces, or the militia when on actual service in time of 
 war or public danger) shall be by an impartial jury of 
 freeholders of the vicinage, with the requisite of unani- 
 mity for conviction, of the right of challenge and other 
 accustomed requisites ; and in all crimes punishable with 
 loss of life or member, presentment or indictment by a 
 grand jury shall be an indispensable preliminary ; pro- 
 vided, that in cases of crimes committed within any 
 county which may be in possession of the enem}^ or in 
 which a gieneral insurrection may prevail the trial may 
 by law be authorized in some other county of the same 
 State, as near as may be to the seat of the oifence. 
 
 ^' [7, Clause 2.] — In cases of crimes not committed 
 within any county, the trial may by law be in such county 
 as the laws shall have prescribed. In suits at common 
 law between man and man, the trial by jury, as one of 
 the best securities to the rights of the people, ought to 
 remain inviolate." (1 Gale Hist, of Cong., 1834, pp. 434, 
 435.) 
 
 [These propositions were referred to a committee of 
 eleven, who reported thereon as follows :] 
 
 [4th, Clause 4.] — " No soldier shall in time of peace be 
 quartered in any house without the consent of the owner ; 
 nor at any time but in a manner to be prescribed by 
 law." 
 
 [4th, Clause 5.] — " No person shall be subject except in 
 case of impeachment, to more than one punishment or 
 one trial for the same offence ; nor shall be compelled to 
 be a witness against himself ; nor be deprived of life, 
 liberty or property without due process of law, nor be 
 obliged to relinquish his property when it may be neces- 
 sary for public use without a just compensation." 
 
i^6 Appendix, 
 
 [7tlj, Clause 1.] — '' In all criminal prosecutions, fbe 
 accused shall enjoy the right to a speedy and public trial; 
 to be informed of the cause and nature of the accusation ; 
 to be confronted with the witnesses against him ; to have 
 compulsory process for obtaining witnesses in his favor ; 
 and to have the assistance of counsel for his defence." 
 
 [7th, Clause 2.] — " The trial of all crimes (except in 
 cases of impeachment and in cases arising in the land or 
 naval forces, or in the militia when in actual service in 
 time of war or public danger,) shall be by an impartial 
 jury of freeholders of the vicinage, with the requisite of 
 unanimity for conviction, of the right of challenge and 
 other accustomed requisites ; and no person shall be held 
 to answer for a capital or otherwise infamous crime unless 
 on a presentment or indictment by a grand jury ; but if a 
 crime be committed in any place in the possession of an 
 enemy, or in which an insurrection may prevail, the in- 
 dictment and trial may by law be authorized in some 
 other place within the same State ;('•) and if it be com- 
 mitted in a place not within a State, the indictment and 
 trial may by law be at such place or places as the law 
 may have directed." 
 
 [7th, Clause 3.] — " In suits at common law the right 
 of trial by jurv shall be preserved." (iV. Y. Journal and 
 Weekly Re<j., Vol 43, No. 36, July 30, 1789.) 
 
 [The Committee of the Whole to whom this report 
 was referred, made some alterations, which appear in the 
 following :] 
 
 House Bill. 
 '\ Monday, 24^A Augusf, 1789. 
 
 Art. 6. No soldier shall, in time of peace, be quartered 
 in any house Avithout the consent of the owner ; nor in 
 time of war, but in a manner to be prescribed by law. 
 
 Art. 8. No person shall be subject, except in case of 
 impeachment, to more than one trial, or one punishment, 
 for the same offence ; nor shall be compelled, in any 
 criminal case, to be a witness agaiust himself; nor be 
 deprived of life, liberty, or property, without due process 
 of law ; nor shall private property be taken for public 
 use, without just compensation. 
 
 Art. 9. In all criminal prosecutions, the accused shall 
 enjoy the right to a speedy and public trial, to be 
 informed of the nature and cause of the accusation, to 
 be confronted with the witnesses against him, to have 
 compulsory process for obtaining witnesses in his favor, 
 and to have the assistance of counsel for his defence. 
 
 Art. 10. [Same as in the Eeport of the Committee of 
 the Whole 7th, clause 2, supra, to the '^ {lb., v. 43, no. 40.)] 
 
Acts Relating to Military Ci.)mmi^Hion,'<. 37 
 
 [This bill was sent to the Senate, which returned the 
 following to the House :] 
 
 Senate Bill. 
 
 "Art. 5. [Same as House Bill, Art. 6.] 
 
 " Art. 7. 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 miUtia, in time of war or 
 public danger ; nor shall any person be subject, for the 
 same offence, to be twice put in jeopardy of life or limb ; 
 nor shall be compelled, in any criminal case, to be a 
 witness against himself ; nor be deprived of life, liberty, 
 or property, without due process of law ; nor shall 
 private propert}^ be taken for public use, without just 
 compensation. 
 
 "Art. 8. [Same as House Bill, Art. 9." {lb., v. 43, 
 no. 43.)] 
 
 Sept. 21. " The amendments of the Senate to the 
 amendments proposed by the House to the Constitution 
 were then taken up ; some were agreed to, and others 
 non-concurred. Messrs. Madison, Sherman and Yining 
 were appointed a Committee to confer with a Committee 
 of the Senate on those amendments in which the two 
 houses do not agree." (N. Y. JounKd and Weekly Reg., 
 V. 43, no. 44, p. 22.) 
 
 Sept. 24. " The Keport of the Committee of Conference 
 on the subject of Amendments to the Constitution was 
 taken up. The committee advise to a concurrence in 
 the amendments of the Senate with some amendments." 
 {lb., no. 45, p. 2.) [one of which was :] 
 
 "Art. 8. In all criminal prosecutions, the accused shall 
 enjoy the right to a speedy and public trial, by an 
 impartial jury of the State and district wherein the 
 crime shall have been committed, which district shall 
 have been previously ascertained by law ; and to be 
 informed of the nature and cause of the accusation ; to 
 be confronted with the witnesses against him ; to have 
 compulsory process for obtaining witnesses in his favor, 
 and to have the assistance of counsel for his defence." 
 (1 Gale, 915.) 
 
 X. 
 
 Acts of Congress, Kelating to Military Commissions 
 
 AND Courts Martial. 
 Ad of July 22, 1861. (12 U. S. Stat., 270.) 
 
 § 10. " And be it further enacted, that the general coni- 
 manding a separate department, or a detached army, is 
 
38 Appendix. 
 
 hereby antliorised to appoint a military hoard or commis- 
 sion, of not less than three, or more than five officers, 
 whose duty it shall be to examine the capacity, qualifica- 
 tions, propriety of conduct, and efficiency of any com- 
 missioned officer of volunteers, &c. Provided always 
 that no officer shall be eligible to sit on stick hoard or 
 commission, whose rank or promotion would in any way 
 be affected by its proceedings, <fec." 
 
 Act of Jul) 17, 1832. (12 IL S. Stat., 598.) 
 
 § 5. " The President shall appoint, by, and with the 
 advice and consent of the Senate, a judge-advocate gene- 
 ral, with the rank, pay, and emoluments of a colonel of 
 cavalry, to whose office shall be returned for revision, the 
 records ami proceedings of all courts martial and military 
 commissions, and where a record shall be kept of all pro- 
 ceedings had thereupon ; and no sentence of death, or 
 imprisonment in the penitentiary, shall be carried into 
 execution until the same shall have been approved by 
 the President" 
 
 Act of March 3, 1863, (12 U. S. Stat,, 736.) 
 
 § 30. " In time of war, insurrection or rebellion, mur- 
 der &c., shall be punishable by the sentence of a general 
 court martial or milHary commission, when committed by 
 persons who are in the military service of the United 
 States, and subject to the articles of war ; and the punish- 
 ment for such offences shall never be less than those in- 
 flicted by the laws of the State, territory or district, in 
 which they may have been committed." 
 
 Act of March 3, 1863. (12 U. S. Stat., 737.) 
 
 § 37. " All persons, who in time of war or rebellion 
 against the supreme authority of the United States, shall 
 be found lurking or acting as sjiies, in or about any of 
 the fortifications, posts, quarters, or encampments of any 
 of the armies of the United States, or elsewhere, shall be 
 triable by a general court martial or military commission, 
 and shall upon conviction suffer death." 
 
 Act of July 2, 1864. (13 U. S. Stat, 356.) 
 
 '' The provisions of" (1863, ch. 75, § 21), '' shall apply 
 as well to the sentences of military com.missio77S as to 
 those of courts martial ; and hereafter the commanding 
 general in the field, or the commander of a department, 
 
Acts Relating to Militanj Commissions. 39 
 
 shall have power to carry into execution all sentences 
 against guerilla marauders/' &c. 
 
 Act of Feb. 13, 1862. (13 U. S. Stat., 339, 340.) 
 
 § 4. '' The 2d section of the Act of the 10th of April, 
 1806 -^'-[2 U. S. Stat., p. 371], is hereby amended so as to 
 read as follows : 
 
 " In time of war or rebellion against the supreme au- 
 thority of the United States, all persons who shall be 
 found lurking as spies, or acting as such in or about the 
 fortifications, encampments, posts, quarters, or head- 
 quarters of the armies of the United States, or any of 
 them within any part of the United States which has 
 been or may be declared to be in a state of insurrection 
 by proclamation of the President of the United States, 
 shall suffer death by sentence of a general court martial." 
 
 Act of March 3, 1863, ch. 75, § 21. (12 U. S. Stat., 735.) 
 
 § 21. " So much of § 5" (of laws of 1862, ch. 201, 12 
 U. S. Stat., p. 598,) " as requires the approval of the 
 President to carry into execution the sentence of a court 
 martial, be, and the same is hereby repealed as far as re- 
 lates to carrying into execution the sentence of any court- 
 martial against any person convicted as a spy or deserter, 
 or of mutiny or murder ; and hereafter sentences in pun- 
 ishment of these oifences may be carried into execution 
 upon the approval of the commanding general in the 
 field." 
 
 Articles of War. (2 U. S. Stat., 367.) 
 
 " Aet. 64. — General courts martial may consist of any 
 number of commissioned ofiicers, from 5 to 13 inclusively, 
 but they shall not consist of less than thirteen, where 
 that number can be convened without manifest injury to 
 the service. 
 
 " Art. 65. — Any general ofiicer commanding an army, 
 or colonel commanding a separate department, may ap- 
 point general courts martial whenever necessary." 
 
 4 U. S. Stat., 417. 
 
 Art. 65, amended : " Whenever a general command- 
 
 * Which declared that "In time of war all persons not citizens of or 
 owing allegiance to the United States of America, who shall be found 
 lurking as spies, in or about the fortifications or encampments of the 
 armies of the United States, or any of them, shall suffer death according to 
 the law and us.ige of nations by sentence of a general court martial."' 
 
40 Appendix. 
 
 ing an army, or a colonel commanding a separate depart- 
 ment, sliali be the accuser or prosecutor of any officer in 
 the army of the United States under his command, the 
 general court martial for the ta'ial of such officer shall be 
 appointed by the President of the United States." 
 
 XI. 
 
 PnOCLAMATIONS AND OrDERS OF THE PRESIDENT PvELATING 
 
 TO Habeas Corpus, &c. 
 
 Proclamation of Sept. 24, 1862. (Latvrence's Wheaton on 
 Intentational Law, p. 522. Judge Advocate Bingham's 
 Argument in Booth's case, p. 22.) • 
 
 " By the President of the United States of America : 
 
 '*A PROCLAMATION. 
 " Whereas it has become necessary to call into service 
 not only volunteers, but also portions of the militia of the 
 United States, by a draft, in order to suppress the insur- 
 rection existing in the United States, and disloyal persons 
 are not adequately restrained by the ordinary process of 
 law from hindering this measure, and from giving aid and 
 comfort in various ways to the insurrection : 
 
 " Now, therefore, be it ordered, that during the existing 
 insurrection, and as a necessary means for suppressing 
 the same, all rebels and insurgents, their aiders and 
 abettors, within the United States, and all persons dis- 
 couraging volunteer enlistments, resisting miiitia drafts, 
 or guilty of any disloyal practice, affording aid and com- 
 fort to 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. 
 
 " 2d. — That the writ of habeas corpus is suspended in 
 respect to all persons arrested, or who are now, or here- 
 after during the rebellion shall be, imprisoned in any 
 fort, camp, arsenal, military prison, or other place of 
 confinement, by any military authority, or by the sentence 
 of any court martial or military commission. 
 
 " In witness whereof I have hereunto set my hand and 
 caused the Seal of the United States to be affixed. 
 
 " Done at the City of Washington, this 24tli Septem- 
 ber, A. D. 1862, and of the Independence of the United 
 States the eighty-seventh. 
 
 " ABRAHAM LINCOLN. 
 " By the President : 
 " William H. Seward, 
 
 " Secretary of State.'' 
 
Proclamation. .41 
 
 Proclamation of Mm] 10, 1861. (12 IJ. S. Stat, App. No, 
 
 7, p. iv,) 
 
 " By the President of the United States of America: 
 "A PKOCLAMATION, 
 
 " Whereas an insurrection exists in the State of 
 Florida, by which the lives, liberty, and proj^erty of 
 loyal citizens of the United States are endangered ; 
 
 "And whereas it is deemed proper that all needful 
 measures should be taken for the protection of such 
 citizens and all officers of the United States in the dis- 
 charpje of their public duties in the State ^foresaid : 
 
 " Now, therefore, be it known that I, Abraham Lin- 
 coln, President of the United States, do hereby direct 
 the commander of the forces of the United States on the 
 Florida coast, to permit no pc rson to exercise any office 
 or authority upon the islands of Key West, the Tortugas, 
 and Santa Rosa, which may be inconsistent with the Laws 
 and Constitution of the United States, authorizing him 
 at the same time, if he shall find it necessary, to suspend 
 there the writ of habeas corpus, and to remove from the 
 vicinity of the United States fortresses all dangerous or 
 suspected persons. 
 
 " In witness whereof, I have hereunto set my hand, and 
 caused the Seal of the United States to be affixed. 
 
 " Done at the City of Washington, this tenth day of 
 |- n May, in the year of our Lord 1861, and of the In- 
 ^ ' '^ dependence of the United States the eighty-fifth. 
 
 "ABEAHAM LINCOLN, 
 " By the President : 
 
 " William H. Seward, 
 
 " Secretary of State.'' 
 
 Proclamation of Sept 15, 1863. (13 Z7. S. Stat., App. No. 5 
 
 p. iv.) 
 
 " By the President of the United States of America : 
 
 " A PROCLAMATION. 
 
 " Whereas, the Constitution of the United States has 
 ordained that the privilege of the writ of habeas corpus 
 shall not be suspended, unless when in cases of rebellion 
 or invasion, the public safety may require it; and whereas, 
 a rebellion Avas existing on the third day of March, 1863, 
 which rebellion is still existing ; and whereas, by a stat- 
 ute which was approved on that day, [12 U. S. Stat., 755,] 
 it was enacted by the Senate and House of Representa- 
 tives of the United States, in Congress assembled, that 
 
42 AppendiXj 
 
 during the present insurrection, tlie President of tire 
 United States, whenever in his judgment the public safety 
 may require it, is authorized to suspend the privilege of 
 the writ of habeas corpus in any case throughout the 
 United States, or any part thereof ; and whereas, in the 
 judgment of the President, the public safety does require 
 that the privilege of the said writ shall now be suspended 
 through oiit the United States, in the cases where, by the 
 authority of the President of the United States, military, 
 naval, and civil officers of the United States, or any of 
 them, hold persons under their command, or in their cus- 
 tody, either as prisoners of war, spies, or aiders or abettors 
 of the enemy, or officers, soldiers, or seamen enrolled or 
 drafted, or mustered or enlisted in, or belonging to, the 
 land or naval forces of the United States, or as deserters 
 therefrom, or otherwise amenable to military law, or the 
 rules and articles of war, or the rules and regulations 
 prescribed for the military or naval forces, by authority 
 o-f the President of the United States, or for resisting a 
 draft, or for any other offence against the military or 
 naval service : 
 
 "Now, therefore, I, Abraham Lincoln, President of 
 the United States, do hereby proclaim and make known 
 to all whom it may concern, that the privilege of the writ 
 of habeas corpus is suspended throughout the United 
 States in the several cases before mentioned, and that 
 this suspension will continue throughout the duration of 
 the present rebellion, or until this proclamation shall, by 
 a subsequent one to be issued by the President of the 
 United States, be modified or revoked. And I do hereby 
 require all magistrates, attorneys, and other civil officers 
 within the United States, and all officers and others in 
 the military and naval services of the United States, to 
 take distinct notice of this suspension, and to. give it full 
 effect, and all citizens of the United States to conduct 
 and govern themselves accordingly, and in conformity 
 with the Constitution of the United States and the laws 
 of Congress in such case made and provided. 
 
 " In testimony whereof, I have hereunto set my hand, 
 
 and caused the seal of the United States to be 
 
 [l. s.] affixed, this fifteenth day of September, in the 
 
 year of our Lord 1863, and of the Independence 
 
 of the United States of America the eighty-eighth. 
 
 "ABRAHAM LINCOLN. 
 " By the President : 
 
 "William H. Seward, 
 
 " Secretary of Stated 
 
Prodamations, 4B 
 
 Proclamation of July 5, 1864. (13 U, S, Stat., App, 
 No, 15, p. xii.) 
 
 *' By the President of the United States of America : 
 
 "A PEOCLAMATION, 
 
 *' Wherens, by a proclamation which was issued on th« 
 15th day of April, 1861, the President of the United States 
 announced and declared that the laws of the United States 
 had been for some time past, and then were, opposed, 
 and the execution thereof obstructed, in certain States, 
 therein mentioned, by combinations too powerful to be 
 suppressed by the ordinary course of judical proceedings 
 or by the powers vested in the marshals by law ; 
 
 *'And whereas, immediately after the issuing of the 
 said proclamation, the land and naval forces of the 
 United States were put into activity to suppress the said 
 insurrection and rebellion ; 
 
 "And whereas the Congress of the United States, by 
 an Act approved on the 3d day of March, 1863, did enact 
 that during the said rebellion the President of the United 
 States whenever in his judgment the public safety may 
 require it, is authorized to suspend the privilege of 
 habeas corpus in any case throughout the United States, 
 or in any part thereof; 
 
 " And whereas the said insurrection and rebellion still 
 continues, endangering the existence of the Constitution 
 and Government of the United States ; 
 
 " And whereas the military forces of the United States 
 are now actively engaged in suppressing the said insur- 
 rection and rebellion, in various parts of the States where 
 the said rebellion has been successful in obstructing the 
 laws and public authorities, especially in the States of 
 Virginia and Georgia ; 
 
 " And whereas, on the fifteenth day of September last, 
 the President of the United States duly issued his pro- 
 clamation, wherein he declared that the privilege of the 
 writ of habeas corpus should be suspended throughout 
 the United States, in cases where, by the authority of the 
 President of the United States, military, naval, and civil 
 officers of the United States, or any of them, hold per- 
 sons under their command, or in their custody, either as 
 prisoners of war, spies, or aiders or abettors of the ene- 
 my, or officers, soldiers, or seamen enrolled or drafted, 
 or mustered, or enlisted in, or belonging to, the land or 
 naval forces of the United States, or as deserters there- 
 from, or otherwise amenable to military law, or the rules 
 and articles of war, or the rules or regulations prescribed 
 for the military or naval services, by authority of the 
 
44 Jj^jyendix. 
 
 President of tlie United States, or for resisting a draft, 
 or for any other offence against tlie military or naval 
 service ; 
 
 " And whereas many citizens of the State of Kentucky 
 have joined the forces of the insurgents, and such insur- 
 gents have, on several occasions, entered tlie said State 
 of Kentucky in large force, and, not without aid and com- 
 fort, furnished by disaffected and disloyal citizens of the 
 United States, residing therein, have not only greatly 
 disturbed the public peace, but have overborne the civil 
 authorities and made flagrant civil war, destroying prop- 
 erty and life in various parts of that State ; 
 
 " And whereas it has been made known to the Presi- 
 dent of the United States, by the ofncers commanding 
 the national armies, that combinations have been formed 
 in the said State of Kentucky, with a purpose of inciting 
 rebel forces to renew the said operations of civil w^ar 
 wdthin the said State, and thereby to embarrass the 
 United States armies now operating in the said States of 
 Virginia and Georgia, and even to endanger their safety: 
 
 " Now, therefore, I, Abraham Lincoln, President of the 
 United States, by virtue of the authority vested in me by 
 the Constitution and laws, do hereby declare that, in my 
 judgment, the public safety especially requires that the sus- 
 pension of the privilege of the writ of lalea.s- corpus, so pro- 
 claimed in the said proclamation of the fifteenth of Sep- 
 tember, 1863, be made effectual and be duly enforced in 
 and throughout the said State of Kentucky, and that 
 martial law be for the present established therein. I 
 do, therefore, hereby require of the military officers in 
 the said State, that the privilege of the writ of habeas 
 corpus be effectually suspended within the said State, 
 according to the aforesaid proclamation, and that mar- 
 tial law be established therein, to take effect from the 
 date of this proclamation, the said suspension and estab- 
 lishment of martial law^ to continue until this proclama- 
 tion shall be revoked or modified, but not beyond the 
 period when the said rebellion shall have been suppres- 
 sed, or come to an end. And I do hereby require and 
 comma^nd, as well all military ofiicers, as all civil officers, 
 existing or found within the said State of Kentucky, to 
 take notice of this proclamation, and to give full effect 
 to the same. 
 
 " The martial law herein proclaimed, and the things in 
 that respect herein ordered, will not be deemed or taken 
 to interfere with the holding of lawful elections, or watli 
 the proceedings of the Constitutional Legislature of 
 
JohriHon v. Duncan. 45 
 
 Kentucky, or with the administration of justice in the 
 courts of hiw existing therein, between citizens of the 
 United States, in suits or proceedings which do not affect 
 the niihtary operations or the constituted authorities of 
 the Government of the United States. 
 
 " In testimony whereof, I have hereunto set my hand, 
 I -, and caused the seal of the United States to be 
 ' " ■ ' affixed. 
 
 " Done at the City of Washington, this fifth day of 
 July, in the year of our Lord, 1864, and of the Indepen- 
 dence of the United States the eighty-ninth. 
 
 " ABRAiSAM LINCOLN. 
 " By the President : 
 
 " William H. Seward, 
 
 " Secretary of State.'" 
 
 XII. 
 
 Johnson vs. Duncan, et al's Syndics ; 3 Martin's La. 
 Rep., 520. 
 
 Martin, J. A motion that the Court might _ proceed 
 in this case, has been resisted on two grounds : 
 
 1. That the cit}^ and its environs Avere, by general 
 orders of the officer, commanding the militai;y district, 
 put, on the 15th of December last, under strict martial 
 taw. 
 
 2. That, by the Third Section of an Act of Assembly, 
 approved on the 18th day of December last, all proceed- 
 ings in any civil case are suspended. 
 
 1. At the close of the argument, on Monday last, we 
 thought it our duty, lest the smallest delay should coun- 
 tenance the idea that this Court entertain any doubt, on 
 the first ground, instantl}^ to declare, viva voce (although 
 the practice is to deliver our opinions in writing), that the 
 exercise of an authority, vested by the law in this Court, 
 could not be suspended by any man. 
 
 In any other State but this, in the population of which 
 are mauy individuals, who, not being perfectly acquainted 
 with their rights, may easily be imposed on, it could not 
 be expected that the judges of this Court should, in com- 
 plying with the constitutional injunction in all cases to 
 adduce the reasons on luidcli their judgment is founded, take 
 up much time to show that this Court is bound utterly to 
 disregard what is thus called Martial Law ; if anything 
 
46 Appendix. 
 
 be meant, thereby, but the strict enforcing of the rules 
 and articles for the government of the army of the United 
 States, established by Congress, or any act of that body, 
 relating to military matters, on all individuals belonging to 
 the army or militia in the service of the United States. Yet, 
 we are told that, by this proclamation of martial law, the 
 officer who issued it has conferred on himself, over all his 
 fellow-citizens, within the space which he has described, 
 a supreme and unlimited power, which, being incom- 
 p atible with the exercise of the functions of civil magis- 
 trates, necessarily suspends them. 
 
 This bold and novel assertion is said to be supported 
 by the Ninth Section of the First Article of the Consti- 
 tution of the United States, in which are described 
 the limitations of the power of the Legislature of the 
 Union. It is there provided, that "the privilege of the 
 writ oi habeas corpus shall not be suspended, unless when, 
 in cases of invasion or rebellion, the public safety may 
 require it." We are told that the commander of the 
 military district is the person who is to suspend the writ, 
 and is to do so whenever, in his judgment, the public 
 safety appears to re^quire it ; that, as he may thus par- 
 alyze the arm of the justice of his countr}^ in the most 
 important case — the protection of the personal liberty 
 of the citizen- -it follows, that, as he who can do the 
 more can do the les-^, he can also suspend all other 
 functions of the civil magistrate ; which he does, by his 
 proclamation of martial law. 
 
 This mode of reasoning varies, toto ccelo, from the de- 
 cision of the Supreme Court of the United States, in the 
 case of Sivartoid and Bollinan, arrested in this city, in 
 1806, by General Wilkinson. The Court there declared, 
 that the Constitution had exclusively vested in Congress 
 the right of suspending the privilege of the writ of habeas 
 corpus, and that body was the sole judge of the necessity 
 that called for the suspension. " If, at any time," said 
 the Chief Justice, "the public safety shall require the sus- 
 pension of the powers vested in the Courts of the United 
 States by this Act (the Habeas Corpus Act), it is for the 
 Legislature to saij so. This question depends on political 
 considerations, on which the Legislature is to decide. 
 Till the legislative will be expressed, this Court can only 
 see its duties, and must obey the law. (4 Cranch, 101.) 
 
 The high authority of this decision seems however to be 
 disregarded ; and a contrary opinion is said to have been 
 lately acted upon, to the distress and terror of the good 
 people of this State ; it is therefore meet to dispel the 
 clouds which designing men endeavor to cast on this 
 
Johnson v. Duncan, . 47 
 
 article of tbe Constitution, that the people should know 
 that their rights, thus defined, are neither doubtful or in- 
 secure, but supported on the clearest principles of our 
 laws. 
 
 Approaching, therefore, the question, as if I were with- 
 out the above conclusive authority, I find it provided by 
 the Constitution of this State that " no power of suspend- 
 ing tliQ laws of this State shall be exercised, unless by the 
 Legislature, or under its authority." The proclamation 
 of martial law, therefore, if intended to suspend the func- 
 tions of this Court or its members, is an attempt to exer- 
 cise powers thus exclusively vested in the Legislature, 
 I therefore cannot hesitate in saying that it is in this re- 
 spect null and void. If, however, there be aught in the 
 Constitution or laws of the United States that really au- 
 thorizes the commanding officer of a military district 
 to suspend the laws of this State, as that Constitution 
 and these laws are paramount to those of the State they 
 must regulate the decision of this Court. 
 
 This leads me to the examination of the power of sus- 
 pending the writ of habeas corpus, and that which it is 
 said to include, of proclaiming martial law, as noticed in 
 the Constitution of the United States. As in the whole 
 article cited, no mention is made of the power of any 
 other branch of government but the Legislature, it can- 
 not be said that any of the limitations which it contains 
 extend to any of the other branches. Iniquum est perimi 
 de jjacto id de quo cogifatum non est. If, therefore, this 
 suspending power exist in the executive (under whose au- 
 thority it has been endeavored to exercise it) it exists 
 without any limitation, then the President possesses with- 
 out a limitation a power which the Legislature cannot 
 exercise without a limitation. Thus he possesses a 
 greater power alojie than the House of Representatives, 
 the Senate and himself jointly. 
 
 Again : The power of repealing a law and that of sus- 
 pending it (which is a partial repeal) are legislative 
 powers. For eodem modo, quo quid constituitur, eodem 
 modo destruitur. As every legislative power that may be 
 exercised under the Constitution of the United States, is 
 exclusively vested in Congress, all others are retained by 
 the people of the several States. 
 
 In England, at the time of the invasion of the pre- 
 tender, assisted by the forces of hostile nations the habeas 
 corpus act was suspended, but the executive did not 
 thus of itself stretch its own authority, the precaution 
 was deliberated upon and taken by the representatives 
 of the people. Delolme 409. And there the power is 
 
48 Appendix. 
 
 safely lodged without tlie danger of its being abused. 
 Parliament may repeal the law on which the safety of 
 the people depends ; but it is not their own caprices and 
 arbitrary humours of other men which they will have 
 gratified, when the}' shall have thus overthrown the col- 
 umns of public liberty. Id. 275. 
 
 If it be said that the laws of war, being the laws of the 
 United States, authorize the proclamation of Martial 
 Law, I answer that in peace or in war, no law can be 
 enacted but by the Legislative power. In England, from 
 whence the American jurist derives his principles in this 
 respect, " Martial Law cannot be used without the autho- 
 rity of parliament," 5 Comyns 329. The authority of 
 the monarch himself is insufficient. In the case of Grant 
 vs. Sir C. Gould, 2 Htn. BL 69, which was on a prohi- 
 bition (applied for in the Court of Common Pleas) to the 
 defendant as judge advocate of a Court Martial, to pre- 
 vent the execution of the sentence of that military tribu- 
 nal, the counsel, who resisted the motion, said it was not 
 to be disputed that Martial Law can only be exercised in 
 England, so far as it is authorized by the mutiny act and 
 the articles of war, all of which are established by 
 parliament, or its authority, and the court declared it 
 totally inaccurate to state any other Martial Law, as 
 having any place whatever within the realm of Eng- 
 land. In that country, and in these States, by Martial 
 Law is understood the jurisprudence of these cases which 
 are decided by military judges or Courts Martial. When 
 Martial Law is established, and prevails in any country, 
 said Lord Loughborough, in the case cited, it is totally 
 of a different nature from that which is inaccurately 
 called Martial Law, (because the decisions are by a 
 Court Martial) but which bears no affinity to that which 
 was formerly attempted to be exercised in this kingdom, 
 toliich tvas contrary to the Constitution, and which has 
 been for a century totally exploded. When Martial Law- 
 prevails, continues the judge, the authority under which 
 it is exercised claims jurisdiction over all military per- 
 sons in all circumstances ; even their debts are subject to 
 inquiry by military authority, every species of oifence 
 committed by any person 2oho appertains to the army, is 
 tried, not by a civil judicature, but by the judicature of 
 the corps or regiment to which he belongs. 
 
 This is Martial Law, as defined by Hale and Black- 
 stone, and which the court declared not to exist in Eng- 
 land. Yet, it is confined to military persons. Here it is 
 contended, and the court must admit, if we sustain the 
 objection, that it extends to all persons, that it dissolves 
 for a while the government of the State. 
 
Johnson v. Duncan. 49 
 
 Yd, according to our laws, all military courts are un- 
 der a constant subordination to the ordinary courts of 
 law. Officers, who have abused their powers, t'lough 
 only in regard to their own soldiers, are liable to prose- 
 cution in a court of law, and compelled to mike satisfac- 
 tion. Even any flagrant abuse of authority by members 
 of a Court Martial, when sitting to judge their own peo- 
 ple, and determine in cases enterely of a militiiry kind, 
 makes them liable to the animadversion of the Civil 
 Judge. Delolme, 447, Jacobs Laiv Dic^., Verho Court 
 3Iartlal. How preposterous then, the idea that a mili- 
 tary commander may, by his own authority, destroy the 
 tribunal established by law as the asylum of those op- 
 pressed by military despotism. 
 
 ^ /=- - ^ '^ "Deebigny, J. On the 
 
 first question, that wdiich concerns the effect which the 
 publication of the martial law has produced, with respect 
 to the civil authorities, we might well have omitted giving 
 a written opinion, now that the return of peace has re- 
 established the empire of the laws ; but having declared, 
 on the day on which the discussion of this subject took 
 place, that the powers vested in us by law could not be 
 suspended by any but legislative authority, it is proper 
 that we should give some explanation of the reasons on 
 which that declaration was founded. 
 
 " I will, therefore, examine how martial law ought to be 
 understood among us, and how far it introduces an alter- 
 ation in the ordinary course of government. 
 
 " To have a correct idea of martial law in a free 
 country, examples must not be sought in the arbitrary 
 conduct of absolute governments. The monarch who 
 unites in his hands all the powers, may delegate to his 
 generals an authority as unbounded as his own. But in 
 a republic where the Constitution has fixed the extent 
 and limits of every branch of government in time of war, 
 as well as of peace, there can exist nothing vague, uncer- 
 tain or arbitrary in the exercise of any authority. 
 
 " The Constitution of the United States, in which every- 
 thing necessary to the general and individual security has 
 been foreseen, does not provide that in times of public 
 danger, the executive power shall reign to the exclusion 
 of all others. It does not trust into the hands of a dic- 
 tator the reins of the government. The framers of that 
 charter were too well aware of the hazards to which they 
 w^ould have exposed the fate of the republic by such a 
 provision ; and had they done it, the States w^ould have 
 rejected a constitution stained with a clause so threaten- 
 ing to their liberties. In the mean time, conscious of the 
 
50 Appendix, 
 
 necessity of removing all impediments to the exercise of 
 the executive power, in cases of rebellion or invasieai, 
 they have permitted Congress to suspend the privilege of 
 the writ of habeas corpus in those circumstances, if the 
 public safety should require it. Thus far, and no farther, 
 goes the Constitution. Congress has not hitherto thought 
 it necessary to authorize that suspension. 
 
 " Should the case ever happen, it is to be supposed that 
 it would be accompanied with such restrictions as would 
 prevent auy wanton abuse of power. ' In England,' (says 
 the author of a justly celebrated work on the constitution 
 of that country,) 'at the time of the invasion of the Pre- 
 tender, assisted by the forces of hostile nations, the haleas 
 corpus act was indeed suspended ; but the executive power 
 did not thus of itself stretch its own authority ; the pre- 
 caution was deliberated upon, and taken by the repre- 
 sentatives of the people ; and the detaining of individuals, 
 in consequence of the suspension of the act, was limited 
 to a fixed time. Notwithstanding the just fears of inter- 
 nal and hidden enemies, which the circumstances of the 
 times might raise, the deviation from the former course 
 of law was carried no further than the single point we 
 have mentioned. Persons detained by order of the gov- 
 ernment were to be dealt with in the same manner as 
 those arrested at the suit of private individuals ; the pro- 
 ceedings against them were to be carried on no other- 
 wise than in a public place ; they were to be tried by 
 their peers, and to have all the usual legal means of de- 
 fence allowed to them, such as calling of witnesses, per- 
 emptory challenge of jurors, etc' And can it be asserted, 
 that, while British subjects are thus secured against op- 
 pression in the worst of times, American citizens are left 
 at the mercy of the will of an individual, who may, in 
 certain cases, the necessity of ivhicli is to he judged of by 
 himself, assume a supreme, overbearing, unbounded 
 power ? The idea is not only repugnant to the princi- 
 ples of any free government, but subversive of the very 
 foundations of our own. 
 
 " Under the Constitution and laws of the United States, 
 the President has a right to call, or cause to be called, into 
 the service of the United States, even the whole militia of 
 any part of the Union, in case of invasion. This power, 
 exercised here by his delegate, has placed all the citizens 
 subject to militia duty under military authority and mili- 
 tary rule. Thaty I conceive to be the extent of the mar- 
 tial law, beyond which all is usurpation of power. In 
 that state of things the course of judicial proceedings is 
 certainly much shackled, but the judicial authority exists. 
 
Johnson v. Duncan. 51 
 
 and oiiglit to be exercised wlienever it is practicable. 
 Even where circumstances have made it necessary to sus- 
 pend the privilege of the writ of habeas corpus, and such 
 suspension has been pronounced bv the competent au- 
 thority, there is no reason wdiy the administration of jus- 
 tice generally should be stopped. For, because the citi- 
 zens are deprived temporarily of the protection of the 
 tribunals as to the safety of their persons, it does by no 
 means follow that they cannot have recourse to them in 
 all other cases. 
 
 " The pi'oclaination of the martial law, therefore, can- 
 not have any other effect than that of placing under mili- 
 tary authority, all the citizens subject to militia service. 
 It is in that sense alone that the vague expression of 
 martial law ought to be understood among us. To give 
 it any larger extent would be trampling upon the Consti- 
 tution and laws of our country. 
 
 " But the counsel for the appellant, to support his as- 
 sertion that, in the circumstances then existing, the Court 
 could not administer justice, went further and said that 
 the City of New Orleans had become a camp, since it had 
 pleased the General of the Seventh Military District to 
 declare it so, and that within the precincts of a camp 
 there can exist no other authority than that of the com- 
 manding ofScer. If the premises were true, the conse- 
 quence would certainly follow. But the abuse of w^ords 
 cannot change the situation of things. A camp is a space 
 of ground occupied by an army for their temporary hal^- 
 tation, while they keep the field. That space has limits ; 
 it does not extend beyond the ground actually occupied 
 by the army. The camp of the American army, during 
 the invasion of our territory by the British, was placed at 
 a distance of four miles below the city. During that time 
 the city might be considered a besieged place, having an 
 entrenched camp in front. But the transformation of the 
 city itself into a camp by the mere declaration of the 
 General, is no more to be conceived than would the trans- 
 formation of a camp into a city by the same means. 
 
 " It is, therefore, our opinion, that the authority of 
 courts of justice has not been suspended of right by the 
 proclamation of the martial law, nor by the declaration 
 of the General of the Seventh Military District, that the 
 City of New Orleans w^as a camp ; and we now repeat 
 what we declared when the subject was discussed : ' That 
 the powers vested in us by law can be suspended by none 
 but the legislature.' " 
 
52 Appendix. 
 
 xiir 
 
 The Origin of the Suspension Act in the English 
 
 PAELIAJfENT. 
 
 March 1, 1688. " Mr. Hamden, one of his Majesty's 
 most honorable Privy Council, acquainted the House 
 that he had a message from his Majesty : ' That his 
 Majesty hath had credible information, that there are 
 several persons in and about this town that keep private 
 meetings and cabals, to conspire against the government, 
 and for the assistance of the late King James ; that his 
 Majesty has caused some of those persons to be already 
 apprehended and secured, upon suspicion of high trea- 
 son, and that he thinks he may see cause to do so by 
 others, within a little time ; but his Majesty is between two 
 great difficulties in this case ; for that, if he should set 
 those persons at liberty that are apprehended, he would 
 be wanting to his ow^n safety, and the safety of his 
 government and people ; on the other hand, if he should 
 detain them, he is unwilling to do anything but what 
 shall be fully warranted by law, which he hath so often 
 declared he will preserve ; and that, therefore, if those 
 persons should deliver themselves by the Act of Haleas 
 Corpus, there would be another difficulty. That his 
 Majesty is likewise unwilling that excessive bail should 
 bg taken in this case, his Majesty remembering that to 
 be one article of the grievances presented to him ; that 
 ordinary bail will not be sufficient ; for men that carry 
 on such designs, in hopes of succeeding, will not stick at 
 forfeiting a small sum ; and that, this falling out when 
 the Parliament is sitting, his Majesty, therefore, thought 
 fit to ask the advice of this House therein, and intends to 
 advise with the Lords also.' 
 
 '^Resolved, nem. con., That the humble thanks of this 
 House be returned to his Majesty, for his most gracious 
 message in desiring the advice of this House. 
 
 ''Resolved, That a temporary bill be brought in, to 
 empower his Majesty to apprehend and detain all such 
 persons as he shall have just cause to suspect are con- 
 spiring against the government. 
 
 Ordered, That Mr. Hamden, Sir Eich. Temple, Mr. 
 Pollexfen, Mr. Sacheverell, Sir Tho. Lee, Sir Tho. 
 Clarges, Sir John Holt, Mr. Brewer, do immediately 
 withdraw into the Speaker's Chamber, and prepare the 
 said bill, and bring the same in with all convenient 
 speed. 
 
Origin of tJie Suspension Act. 53 
 
 * " " A bill for empowering bis Majesty to 
 
 apprehend and detain all such persons as he shall have 
 just cause to suspect are conspiring against the govern- 
 ment, was read the first time. 
 
 *' Resolved, That the bill be read a second time, im- 
 mediately. 
 
 " The said bill being read a second time : 
 
 " Resolved, That the said bill be committed, upon the 
 debate of the House, to Sir Tho. Lee [and others], and 
 they are to meet this afternoon at five o'clock, in the 
 Speaker's Chamber. 
 
 " Marcli m. ^ ^ '^ ^^ ^- Sir Thomas 
 Littleton reports from the Committee, to whom the bill 
 for empowering his Majesty to apprehend and detain 
 such persons, as he shall find just cause to suspect are 
 conspiring against the government, was referred : That 
 the Committee had thought fit to make several amend- 
 ments to the bill. Which amendments he read in his 
 place, with the coherence, and, after, delivered the same 
 in at the clerk's table, where the same being all read 
 over, and afterwards again, one by one, upon the ques- 
 tions severally put thereupon, were all agreed unto by 
 the House. 
 
 "A motion being made, that there be another amend- 
 ment to the bill, by the addition of the words, ' and also 
 of all other laws and statutes any way relating to, or 
 providing for the liberty of the subjects of this kingdom,' 
 and the same being twice read : 
 
 ''Resolved, That this House doth agree, to the said 
 amendment. 
 
 " Another amendment being proposed, by adding 
 these words, ' and that this present Act shall continue 
 until the said 17th day of April, and no longer ;' and the 
 same being twice read : 
 
 " Resolved, That this House doth agree to the said 
 amendment. 
 
 "Another amendment being proposed, of these words, 
 ' and is never to be drawn into precedent, or example, 
 hereafter ; ' 
 
 "And the question being put, that the House do agree 
 to the said amendment : 
 
 "It passed in the negative." {Commons Journal, 
 Vol. 10, pp. 38, 39, 40.) 
 
 [A clause, enacting that the charges of the persons 
 confined be paid out of the crown revenue, was not 
 agreed to. The usual proviso was then added. 
 
 The bill finally passed, with a verbal alteration. 
 (//>., pp. 42, 43.)] 
 
54 Appendix. 
 
 XIV. 
 
 Preamble of the Annual Mutint^ Act. 
 
 1 W. & M. c/l 5. 
 
 *'An Act for punishing Officers or Soldiers wbo shall 
 Mutiny or Desert Their Majestjes Service. (6 S\aL of 
 the Bealm, 55.) 
 
 " Whereas the raising or keeping a Standing Army 
 within this Kingdome in time of Peace unlesse it be with 
 Consent of Parlyament is against Law And whereas 
 it is judged necessary by Their Majesty es and this pre- 
 sent Parlyament That during this time of Danger seve- 
 rall of the Forces which are now on foote should be con- 
 tinued and others raised for the Safety of the Kingdom 
 for the Common Defence of the Protestant Religion and 
 for the reduceing of Ireland 
 
 " And whereas noe Man may be forejudged of Life or 
 Limbe or subjected to any kinde of punishment by Mar- 
 tiall Law or in any other manner then by the Judgement 
 of his Peeres and according to the knowne and Estab- 
 lished Laws of this Realme Yet neverthelesse it being 
 requisite for retaineing such Forces as are or shall be 
 raised dureiug this Exigence of Affaires in their Duty an 
 exact Discipline bo observed And that Soldiers who shall 
 Mutiny or stirr up Seditions or shall desert Their Majes- 
 tyes Service be brought to a more Exemplary and Speedy 
 Punishment then the usual Forms of Law will allow 
 
 " Bee it therefore enacted," &c. 
 
 [Since 1 Ann., s'. 2, ch. 20, (8 SkU. of the Realm, 209,) 
 the following form has been used :] 
 
 " 28 and 29 Vict., ch. 11. 
 
 " An Act for punishing Mutiny and Desertion, and for 
 the better Pavment of the Army and their Quarters. 
 |7th April, 1865.J 
 
 " Whereas, the raising or keeping a Standing Army 
 within the United Kingdom of Great Britain and Ireland 
 in Time of Peace, unless it be with consent of Parliament, 
 is against Law : And, whereas, it is adjudged necessary 
 by Her Majesty and this present Parliament, that a Body 
 of Forces should be continued for the Safety of the 
 United Kingdom, the Defence of the Possessions of Her 
 Majesty's Crown, and the Preservation of the Balance of 
 Power in Europe, and that the whole number of such 
 
Preamble of (he Annual Muliny Act. 55 
 
 Forces slioiilcl consist of 142,477 Men, including 9,109, 
 all Ranks, to be employed with the Depots in the United 
 Kingdom of Great Britain and Ireland of Regiments serv- 
 ing in Her Majesty's Indian Possessions, but exclu- 
 sive of the numbers actually serving within Her Majesty's 
 Indian Possessions : And, whereas, no Man can be fore- 
 judged of Life or Limb, or subjected in time of Peace to 
 any Kind of Punishment within this Realm by Martial 
 Law, or in any other manner than by Judgment of his 
 Peers, and according to the Known and established Laws 
 of this Realm ; yet, nevertheless, it being requisite, for 
 the retaining all the above Forces in their Duty, that an 
 exact Discipline be observed, and that Soldeirs who shall 
 Mutiny or stir up Sedition, or shall Desert Her Majesty's 
 Service, or be guilty of Crimes and Ofi'ences to the Pre- 
 judice of Good Order and Military Discipline, be brought 
 to a more exemplary and speedy Punishment than the 
 usual Forms of the Law will allow : 
 "Be it therefore enacted " &c. 
 
CONTENTS OF THE APPENDIX, 
 
 PAGE- 
 
 L — The Case of the Earl of Lancaster, and Remarks of Blaekstone 
 
 and Hale thereon 1 
 
 II.— Military Commissions issued by Charles I.' , , 5 
 
 III. — Extracts from the Petition of Right 7 
 
 IV. — The English Acts suspending the Privilege of the Writ of 
 
 Habeas Corpus 8 
 
 V — Geoffrey's Case in France '. 10 
 
 VI. — Extracts from the Debates in the Federal Convention, showing 
 how the Provision as to the Habeas Corpus came into its 
 present shape 18 
 
 VII. — Extracts from the Debates in the State Conventions relative to 
 
 the Habeas Corpus 20 
 
 VIII. — The Instances in which the Privilege has been sustained, and 
 
 how understoo 1 24 
 
 IX.— The History of the Third, Fifth and Sixth Amendments 25 
 
 X. — The Acts of Congress relating to Military Commissions and 
 
 Courts Martial 37 
 
 XL — The Proclamations and Orders of the President respecting the 
 
 Habeas Corpus and Military Commissions 40 
 
 XH. — Johnson v. Duncan, 3 Martin's La. R., Old Series, 520 45 
 
 XIII.— The Origin of the Suspension Act in the English Parliament. . . 52 
 
 XIV. — Preamble of the Annual Mutiny Act 54 
 
APPENDIX— Continued. 
 
 Revolutionary Precedents. 
 
 XV. 
 
 Appointment of George Washington to he Commander-in-Chief 
 of the Armg, hy the Congress of the Confederation^ on the 
 15th June, 1775. 
 
 Thursday, June 15, 1775. 
 
 Agreeable to order, the Congress resolved itself into a 
 Committee of the Whole, and, after some time, the Presi- 
 dent resumed the chair, and Mr. Ward reported that the 
 committee had come to some further resolutions, which he 
 was ordered to report. 
 
 The report of the committee being read and considered, 
 
 Resolved, That a general be appointed to command all 
 the continental forces raised, or to be raised, for the de- 
 fense of American liberty ; that five .hundred dollars per 
 month be allowed for the pay and expenses ot the general. 
 
 The Congress then proceeded to the choice of a general 
 by ballot, and George Washington, Esq., was unanimously 
 elected. 
 
 Friday, June 16, 1775. 
 
 Met according to adjournment. (The delegates from 
 the Colonies of New Hampshire, Massachusetts Bay, Con- 
 necticut, New York, New Jersey, Pennsylvania, Delaware 
 counties, Maryland, Virginia, North Carolina, and South 
 Carolina being present.) 
 
 The President informed Colonel Washington that the 
 Congress had yesterday unanimously made choice of him 
 to be General and Commander-in-Chief of the American 
 forces, and requested he would accept of that employment ; 
 to which Colonel Washington, standing in his place, 
 answered : 
 
 " Mr. President : Though I am truly sensible of the 
 high honor done me in this appointment, yet I feel great 
 distress from consciousness that my abilities and military 
 experience may not be equal to the extensive and impor- 
 
58 Appendix, 
 
 tant trust. However, as the Congress desire it, I will 
 enter upon the momentous duty, and exert every power I 
 possess in their service, and for support of the glorious 
 cause. I beg they will accept my most cordial thanks for 
 this distinguished testimony of their approbation. 
 
 "But, lest some unlucky event should happen, unfavor- 
 able to my reputation, I beg it may be remembered by 
 every gentleman in the room that I this day declare with 
 i^he utmost sincerity, 1 do not think myself equal to tlie 
 command I am honored with. 
 
 " As to pay, sir, I beg leave to assure the Congress that, 
 as no pecuniary consideration could have tempted me to 
 accept this arduous employment at the expense of my do- 
 mestic ease and happiness, I do not wish to make any 
 profit from it. I will keep an exact account of my ex- 
 penses. Those, I doubt not, they will discharge, and that 
 is all I desire." 
 
 Resolved^ That a committee be appointed to draft a com- 
 missioil and instructions for the General. 
 
 The persons chosen to compose the committee, were 
 Mr. Lee, Mr. E. Rutledge, and Mr. J. Adams. 
 
 Saturday, June 17, 1775. 
 
 Met according to adjournment. 
 
 The committee appointed to draft a commission to the 
 General reported the same, which, being read by para- 
 graphs and debated, was agreed to as follows : 
 
 In Congress. 
 
 The delegates of the United Colonies of New Hamp- 
 shire, Massachusetts Bay, Rhode Island, Connecticut, New 
 York, New Jersey, Pennsylvania, the counties of New 
 Castle, Kent, and Sussex, on Delaware, Maryland, Vir- 
 ginia, North Carolina, and South Carolina : 
 
 To George Washington, Esq. : 
 
 We, reposing special trust and confidence in your patri- 
 otism, valor, conduct, and fidelity, do, by these presents, 
 constitute and appoint you to be General and Commander- 
 in-Chief of the army of the United Colonies, and of all 
 the forces now raised, or to be raised by them, and of all 
 others who shall voluntarily ofier their services and join 
 the said army for the defense of American liberty, and 
 for repelling every hostile invasion thereof: and you are 
 hereby vested with full power and authority to act as you 
 shall think for the good and welfare of the service. 
 
General Washington's Instructions. 59 
 
 And we do hereby strictly charge and require all officers 
 and soldiers under your command to be obedient to your 
 orders, and diligent in the exercise of their several duties. 
 
 And we do also enjoin and require you to be careful in 
 executing the great trust reposed in you, by causing strict 
 discipline and order to be observed in the army, and that 
 the soldiers be duly exercised and provided with all con- 
 venient necessaries. 
 
 And you are to regulate your conduct in every respect 
 by the rules and discipline of war, (as herewith given 
 you,) and punctually to observe and follow such orders and 
 directions, from time to time, as you shall receive from 
 this, or a future Congress of these United Colonies or 
 committee of Congress. 
 
 This commission to continue in force until revoked by 
 this or a future Congress. 
 
 By order of the Congress. 
 
 Ordered, That the same be fairly transcribed, signed by 
 the President, attested by the secretary, and delivered to 
 the general. 
 
 Resolved, unanimously, Whereas the delegates of all the 
 Colonies, from Nova Scotia to Georgia, in Congress assem- 
 bled, have unanimously chosen George Washington, Esq., 
 to be General and Commander-in-Chief of such forces as 
 are, or shall be, raised for the maintenance and preservation 
 of American liberty ; this Congress doth now declare that 
 they will maintain and assist him and adhere to him, the 
 said George Washington, with their lives and fortunes, in 
 the same cause. 
 
 " General Washington's Instructions. 
 
 "This Congress having appointed you to be General 
 and Commander-in-chief of the army of the United Colo- 
 nies, of all the forces raised or to be raised by them, and 
 of all others who shall voluntarily offer their service, and 
 join the said army for the defense of American liberty, and 
 for repelling every hostile invasion thereof, you are to 
 repair with all expedition to the Colony of Massachusetts 
 Bay, and take charge of the army of the United Colonies. 
 For your better direction : 
 
 " 1. You are to make a return to us as soon as possible 
 of all forces which you shall have under your command, 
 together with their military stores and provisions; and 
 also as exact an account as you can obtain of the forces 
 which compose the British army in America. 
 
 " 2. You are not to disband any of the men you find 
 
60 Ajypeiidix. 
 
 raised until further direction from this Congress ; and if 
 you shall think their numbers not adequate to the purpose 
 of security, you may recruit them to a number you shall 
 think sufficient, not exceeding double that of the enemy. 
 
 " 3. In all cases of vacancy occasioned by the death or 
 removal of a colonel, or other inferior officer, you are by 
 brevet, or warrant under your seal, to appoint another 
 person to fill up such vacancy, until it shall otherwise be 
 ordered by the Provincial Convention, or the Assembly of 
 the Colony, from whence are the troops in which such 
 vacancy happens, shall direct otherwise. 
 
 •'4. You are to victual, at the Continental expense, all 
 such volunteers as have joined or shall join the united 
 army. 
 
 " 5. You shall take every method in your power, con- 
 sistent with prudence, to destroy or make prisoners of all 
 persons who now are, or who hereafter shall appear, in 
 arms against the good people of the United Colonies. 
 
 " 6. And whereas all particulars cannot be foreseen, nor 
 positive instructions for such emergencies so beforehand 
 given, but that many things must be left to your prudent 
 and discreet management, as occurrences may arise upon 
 the place, or from time to time fall out, you are, therefore, 
 upon all such accidents, or any occasion that may happen, 
 to use your best circumspection ; and, advising with your 
 council of war, to order and dispose of the said army under 
 your command as may be most advantageous for the 
 obtaining of the end for which these forces have been 
 raised, making it your especial care, in discharge of the 
 great trust committed unto you, that the liberties of 
 America receive no detriment." 
 
 From Fisher's "Trial of the Constitution," p. 223. 
 
 "Something also may be inferred as to his (Chief Jus- 
 tice Marshall's) opinion, from the conduct of his friend, 
 General Washington, and of Congress in the war of the 
 Eevolution. At that time there was no national Execu- 
 tive ; Congress, which consisted of delegates from the 
 States, acting virtually both as Legislature and Executive. 
 
 "It was a period of war, and the public safety required 
 that persons suspected of treasonable designs and sympa- 
 thies should be arrested. Many were, for this reason, 
 imprisoned by the executive power of the States, acting at 
 the suggestion of Congress, and with the approbation of 
 Washington ; and this was done either before or after an 
 act of the State legislatures suspending the writ of Jiabeas 
 corpus, thus following the laws and customs of England. 
 
From ''Fishefs Trial of the Constitution J' 61 
 
 " A case of this sort occurred in this city in 1777. Some 
 twenty gentlemen of high respectability were arrested by 
 order of the Supreme Executive Council of this State, 
 (Pennsylvania,) at the instance of Congress, banished to 
 a town in Virginia, and there detained. They were not 
 ti'eated as criminals, but with consideration and kindness. 
 Those who chose to declare their allegiance to the Govern- 
 ment were released, and all were permitted to return to 
 their homes, when it was thought they could no longer be 
 dangerous." 
 
 "The following extracts from the Journal of Congress 
 show the opinion of its members on the law at that time. 
 Many of them were also afterwar4s members of the Con- 
 stitutional Convention : 
 
 Journal of Congress, August and September, 1777. 
 
 "Whereas^ the States of Pennsylvania and Delaware 
 are threatened with immediate invasion from a powerful 
 army, who have already landed at the head of Chesapeake 
 bay. And whereas, principles of policy and of self pres- 
 ervation require that all persons who may be reasonably 
 suspected of aiding or abetting the cause of the enemy 
 may be prevented from pursuing measures injurious to 
 the public weal : 
 
 " Resolved, That the executive authority of the States 
 of Pennsylvania and Delaware be requested to cause all 
 persons within their respective States, notoriously dis- 
 affected, forthwith to be apprehended, disarmed, and 
 secured, till such time as the respective States think they 
 can be released without injury to the common cause. 
 
 ''' Resolved, That it be recommended to the Supreme 
 Executive Council of the State of Pennsylvania to cause 
 a diligent search to be made in the houses of all the in- 
 habitants of the city of Philadelphia, who have not mani- 
 fested their attachment to the American cause, for fire-arms, 
 swords, and bayonets ; that the owners of the arms be paid 
 for them at an appraised value, and that they be delivered 
 to such of the militia of the State of Pennsylvania who 
 are at present unarmed, and have been called into the field. 
 
 '^ Resolved, That it be recommended to the executive 
 powers of the respective States forthwith to apprehend and 
 secure all persons who have, in their general conduct and 
 conversation, evinced a disposition inimical to the cause of 
 America, and that the persons so seized be confined in 
 such places and treated in such manner as shall be con- 
 
62 Appendix. 
 
 sistent with their respective characters and the security of 
 their persons. 
 
 ^' Besolved, That persons of like character, and in emer- 
 gencies equal to the present, when the enemy is at our 
 door, have, in other States been arrested and secured upon 
 suspicions arising from their general behavior and refusal to 
 acknowledge their allegiance to the State of which they 
 were the proper subjects, and that such proceedings may 
 be abundantly justified by the conduct of the freest na- 
 tions and the authority of the most judicious civilians,''' 
 
 *' These arrests were made with the knowledge and ap- 
 probation of Washington. A writ of habeas corpus was is- 
 sued at the instance of the prisoners, but it was disregarded 
 by the officer in charge* of them, and soon afterwards, Sep- 
 tember 16th, 1777, the Legislature passed a bill indemni- 
 fying the Executive Council, and suspending the writ of 
 habeas coiyus. This bill, as it fully accords with the Eng- 
 lish law, and is conclusive proof of what ^was regarded 
 as the law of the Colonies at the time of the Revolution, 
 is worth quoting in full." 
 
 '*AN ACT to empower the Supreme Executive Council of this Common- 
 wealth to provide for the security thereof in special cases where no 
 provision is already made by law. 
 
 " Whereas the preservation of this State, and of all its 
 members, and of the army acting in support thereof at 
 the time of a hostile invasion, may require the immediate 
 interposition of the Supreme Executive Council, when the 
 judicial powers of the Government cannot, in the ordinary 
 course of law, sufficiently provide for its security ; 
 
 "And whereas for this important purpose the Supreme 
 Executive Council of this Commonwealth have lately, at 
 the recommendation of Congress, taken up several persons 
 who have refused to give to the State the common assu- 
 rance of their fidelity and peaceable behavior, as required 
 by law, and it is apprehended that there are still more 
 such persons among us who cannot, at this juncture, be 
 safely trusted .with their freedom without giving proper 
 security to the public: 
 
 "Be it therefore enacted, and it is hereby enacted, by 
 the Representatives of the freemen of the Commonwealth 
 of Pennsylvania in General Assembly met, and by the 
 authority of the same. That it may and shall be lawful 
 for the President or Vice President, and the members of 
 the Supreme Executive Council of this State, or any two 
 qf them, either upon the recommendation of Congress, or at 
 
Journal of Congress, August and September, 1777. 63 
 
 the requisition of the Commander-in-Chief of the army, or 
 the oommander of a division or corps in the same, or upon 
 the information of any credible subject of this or any 
 other of the United States, to arrest any person or per- 
 sons within this Commonwealth who shall be suspected 
 from any of his or her acts, writings, speeches, conversa- 
 tions, travels, or other behavior, to be disafiected to the 
 community of this, or all, or any of the United States of 
 America, or to be an harbinger of the common enemy who 
 is at our gates, or to give mediate or immediate intelli- 
 gence and warning to their commanders by letters, mes- 
 sengers, or tokens, or by discouraging people from taking up 
 arms for the defense of the country, or spreading false news, 
 or doing any other thing to subvert the good order and 
 regulations which are or may be pursued for the safety of 
 the country, and to sieze and examine such papers in their 
 possession as shall in anywise affect the public ; and the 
 same persons being arrested, to confine and remove thera to any 
 distant jjlace, where it will be out of their power to disturb 
 the peace and safety of the States ; or to tender to them 
 the oath or affirmation of allegiance or fidelity to the State, 
 as directed by law, and, upon taking or subscribing the 
 same, to enlarge them, or to demand and take such other 
 and further security and assurance from them as the said 
 President, or Vice President and Council, or any two of 
 them, in their discretion shall think proper, or as the par- 
 ticular circumstances of the case may require. 
 
 " And be it further enacted by the authority aforesaid, 
 That the President, Vice President, and other members 
 of the Supreme Executive Council of this Commonwealth, 
 and all persons acting by their special command in the 
 premises, shall be, and and are hereby, fully indemnified and 
 saved harmless from all proc'ess, suits, and actions that 
 shall or may be hereafter sued, commenced, prosecuted, or 
 brought against them, or any or either of them, for or in 
 respect of any of their orders or proceedings heretofore 
 issued and had upon the recommendation of Congress, or 
 which there shall hereafter issue and have by virtue of 
 this act. And that no judge or officer of the Supreme 
 Court, or any inferior court within this Commonwealth, 
 shall issue or allow of any writ of habeas corpus, or other 
 remedial writ, to obstruct the proceedings of the said Ex- 
 ecutive Council against suspected persons in this time of 
 imminent danger to the State. 
 
 "Provided always, and it is hereby further enacted by 
 the authority aforesaid, That this act shall be in force to 
 the end of the first sitting of the next General Assembly of 
 this Commonwealth, and no longer. 
 
64 Appendix. 
 
 " Enacted into a law the sixteenth day of September in 
 the year of our Lord one thousand seven hundred and 
 seventy-seven." 
 
 Washington's revolutionary orders, selected from the manuscript 
 _ of JohnWhiting, adjutant of the 2d Massachusetts line, and 
 edited by his son, Henry Whiting, U. S. Army, 
 
 Headquarters Valley Forge, 1778. 
 
 At a general court-martial, whereof Colonel Cortland 
 was president, 24th ult., Joseph Murill, an inhabitant of 
 the State of Pennsylvania, was tried for giving intelligence 
 to the enemy, and for acting as a guide to the enemy. 
 Found guilty of the last charge, being a breech of the 
 resolution of Congress of 8th October, 1777, extended by 
 another resolution of Congress dated December 29th, 
 1777 ; and upwards of two-thirds agreeing, sentenced to 
 suffer death. 
 
 His Excellency, the Commander-in-Chief, approves the 
 sentence, and orders Joseph Murill to be executed next 
 Tuesday morning, 10 o'clock. 
 
 NOTE TO order I. 
 
 The resolve of Congress here alluded to is the fol- 
 lowing : 
 
 " Wednesday, October 8, 1777. 
 
 ** A motion w.as made to prevent intercourse between 
 the towns in the possession of the enemy and the inhabi- 
 tants of the country. 
 
 '•' Ordered, That it be referred to a committee of three. 
 
 " The members chosen, Mr. R. H. Lee, Mr. J. Adams, 
 and Mr. Chase. 
 
 "Four O'clock, P. M. 
 
 " The committee to whom was referred the motion for 
 preventing an intercourse between the towns in the pos- 
 session of the enemy and the inhabitants of the country 
 brought in a resolution for that purpose, which was agreed 
 to, as follows : 
 
 *' Whereas, it is of essential consequence to the general 
 welfare that the most effectual measures should be forth- 
 with pursued for cutting off' all communication of supplies 
 or intelligence to the enemy's army now in and near the 
 
Washington's Revolutionary Orders. 65 
 
 city of Philadelphia ; and whereas, it has been found by 
 the experience of all the States that, in times of invasion, 
 the power of the municipal law is too feeble and dilatory 
 to bring to a condign and exemplary punishment persons 
 guilty of such traitorous practices : 
 
 '•'Resolved^ That any person, being an inhabitant of any 
 of these States, who shall act as a guide or pilot by land 
 or water for the enemy, or shall give or send intelligence 
 to them, or in any manner furnish them with supplies of 
 provisions, money, clothing, arms, forage, fuel, or any 
 kind of stores, be considered and treated as an enemy and 
 traitor to these United States ; and that General Washing- 
 ton be empowered to order such persons taken within 
 thirty miles of any city, town, or place in the States of 
 Pennsylvania, Jersey, or Delaware, which is, or may be 
 in the possession of the enemy's forces, to be tried by a 
 court-martial, and such court-martial are hereby author- 
 ized to sentence any such persons convicted before them 
 of any of the offenses aforesaid to suffer death or such 
 other punishment as to them shall seem meet. 
 
 " This resolve to remain in force until the first day of 
 January next, unless sooner revoked by Congress." 
 
 (2.) 
 
 Headquarters, Valley Forge. 
 
 March 2, 1778. 
 The generalcourt-martial, where of Colonel Courtland is 
 president, is dissolved, and another ordered to sit to-mor- 
 row at ten o'clock, a. m., at the Bake House. Colonel 
 Chandler is appointed president thereof, and each brigade 
 will give a captain for the court. 
 
 The execution of Joseph Murill is postponed to a future 
 day. 
 
 (17.) 
 
 Headquarters, Valley Forge, 
 
 March 25, 1778. 
 
 At a general court-martial, whereof Col. Swift was 
 
 president, 13th instant, Abel Jones, an inhabitant of the 
 
 State of Pennsylvania, was tried for supplying the enemy 
 
 with money, trading with them, and buying and passing 
 
 2 
 
66 Appendix. 
 
 counterfeit money ; found guilty of the charges exhibited 
 against him, and sentenced to receive one hundred lashes 
 on his bare back, be sent to some public place in this 
 State to be kept at hard labor during the contest with 
 Great Britain. 
 
 The Commander-in-Chief approves the sentence. 
 
 At the same court, Matthew Tilson, Henry Norrice, 
 Thomas Bailey, John Campbell, and Jesse Harburn, 
 inhabitants of the State of Pennsylvania, were tried for 
 supplying the enemy with provisions ; severally found 
 guilty, and ordered by the Commander-in-Chief to be con- 
 fined in the provost, and by day continually employed on 
 fatigue for the term of one month ; and in addition to said 
 Norrice's punishment, that, agreeably to the sentence of 
 the court, he pay fifty pounds into the hands of the adju- 
 tant general for the use of the sick in camp. 
 
 At the same court, Thomas Coskel and Samuel Burris, 
 soldiers, were tried for attempting to desert to the enemy ; 
 plead guilty, and sentenced to receive one hundred lashes 
 each, fifty per day, two days successively ; said Burris to be 
 well washed with salt and water after he has received his 
 last fifty. 
 
 The general approves and orders the execution of the 
 sentences, to commence to-morrow morning at 9 o'clock, 
 at the heads of the regiments to which they (the prisoners) 
 belong. 
 
 (26.) 
 
 Headquarters, Valley Forge, 
 
 Aprils, 1778. 
 
 At a general court-martial, whereof Col. Ogden was 
 president, 24th ultimo, William Morganan, an inhabitant 
 of Pennsylvania, was tried for coming out of Philadelphia, 
 stealing a horse, and attempting to carry him into the city ; 
 found guilty of a breach of a resolution of Congress, dated 
 October 8, 1777, extended by another resolve, and sen- 
 tenced (two-thirds agreeing) to be kept at hard labor during 
 the contest with Great Britain, not less than thirty miles 
 from the enemy's camp, and if he is caught making his 
 escape, to sufifer death. 
 
 His excellency, the Commander-in-Chief, approves the 
 foregoing sentence, and orders it to take place. 
 
Washington's Orders. — Case of Missionary Smith. 67 
 
 (36.) 
 
 Headquarters, Valley Forge, 
 
 April 13, 1778. 
 
 The general officers are desired to meet at Lord Stir- 
 ling's quarters next Wednesday, at 10 o'clock, in the fore- 
 noon. 
 
 At a general court-martial, whereof Col. Vose was presi- 
 dent, 4th instant, Philip Calp, an inhabitant, was tried for 
 attempting to carry flour into Philadelphia ; found guilty, 
 and sentenced to receive fifty lashes, and to be employed 
 on some public works for the use of the cantonments, 
 while the British army continues in this State, unless he 
 should enlist into the service during the present war. At 
 the same court, by adjournment, 7th instant, Captain 
 Benstead, paymaster of the 10th Pennsylvania regiment, 
 was tried for disobeying the orders of Captain Cox, by 
 refusing to pay him when he paid the other officers of the 
 regiment. The court having considered the charge and 
 the evidence, are unanimously of opinion that Captain 
 Benstead is guilty of the charge, but think the orders of 
 his colonel will justify his refusal to pay Captain Cox, and 
 do thereby acquit him. 
 
 ; The Commander-in-Chief approves the foregoing sentence 
 of the court, except the stripes, and ord^ers it to take place ; 
 and that Captain Benstead be released from his arrest. 
 
 XVI, 
 
 Case of Missionary Smith. 
 Mackintosh's Speech in Parliament, (See his works,) p. 734. 
 
 " On the legality of the trial, sir, the impregnable speech 
 of my learned friend has left me little if anything to say. 
 The only principle on which the law of England tolerates 
 what is called '^ martial law " is necessity; its continuance 
 requires precisely the same justification of necessity ; and 
 if its survives the necessity, in which alone it rests, for a 
 single minute, it becomes instantly a mere exercise of law- 
 less violence. When foreign invasion or civil war renders 
 it impossible for courts of law to sit, or to enforce the exe- 
 cution of their judgments, it becomes necessary to find 
 some rude substitute for them, and to-employ for that pur- 
 pose the military, which is the only remaining force in the 
 
6B Appendix. 
 
 community. While the laws are silenced by the noise of 
 arms, the rulers of the armed force must punish as equi- 
 tably as they can those crimes which threaten their own 
 safety and that of society ; but no longer. * Every moment 
 beyond is usurpation. As soon as the laws can act, every 
 other mode of punishing supposed crimes is itself an 
 enormous crime. If argument be not enough on this sub- 
 ject — if, indeed, the mere statement be not the evidence of 
 its own truth— I appeal to the highest and most venerable 
 authority known to our law. " Martial law," -says Sir Mat- 
 thaw Hale, "is not a law, but something indulged rather 
 than allowed as a law. The necessity of government, 
 order, and discipline in an army is that only which can 
 give it countenance. Necessitas enim, quod cogit, defendiL 
 Secondly, this indulged law is only to extend to members 
 of the army, or to those of the opposite army, and never 
 may be so much indulged as to be exercised or executed 
 upon others. Thirdly, the exercise of martial law may 
 not be permitted in time of peace, when the king's courts 
 are*' (or may be) "open." The illustrious judge on this 
 occasion appeals to the petition of right, which, fifty 
 years before, had declared all proceedings by martial law 
 in time of peace to be illegal. He carries the principle 
 back to the cradle of English liberty, and quotes the 
 famous reversal o^the attainder of the Earl of Kent, in 
 the first year of Edward III, as decisive of the principle, 
 that nothing but the necessity arising from the absolute 
 interruption of civil judicature by arms, can warrant the 
 exercise of what is called martial law. Whenever and 
 wherever they are so interrupted, and as long as the inter- 
 ruption continues, necessity justifies it. 
 
 No other doctrine has ever been maintained in this 
 country, since the solemn parliamentary condemnation of 
 the usurpations of Charles I, which he was himself com- 
 pelled to sanction in the petition of right. In none of the 
 revolutions or rebellions which have since occurred has 
 martial law been exercised, however much, in some of 
 them, the necessity might seem to exist. Even in those 
 most deplorable of all commotions which tore Ireland in 
 pieces, in the last years of the eighteenth century — in Lhe 
 midst of ferocious revolt and cruel punishment — at the 
 very moment of legalizing these martial jurisdictions in 
 1799, the very Irish statute which was passed for that pur- 
 pose did homage to the ancient and fundamental princi- 
 ples of the law in the very act of departing from them. 
 The Irish statute, (39 George III, c. 3,) after reciting ' that 
 martial law had been successfullv exercised to the restora- 
 
Case of Missionary Smith, 69 
 
 tion of peace, so far as to permit the course of the common 
 law partially to take place, but that the rebellion continued 
 to rage in considerable parts of the kingdom, whereby it 
 has become necessary for Parliament to interpose,' goes on 
 to enable the Lord Lieutenant " to punish rebels by courts- 
 martial." This statute is the most positive declaration that 
 where the common law can be exercised in some parts of 
 the country, martial law cannot be established in others, 
 though rebellion actually prevails in those others, without 
 an extraordinary interposition of the supreme legislative 
 authority itself. 
 
 I have already quoted from Sir Matthew Hale his posi- 
 tion respecting the two-fold operation of martial law, as 
 it affects the army of the power which exercises it, and as 
 it acts against the army of the enemy. That great judge, 
 happily unused to standing armies, and reasonably preju- 
 diced against military jurisdiction, does not pursue his 
 distinction through all its consequences, and assigns a 
 ground for the whole which will support only one of its 
 parts. "The necessity of order and discipline in an army" 
 is, according to him, the reason why the law tolerates this 
 departure from its most valuable rules; but this necessity 
 only justifies the exercise of martial law over the army of 
 our own State. One part of it has since been annually 
 taken out of the common law, and provided for by the 
 military act, which subjects the military offenses of soldiers 
 only to punishment by military courts, even in time of 
 peace. Hence we may now be said annually to legalize 
 military law ; which, however, differs essentially from mar- 
 tial law in being confined to offenses against military dis- 
 cipline, and in not extending to any persons but those 
 who are members of the army. 
 
 Martial law exercised against enemies or rebels cannot 
 depend on the same principle ; for it, is certainly not 
 intended to enforce or preserve discipline among them. 
 It seems to me to be only a more regular and convenient 
 mode of exercising the right to kill in war — a right origin- 
 ating in self-defense, and limited to those cases where 
 such killing is necessary — as the means of insuring that 
 end. Martial law put in force against rebels can only 
 be excused as a mode of more deliberately and equitably 
 selecting the persons from whom quarter ought to be with- 
 held, in a case where all have forfeited their claim to it. 
 It is nothing more than a sort of better regulated decima- 
 tion, founded upon choice instead of chance, in order to 
 provide for the safety of the conquerors, without the horrors 
 
70 Appendix. 
 
 of undistinguished slaughter; it is justifiable only where 
 it is an act of mercy. Thus the matter stands by the law 
 of nations. But by the law of England, it cannot be 
 exercised except where the jurisdiction of courts of justice 
 is interrupted by violence. Did this necessity exist at 
 Deraarara on the 13th of October, 1823 ? Was it on that 
 day impossible for the courts of law to try offenses ? It 
 is clear that, if the case be tried by the law of England, 
 and unless an affirmative answer can be given to these 
 questions of fact, the court-martial had no legal power to 
 try Mr. Smith. 
 
 Now, sir, I must in the first place remark that General 
 Murray has himself express!}^ waived the plea of necessity, 
 and takes merit to himself for having brought Mr. Smith 
 to trial before a court-martial, as the most probable mode 
 of securing impartial justice ; a statement which would be 
 clearly an attempt to obtain commendation under false pre- 
 tences, if he had no choice, and was compelled by abso- 
 lute necessity to recur to martial law : " In bringing this 
 man (Mr. Smith) to trial, under present circumstances, I 
 have endeavored to secure to him the advantage of the 
 most cool and dispassionate consideration by framing a 
 court entirely of officers of the army, who, having no 
 interests in the country, are without the bias of public 
 opinion, which is at present so violent against Mr. 
 Smith." This paragraph I conceive to be an admission, 
 and almost a boast, that the trial by court-martial was 
 a matter of choice, and therefore not a necessity ; and I 
 shall at present say nothing more on it than earnestly to 
 beseech the House to remark the evidence which it affords 
 of the temper of the colonists, and to bear in mind the 
 inevitable influence of that furious temper on the prose- 
 cutors who conducted the accusation ; on the witnesses 
 who supported it by their testimony ; on the officers of 
 the court-martial, who could have no other associates or 
 friends but among these prejudiced and exasperated col- 
 onists. With what suspicion and jealousy ought we not 
 to regard such proceedings ? What deductions ought to 
 be made from the evidence? How little can we trust the 
 fairness of the prosecutors or the impartiality of the 
 judges ? What hope of acquittal could the most innocent 
 prisoner entertain ? Such, says in substance Governor 
 Murray, was the rage of the inhabitants of Demarara 
 against the unfortunate Mr. Smith that his only chance 
 of impartial trial required him to be deprived of all the 
 safeguards which are the birthright of British subjects, 
 and to be tried by a judicature which the laws and feelings 
 of his country alike abhor. 
 
Missionary Smith's Case. 71 
 
 But the admission of Governor Murray, though conclu- 
 sive against him, is not necessary to the argument; for 
 my learned friend has already demonstrated that, in fact, 
 there was no necessity for a court-martial on the 13th of 
 October. 
 
 From the 31st of August it appears, by General Mur- 
 ray's letters, that no impediment existed to the ordinary 
 course of law ; " no negroes were in arms ; no war or bat- 
 tle's sound was heard " through the Colony. There re- 
 mained, indeed, a few runaways in the forests behind ; 
 but we know, from the best authorities, that the forests 
 were never free from bodies of these wretched and desper- 
 ate men in those unhappy settlements in Guiana, where, 
 under every government, rebellion has as uniformly sprung 
 from cruelty, as pestilence has arisen from the marshes. 
 Before the 4th of September, even the detachment which 
 pursued the deserters into the forest had returned into 
 the Colony. For six weeks, then, before the court-martial 
 was assembled, and for twelve weeks before that courtpro- 
 nounced sentence of death on Mr. Smith, all hostility had 
 ceased, no necessity for their existence can be pretended, 
 and every act which they did was an open and deliberate 
 defiance of the law of England. 
 
 Where, then, are we to look for any color of law in, 
 these proceedings? Do they derive it from the Dutch 
 law? I have diligently examined the Roman law, which 
 is the foundation of that system, and the writings of those 
 most eminent jurists who have contributed so much to the 
 reputation of Holland : I can find in them no trace of any 
 such principle as martial law. Military law, indeed, is 
 clearly defined ; and provision is made for the punishment 
 by military judges of the purely military oftenses of sol- 
 diers. 
 
 But to any power of extending military jurisdiction 
 over those who are not soldiers, there is not an allusion. 
 I will not furnish a subject for the pleasantries of my right 
 honorable friend, or tempt him into a repetition of his 
 former innumerable blunders, by naming the greatest of 
 these jurists; lest his date, his occupation, and his rank, 
 might be again mistaken ; and the venerable President of 
 the Supreme Court of Holland might be once more called 
 a "clerk of the States General." " Persecutio militis," says 
 that learned person, '•^'pertinet ad judicem miUtarem quando 
 delictum sit militare, et ad judicem communem quando delictum 
 sit commune.'" Far from supposing it to be possible that 
 those who were not soldiers could ever be triable by mili- 
 tary courts for crimes not military, he expressly declares 
 
72 Appendix. 
 
 the law and practice of the United Provinces to be, that 
 even soldiers are amenable, for ordinary oflPenses against 
 society, to the court of Holland and Friesland, of which 
 he was long the chief. The law of Holland, therefore, 
 does not justify this trial by martial law. 
 
 Nothing remains Tjut some law of the colony itself. 
 Where is it ? It is not alleged or alluded to in any part of 
 this trial. We have heard nothing of it this evening. So 
 unwilling was I to believe that this court-martial would 
 dare to act without some pretense of legal authority, that 
 I suspected an authority for martial law would be dug out 
 of some dark corner of a Guiana ordinance. I knew it 
 was neither in the law of England, nor in that of Holland ; 
 and I now believe that it does not exist even in the law of 
 Demarara. The silence of those who are interested in 
 producing it is not my only reason for this belief. I hap- 
 pen to have seen the instructions of the States General to 
 their Governor of Demarara, in November, 1792 — probably 
 the last ever issued to such an officer by that illustrious 
 and memorable assembly. They speak at large of coun- 
 cils of war, both for consultation and for judicature. They 
 authorize these councils to try the military oflenses of sol- 
 diers ; and therefore, by an inference which is stronger 
 than silence, authorize us to conclude that the Governor 
 had no power to subject those who were not soldiers to 
 their authority. 
 
 The result then is, that the law of Holland does not 
 allow what is called " martial law" in any case; and that 
 the law of England does not allow it without a necessity, 
 which did not exist in the case of Mr. Smith. If, then, 
 martial law is not to be justified by the law of England, or 
 by the law of Holland, or by the law of Demarara, what 
 is there to hinder me from affirming that the members of 
 this pretended court had no more right to try Mr. Smith 
 than any other fifteen men on the face of the earth ; that 
 their acts were nullities, and their meeting a conspiracy \ 
 that their sentence was a direction to commit a crime ; 
 that if it had been obeyed, it would not have been an 
 execution, but a murder ; and that they, and all other 
 parties engaged in it, must have answered for it with their 
 lives." 
 
Presidenfs Powers — Martial Law — Webster's Speech. 73 
 
 XVII. 
 
 Comparison between the powers of the President of the United 
 States and of the Governor of New York. — Federalist, 
 No. 69. 
 
 '* The President is to be Commander-in-Chief of the 
 army and navy of the United States. In this respect his 
 authority would be nominally the same as the King of 
 Great Britain, but in practice much inferior to it. It 
 would amount to nothing more than the supreme com- 
 mand and direction of the military and naval forces, as 
 first general and admiral of the Confederacy; while that 
 of the British king extends to the declaring of war, and to 
 the raising and equipping of fleets and armies ; all which 
 by the constitution under consideration would appertain 
 to the legislature." 
 
 XVIII. 
 
 What is Martial Law 9 — Wellington's Speeches, 733. 
 
 "I contend that martial law is neither more nor less 
 than the will of the general who cammands the army. 
 In fact, martial law means no law at all ; therefore the 
 o-eneral who declares martial law, and commands that it 
 shall be carried into execution, is bound to lay down dis- 
 tinctly the rules, -and regulations, and limits according to 
 which his will is to be carried out. Now I have, in an- 
 other country, carried out martial law; that is to say, I 
 have governed a large proportion of the population of a 
 country bj' my own will. But then, what did I do ? I 
 declared that the country should be governed according 
 to its own national law, and I carried into execution that 
 my so declared will." 
 
 XIX. 
 
 Speech of Daniel Webste7\ in the House of Representatives, 
 during the War of 1812. — Annals of Congress, (13^A 
 Cong.,) Vol 1, p. 886. 
 
 Mr. Webster said: "If the proposition were to consider 
 whether it was necessary to provide additional legal pun- 
 ishments for any description of offense, he should see no 
 3 
 
74 Appendix. 
 
 objection to the reference of the subject to a committee. 
 If illegal intercourse existed with the enemy, he should 
 go as far as any one in applying constitutional remedies 
 to that evil. But this resolution proposes, in effect, to con* 
 sider whether it is not expedient to try accusations for 
 treason before military instead of civil tribunals. How- 
 ever glaring may be the idea, yet such is in truth the real 
 nature of the proposition it is to change the forum for the 
 trial of treason. The mover of the resolution and the 
 gentleman from the State of Georgia (Mr. Troup) have 
 not left any doubt on this subject. They have alluded to 
 cases which they suppose the resolutions to embrace, and 
 for which they deem it necessary to provide military pun- 
 ishment. But what is the nature of those cases? Are 
 they not cases of treason ? It is said information has been 
 communicated to the enemy, very material to him, respect- 
 ing the operations of our own forces, by citizens of the 
 United States. Signals are said to have been made for 
 this purpose on the St. Lawrence and elsewhere. Do 
 gentlemen suppose that the act of communicating to the 
 enemy important intelligence, whether by signals or other- 
 wise, whereby he is better able to defend himself or attack 
 his adversary is not treason ? Is not this giving aid and 
 comfort to the enemy? May it not be in many cases the 
 most important service which can be rendered him ? Cer- 
 tainly, sir, all such offenses as. gentlemen have mentioned 
 are provided for by law, and adequate penalties annexed 
 to the commission. The simple question before us is, 
 whether we will consider the propriety of taking the power 
 of trying these offenses from the courts of law, where the 
 Constitution has placed it, and confer it on the military. 
 Sir, the proposition strikes me as monstrous. I cannot 
 consent to entertain the consideration of it even for a mo- 
 ment. It goes to destroy the plainest constitutional pro- 
 visions. If it should prevail I should not hesitate to pro- 
 nounce it a most enormous stride of usurpation. Nothing 
 in any government called a free one, even in the worst of 
 times, has exceeded it. I am utterly shocked at the argu- 
 ments offer.ed in favor of it. When the mover was asked 
 why, in the case he mentioned, the offenders could not 
 be punished for treasonable practices, I understood him to 
 answer that on trials for treason in courts of law the testi- 
 mony of two witnesses was required ; but if the trial could 
 be transferred to a military tribunal the two witnesses 
 could be dispensed with. Are we now gravely to consider 
 upon a proposition of which this is among the professed 
 objects ? The gentleman from Georgia (Mr. Troup) ob- 
 
Wehsier^s Speech — Wirfs Opinion. 75 
 
 served, that when persons had heen apprehended for 
 offenses, they had been rescued b}^ habeas corpus issued by 
 the civil magistrate. And are we to deliberate whether 
 it be not proper for us to prevent the delivery of the citi- 
 zens of this country from illegal arrests and imprisonment 
 by the interposition of their constitutional remedy, their 
 writ of habeas corpus? The Constitution contains no pro- 
 vision more valuable; it makes no injunction more direct 
 and imperative than those respecting trials for treason, and 
 the benefit of the habeas corpus. 
 
 '^ Treason is not left to be defined, even by the highest 
 courts of law. It was foreseen that, in times of commo- 
 tion, victims might be sacrificed to constructive treason ; 
 that doctrine which, in other places and other times, has 
 shed so much innocent blood, and which brought Algernon 
 Sydney to the scaffold. The Constitution, therefore, de- 
 fines treason, and prescribes the mode of proof. But 
 what is there in the worst cases of constructive treason 
 that can be compared, in point of enormity, to the propo- 
 sition now before us ? This is not to give a latitude of 
 construction to the judge; it is to take the cause away 
 from the j udge, and carry it to the camp. Instead of indict- 
 ment, or arraignment, and trial, it proposes the summary 
 process of martial law. If the proposition should pass 
 into a law it takes away the constitutional definition of 
 the offense; it takes away the prescribed mode of proof ; 
 it takes away the trial by jury ; it takes away the civil 
 tribunal, and establishes the military. On a resolution of 
 this sort, I cannot believe the House will consent to 
 deliberate." 
 
 XX. 
 
 Opinion of William Wirt. Attorney General' s Opinions, Vol. 
 2, p. 192. 
 
 "This being a case, however, of life and death, I beg 
 leave to recall to your recollection, sir, that by the 64th 
 article of the Rules and Articles of War, it is required 
 that general courts-martial shall not consist of less than 
 thirteen, where that number can be aonvened without mani- 
 fest injury to the service. The court in the case of William- 
 son having consisted of jive commissioned ofiScers only, 
 was not a legal court if thirteen could have been convened 
 xoithout manifest injury to the service.'' 
 
 "The phrase, you will observe, is not 'where that uum- 
 
76 Appendix. 
 
 ber (thirteen) can be conceniently convened,' but where 
 they can be convened at all, not only \\\\h.o\xi probable injury, 
 but without mariifest injury to the service. 
 
 '' It is difficult to conceive an emergenc}^ in time of peace 
 so pressing as to disable the general officer who orders the 
 court from convening thirteen commissioned officers on a 
 trial of life and death, without manifest injury to the service. 
 
 "And if a smaller number act without such manifest 
 emergency, I repeat that they are not a lawful court, and 
 an execution under their sentence would be murder. 
 
 "With all the respect, therefore, which we ought to feel 
 for our officers, I suggest to you, sir, as a matter of legal 
 propriety, that, in every case of life and death at least, the 
 President ought to be satisfied of the manifest injury which 
 the service would have sustained in convening a court of 
 thirteen, before he gives his sanction to a sentence of death 
 by a smaller number." 
 
 XXI, 
 
 What, in Contemplation of Law, is a Time of Peace. From 
 Coke upon Littleton — Lib. 3, sec. 412, ^'' of Descents.'' 
 
 " Per occupation en temps de guerre.'' 
 
 "First, it is necessarie to be knowne, what shall bee said 
 time of peace, tempus pads; and what shall be said, tempus 
 belli sive guerroe, time of war re. Tempus pads est quando 
 cancellariaet alioe curice regis sunt opertce quibus lexfiehit cuicun- 
 que pront fieri eonsuevit. And so it was adjudged in the 
 case of Rogers, Mortimer, and of Thomas, Earle of Lan- 
 caster. 
 
 " Uirum terra sit gyfrrina necne, naturaliter debet judicari per 
 recorda regis et eorum, qui curias regis per legem terrce custodi- 
 unt et gubernant, sed non alio modo. 
 
 "And therefore, when the courts of justice be open, and 
 the judges and ministers of the same may by law protect 
 men from wrong and violence, and distribute justice to 
 all, it is said to be time of peace. So, when by invasion, 
 insurrection, rebellions, or such like, the peaceable course 
 of justice is disturbed and stopped, so as the courts of jus- 
 tice be as it were shut up, et silent legis inter arina, then it 
 is said to be time of warre ; and the triall hereof is by the 
 records, and judges of the court of justice ; for by them it 
 will appeare whether justice had her equal 1 course of pro- 
 ceeding at that time or no, and this shall not be tried by 
 jury." 
 
Gme of Theobald Wolfe Tone. ^t 
 
 XXII. 
 
 Case of Theobald Wolfe Tone, in 1798. 27 State Trials, 
 
 p. 615. 
 Mr. Tone came from Ireland to America in 1795. 
 " Here he did not remain many months. He tendered 
 his services to the French Directory, and having met 
 with all the encouragement he could desire, he procured 
 a passage to France, Avhere he arrived in the beginning 
 of the year 1796. He was most favorably received and 
 appointed to a commission in the French army. His 
 efforts to persuade the Directory to send an armament to 
 Ireland have been previously mentioned. 
 
 " The first expedition having failed a second attempt 
 was made in the autumn of 1798. This was equally un- 
 successful ; and Mr. Tone, who was on board the HoCHE, 
 French line of battle ship, one of the vessels captured by 
 Sir John Borlase Warren's squadron, off the Irish coast, 
 fell into the hands of the English government, and was 
 brought to trial, by court martial in Dublin, on the 10th 
 of November, 1798." " The court was composed of the 
 following members : 
 
 Maj. Gen. Loftus, President. 
 
 Col. Vandeleur, 
 
 Col. Wolfe, 
 
 Col. Tytler, 
 
 Lieut. Col. Daly, 
 
 Major Armstrong, 
 
 Capt. CORRY. 
 
 Mr. Tone was brought into court under a corporal's 
 guard from the Provost Marsh alsea, where he had been 
 confined. He was dressed in the French uniform — a 
 large and fiercely cocked hat, with broad gold lace, and 
 the tri-colored cockade ; a blue uniform coat-, with gold 
 and embroidered collar, and two large gold epaulets ; 
 blue pantaloons with gold laced garters at the knees, and 
 short boots bound at the tops with gold lace. At first he 
 seemed a good deal agitated, and called for a glass of 
 water, having drank which, he seemed much composed 
 and collected. 
 
 The charges were read by the Judge Advocate against 
 Mr. Tone, implicating him as a natural born subject of 
 our lord the king, having traitorously entered into the 
 service of the French republic, at open war with his 
 majesty, and being taken in the fact, bearing arms against 
 his king and country, and assuming a command in an 
 enemy's army approaching the shore of his native land, 
 
T8 Ap2)endiar. 
 
 for the purpose of invasion and acting in open resistance 
 to his majesty's forces, with several other charges of a 
 treasonable nature. 
 
 On the conclusion of the charges read against him, he 
 was called on to plead, whether guilty or not guilty, 
 
 Mr. Tone, bowing to the Court, said he presumed this 
 was the time in which he might read to the Court the 
 statements of a few points which he had committed to 
 paper, for the occasion of his trial. 
 
 He was asked, in the first instance, if he would plead 
 to the charge against him — guilty or not guilty. 
 
 He answered that it was not his wish to avail himself 
 of any subterfuge, or to give the Court any unnecessary 
 trouble ; he was ready to admit the whole of the charge 
 exhibited against him." -^ -^ ^ 
 
 " I conceive that I stand here in the same light with 
 our emi(/res : and if the indulgence lie within the power 
 of the Court, I would only request what French magna- 
 nimity allowed to Charette and ta the Count de Som- 
 breuil — the death of a soldier, and to be shot by a file of 
 grenadiers. This is the only favor I have to ask ; and I 
 trust that men susceptible of the niee feelings of a 
 soldier's honor, will not refuse the request. 
 
 " It is not from any personal feelings that I make this 
 request, but from a respect to the uniform which I wear, 
 and to the brave army in which I have fought. 
 
 " From papers which I yesterday delivered into the 
 hands of the brigade majar, it will be seen that I am as 
 regularly breveted an officer in the French service, as 
 any here is in the British army, and it will be seen that 
 I have not my commission as a' protection. 
 
 Judge Advocate : I wish you to be aware, that your 
 acceptance of a commission in the French service, 
 amounts to positive proof of the charge advanced 
 against you ; but, from your admissions already, I sup- 
 pose that, by the production of those papers, you merely 
 want to show, that you were an officer in the French 
 army." * - ^ 
 
 " In the interval, a motion was made in the Court of 
 King's Bench, by Mr. Curran, on an affidavit of Mr. 
 Tone's father, stating that his son had been brought 
 before a bench of officers, calling itself a Court Martial, 
 and by them sentenced to death. 
 
 " I do not pretend to say," observed Mr. Curran, 
 " that Mr. Tone is not guilty of the charges of which he 
 is accused ; I presume the officers were honorable men ; 
 but it is stated in the affidavit, a-^ a solemn fact, that Mr. 
 Tone had no commission under his majesty, and there- 
 
Caxe of Tlmohald Wolfe Tone. 79 " 
 
 fore no Court Martial could have cognizance of any 
 crime imputed to him, while the Court of King's Bench 
 sat in the capacity of the great criminal Court of the 
 land. In times when war was raging, when man was 
 opposed to man in the field, Courts Martial might be 
 endured ; but every law authority i^ with me, while I 
 stand upon this sacred and immutable principle of the 
 Constitution — that martial law and civil law arc incom- 
 patible ; and that the former must cease, with the exist- 
 ence of the latter. This is not the time for arguing this 
 momentous question. My client must appear in this 
 Court. He is cast for death this day. He may be 
 ordered for execution while I address you. I call on the 
 Court to support the law. I move for a habeas corpia 
 to be directed to the Provost Marshal of the barracks of 
 Dublin, and Major Sandys, to bring up the body of Mr. 
 Tone. 
 
 Lord Chief Justice [Kilwarden] : Have a writ 
 instantly prepared. 
 
 Mr. CuRRAN : My client may die while the writ ij 
 preparing. 
 
 Lord Chief Justice : Mr. Sheriff, proceed to the 
 barracks, and acquaint the Provost Marshal that a writ 
 is preparing to suspend Mr. Tone's execution ; and see 
 that he is not eocecnted. 
 
 [The Court awaited, in a state of the utmost agitation, 
 the return of the Sheriff.] 
 
 Mr. Sheriff : My Lords, I have been at the barracks, 
 in pursuance of your order. The Provost Marshal says, 
 he must obey Major Sandys. Major Sandys says he 
 must obey Lord Cornwallis. 
 
 Mr. CuRRAN : Mr. Tone's father, my Lords, returns, 
 after serving the habeas corpus. He says General Craig 
 will not obey it. 
 
 Lord Chief Justice : Mr. Sheriff, take the body of 
 Tone unto your custody. Take Provost Marshal and 
 Major Sandys into custody ; and show the order of this 
 Court to General Craig. 
 
 Mr. Sheriff (who was understood to have been refused 
 admittance at the barracks) returns : I have been at the 
 barracks. Mr. Tone, having cut his throat last night, is 
 not in a condition to be removed. As to the second part 
 of your order, I could not meet the parties. 
 
 [A French emigrant surgeon, whom General Craig had 
 sent along with the Sheriff", was sworn.] 
 
 Surgeon : I was sent to attend Mr. Tone this mornings 
 
80 Appendix. 
 
 at four o'clock. His windpipe was divided. I took 
 instant measures to secure his life by closing the wound. 
 There is no knowing, for four days, whether it will be 
 mortal. His head is now kept in one position. A sentinel 
 is over him to prevent Ids speaking. His removal would 
 kill him. 
 
 Mr. CuRRAN applied for further surgical aid, and for 
 the admission of Mr. Tone's friends to him. 
 
 [Refused.] 
 
 Lord Chief Justice : Let a rule be made for suspend- 
 ing the execution of Theobald Wolfe Tone ; and let it be 
 served on the proper persons. 
 
 [The prisoner lingered until the 19th day of November, 
 when he expired, after having endured, in the interval, 
 the most excruciating pain.] 
 
 XXIII. 
 
 Opinion of Enr/Ush Counsel on the Jamaica Outrages. 
 
 CASE SUBMITTED BY THE JAMAICA COMMITTEE. 
 
 " The committee desires to be advised what steps are 
 open to them to assist their fellow subjects in Jamaica to 
 obtain the protection of the law ; and if the law has been 
 broken to bring the guilty parties to justice ; and also 
 what steps are open to them as Englishmen to vindicate 
 constitutional law and order, if constitutional law and 
 order have been illegally set aside by the local Govern- 
 ment in Jamaica. 
 
 " With this are sent copies of the despatch from 
 Governor Eyre to Mr. Secretary Cardwell, on the 20th 
 October, 1865, and also of the address of the Governor to 
 the Jamaica House of Legislature, at the annual meet- 
 ing which took place on the 7th of November. Copies 
 are also sent of such reports cf the military officers as 
 have appeared in the papers. 
 
 " Considering for the present nothing but these official 
 documents, and taking for granted that the statements 
 they contain are all true, counsel is requested to advise : 
 
 " 1. What is the meaning of the term martial law, and 
 what is the legal effect of a proclamation of martial law? 
 
 " 2. Are there grounds foi- concluding that Governor 
 Eyre has acted illegalh^ and criminally- in the mode in 
 which he states that he has proclaimed and enforced 
 martial law, and especially in removing the Hon. G. W. 
 Gordon from Kingston to Morant Bay, and there handing 
 
opinion of En^/IisJi Counsel on Jamaica Outrage. 81 
 
 him over to Brigadier-General Nelson to be tried by 
 court-martial ? 
 
 " 3, Could Mr. Gordon be legally convicted and pun- 
 ished by court-martial for any act done prior to the 
 proclamation of martial law, or for any act done beyond 
 the boundaries of the proclaimed district ? 
 
 " 4. Are officers acting in enforcing martial law exempt 
 from all control beyond the instructions they receive from 
 their superior officers, if not, are there any principles ac- 
 knowledged by martial law, or by the British constitu- 
 tion, which would render it illegal (a) to continue for 
 several days shooting down men, and flogging men, 
 women, and chiklren, and burning their habitations, in 
 the absence of any appearance of organised resistance ; 
 (/;) to inflict punishment without or before trial ; (c) to 
 inflict punishment for the purpose of obtaining evidence ; 
 {d) to inflict death for or on the evidence of looks or 
 gestures ? 
 
 " 5. In case Governor Eyre or his suborniuate officers 
 have been guilty of illegal acts in the course of the late 
 proceedings in Jamaica, what are the proper modes of 
 bringing them to trial for such illegal acts V 
 
 " 6. Are any, and if any what, proceedings for the 
 above purpose open to private persons in this country? 
 
 " 7. The last question has reference to a bill of indem- 
 nity, if one should be passed by the Jamaica Legislature. 
 
 " OPINION. 
 
 " The questions asked in this case all depend more or 
 less upon the general question, ' what is the nature of 
 martial law, and what power does it confer?' We will, 
 therefore, state our view of this subject before answering 
 the specific questions asked, and we must do so at some 
 length on account both of the importance and the ob- 
 scurity of the subject. The expression ' martial law ' has 
 been used at difl'erent times in four different senses, each 
 of which must be carefully distinguished from the others. 
 
 " 1. In very early times various systems of law co- 
 existed in the country — as the common law, the ecclesi- 
 astical law, the law of the Court of Admiralty, &c. One 
 of these was the law martial, exercised by the constable 
 and marshal over troops in actual service, and especially 
 on foreign service. As to this, see an essay on the ' Laws 
 )f War,' by Professor Montague Bernard, in the ' Oxford 
 ^jssays ' for 1856. 
 
 " 2. The existence of this system in cases of foreign 
 service or actual warfare, appears to have led to attempts 
 on the parts of various sovereigns to introduce the same 
 
82 2±ppendix. 
 
 system in times of peace on emergencies, and especially 
 for the punishment of breaches of the peace. This was 
 declared to be illegal by the Petition of Eight, as we 
 shall show more fully immediately. {See Hallam's 'Con- 
 stitutional History,' p. 240, v. i., 7th edition, c. v., near 
 the beginning.) 
 
 " 3. When standing armies were introduced, the powers 
 of the constable and marshal fell into disuse, and the dis- 
 cipline of the army was provided for by annual Mutiny 
 Acts, which provide express regulations for the purpose. 
 These regulations form a code, which is sometimes called 
 martial, but more properly military law. (Grant and 
 Gould, 2 H. Blackstone, 69.') 
 
 " 4. Although martial law in sense (1) is obsolete, being 
 superseded by military law, and in sense (2) is declared 
 by the Petition of Right to be illegal, the expression has 
 survived, and has been applied, as we think, inaccurately 
 and improperly, to a very dilferent thing, namely, to the 
 common-law right of the Crown and its represetatives to 
 repel force by force in the case of invasii^n or insurrec- 
 tion. We shall proceed to develope and illustrate this 
 view of the subject. 
 
 " The provisions of the Petition of Eight on Martial 
 Law (3 chap, i., c. 1) are contained in ss. 7, 8, 9, 10. 
 These sections recite that commissions under the Great 
 Seal had lately been issued to certain persons io proceed 
 in particular cases ' according to the justice of martial 
 law ;' and that thereby persons had been put to death 
 who, if deserving of death, ought to have been tried in 
 the ordinary way, whilst others, pleading privilege, had 
 escaped. Such commissions are then declared to be 
 illegal ; and it is provided that henceforth no commis- 
 sions of like nature may issue forth to any person or 
 persons whatsoever. 
 
 " The commissions themselves explain the nature of 
 the system which the Petition of Eight prohibited. Three, 
 which were issued shortly before it passed, are given in 
 17 ' Evmer's Foedera/ pp. 43, 246, 647. They are dated 
 respectively 24th November, 1617 ; 20th July,' 1620 ; 30th 
 December, 1624. The first is a commission to certain 
 persons for the government of Wales, and the counties of 
 Worcester, Hereford, and Shropshire. It directs them to 
 call out the array of the county, and then proceeds to 
 direct them to lead the array — 
 
 •' ' As well against all and singular our enemies, as 
 also against all and singular rebells, tray tors and other 
 offenders and their adherents, against us our Crowne and 
 dignitie within the said principalitie and dominions of 
 
Opinion of English Counsel on Jamaica Outrage. 83 
 
 North Wales and South Wales, the marches of the same 
 and counties and places aforesaid, and with the said 
 trajtors and rebells from tvme to tyme to fight, and them 
 to invade, resist, suppresse, subdue, slay, kill, and put to 
 executi(ui of death, by all ways and means, from tyme 
 to tyme by your discretion.' 
 
 " 'And further to doe, execute, and use against the 
 said enemies, traytors, rebells, and such other like offend- 
 ers and their adherents afore-mentioned from tyme to 
 tyme as necessitie shall recpiire by your discretion, the 
 law called the martiall lawe according to the law mar- 
 tiall, and of such offenders appre lended or being brought 
 in subjection, to save whom you shall think good to be 
 saved, and to slay, destroie, and put to execution of 
 death, such and as many of them as you shall think 
 nieete, by your good discretion, to be put to death.' 
 
 " The second empowers Sir Robert Maunsel to govern 
 the crews of certain ships intended for the supj)ression 
 of piracy, and gives him ' full powers to execute and take 
 away their life, or any member, in form and order of 
 martial law.' 
 
 " The third is a commission to the mayor of Dover, 
 and others, reciting that certain troops, then at Dover, 
 were licentious, and empowering them. 
 
 " ' To proceed accordmg to the justice of martial law 
 against such soldiers within any of our lists aforesaid, 
 and other dissolute persons joining with them, or any of 
 them, as during such time as any of our said troops or 
 companies of soldiers shall remain or abide there, and 
 not be transported thence, shall, within any of the places 
 or precincts aforesaid, at any time, after the publication 
 of this our commission, commit any robberies, felonies, 
 mutinies, or other outrages or misdemeanors, which by 
 the martial law should or ought to be punished with 
 death, and by such summary course and order as is 
 agreeable to martial law, and as is used in armies in time 
 of war, to proceed to the tiial and condenniation of such 
 delinquents and offenders, and them cause to be execu- 
 ted, and put to death according to the law martial, for 
 an example of terror to others, and to keep the rest in 
 due awe and obedience.' 
 
 " The distinctive feature of all these commissions is, 
 that they authorise not merely the suppression of revolts 
 by military force, which is undoubtedly legal, but the 
 subsequent punishment of offenders by illegal tribunals 
 which is the practice forbidden by the Petition of Eight. 
 In illustration of this we may compare the proceedings 
 described in Governor Eyre's despatch with the course 
 
84 Apj)e)idhj\ 
 
 taken by a lieutenant-general and his provost-marslial in 
 the reign of Queen Elizabeth, under one of the commis- 
 sions declared to be illegal bv the Petition of Eight. In 
 1569 the Earls of Northumberland and Westmoreland 
 had risen and besieged and taken Barnard Castle, and 
 committed other acts of open treasonable warfare. The 
 rising took place, and was suppressed, in the course of 
 the month of December. The Earl of Sussex received 
 from the Queen a commission, evidently similar to the 
 one already cited, and appointed Sir George Bower his 
 provost-marshal. Sir George Bower made a circuit 
 through Durham and Yorkshire, between the 2d and 
 the 20th of January, 1569, and executed at various 
 places 600 persons. (Sharpe's ' Memorials of the Ee- 
 bellion,' No. 1,569, pp. 99, 113, 121, 133, 140, 143, 153, 
 163.) 
 
 " It appears from Governor Eyre's despatch, passing 
 by earlier portions which contain instances of acts done 
 by the so-called courts-martial, susceptible perhaps of a 
 construction different from those which follow, that at 
 daybreak on Monday, the 16th of October (paragraph 
 41), the last definite act of violence mentioned, having 
 taken place on the 15th {see paragraph 33), a court mar- 
 tial sat to try prisoners, and 27 were found guilty and 
 hung. By the 18th (paragraph 55 j, many rebels had 
 been captured, and several courts-martial had been held 
 and capital punishment inflicted. On the 19th (para- 
 graph 57), all was going on well in camp, more rebels 
 had been captured or shot. Afterwards, on the 23rd of 
 October, Mr. Gordon was hung. As Governor Eyre 
 mentioned no acts of violence subsequent to that above 
 referred to, it would appear that these executions were 
 punishments for past offences, and not acts required for 
 the suppression of open in surrection. The measures 
 adopted thus resemble those taken by Sir George Bower, 
 in 1569, under the authority of the commission declared 
 illegal by the Petition of Eight. As to the legal charac- 
 ter of such punishments, Lord Coke observes (3rd inst., 
 c. 7, p. 52), ' If a lieutenant, or other that hath commis- 
 vsion of marshal authority in time of peace, hang, or oth- 
 erwise execute any man by colour of marshal law, 
 this is murder ; for this is against Magna Charta, c. 29.) 
 (See too Hale, Hist, C. L. 34.) 
 
 "These authorities appear to sliow that it is illegal for 
 the Crown to resort to martial law as a special mode of 
 punishing rebellion. 
 
 "We now proceed to consider the authorities which 
 look in the other direction. In 1799, an Act of the Irish 
 
Opi7iion of Engliah Counsel on Jamaica OiUrar/e. 85 
 
 Parliament (39 Geo. III., c. 11) was passed, the effect of 
 which was to put the parts of the country which were 
 still in rebellion under military command, according to 
 a system therein described. The preamble states that 
 the rebellion had been already suppressed, and it sets 
 forth that on the 24th of May, 1798, Lord Camden did, 
 by and under the. advice of the Privy Council, issue his 
 orders to all general officers commanding his Majesty's 
 forces, to punish all persons acting, ordering, or in any 
 way assisting in the said rebellion, according to martial 
 law, either by death or otherwise, as to them should seem 
 expedient, and did by his yjroclamation of the same 
 date ratify the same. It further goes on to recite, that 
 'by the wqse and salutary exercise of his Majesty's un- 
 doubted prerogrative in executing martial law, for de- 
 feating and dispersing such armed and rebellious force, 
 and in bringing divers rebels and traitors to punishment 
 in the most speedy and summary manner, the peace of 
 the kingdom has been so far restored as to permit the 
 course of the common law partially to take place,' &c. 
 And in the body of the Act (section 6) there is contained 
 a proviso that ' nothing in this Act shall be construed to 
 abridge or diminish the undoubted prerogrative of his 
 Majesty for the public safety, to resort to the exercise of 
 martial law against open enemies or traitors.' 
 
 " It is impossible to suppose that such a declaration 
 as this should operate as a repeal of the Petition of 
 Right as regarded Ireland, though the language of the 
 two Acts appears to be conflicting. As, however, it 
 merely declares an ' undoubted prerogrative of the Crown,' 
 it cannot refer to what the petition of right expressly de- 
 nied to exist, and therefore it must probably be con- 
 strued to mean only that the crown has an undoubted 
 prerogative to attack an army of rebels by regu- 
 lar forces under military law, conducting themselves 
 as armies in the field usually do. This construc- 
 tion is strengthened by the fact that traitors are 
 coupled with open enemies. Now, the force used 
 against an invading army is used for the purpose, not 
 of punishment, but of conquest, and thus the words 
 in the Irish Act would mean only that the Crown has an 
 undoubted prerogative to carry on war against an army 
 of rebels, as it would against an invading army, and to 
 inflict upon them such punishment as might be necessary 
 to suppress the rebellion, and restore the peace, and to 
 permit the common law to take efl'ect. 
 
 '* As soon, however, as the the actual conflict was at 
 an end, it would be the duty of the military authorities 
 
 t 
 
86 Appendix. 
 
 to hand over their prisoners to the civil powers. This 
 was affirmed by the case of Wolfe Tone, who having 
 been captured when the French surrendered, was sent 
 up to Dublin Barracks, tried by a court-martial, and 
 sentenced to death. The Court of King's Bench imme- 
 diately granted a Jiaheas corpus, and directed the sheriff 
 to take into custody the provost-marshal and other offi- 
 cers in cliarge, and to see that Mr, Tone was not execu- 
 ted. (27 St. Tr., 624-5). No doubt many military 
 executions took place during the Irish rebellion, but an Act 
 of Indemnit}' was passed in respect to them, and it must 
 also be remembered that by the laws of war, (which are 
 a branch of morals rather than of law proper, and prevail 
 not over soldiers, but as between contending armies,) 
 many severities may be justified, such as the refusal of 
 quarter, and the putting to death of soldiers who surren- 
 der at discretion : and thus in a war like that in 1798, 
 much might be done which might pass under the name 
 of martial law, but which in reality would be no more 
 than incidents of ordinary warfare conducted with unu- 
 sual rigor. 
 
 " Another argument is drawn from the Annual Mutiny 
 Acts. They contain a declaration that '^no man can be 
 forejudged of life or limb, or subjected to any punish- 
 ment within this realm by martial law in time of peace/ 
 This has been construed to imply that in times of war 
 or disturbance martial law is legal. As to this, however, 
 it must be remembered that in its original meaning, the 
 phrase martial law included what we now understand 
 by military law, and that one principal object of the 
 commissions declared to be illegal by the Petition of 
 Right, was the creation of military tribunals without 
 Parliamentary authority. Hence the words ' in peace,' 
 which were not in the first Mutiny k.ci, probably mean 
 that standing armies and military courts were in time of 
 peace, illegal, except in so far as they were expressly au- 
 thorised by Parliament. 
 
 "The whole doctrine of martial law was discussed at 
 great length before a committee of the House of Com- 
 mons, which sat in the year 1849, to inquire into certain 
 transactions which had taken place at Ceylon. Sir David 
 Dundas, then Judge Advocate General, explained his 
 view upon the subject at length, and was closely exam- 
 ined upon it by Sir Robert Peel, Mr. Gladstone, and 
 others. The following answers, amongst others, throw 
 much light on the subject : — 
 
 " ' 5,437. The proclamation of martial law is a notice 
 to all those to whom the proclamation is addressed, that 
 
Opinion uf Engliah Counsel on Jamaica Outrage. 8T 
 
 there is now another measure of law and another mode 
 of proceeding than there was before that proclamation.' 
 
 *' ' 5,459. If a governor fairly and truly believes that 
 the civil and military power which is with him, and such 
 assistance as he might derive from the sound-hearted 
 part of the Queen's subjects is not enough to save the 
 life of the communitj^, and to suppress the disorder, it is 
 his duty to suppress by this (i. e., by martial law) or ary 
 other means.' 
 
 " ' 5,476. (Sir Robert Peel). A wise and courageous 
 man, responsible for the safety of a colonj^ would take 
 the law into his own hands and make a law for th 3 occa- 
 sion rather th-an submit to anarchy. — J, I think that a 
 wise and courageous man, would, if necessary, make a 
 law to his own hands, but he would much rather take a 
 law which is already made — and I believe the law of 
 England is, that a governor, like the Crown, has vested 
 in him the right, where the necessity arises, of judging 
 of it, and being responsible for his work afterw.-irds, so 
 to deal with the laws as to supersede (lieni all, and to 
 proclaim martial law for the safety of the colony.' 
 
 " ' 5,477. (In answer to Mr. Gladstone.) I say he is re- 
 sponsible just as I am responsible for shooting a man on 
 the King's highway who comes to rob me. If I mistake 
 my man, and have not, in the opinion of the judge and 
 jury who try me, an answer to give, I am responsible.' 
 
 " * 5,506. My notion is, that martial law is a rule of ne- 
 cessity, and that when It is executed by men empowered 
 to do so, and they act honestly, rigorously, and vigor- 
 ously, and with as much humanity as the case will permit 
 in discharge of their duty, they have done that which 
 every good citizen is bound to do.' 
 
 " Martial law has, accordingh^ been proclaimed in sev- 
 eral colonies — viz., at the Cape of Good Hope, in Ceylon, 
 in Jamaica, and in Demerara. 
 
 " The views thus expressed by Sir David Dundas ap- 
 pear to us to be substantially correct. According to 
 them the words 'martial law,' as used in the expression 
 proclaiming martial law, might be defined as the assump- 
 tion, for a certain time, by the officers of the Crown of 
 absolute power, exercised by military force, for the pur- 
 pose of suppressing an insurrection or resisting an inva- 
 sion. The ' proclamation' of martial law, in this sense, 
 would be only a notice to all whom it might concern that 
 Such a course was about to be taken. We do not think 
 it is possible to distinguish m.artial law, thus described 
 and explained, from the comm on law duty which is in- 
 cumbent on every man, and especially on every magis- 
 
■ -^ Appendix. 
 
 ^rate, to use aii}^ degree of physical force that may be 
 voqnirecl for the suppression of a violent insurrection, 
 ;ind which is incumbent as well on soldiers as on civilians, 
 t'le soldiers retaining during such service their special 
 1 lilitary obligations. (On this subject see Lord Chief 
 Jastice Tindal's charge to the grand jury of Bristol, in 
 1832, quoted in 1 Euss. on Cr. 286 n.) Thus, for instance, 
 v/e apprehend that if martial law had been proclaimed 
 in London in 1780, such a proclamation would have 
 inade no difference whatever in the duties of the troops 
 or the liabilities of the rioters. Without any such pro- 
 clamation the troops were entitled, and bound to destroy, 
 life and property to any extent which might be necessary 
 to restore order. It is difficult to see what further au- 
 1 hority they could have had, except that of punishing the 
 offenders afterwards, and this is expressly forbidden by 
 the Petition of Eight. 
 
 " We may sum up our view of martial law in general 
 in the following propositions : 
 
 " 1. Martial law is the assumption by the officers of the 
 Oown of absolute power, exercised by military force, for 
 the suppression of an insurrection, and the restoration 
 of order and lawful authority. 
 
 " 2. The officers of the Crown are justified in any ex- 
 ertion of physical force extending to the destruction of 
 1 .i'e and property to any extent, and in any manner that 
 may be required for this purpose. They are not justified 
 i.i the use of excessive or cruel means, but are liable 
 (•>illy or criminally for such excess. They are not jus- 
 tified in inflicting punishment after resistance is sup- 
 •;ress"ed, and after the ordinary courts of justice can be 
 vo-opened. The principle by which their responsibility 
 i '•, measured is well expressed in the case of Wright v. 
 i^'lfzgerald, 27 St. Ni. p. 65. M. Wright was a French 
 Master of Clonmel, who, after the suppression of the 
 I.ish rebellion, in 1798, brought an action against Mr. 
 I^itzgerald, the sheriif of Tipperary, for having cruelly 
 .logged him without due inquiry. Martial law was in full 
 1' )rce at that time, and an Act of Indemnity had been 
 ;)issed to excuse all breaches of the law committed in 
 . le suppression of the rebellion. In summing up. Jus- 
 tice Chamberlain, with whom Lord Yelverton agreed, 
 viid:— 
 
 " ' The jury were not to imagine that the Legislature, 
 
 oy enabling magistrates to justify under the Indemnity 
 
 :Jill, had released them fro>m the feelings of humanity, or 
 
 ).u'mitted them wantonly to exercise power, even though it 
 
 \, ere to put down rebellion. They expected that in all 
 
opinion of English Counsel on Jamaica Outrage. 89 
 
 cases there should be a grave and serious examination 
 'iito the conduct of the supposed criminal, and every act 
 should show a mind intent to discover guilt, not to inflict 
 torture. By examination or trial he did not mean that 
 sort of examination and trial which they were now engaged 
 in, but such examination and trial — the best the nature of 
 the case and existing circumstances should allow of . That 
 this must have been the intention of the Legislature was 
 manifest from the expression, ' magistrates and all other 
 persons,' which provide that as every man, whether mag- 
 istrate or not, was authorised to suppress rebellion, and 
 was to be justified by that law for his acts, it is required 
 that he should not exceed the necessity which gave him 
 the power, and that he should show in his justification 
 that he had used every possible means to ascertain the 
 guilt which he he had punished ; and, above all, no devia- 
 tion from the common principles of humanity should ap- 
 pear in his conduct.' 
 
 " M. Wright recovered £500 damages ; and when Mr. 
 Fitzgerald applied to the Irish Parliament for an indem- 
 nitj^ he could not get one. 
 
 " 3. The courts-martial as tliey are called, by which 
 martial law in this sense of the word is administered, 
 are not, properly speaking, courts-martial or courts at 
 all. They are mere committees formed for the purpose 
 of carrying into execution the discretionary power as- 
 sumed by the Government. On the one hand, they are 
 not obliged to proceed in the manner pointed out by the 
 Mutiny x\ct and Articles of War. On the other hand, if 
 they do so proceed, they are not protected by them as 
 the members of a real court-martial might be, except in 
 so far as sucli proceedings are evidence of good faith. 
 They are justified in doing, with any forms, and in any 
 manner, whatever is necessary to suppress insurrection 
 and to restore peace and the authority of the law. They 
 are personally liable for any acts which they may commit in 
 excess of that power, even if they act in strict accordance 
 with the Mutiny Act and Articles of War. 
 
 " Such in general we take to be the nature of martial 
 law. 
 
 " We noAv proceed to examine the Act of the Jamaica 
 Legislature under which Governor Eyre appears to have 
 acted, as we presume regularly. 
 
 " The Act is 9 Vict., cap. 30, and is a consolidation of 
 the laws relating to militia. The sections bearing on the 
 subject of martial law are as follows : — S. 95 constitutes 
 a body called a council of war ; s. 96 is in these 
 w^ords : 'And whereas the appearance of public dan- 
 
90 Appendix. 
 
 ger by invasion or otherwise, may sometimes make the 
 imposition of martial law necessarj^ yet, as from ex- 
 perience of the mischief and calamities attending it, it 
 must ever be considered as one of the greatest of evils : 
 Be it therefore enacted that it shall not in the future be 
 declared or imposed but by the opinion and advice of a 
 council of a war, consisting as aforesaid, and that at the 
 end of 30 days from the time of such martial law being 
 declared, it shall, ipso facto determine, unless continued 
 by the advice of a council of war as aforesaid,' S. 97 
 empowers the governor, with such advice as aforesaid, to 
 declare particular districts to be under martial law, and 
 to except others. S. 117 says that ' This Act .shall con- 
 tinue to be in force notwithstanding and during martial 
 law.' 
 
 *' It is a grave question wdiether this Act be considered 
 to confer upon Governor Eyre any other power than he 
 already possessed at common law the Act itself would be 
 valid. The powers of the Jamaica Legislature are de- 
 rived not from Parliament, but from Royal Commission. 
 As the Crown cannot authorise legislation inconsistent 
 with the law of England, it could not authorise the Ja- 
 maica Legislature to confer upon the Governor or any 
 one else powers inconsistent with the ])ro visions of the 
 Petition of Eight. It is indeed provided by 28 and 29 
 Yict., cap. 63, ss, 1 , 2, and 3, that no colonial law shall 
 be deemed to be void on the ground of repugnancy to 
 the law of England, unless it is repugnant to the provis- 
 ions of any Act of Parliament applicable to an such col- 
 ony by express words or necessary intendment. We ap- 
 prehend, however, that if the Act of the Jamaica Legis- 
 lature be constructed as authorising or recognising any- 
 thing declared illegal by the Petition of Right, it is re- 
 pugnant to a provision of an Act of Parliament extend- 
 ing by necessary intendment to the colony of Jamaica. 
 
 " It appears, however, that the Act does not create 
 any new power, but only limits the existing power, and 
 provides regulations under which it is to be exercised. 
 It provides that the Governor shall not proclaim mar- 
 tial law without the advice and consent of a council of 
 war, constituted in a certain way, and that when pro- 
 claimed it shall expire ipso facto in thirty days. It also 
 provides that its operation may be limited (as in the 
 present case it was) to certain districts. 
 
 " We now^ proceed to the consideration of the the spe- 
 cific questions contained in the case. 
 
 " 2 and 3, The legality of the conduct pursued towards 
 Mr. Gordon depends, according to the principles stated 
 
Opinion of E'lglisli Counsel on Jamaica Oulraye. \)\ 
 
 above, on the question whether it was necessary for the 
 suppression of open force, and the restoration of legal 
 authority, to put him to death. We see nothing what- 
 ever in Governor Eyre's despatch, which affords any 
 ground for thinking that such could have been the case. 
 The fact that Kingston was exempted from martial law 
 shows conclusively as against Governor Eyre, that in his 
 opinion no necessity for the assumption of arbitrary 
 power existed then and there. The fact that Mr. Gordon 
 was in lawful custody shows that he was at all events 
 disabled from doing further mischief, however guilty he 
 might previously have been. It would perhaps be too 
 much to say tliat no conceivable state of things could 
 justify the treatment which he received, but no such 
 facts are mentioned in Governor Eyre's despatch. As 
 to. the legal power of the officers sitting as a court- 
 martial at Morant Bay, we are of opinion that they had 
 no powers at all as a court-martial, and that they could 
 justify the execution of Mr. Gordon only if and in so far 
 as they could show that that step was immediately and 
 unavoidably necessary for the preservation of peace and 
 the restoration of order. They had no right whatever to 
 punish him for treason, even if he had committed it. 
 Their province was to suppress force by force, not to 
 punish crime. 
 
 " 4. This question is answered in our introductory ob- 
 servations. Cases might be imagined in which some of 
 the acts specified might be justified. In a case, for in- 
 stance, where the loyal part of the population were (as 
 in the case of the Indian mutiny) greatly outnumbered 
 by a rebellious population, measures of excessive severity 
 might be absolutely essential to the restoration of the 
 power of the law ; but this would be a case not of pun- 
 ishment, but of self-preservation. No facts stated in 
 Governor Eyre's despatch appear to us to show any sort 
 of reason for such conduct in Jamaica. 
 
 " 5. They may be indicted in Middlesex under the 
 provisions of 4'2 Geo. III., c. 85. See, too, 24 and 25 
 Yict., c. 100, s. 9. They may also be impeached in Parlia- 
 ment. 
 
 " 6. Any person in this country may prefer a bill of 
 indictment. 
 
 7. " This is a question of great difficulty. As Governor 
 Eyre's consent would be necessary to such an Act, and 
 as he could not pardon himself, w^e are inclined to think 
 that such an act would be no answer to an indictment in 
 England. Besides this, if Governor Eyre has committed 
 any crime at all, it is a crime against the law of England. 
 + 
 
92 Ajjjyendia:. 
 
 Whilst governor, he could not be made criminally re- 
 sponsible in Jamaica (Mosfyn v. Fahrigas, 1 Smith's 
 "Leading Cases," p. 543, 4th ed.) It is not competent 
 to the Legislature of Jamaica to pardon crimes commit- 
 ted against the laws of England. 
 
 " To obviate all difficulty, we should advise that if such 
 an Act were passed, a petition should be presented to 
 Her Majesty, praying her to refer to the Judicial Com- 
 mittee of the Privy Council the question whether the 
 Act ought to be disallowed, and. that the petitioners 
 might be permitted to show cause by counsel w4iy it 
 should be disallowed. Unless and until they are disal- 
 low^ed by the Queen, the acts of the Jamaica Legislature 
 are valid. 
 
 "(Signed) EDWAKD JAMES. 
 
 " (Signed) J. FITZ-JAMES STEPHEN. 
 
 " Temple, January 18, 18G6." 
 
 XXIV, 
 
 Erujlish Laio Magazine on Martial Law in Australia, 
 November, 1861. 
 
 In the southern part of Kew South Wales, in the direct 
 line (it cannot be called road) between the township of 
 Yass and the frontier of Victoria is a small mining district 
 or gold field, which bears the name of Lambing Flat. It 
 acquired that name we presume because it happened to 
 be that part of some squatters's domain where his ewes 
 were wont to congregate at the season of parturition. 
 For some reason or other Lambing Flat became the fav- 
 orite resort of a number of Chinese, and in the latter end 
 of 1860, or beginning of 1861, certain feuds arose between 
 the Europeans and Celestials, which led to disturbances. 
 A determination on the part of the Europeans to expel 
 the Chinese was evinced, at the time we have mentioned, 
 and various steps were taken by the New South Wales 
 government to protect the weaker party, but without any 
 marked result. In July last, the police had arrested a few 
 Europeans who had been unusually demonstrative in their 
 oposition to the Chinese, and they were confined in their 
 lock-up of the police station. Hereupon an armed or- 
 ganization on the part of the Europeans took place, in 
 order to liberate the accused. The police numbered 
 about fifty ; the insurgents about three thousand. The 
 
EnglUh Law Migazine on Martial Law in Audralia. 93 
 
 parties came to blows, and five or six of the rioters, or 
 *'rowclies," as we find them called, were killed, and sev- 
 eral wounded, and some three or four of the police were 
 also wounded. This excited the Europeans to a sort of 
 indignation frenzy. A new "organization" was initiated, 
 the result of which was that the police abandoned the 
 place, and retreated to Yass. This naturally alarmed 
 the Government. Troops were sent from" Sydney to 
 Lambing Flat, and to give to this little band, numbering, 
 it is said, not more than one hundred and twenty-five 
 men, a degree of moral force beyond the mere military 
 display, the governor of the colony had proclaimed mar- 
 tial laAV. 
 
 This expedient has often been resorted to by colonial 
 governors, especially in the southern colonies, during 
 the last twenty years. Sir George Grey did so in New 
 Zealand, in 1815 ; Sir Charles Hotham did so in 1854, 
 on the occurrence of certain disturbances at Ballaarat in 
 Victoria ; Governor Gore Brown resorted to the same ex- 
 pedient in New Zealand, on the occasion of the celebrated 
 Wirima Kingis armed resistance of the invasion of his 
 mana, or tribal right, or by whatever name it may be 
 called, in February, 1860. 
 
 This ready resort to the proclamation of martial law, 
 on the part of four of our governors, in three of our 
 southern colonies, seems to be so repugnant to all our 
 constitutional notions, that we propose to devote a few 
 pages to the consideration, not of the policy, but of the 
 legality of the expedient. For this purpose, we have 
 nothing more to do with the merits of the Chinese dis- 
 pute at Lambing Flat. The land question at Taranaki 
 is equally beside the purpose. The Ballaarat riot, se- 
 rious enough at the time to frighten a colonial Secretary 
 from his post, and generate a batch of Colonial State 
 trials, has been forgotten in the subsequent orderly state 
 of Yictoria, and the greater practical importance of sub- 
 sequent events ; and we only allude to these little great 
 events — little to us ; great at the time to the colonies — as 
 an introduction to the somewhat momentous question, 
 upon which we propose to enter : Is the the proclama- 
 tion and exercise of martial law in our colonies legal 
 or illegal ? 
 
 The governor of a colony exercises a delegated 
 authority. All the power which he wields and exerts 
 he derives from the queen. He does not, as we shall 
 see hereafter, exercise all the powers and prerogatives 
 of the Crown, but only such parts thereof as he is 
 authorized to administer. His powers are limited and 
 
VU • Append I, r. 
 
 defined by the instruments by which those powers 
 are communicated to him. Of course, the Queen 
 cannot confer upon him powers which she herself 
 does not constitutionally possess. What, then, are 
 the Queen's powers and prerogatives as to the exercise 
 of martial law ? because, if she hath none, she can 
 communicate none. 
 
 The non-existence of this power in the Crown seems 
 to have been completely settled by the Petition of 
 Rights (1628), and, on the eve of that great enactment, 
 during the injudicious and unpopular Spanish war 
 (1626), we find, from a passage in Rushworth, that 
 " the companies of soldiers (who had then recently 
 returned from Cadiz) were scattered here and there 
 in the bowels of the kingdom, and were governed 
 by martial law. The King gave commissions to 
 the Lords-lieutenants and their deputies, in case of 
 felonies, robberies, murders, outrages and misdemeanors, 
 committed by the marines, soldiers, and other disorderly 
 persons joining with them, and to proceed, according 
 to certain instructions, to the trial, judgment and 
 execution of such offenders as in time of war ; and 
 some were executed under these commissions. {Rush- 
 worth, Vol /., 419.) 
 
 It will be observed, that these commissions, so far 
 as we can rel}^ on the authority of "Master Rushworth, 
 a young clerk of the Parliament," were confined to 
 soldiers and marines, who would be subject to the 
 military laws in England, and to " other disorderly 
 persons joining with them," who would have been sub- 
 ject to military authority, if composing part of the 
 army in the field, flaiirante hello {Darwin v. Keppel, 
 2 Wils.). Yet, although so confined to persons under 
 the military law, when in the field, and therefore, in 
 that day, having some color of legality, the con- 
 missions for the exercise of martial law within the 
 realm, were ccmdemned as illegal by the Petition of 
 Rights. This great bulwark of our liberties, " which 
 everj' Englishman carries with him to the colonies, 
 as part of his birthright" (Chalmers' O|)inions), com- 
 mences by reciting the "grievance and vexation" of 
 having " great companies of soldiers, dispersed into 
 divers countries of the nation," and of the inhabitants 
 •' being compelled to receive them, against their will." 
 It then recited the statute of Edward III., whereby 
 it is " declared and enacted, that no man shall be 
 prejudged of his life or limb against the Great Charter 
 and law of the land." It then complains that " divers 
 
English Laiv MiKjazim; on Martial Law in Australia. 1)5 
 
 commissions had issued, giving to certain persons 
 >ower and authority to proceed, within their lands, 
 according to the justice of martial law, -J^- * * 
 by pretext wliereof some of your Majesty's subjects 
 have been * -x- ^ put to death, when and where, 
 if by the hiws and statutes of the land, they deserved 
 death by the same laws, and statutes, also they might, 
 and by no other ought to be judged and executed." 
 The petition then prays, that the aforesaid commissions 
 for proceeding by martial law may be revoked and 
 annulled, and that, hereafter, " no commission of a like 
 nature may issue forth ^ -x- * lest, by color of 
 them, any of your Majesty's subjects be destroyed or 
 put to death, contrary to the laivs and francliwes of the 
 land.'' 
 
 To this petition Charles very reluctantly assented, and 
 it became part of the law of the land. Strictly, however, 
 it enacted nothing new. It was declaratory of the law 
 which had been in existence — we can hardly venture to 
 say in force — for centuiies, under a succession of char- 
 ters (5 Edw. III. c. 9 ; 25 Edw. III. et 5, c. 4 ; 28 Edw. 
 III. c. 3), which, however, had been habitually violated 
 by succeeding sovereigns and almost forgotten by the 
 people. This celebrated Act is said to have been drawn 
 by Sir Edward Coke ; and so far as martial law is con- 
 cerned, it has never been violated since the " Great 
 Rebellion." 
 
 There is a curious anecdote connected with the debate 
 on the Petition of Right, which further illustrates the 
 subject. In a conference between the two Houses of 
 Parliament, Serjeant Ashle}^ the King's Serjeant, ad- 
 vanced the dangerous and unconstitutional doctrine of 
 the existence of a species of law which he called " the 
 law of the State," or " the law of State necessity" (as a 
 justification of the obnoxious commissions), which pro- 
 ceeded not by the law of the land, but by natural equity. 
 This doctrine appeared to their lordships so very mis- 
 chievous, that upon the motion of the Earl of Warwick, 
 Ashley was ordered into custody for advancing it. 
 
 Yet he admitted that martial law was not to be exer- 
 cised in time of peace, lohen recourse may he had to the 
 Kings Courts. (Park His., vol. ii., pp. 315, 329.) This last 
 sentence really defines the state of war and peace. So 
 long as the King's Courts are open, there is no state of 
 war. There may be insurrection — there may be rebel- 
 lion — but it is not war. But inter anna silent leges ; and 
 it is said that when a country is completely disorganized 
 by war, and the Courts of Justice have been violently 
 
''0 Ajypendix. 
 
 closed or cannot possibly continue to sit, the exercise of 
 martial law becomes legal. But what meaning has the 
 word " legal " in the above substance ? During such a 
 state of anarchy, silent loges, there is an end of all law\ 
 What is called the law of the strongest must prevail. 
 But this is no law at all ; and it is fortunate if force, not 
 law, is so used as to become a tolerable substitute for the 
 law, which has been silenced, and afford some protection 
 to the people. 
 
 The opinions of the best lawyers in the debate on the 
 Petition of Right were decidedly against the legality of 
 martial law. They all assert that the exercise of martial 
 law in time of peace was illegal, and that it is only capa- 
 ble of being exercised, out of the King's dominions, over 
 military persons, a,Tid flagrante hello. They also show that 
 the test of war or peace within the kingdom, is whether 
 the King's Courts are opened or closed ; and they lay. 
 down the principle, that insurrection or rebellion is not 
 war : for if one be taken in rebellion, he must bo tried in 
 the King's Courts. The speeches, in full, will be found 
 in Rushworth, vol. iii., app. 81. Here is an abstract of 
 them : Lord Coke said, "I shall maintain /w.s helli. But 
 God send me never,to live under the law^s of conveniency 
 or discretion. Shall the soldier and the justice sit on one 
 bench ? The trumpet will not let the crier speak in 
 Westminster Hall. Non bene conveniuiif. The time of 
 peace is wdien the Courts at Westminster are open ; for 
 when they are not open, you may then have a commis- 
 sion of Oyer and Terminer ; and when the common law 
 can determine a thing, the martial law ought not. Drake 
 slew Doughty beyond sea. Doughty's brother desired 
 an appeal to the Constables and Marshals' Courts, and 
 Wray and the other Judges decided that he might there 
 sue. We make no law. We must meditate, rdd lex noh 
 distinguit. To hang a man, tempore pacis, is dangerous ; 
 I speak not of prosecution against a rebel. He may be 
 slain in the rebellion ; but if he bs taken, he cannot be 
 put to death by martial law. (Year Book, 28 Edw. II., 
 M. 13.) When Courts of Law are open. Martial Law 
 cannot be executed. (5 Hen. IV., 30 Williamson's Case.) 
 The constable and marshal desired an addition to their 
 commissions, and they proceeded against some according 
 to that power ; but because it was not according to their 
 ancient power, it was void ; for they cannot do anything 
 according to the additional power ( i. e., power to exer- 
 cise martial law), and there was a (writ of; prohibition 
 to stay their proceeding under the additional power. 
 How shall the soldier know how to obey them ? They 
 are not under the great seal." 
 
English Law Magazine on Martial Law in Australia. 97 
 
 Mr. Banks said : " We have no time of Avar when the 
 king's courts are open ;" and Mr. Ra}^ laid down a similar 
 proposition. Mr. Mason, of Lincoln's Inn, admitted that 
 in time of war when the king's courts are closed, the 
 common law allows the exercise of martial law, when an 
 army is in the field ; but he asserted that a rebel taken 
 ought to be tried by his peers. " We have now " (1628) 
 he continued, " no army in the field. We have no enemy 
 except among ourselves, and it is no time of war, there- 
 fore the commission (to exercise martial law) is not fit 
 nor warranted by laAv." 
 
 Mr. Rolfe, afterwards Chief Justice, followed. " If," 
 said he, " the Chancery and Courts of Westminster be 
 shut up, it is time of war ; but if the Courts be open, it is 
 otherwise. '"' '"' '^ ^' ^ If an enemy come 
 into any part where the common law cannot be executed, 
 there martial law may be executed ; but if a subject be 
 taken in rebellion, not slain at the time of the rebellion, 
 he is to be tried after the common law." 
 
 The illegality of martial law, even for the government 
 and discipline of the military, is annually reiterated in 
 the preamble of the Mutiny Act ; and every school-boy is 
 taught to lisp this as one of the constitutional safeguards 
 of personal liberty : " And whereas no man can be fore- 
 judged of life or limb, or subjected in time of peace to 
 any thing of punishment, within the realm, by martial 
 law, or in any other manner than by the judgment of his 
 peers, and according to the known and established laws 
 of the realm." 
 
 Military law and martial law are sometimes con- 
 founded. Military law is exercised by the authority of 
 Parliament, and the Mutiny Act, annually passed, to- 
 gether with the Articles of War, framed by her majesty, 
 and the printed regulations, from time to time issued for 
 the government of her majesty's troops. Martial law 
 may, no doubt, be established by an Act of Parliament ; 
 but what we are now considering is the authority of the 
 crown in that behalf. 
 
 Martial law has been established in Ireland by author- 
 ity of Parliament, and it has sometimes been proclaimed 
 without such authority. The former is legal, as Parlia- 
 ment is omnipotent; the latter is illegal. Lord Lough- 
 borough, in the case of Grant vs. Gould, 2 Henry, BL, 69, 
 draws this distinction very clearly. " Martial law," says 
 that able judge, " such as is described by Hale, and such 
 also as is marked by Sir William Blackstone, does not 
 exist in England at all. When martial law is established 
 in any country, it is of a totally diflferent nature from 
 
98 Appendix. 
 
 that wliicli by inaccuracy is called martial law, merely 
 because the decision is a by a court-martial ; but which 
 bears no affinity to that which was formerly attempted 
 to be exercised in this country, which was contrary to 
 the Constitution, and has been for a century (this w^as 
 said in 1792) totally exploded." Another century has 
 nearly elapsed and we find the " exploded " expedients 
 renewed in a part of the empire considered, perhaps, too 
 remote to be within the reach of the public opinion of 
 the mother country. 
 
 Such then was the state of the law long before the 
 oldest of the Australian colonies was established. These 
 colonies took the law of England in force at the date of 
 their establishment, respectively, " so far as the same 
 was suited to their circumstances and condition," which 
 would include all those guarantees of personal security 
 and freedom which have been from time to time wrested 
 from the Crown by the courage, and sometimes by the 
 blood of our ancestors. The martial law which w^e are 
 now condemning, and which Lord Loughborough so 
 clearly distinguishes from the military law authorized by 
 Parliament for the government of the army, is similar — 
 nay identical — with that which is exercised when our 
 armies are in the field in a foreign country. When our 
 armies are in a foreign country flagrante hello, the troops 
 are governed by the royal prerogative. In a foreign 
 country we cannot have courts. But even in this case the 
 Queen's regulations are followed as nearly as possible. 
 In the case of Bands vs. Keppel, 2 Wils., 314, the Court 
 said : " By the act of Parliament, to punish mutiny and 
 desertion, the king's power to make articles of w^ar is 
 confined to his own dominions. When his army is out of 
 his dominions, he acts by virtue of his prerogative, and 
 without the statutes and articles of war, and therefore 
 you cannot argue upon either of them, for they are both 
 to be laid out of the case. Infer arma silent leges. We 
 think, as at present advised, that we have no jurisdiction 
 at all in this case." 
 
 Martial law has sometimes been proclaimed in Ire- 
 land without the authority of Parliament. In America, 
 before the Declaration of Independence, the Governors 
 were empowered so to do, by a clause in their com- 
 missions, since omitted. From those two precedents 
 it may be concluded, that although no power to exercise 
 martial law in England exists, yet the Crown has such 
 power in Ireland and the colonies, and may therefore 
 still delegate it to Lords-lieutenant and colonial Gov- 
 ernors. Let us examine these two opponent precedents. 
 
KiKjliali Lair jLajjazim- nn Marital Lan: m AiisiruJia. 1>U 
 
 A.S to the case of Irelaiul, wbat reader of history does 
 not recall to mind the noble conduct of Lord Kilwarden, 
 in the case of Theobald Wolf Tone ? Tone had been 
 taken, in open rebellion, on board a French ship of war. 
 He had been tried by a court martial, under a proclam- 
 ation of martial law, had been condemned to death, 
 and was actually in the hands of the Provost Marshal, 
 as the military hangman is called. Curran, in breathless 
 haste, rushed into the Court of King's Bench, then 
 sitting, and, in Tone's name, demanded of Lord Kil- 
 warden a writ of habeas corpus. It was at once granted. 
 "But, my lord," urged Curran, "while the writ is being 
 prepared my client dies;" whereupon the Sheriff was 
 ordered to repair to the place of execution, and command 
 the Provost Marshal to produce his prisoner. 
 
 The functionary pleaded the orders of his commanding- 
 officer, and refused to obey the mandate of the Court. 
 Upon this being reported to Lord Kilwarden, the 
 commanding officer and the Provost Marshal, with his 
 prisoner, were ordered to be arrested and brought into 
 Court. Tone, thus being saved from the rope of the 
 military hangman, was committed to the custody of 
 the civil power for trial, for there was plenty of evidence 
 against him to justify his detention ; and he afterwards 
 anticipated the inevitable result of the trial for high 
 treason, by committing suicide in jail. 
 
 Another case in which the dignity and authority of 
 the King's Courts was nobly upheld against military 
 usurpation, though not a case of martial law, but rather 
 of the abuse of military law, deserves a place here. 
 In the year 1746, one Lieutenant Frye, of the Boyal 
 Marines, had been illegally punished under the sentence 
 of a court martial lawfully held, the sentence, however, 
 being in excess of the power of the Court. He brought 
 an action against Admiral Ogle, and recovered XI, 000 
 d'umages. In the course of the trial. Lord Chief Justice 
 Willes intimated an opinion that every member of the 
 Court was liable to an action for the illegal sentence. 
 Upon this. Lieutenant Frye issued writs against Admiral 
 Mayne and Captain Benton, two of the members of the 
 Court, and they were served with the w^rits as they were 
 returning from another naval court martial upon Admiral 
 Lestvey. This was resented, " as an insult," by the 
 members of the last named Court, and they passed 
 some resolutions highly derogatory to the Chief Justice. 
 These they forwarded to the Lords of the Admiralty, 
 by whom they were reported to the King, George 11. , 
 who. signified to their lordships, through the Duke of 
 
1 00 Appendix. 
 
 Newcastle, " his Majesty's great displeasure at the insult 
 offered to the court martial, by which the military disci- 
 plioe of the navy is so much affected." 
 
 But the Lord Chief Justice was not a man to be over- 
 awed in doing his duty, even by the frowns of royalty; 
 and as soon as the resolutions were communicated to 
 him, he ordered all the members of the Court into 
 custody for their contempt, and was proceeding to up- 
 hold the dignity of the Court in a very decided manner, 
 when the wdiole affair was terminated in November, 1746, 
 by the members of the court-martial signing and sending 
 to the Chief Justice a very ample written apology and 
 submission for their conduct. The paper was read aloud 
 in the Court of Common Pleas, and was ordered to be 
 registered among the records of the Court where it is 
 still to be found, " as a memorial," said his lordship, 
 " to present and future ages, that whoever set themselves 
 up in opposition to the laws, and think themselves above 
 the law, will, in the end, find themselves mistaken." The 
 proceedings and tlie apology were published in the 
 London Gazette of the 15th November, 1746, and will also 
 be found in the Gentleman s Magoziae for that year. 
 
 As to the case of the old colonies in America, there 
 can be no doubt that the old commissions did contain a 
 clause empowering the governors to exercise martial 
 Inw, but it was expressly limited to " times when l>y law 
 it may be exercised." But it should be remembered, 
 that before the declaration of independence, wars had 
 frequently been carried on between the "provincials" 
 and the French of New^ France, without much aid from 
 the parent state ; it was therefore considered necessary 
 to give to the provincial governors ample powers to levy 
 troops, to command them when levied, and to govern 
 them at all times. Accordingly the governors were 
 clothed with full powers and authority to " levy, arm, 
 muster, command, and employ all persons whatsoever 
 
 residing in our province of , and other territories 
 
 under your government, and, as occasion shall serve, to 
 march them from one place to another, and to embark 
 them for the resisting of all enemies, pirates, and rebels, 
 both at sea and land, and to transport such forces to any 
 of our plantations in America, if occasion shall require, 
 for the defence of the same against all enemies -^^ -^ -^^ -^ 
 and to execute martial law in times of invasion and other 
 times ^v]^en by laiv it may be exercised.'' 
 
 It cannot fail to strike the constitutional reader, that 
 great care has been taken to confine this power within 
 legal boundaries. Can it be supposed that the clause 
 
EngliHli Law Mogaziiw on Martial Lav in Australia. 101 
 
 was intended to convey, what it could not convey, powers 
 wliicli the king himself has not possessed since the Peti- 
 tion of Right ? 
 
 It was meant to authorize the governors to exercise 
 one of the royal functions, which, without author- 
 ity under the Great Seal, he could not exercise, 
 namely, to raise troops, recruit them, move them 
 from place to place, even out of the territorial juris- 
 diction, and govern them according to military law — that 
 is, by the articles of war when at home, and by the pre- 
 rogative when in a foreign colony, and when in the field . 
 flagrante hello. The commission to General Murray, after 
 the conquest of Canada, contained a similar clause, but 
 it was dropped out soon after the Ameiican troubles 
 commenced ? Why ? Not because it was illegal, as above 
 limited ; not because it had been illegaly executed ; 
 not because the people of America had included it 
 among their grievances ; not because it had ever been 
 used to oppress the people ; not, indeed, out of any 
 tender consideration for popular liberty ; but simply be- 
 cause the jealous policy of the Government of that day 
 deemed it wiser to employ regular troops, and even for- 
 eign mercenaries, than to train angry colonists to the 
 use of arms, and teach them the art of war. It was un- 
 der the authority of this clause that Washington was 
 converted from a district surveyor into a provincial sol- 
 dier. It was in one of the border wars that lie gained 
 his first renown. 
 
 The whole language of the clause, in the old commis- 
 sions — which will be found, printed at length, in Baren 
 Mazere's collection, entitled "Quebec Commissions." 
 quarto, 1772 — as well as the mode in which it was inter- 
 preted and exercised by the provincial governors, shows 
 that it was not intended to operate, and did not, in fact, 
 operate beyond the legal powers of the King. I3ut if it 
 was so intended, either willfully or by misconception, 
 there is no trace of it in any governor's commission for 
 nearly a century. If the King of that day usurped a 
 power in the colonies, the Queen of this day certainly 
 does not. 
 
 As the power of proclaiming and exercising martial 
 law is not expressly given to the governors of the Aus- 
 tralian and other colonies, have such governors any 
 such authority, irrespective of their commissions? 
 
 The extent of the powers of the Governor of a colony 
 has been determined by a great number of judicial decis-^ 
 ions. He is not the general representative of the Queen. 
 He does not exercise all the prerogatives of the Crowm 
 
102 Appevdir. 
 
 He can only exercise such powers as are delegated to 
 him by his commission, or in some instances by the char- 
 ter of the colony, or by some equally binding instrument, 
 under the Great Seal of England, by which alone the 
 Queen can confer power upon her colonial governors. 
 Beyond the powers thus specifically conferred upon him, 
 he cannot legally travel ; and if he exceed them, he ren- 
 ders himself liable to an action at the suit of the party 
 injured, and even to an indictment, if the infraction of his 
 powers amount to a criminal offence. We proceed to 
 support these propositions by judicial decisions. 
 
 In the case of Fahrigas vs. Alosfyn/lO State Trials, 
 Governor Mostyn had taken upon himself to arrest and 
 banish the plaintiff from Minorca to the Spanish Main, 
 under an imputation of alleged treasom3ble practices. 
 The plaintiff followed the Governor to England, brought 
 an action against him, and recovered £4,000 damages. 
 The Court refused to set aside this verdict, and Lord 
 Chief Justice de Grey, in the course of his judgment, ob- 
 served that " the Governor is the King's servant ; his 
 commission is from him, and he is to exercise the powers 
 he is invested with by his commission, which is to exe- 
 cute the law^s of Minorca." 
 
 The next case to which we shall refer, in which this 
 limitation of a Governor's power is judicially asserted, is 
 Cameron vs. Kyte, BKnapp, P. C. Cases, 332. The prin- 
 ciple had been laid down by Lord Mansfield, in CanrpleU 
 vs. Hall, Cowp. 210, that the King can make laws for a 
 conquered colony. The Governor of Demarara had as- 
 sumed that, as the King's representative, he could do so 
 likewise ; and he exercised that power by an ordinance 
 increasing the commission of the vendue master, or official 
 auctioner of the colony. The plaintiff brought an action 
 for the excess of commissions levied by the vendue mas- 
 ter, and the case came before the Judicial Committee of 
 the Privy Council. The Committee, in deciding that the 
 Governor had no such power, said, " The Governor has 
 not, by virtue of his appointment, the sovereign authority 
 delegated to him ; and an act done by him on his own 
 authority, unauthorized by his commission, or expressly 
 or impliedly by his instructions, is not equivalent to an 
 act done by the Crown itself, and is consequently^ not 
 valid." The language of Lord Brougham, in delivering 
 judgment in Hill vs. Bic/tje, 3 Moore P. C, 476, is to the 
 same effect — " If it be said that the Governor of a colony 
 . is g/iasi severeign, the answer is, that he does not even 
 represent the sovereign generally, having only the func- 
 tions delegated to him by his commission, and being only 
 
English Lmr Magazine on 3Tartial Law in Australia. 103 
 
 the officer to execute the specific powers with which the 
 ommission clothes him." 
 
 Numerous cases might be cited in w^hich colonial 
 governors have been sued with success, in the Courts 
 at Westminster, for acts done in excess of the powers 
 conferred upon them by the powers of their commissions, 
 and under erroneous estimate of their own authority. 
 In Wall V. Macriamara (cited 1 T. R., 536), the plaintiff 
 recovered damages against the defendant, who had 
 been Governor of Senegambia, for false imprisonment, 
 attended with cruelty, the act being in excess of the 
 governor's powers, given to him by his commission. 
 The plaintiff, Captain Wall, was afterwards appointed 
 Governor of Goree, and, not warned by his own cause 
 of complaint against Governor Macnamara, he punished 
 a soldier, under color of military law, but without any 
 regular trial, so severely that the man died under 
 torture. Governor Wall, on his return to England, 
 was brought to trial, at the Old Bailey, for murder, 
 and w^as convicted and hanged, at Tyburn, in 1802. 
 ('28 St. Tr., 51.) 
 
 This branch of the subject may be appropriately 
 concluded, by an extract from a work of a very able 
 colonial lawyer, written before the two last decisions 
 had placed the subject beyond all doubt : 
 
 " I cannot close this paper," sa^^s the writer referred 
 to, " without making some observations on an expression 
 which provincial baseness has brought into use, and 
 which is calculated to convey very erroneous notions 
 of the powers of governors, to themselves and others. 
 We every day hear the governor called the " king's 
 representative." Nothing is more inaccurate than the 
 expression, in the sense in which it is used. Consti- 
 tutionally, the king is the fountain of all office, honor 
 and power ; and such officer of the government, de- 
 riving his authority from the king, represents the 
 king in the exercise of his legal powers. This is true, 
 as well of the lowest as of the highest officers. It is 
 as true of a constable as of the Lord Chancellor. In no 
 other sense can it be rightly applied to the governor of 
 a colony. None of the peculiar attributes of sovereignty, 
 under the constitutional law^ of England, are applicable 
 to that officer. 
 
 The king can do no wrong. Is that true of a provin- 
 cial governor? The king's powers are original, inherent, 
 perpetual. Those of a governor are derivative, tem- 
 porary, and dependent on the will of him who conferred 
 them. Constitutionally, the king is responsible to God 
 
1 04 Ajypendix. 
 
 alone for his acts. The governor is answerable to his 
 royal master. The king is answerable to no human tri- 
 bunal for the discretion which he exercises in displacing 
 public officers. The governor is answerable to the king's 
 Courts at Westminster for the suspension or removal of 
 any subject of the king holding an office of emolument in 
 the colony. That an expit^fesion such as this should have 
 obtained currency is of itself pregnant evidence of the 
 servility of that class of the colonial society where it has 
 long been and continues to be in daily use." 
 
 {On tlw- functions and ditties of the governor (f a British 
 province, by A. Stuart advocate. Montreal, 1832.) 
 
 The principles which we have endeavored, and we trust 
 successfully, to establish, may be thus recapitulated : 
 
 1. The Queen of England has no power or authority to 
 exercise martial law, either in England or the colonies. 
 
 2. Within the limits of the Queen's dominie rs, the 
 army, and all persons belonging thereto and under mil- 
 itary authority, are to be governed by the Kutiny Acts 
 and the Articles of War. 
 
 3. This military law is distinct from, and therefore not 
 to be confounded with, what is called martial law, Avhich 
 is illegal. 
 
 4. When the Queen's troops are in the field, in a for- 
 eign country, and flag)ante hello, they are to be governed 
 by the royal prerogative. 
 
 5. These rules do not extend to civil perscms not 
 amenable to military authority. 
 
 6. The Queen cannot impart to a Colonial Governor 
 powers which she does not possess ; and she has not 
 done so. 
 
 7. The Governor of a colony is not the general repre- 
 sentative of the Queen, and can only exercise the poweis 
 lawfully delegated to him by the Queen's commission. 
 
 8. Hence, the exercise of martial law by the Governor 
 of a colony is illegal, and would even be so if such power 
 were included in his commission. Not being so inchuled, 
 its exercise amounts to a double usurpation. 
 
YC 03052 
 
 
 UNIVERSITY OF CAUFORNIA UBRARY 
 
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