It will not do, in order to sustain the gentleman's hypothesis, to say that these provisions of the Constitution, by which he attempts to fetter the power of the people to punish such offences in time of war within the territory of the United States, may be disregarded by an officer of the United States in command of its armies, in the trial and punishment of its soldiers in a foreign war. The law of the United States for the government of its own armies follows the flag upon every sea and in every land.

The truth is, that the right of the people to proclaim and execute martial law is a necessary incident of war, and this was the right exercised, and rightfully exercised, by Lieutenant-General Scott in Mexico. It was what Earl Grey has justly said was a "fact of necessity," and I may add, an act as clearly authorized as was the act of fighting the enemy when they appeared before him.

In making this exception, the lieutenant-general followed the rule recognized by the American authorities on military law, in which it is declared that "many crimes committed even by military officers, enlisted men, or camp-retainers, cannot be tried under the rules and articles of war. Military commissions must be resorted to for such cases, and these commissions should be ordered by the same authority, be constituted in a similar manner, and their proceedings be conducted according to the same general rules as general courts-martial."—Benet, 15.

There remain for me to notice, at present, two other points in this extraordinary speech: first, that martial law does not warrant a military commission for the trial of military offences—that is, offences committed in time of war in the interests of the public enemy and by concert and agreement with the enemy; and second, that martial law does not prevail in the United States, and has never been declared by any competent authority.

It is not necessary, as the gentleman himself has declined to argue the first point,—whether martial law authorizes the organization of military commissions by order of the commander-in-chief to try such offences,—that I should say more than that the authority just cited by me shows that such commissions are authorized under martial law, and are created by the commander for the trial of all such offences when their punishment by court-martial is not provided for by the express statute law of the country.

The second point,—that martial law has not been declared by any competent authority,—is an arraignment of the late murdered President of the United States for his proclamation of September 24, 1862, declaring martial law throughout the United States, and of which, in Lawrence's edition of Wheaton on International Law, p. 522, it is said, "Whatever may be the inference to be deduced either from constitutional or international law, or from the usages of European governments, as to the legitimate depository of the power of suspending the writ of habeas corpus, the virtual abrogation of the judiciary in cases affecting individual liberty, and the establishment as matter of fact in the United States, by the Executive alone, of martial law, not merely in the insurrectionary districts or in cases of military occupancy, but throughout the entire Union, and not temporarily, but as an institution as permanent as the insurrection on which it professes to be based, and capable on the same principle of being revived in all cases of foreign as well as civil war, are placed beyond question by the President's proclamation of September 24, 1862." That proclamation is as follows:—

"By the President of the United States of America.
"a proclamation.

"Whereas it has become necessary to call into service not only volunteers, but also portions of the militia of the states, by a draft, in order to suppress the insurrection existing in the United States, and disloyal persons are not adequately restrained by the ordinary processes of law from hindering this measure and from giving aid and comfort in various ways to the insurrection: Now, therefore, be it ordered that, during the existing insurrection, and as a necessary means for suppressing the same, all rebels and insurgents, their aiders and abettors, within the United States, and all persons 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 the 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, 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 24th day of September, A.D. 1862, and of the independence of the United States the eighty-seventh.

"ABRAHAM LINCOLN.

"By the President:
"William H. Seward,
"Secretary of State."

This proclamation is duly certified from the War Department to be in full force and not revoked, and is evidence of record in this case; and but a few days since a proclamation of the President, of which this court will take notice, declares that the same remains in full force.

It has been said by another of the counsel for the accused (Mr. Stone) in his argument, that, admitting its validity, the proclamation ceases to have effect with the insurrection, and is terminated by it. It is true the proclamation of martial law only continues during the insurrection; but inasmuch as the question of the existence of an insurrection is a political question, the decision of which belongs exclusively to the political department of the government, that department alone can declare its existence, and that department alone can declare its termination, and by the action of the political department of the government every judicial tribunal in the land is concluded and bound. That question has been settled for fifty years in this country by the Supreme Court of the United States: First, in the case of Brown vs. The United States (8 Cranch); also in the prize cases (2 Black, 641). Nothing more, therefore, need be said upon this question of an existing insurrection than this: The political department of the government has heretofore proclaimed an insurrection; that department has not yet declared the insurrection ended, and the event on the 14th of April, which robbed the people of their chosen Executive, and clothed this land in mourning, bore sad but overwhelming witness to the fact that the rebellion is not ended. The fact of the insurrection is not an open question to be tried or settled by parol, either in a military tribunal or in a civil court.

The declaration of the learned gentleman who opened the defence (Mr. Johnson), that martial law has never been declared by any competent authority, as I have already said, arraigns Mr. Lincoln for a usurpation of power. Does the gentleman mean to say that, until Congress authorizes it, the President cannot proclaim and enforce martial law in the suppression of armed and organized rebellion? Or does he only affirm that this act of the late President is a usurpation?