The civil tribunals of the country cannot rightfully interfere with the military in the performance of their high, arduous, and perilous but lawful duties. That Booth and his associates were secret active public enemies no mind that contemplates the facts can doubt. The exclamation used by him when he escaped from the box onto the stage, after he fired the fatal shot, sic semper tyrannis, and his dying message, “Say to my mother that I died for my country," show that he was not an assassin from private malice, but that he acted as a public foe. Such a deed is expressly laid down in Vattel, in his work on the law of nations, as an offense against the laws of war and a great crime: "I give then the name of assassination to a treacherous murder, whether the perpetrators of the deed be the subjects of the party whom we cause to be assassinated or of our own sovereign, or that it be executed by any other emissary introducing himself as a suppliant, a refugee, or a deserter, or in fine as a stranger" (Vattel, 339.) Neither the civil nor the military department of the government should regard itself as wiser and better than the Constitution and the laws that exist under or are made in pursuance thereof. Each department should, in peace and in war, confining itself to its own proper sphere of action, diligently and fearlessly perform its legitimate functions, and in the mode prescribed by the Constitution and the law. Such obedience to and observance of law will maintain peace when it exists, and will soonest relieve the country from the abnormal state of war.

My conclusion, therefore, is, that if the persons who are charged with the assassination of the President committed the deed as public enemies, as I believe they did, and whether they did or not is a question to be decided by the tribunal before which they are tried, they not only can, but ought to be tried before a military tribunal. If the persons charged have offended against the laws of war, it would be especially wrong for the military to hand them over to the civil courts, as it would be wrong in a civil court to convict a man of murder who had in time of war killed another in battle.

JAMES SPEED,

Attorney General.

The foregoing discussion of the constitutional aspects of the question will no doubt be regarded by most people as somewhat tedious, and perhaps outside of the legal profession will be read, much less carefully studied, by but few. Yet by those who study it, it will be found to be a most profound and masterly analysis of the questions involved, viz., those of military and civil jusridiction as provided for in the Constitution, and to fully justify the opinion given as the conclusion of the argument.

We cannot too highly revere the Constitution, as it is that which gives permanence, security, and prosperity to our national life; yet there is a power greater than the Constitution a power that by authority expressed or understood reserves the right to amend, alter, or abolish its provisions.

That power is the

sovereignty that resides in the people. Self preservation is a

national, as much as an individual instinct, and self preservation is the first law of nature.

A government that has a right to live has a right to the use of all the means that may be found indispensable to the perpetuation of its existence. When war comes the laws of war come with it as a matter of necessity; because war, being an abnormal state of society, brings with it conditions that render inoperative and useless the means provided for the safety and security of the life, liberty, and property of the citizen, as guaranteed by the Constitution and laws. These interests are too sacred to be left wholly unprotected; and so the civilized nations of the world have adopted those rules which the wisdom and experience of mankind have found necessary for their protection in time of war. These rules, or laws, we denominate the laws of war.. If the experience of mankind should dictate modifications of, or additions to, those rules for the better protection of these sacred interests of life, liberty, and property, it would be as proper to amend these as it is proper and competent to amend statute law, or to alter, amend, or abolish constitutions. Such additions or alterations, if wisely made, receive the sanction of mankind, and thus become a part of the unwritten law, having in them the authority of this sanction.

In dealing with this question, however, it was not found necessary that anything new should be devised, as the laws of war were found to authorize all that was necessary to the adjudication of the question, and to furnish the means and appliances for securing the ends of justice.

The nature of the offense charged against these prisoners placed them under the domain of martial law, as they were shown by their own acts and declarations to be secret, active enemies of the government, the purpose of their crime being to give aid to the existing rebellion. For this reason the government left them in the hands of the military to be dealt with according to the laws of war; and the President, being ex-officio Commander-in-Chief of the army and navy, ordered the Assistant Adjutant General of the army to detail a military commission, and send the accuse before it for a speedy trial.

CHAPTER VIII.

A MILITARY COMMISSION- -

ITS NATURE, CONSTITUTION, DUTIES, AND JURISDICTION.

A MILITARY commission, as we have seen, is a judicial tribunal authorized by and constituted under the laws of war during a state of war. It consists of a definite number of commissioned officers designated by the order of detail. Its jurisdiction is limited, and its duties are also prescribed by that order. It is a military court detailed to try offenders against the laws of war, and clothed with power to decide both on the law and evidence in the case, and to prescribe the punishment due to the offense. It is constituted to act under a presiding officer, who is also designated in the order of detail. It has the assistance of a judge advocate with whom it consults in regard to any questions of law or of evidence that may arise.

The office of a judge advocate does not exactly correspond with that of a states attorney in a civil court, for at the same time that it is his duty to see that the case of the government and the evidence are fairly presented, it is as much his duty to see that the accused shall have a fair and impartial trial. The party on trial has the right to have counsel of his own choice, and the government must secure the attendance of such witnesses in his defense as he may designate. The rules of law and of evidence are very nearly the same as those which prevail in the civil courts. A military commission combines, to a great extent, the functions of both court and jury, as it has to decide on questions of law and evidence as a court, and on the guilt or innocence of the accused, in the light of law and evidence, as a jury. Again, in rendering a sentence, in case of conviction, it exercises the functions of a court. The oath taken by the members of the detail, and which constitutes

it a court, requires them to diligently try the case and judge and decide impartially, according to the law and evidence. Thus it will be seen that the rights of the accused are carefully guarded, and every precaution taken to make it certain that justice shall be done. This is the purpose as much in the constitution of a military as of a civil court. The only object of its constitution is to protect the innocent and condemn and punish the guilty, and thus secure the ends of justice and mercy. It is a benign provision of military law, and entitled to the highest respect and honor. Its decisions and sentences, however, must have the approval of the President of the United States to give them validity.

CHAPTER IX.

CONSTITUTION OF THE COMMISSION, AND TRIAL.

THE order of the President required the Assistant Adjutant General of the army to detail nine competent military officers to serve as a commission for the trial of the parties in custody, and also that the Judge Advocate General should proceed to prefer charges against them for their alleged offenses, and bring them to trial before the Commission, under the conduct of the Judge Advocate General as the recorder thereof, in person, and assisted by such assistant, or special judge advocates as he might select, and that the trial should be conducted with all diligence, consistent with the ends of justice. Brevet Major General Hartranft was assigned to duty, by the President's order, as Special Provost Martial General for the occasion. The following officers were designated by the Assistant Adjutant General as the detail for the

Major General David H. Hunter, U.S.V., to preside over the Commission.

Major General Lewis Wallace, U.S.V.

Brevet Major General August V. Kautz, U.S.V.

Brigadier General Albion P. Howe, U.S.V.

Brigadier General Robert S. Foster, U.S.V.

Brevet Brigadier General Cyrus Comstock, U.S.V.

Brigadier General T. M. Harris, U.S.V.

Brevet Colonel Horace Porter, Aide-de-Camp.

Lieutenant Colonel David R. Clendennin, Eighth Illinois Cavalry. Brigadier General Joseph Holt, Judge Advocate General United States Army, Judge Advocate and Recorder of the Commission, aided by such special or assistant judge advocates as he might designate.