Abraham Lincoln - American Memory

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V wmm 28 by citizens in time of war—the crime of conspiring together to assas- sinate or seize and carry away the soldiers and citizens who were loyal to the cause of the country. Therefore, on the 27th of Febru- ary, 1773, the Congress adopted the following resolution : " Resolved, That whatever inhabitant of these States shall kill, or seize, or take any loyal citizen or citizens thereof and convey him, her, or them to any place within the power of the enemy, or shall ENTER INTO ANY COMBINATION for such purpose, or attempt to carry the same into execution, or hath assisted or shall assist therein; or shall, by giving intelligence, acting as a guide, or in any manner whatever, aid the enemy in the perpetration thereof, he shall suffer death by the judgment of a court-martial as a traitor, assassin, or spy, if the offence be committed within seventy miles of the headquarters of the grand or other armies of these States where a general officer commands."—Journals of Congress, vol. ii, pp. 459, 460. So stood the law until the adoption of the Constitution of the United States. Every well-informed man knows that at the time of the passage of these acts, the courts of justice having cognizance of all crimes against persons, were open in many of the States, and that by their several constitutions and charters, which were then the supreme law for the punishment of crimes committed within their respective territorial limits, no man was liable to conviction but by the verdict of a jury. Take, for example, the provisions of the constitution of North Carolina, adopted on the 10th of November, 1776, and in full force at the time of the passage of the last resolution by Congress above cited, which provisions are as follows: " That no freeman shall be put to answer any criminal charge but by indictment, presentment, or impeachment." ** That no freeman shall be convicted of any crime but by the unanimous verdict of a jury of good and lawful men in open court, as heretofore used." This was the law in 1778 in all the States, and the provision for a trial by jury every one knows meant a jury of twelve men, impan- elled and qualified to try the issue in a civil court. The conclusion is not to be avoided, that these enactments of the Congress under the Confederation set aside the trial by jury within the several States, and expressly provided for the trial by court-martial of "any of the in- habitants" who, during the revolution, might, contrary to the provisions of said law, and in aid of the public enemy, give them intelligence, or kill any loyal citizens of the United States, or enter into any combination to kill or carry them away. How comes it if the argument of the counsel be true, that this enactment was passed by the Congress of 1778, when the constitutions of the several
29 States at that day as fully guaranteed trial by jury to every person held to answer for a crime, as does the Constitution of the United States at this hour? Notwithstanding this fact, I have yet to learn that any loyal man ever challenged, during all the period of our con- flict for independence and nationality, the validity of that law for the trial, for military offences, by military tribunals, of all offenders, as the law, not of peace, but of war, and absolutely essential to the prosecution of war. I may be pardoned for saying that it is the accepted common law of nations, that martial-faw is, at all times and every- where, essential to the successful prosecution of war, whether it be a civil or a foreign war. The validity of these acts of the Continental and Confederate Congress I know was challenged, but only by men charged with the guilt of their country's blood. Washington, the peerless, the stainless, and the just, with whom God walked through the night of that great trial, enforced this just and wise enactment upon all occasions. On the 30th of September, 1780, Joshua II. Smith, by the order of General Washington, was put upon his trial before a court-martial, convened in the State of New York, on the charge of there aiding and assisting Benedict Arnold, in a combination with the enemy, to take, kill, and seize such loyal citizens or soldiers of the United States as were in garrison at West Point. Smith objected to the jurisdiction, averring that he was a private citizen, not in the military or naval service, and therefore was only amen- able to the civil authority of the State, whose constitution had guaranteed the right of trial by jury to all persons held to answer for crime. (Chandler's Criminal Trials, vol. 2, p. 187.) The constitution of New York then in force had so provided; but, notwithstanding that, the court overruled the plea, held him to answer, and tried him. I re- peat, that when Smith was thus tried by court-martial, the constitution of New York as fully guaranteed trial by jury in the civil courts to all civilians charged and held to answer for crimes within the limits of that State, as does the Constitution of the United States guarantee such trial within the limits of the District of Columbia. By the second of the Articles of Confederation each State retained "its sovereignty," and every power, jurisdiction, and right not expressly delegated to the United States in Congress assembled. By those articles there was no express delegation of judicial power; therefore the States retained it fully. If the military courts, constituted by the commander of the army of the United States under the Confederation, who was appointed only by a resolution of the Congress, without any express grant of power to
Page 1: TRIAL OF THE CONSPIRATORS FOR THE A
Page 4 and 5: The crime charged and specified upo
Page 6 and 7: .-..,.- 6 the conspirators be numer
Page 8 and 9: 8 President a mere nullity, a usurp
Page 10 and 11: 10 question that it does not exist,
Page 12 and 13: 12 Ml objected to the same stern ju
Page 14 and 15: 14 •heir serene brows to the dust
Page 16 and 17: 16 be tried for any crime whatever,
Page 18 and 19: 18 veteran and hero, General Scott,
Page 20 and 21: 20 lighten us in regard to the ques
Page 22 and 23: 22 but as an institution as permane
Page 24 and 25: 24 subject property on tbe seas to
Page 26 and 27: 2G by indictment, in terms embracin
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Page 32 and 33: mm V 32 tution of the United States
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Page 36 and 37: TL. - 36 great extent, inoperative
Page 38 and 39: 38 his great decision in. the case
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Page 42 and 43: V 42 privilege of the writ of habea
Page 44 and 45: 44 proceed no farther in the cause
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Page 66 and 67: 66 also George Harper, one of the c
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78 Richmond, which the gentleman (M
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80 that the proprietor admits that
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84 Mr. Norton identifies the prison
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^ 86 him in this conspiracy to murd
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90 I shall be better prepared to ag
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92 and unimpeachable witnesses who
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~"3i 94 was arrested, in which he d
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9 96 previous to the assassination,
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98 John had gone away not to return
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102 the two about which Weichmann t
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108 House, and left his card, now i
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110 eight revolvers, the Derringer,
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112 Atzerodt, near midnight, return
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114 there last fall, he knew that o
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118 '18th of April, when he said th
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V 120 from the negotiation of bills
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Abraham Lincoln - American Memory

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