The Judge Advocate, Major Burnett, then made the following reply:
To support the jurisdiction of the Commission appointed to try this case, I submit:
1. The proclamation of the President of the United States, published in General
Orders No. 141, dated September 25, 1862.
2. The general principles of the laws of nations, and the laws and customs of war --
the military lex non scripts of every land.
The proclamation of the President is as follows:
War Department, Adjutant General's Office,
Washington, September 20, 1864.
General Orders No. 141.
The following proclamation by the President is published for the information and government
of the army, and all concerned:
By the President of the United States of America
Whereas, It has become necessary to call into service not only volunteers, but also
portions of the militia of the States by draft, in order to suppress the insurrection
existing in the United States, and disloyal persons are not adequately restrained by the
ordinary process of law from hindering this measure, and from giving aid and comfort
in various ways to the insurrection; now, therefore, be it ordered,
First. 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, 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 punishment by courts-martial
or military commission.
Second. That that writ of habeas corpus is
suspended in respect to all persons arrested, or who are now or hereafter during
the rebellion shall be imprisoned in any fort, camp, arsenal, military prison or other place
of confinement, or by any military authority, or by the sentence of any court-martial
or military commission.
In witness whereof, I have hereunto set my hand, and caused the seal of the United
States to be affixed.
Done at the city of Washington, this, twenty-fourth day of September, in the year
of our Lord one thousand eight hundred and sixty-two, and of the independence of
the United States the eighty-seventh.
By the President:
William H. Seward, Secretary of State.
By order of the Secretary of War:
L. THOMAS, Adjutant General.
In determining the action of the Commission, this is sufficient, but in support
of the position held, I submit:
That it is an admitted principle in ethics, that self-preservation is the first law of nature; that self-preservation, or
self-defense, is the right of every unity or community. This nation is engaged in suppressing a gigantic
rebellion, to which end it has brought into the field a vast army. Every
fiber of this great nation is quivering in its effort to sustain this army
in its present vast proportions. That army being organized and put into the field,
becomes a living, sentient, and, to a certain extent, independent body. A blow
is sought to be struck at that body -- at that great army of the Republic -- to sever it,
and render it powerless -- a blow all the more mischievous and malignant, because
it is covert and concealed. To preserve itself, to maintain its integrity when it
finds itself thus ssecretly attacked, it does not wholly fall back on its
Government to protect it, but it protects itself by seizing the antagonistic force. It is one of the innate principles
of every existing thing, that it is endowed with the right to meet and overcome
the force that seeks to destroy it. Here, then, is a power being organized -- it is true, in a loyal State,
but with the purpose of moving into a semi-disloyal State, a portion of which is occupied and held
by forces seeking to destroy this army, and with the intent to co-operate with
those forces to render powerless our army, and, if possible, to destroy it and the Government.
This army, therefore, without waiting for its Government to move, through the slow machinery
of civil law, against this military force that is being arrayed against it, seizes it,
and says to it, "You are not meeting us in open battle, but you steal upon us in the
night time, and attempt, assassin-like, to stab us in the back while we are facing the common
enemy in the front. You are not fighting us according to the recognized military law of
nations, but by the secret arts of the assassin. We, therefore, wheel upon
you, and grapple you, from an instinct of self-preservation.
It is as though a stealthy foe should creep into a camp or garrison at night, and
seek to ignite the magazine, and destroy the lives of the entire garrison. If caught,
would that garrison hesitate to convene a court, and try the offender as a secret, military assassin?
In like manner, when foes, cunningly avoiding all show of open hostility, secretly arm themselves, not as enemies particularly of the General
Government, but as enemies of the military power of the Government, the military laws
of the land give power to seize the persons of these secret foes, and hold them responsible
for their acts to the common law military.
Take the case in hand, as it is claimed to be, that there was an organized, formidable
conspiracy, military in its character, and created and held in existence for the
purpose of aiding the enemies of the country and destroying the armies of the nation, numbering in the States of
of Ohio, Indiana and Illinois, as claimed by its leaders, one hundred thousand men, the avowed purpose
of these conspirators being to release the rebel prisoners held in those States, numbering between forty and fifty thousand veteran
soldiers, arm them with guns to be seized from the arsenals of these States, and then to move into Kentucky, seizing
all the large cities by the way, take possession of the Louisville and Nashville road, and, intrenching at
Nashville or Chattanooga, cut General Sherman's communications, thereby placing him between two large armies, severing him from his
base of supplies, and thus effectually, as they thought, destroying this great
South-western wing of our army -- this right arm of the Republic -- thereby
giving to the rebels the power to dictate to the United States terms of peace and separation.
It was a far-reaching, villainous scheme, and had in it many of the elements
of success. The Government stood on the brink of a precipice. But the conspirators were
foiled by the military power of the Government. Will it be said that when the
military authorities discovered this plot, they should have waited for affidavits, for
an arrest and hearing before a United States Commissioner, and then have released
these conspirators upon bail, permitting them to again take the lead of their hosts
to work out their schemes of treason against the Government? Such a course might have involved
the destruction of the nation. Self-preservation demanded that these men should be seized
by the military power. Foreseeing this danger, martial law had been declared by the President,
and military courts given jurisdiction.
In support of the powers of the Government, in cases of insurrection, or in case of
great public danger, to suspend the operations of the civil law, I cite the opinion of
Chief Justice Taney, in a case before the Supreme Court, where the Government of
the State had declared martial law in Rhode Island. In rendering an opinion on that
case, he says: "Unquestionably a State may use its military power to put down an
insurrection too strong to be controlled by the civil authority. The power is essential to
the existence of every government -- essential to the preservation of order
and free institutions, and is as necessary to the States
of this Union as to any other government.
Without power to do this," he again says, "martial law and the military array of the Government
would be mere parade, and rather encourage attack than repel it."
Justice Woodbury, dissenting, said that "a State could not declare martial law,
inasmuch as the war power, of which it forms a part,
was lodged exclusively in the General Government." Certainly no one will
deny that if the Government of a State can declare martial law for suppressing an
insurrection within that State, with much stronger reason can the General Government, when
an insurrection exists against it, declare and enforce martial law, either in part or in whole.
The main question raised by the defense in their argument, is whether the
legislative branch of this Government, or the President, has the power of suspending the
writ of habeas corpus, and declaring martial law throughout the land.
In reply to the argument of the counsel for the accused, I
propose to cit a few quotations applicable to this case:
Martial law is the suspension, for the time being, of all constitutions and
civil laws, the closing of common law courts, and the
forcible inauguration of a new, temporary, arbitrary system of administering justice;
and is only to be justified by the overwhelming necessities of the case.
I propose, first, to examine English authorities upon this subject; and then refer to
American jurisprudence as to the right to proclaim martial law.
It may be premised that martial law in England as completely violates and suspends the Magna Charta as in this country it does our own
Section 39 provides: "No freeman shall be taken or imprisoned, or disseized, or outlawed, or banished, or in any way destroyed; nor will we pass upon him,
unless by the lawful judgment of his peers, or by the law of the land."
The Mutiny Act of 1689, which has been re-enacted at every session of Parliament for more than one hundred and seventy years, contains
the following declaration:
"Whereas, no man may be forejudged of life or limb, or subjected to any kind of judgment by
martial law, or in any other manner than by the judgment of his peers, and according to the known and established laws of this realm," etc.
It is impossible to conceive of any doctrine more irradically graven upon the Constitution and civil polity of England, than this kind
of habeas corpus, and exemption of the subject from the operation of martial law.
But notwithstanding this clear provision of the Magna Charta,as often as it is necessary,
martial law is proclaimed. In the riots of 1780, after the mob had insulted a majority of Parliament,
and the residence of the Chief Justice, the King in council issued his proclamation:
"We have, therefore, issued the most direct and effectual orders to all our officers,
by an immediate exertion of their utmost force, to suppress the same."
After which the Adjutant General issued orders to the army as follows:
"In obedience to an order of the King in council, the military are to act without
awaiting the direction of the civil magnistrate, and to use force for dispersing the
illegal and tumultuous assemblies of the people."
In subsequent debates in Parliament, the conduct of the King was approved. Lord Mansfield
and Lord Thurlow claimed that it was not a perogative of the King to
declare martial law, or to use the military to suppress riots; but they defended the act on the ground of necessity.
During the Irish rebellion in 1798, Lord Camden, Lord Lieutenant of Ireland,
proclaimed martial law, which existed a year without any legislative action, and after that the Irish Parliament sanctioned the
act. In 1801, after the union, this subject was discussed, and a bill was introduced to continue martial law
in Ireland. In this debate, both those who approved, and those who opposed the bill,
conceded the right of the Executive Government to proclaim martial law when necessary.
Sheridan, opposing the bill, said:
"In case of rebellion or invasion, His Majesty has, by virtue of his perogative, a right to martial law."
Lord Castlereagh, in defense of the bill, said:
"I perfectly understand that the perogative of the crown authorizes those acting
under its authority to exercise martial law.
I maintain that it is a constitutional mode for the Executive Government to exercise
martial law in the first instance, and to come to Parliament for indemnity afterward, and is
preferable to applying to Parliament first.
"The only circumstance in mind is whether, if the necessity exists, this is the
proper remedy? If it be so, we ought not to take alarm at a departure from
principle, which is necessary for the preservation of the Constitution itself."
Sir L. Parsons, opposing the bill, said:
"He thought the measure unnecessary. The Executive Government could resort to
martial law, if it was necessary to suppress rebellion."
Mr. Gray, who also opposed it, said:
It was better that the Executive Government should resort to what has bene
called (he thought, not legally) its prerogative of proclaiming martial law. That was
no perogative of the crown, but rather an act of power sanctioned by necessity, martial law being a suspension of the King's
peace. But it was better that martial law should proceed from the Executive Government in urgent moments, than
to be the work of the Legislature, on every slight pretense."
In the rebellion in Ceylon, in 1848, the Governor proclaimed martial law, and tried and executed
many rebels. His conduct was severely criticised in England, upon the ground
that it was unnecessary; and in an able review in the Quarterly, volume 83, page 127, it is said:
"We shall define martial law to be the law of necessity, or defense. The right which a
Governor of a colony has to proclaim martial law over subjects, may be said
to bear a close analogy to the right which an individual, in absence of legal protection, has to slay an assailant. In both
cases, the evil must be grave. In both cases, all regular means of defense must be exhnausted,
or beyond reach, before the aggrieved party resorts to extremities. In both cases,
the burden of proof lies on him who has ventured on such an expedient, and, if
he fails to vindicate himself, he is liable to severe punishment."
Hallem 1, Cont. Hist., p.240, says:
"There may, indeed, be times of pressing danger, when the conservation of all demands a sacrifice of the legal rights of a few; there may be circumstances that not only justify,
but compel the temporary abandonment of constitutional forms. It has been usual for all governments, during an
actual rebellion, to proclaim martial law, or the suspension of civil jurisdiction.
And this anomaly, I must admit, is very far from being less indispensable at such
unhappy seasons, in countries where the ordinary mode of trial is
by jury, than where the right of decision rests in the Judge."
Coming now to our own country, the same doctrine is laid down even more explicitly,
and by higher sanctions than in England. In the debate in Congress upon the subject of martial
law proclaimed by General Jackson in New Orleans, Robert J. Walker, in the Senate,
submitted a report upon this subject, in which he said:
"The law which justified this act, was the great law of necessity; it was the law of
self-defense. This great law of necessity -- of defense of self, of home, and
of country -- never was designed to be abrogated by any statue, or by any constituition."
Mr. Payne of Alabama, also speaking upon this subject, said:
"I shall not contend that the Constitution or laws of the United States, authorize the
declaration of martial law by any authority whatever; on the contrary, it is
unknown to the Constitution or laws."
And, commenting on the argument that if the Constitution did not authorize it, the
General ought not to declare martial law, he says:
"Who could tolerate this idea? An Arnold might, but no patriotic American could. I may be
asked, upon what principle a commander can declare martial law, when it is so evident that
the Constitution or laws afford him no authority to do so? I answer, upon the principle of
self-defense, which rises paramount to all written laws, and the justification of the officer
who assumes the responsibility of acting on that principle, must rest upon the necessity of the case."
Mr. Livingston, in a written document submitted by General Jackson to the Court,
gave his opinion as follows:
"On the nature and effect of the proclamation of martial law by Major General
Jackson, my opinion is, that such proclamation is unknown to the Constitution and laws
of the United States; that it is to be justified only by the necessities of the case," etc.
During the Dorr revolution in Rhode Island, when an attempt was made to array
a military force against the old State Government, and supplant it with a more democratic
form, the State Government proclaimed martial law throughout the State.
A house was broken open to make an arrest without warrant, under martial law;
and subsequently an action of trespass was commenced to try the legality of the act.
It was taken to the Supreme Court of the United States, and is reported,
Luther vs. Borden, 7 Howard, 1.
It is to be noticed that this case presented the precise question at issue
now before this Court, for the determination of the highest Court in the land.
The case was not the suspension of the habeas corpus, but it was
for trespass, by breaking into houses without warrant, which was clearly illegal,
unless the existence of martial law could be recognized as affording a defense.
Chief Justice Taney says:
"Unquestionably, a State may use its military power to put down an armed
insurrection too strong to be controlled by the civil authority. The power
is essential to the existence of every government, essential to the preservation of order and
free institutions, and is as necessary to the States of this Union as to any other Government.
The State, itself, must determine what degree of force the crisis demands; and if the
Government of Rhode Island deemed the armed opposition so formidable and so ramified throughout
the State as to require the use of its military force, and a declaration of martial law,
we see no ground upon which this Court can question its authority. It was a state of war,
and the established Government resorted to the rights and usages of war to maintain itself,
and to overcome the unlawful opposition. And in that state of things, the officers engaged
in its military service might lawfully arrest any one who, from the information before them,
they had reasonable grounds to believe was engaged in the insurrection, and might order
a house to be forcibly entered and searched, when there were reasonable
grounds for supposing he might be there concealed. Without power to do this,
martial law and the military array of the Government would be mere parade,
and rather encourage attack than repel it."
Justice Woodbury dissented upon the ground that a State could not declare
martial law, inasmuch as the war power, of which it formed a part, was
lodged exclusively in the General Government.
The question, then, for this Commission to determine, is, whether, with
this armed force threatening the life of the nation, the leaders here among you,
secretly and covertly, as it is claimed -- for this is to be a matter of proof --
attempting to strike at your camps, destroy the military forces that are guarding them,
release the rebel prisoners there confined, then to move into a State, partly occupied by
rebels, seize your supplies and munitions of war at Louisville and other points throughout
the country -- the question, I say, is, whether these men shall be dealt with by the civil or by the military law;
whether in this crisis they shall be permitted to avail themselves of the slow process of civil justice, to be
released upon bail, again to take the lead of these disloyal forces, and
move again in their work of treason and anarcy -- or whether the Government shall use the power
rightfully belonging to it for its self-preservation? I repeat the language I have quoted, and say,
that only an Arnold would, in such a case, hesitate in the course he would recommend.
No officer who is faithful to his trust, who respects his Government, who loves his home,
and desires the peace and prosperity of the citizens of that home, would desire to wait till it was too
late to save the Government, and, with it, all he holds dear. Seeing this
necessity for action, the military arm of the Government moved. It seized this man, believed
to be one of the leaders -- whether he be or not, will be a matter of proof
before this Commission -- and of the power of this Commission to try him there can be no more doubt,
than of the power of the Government to declare martial law. As to the question of the power
of the Government to declare martial law throughout a part of the whole of this land, there can be no doubt,
that having been decided by the mightiest tribunal of the land -- the Court of last resort.
It only remains for this Commission to take up the facts of the case, and determine whether or not
they are as presented in the charges and specifications.
In conclusion, I submit, that while the rights and liberties of the citizen are in all cases to be
held most sacred and inviolate, we are not, in our admiration of that
general principle, to lose sight of that highest and still more sacred duty of
protecting the life and liberties of the millions who compose that nation. Let
us not, in our attempt to protect the forms of the Constitution, sacrifice its life. What is that
Constitution worth to this land if the nation, which is its life, be destroyed?
Shall we, in our fear of interfering with the forms of that Constituition, hesitate to stop the
wound that is bleeding its life away? There is something beyond the rights of a single
individual -- something more sacred than his personal liberty, when that liberty
can be shown to have been used to imperil the life of the nation -- and that is, the life and
liberty of the millions of loyal citizens for whom this Government was established, and by whom,
with God's help, it will ever be upheld.
The court-room was then cleared for deliberation. On being reopened, the Judge
Advocate announced that the plea was overruled, and that the Commission would
proceed to the trial of the accused.
The Commission adjourned, to meet on Tuesday, September 27, at 2 o'clock, P.M.