iJuij: i:^^.:. vJ^JLJ * / «' t.^- 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 r^^>iu^nJ' r^/^ l^4^^i^ ^i^faZ^, /^^ 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 ' 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, ,.:.,,, ,.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 m m m m II, Si m tlxt mwxUA states m^. m 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. if ieij. I OK THK jyo. 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," . " 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," 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," ., 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