Abraham Lincoln - American Memory

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8 President a mere nullity, a usurpation. Has it been shown by the :ied gentleman, who demands that this court shall so decide, that officers of the army may lawfully and constitutionally question in this manner the orders of their Commander-in-Chief, disobey, set them aside, and declare them a nullity and a usurpation ? Even if it be con- ceded that the officers thus detailed by order of the Commander-in- Chief may question and utterly disregard his order and set aside his authority, is it possible, in the nature of things, that any body of men, constituted and qualified as a tribunal of justice, can sit in judgment upon ihe proposition that they are not a court for any purpose, and finally decide judicially, as a court, that the government which ap- pointed them was without authority? Why not crown the absurdity of this proposition by asking the several members of this court to determine that they are not men—living, intelligent, responsible men ! This would be no more irrational than the question upon which they are asked to pass. How can any sensible man entertain it? Before he begins to reason upon the proposition he must take for granted, and therefore decide in advance, the very question in dis- pute, to wit, his actual existence. So with the question presented in this remarkable argument for the defence : before this court can enter upon the inquiry of the want of authority in the President to constitute them a court, they must take for granted and decide the very point in issue, that the President had the authority, and that they are in law and in fact a judicial tribunal; and having assumed this, they are gravely asked, as such judicial tribunal, to finally and solemnly decide and declare that they are not in fact or in law a judicial tribunal, but a mere nullity and nonentity. A most lame and impotent conclusion 1 As the learned counsel seems to have great reverence for judicial authority, and requires precedent for every opinion, I may D6 pardoned for saying that the objection which I urge, against the possibility of any judicial tribunal, after being officially qualified as such, entertaining, much less judicially deciding, the pro- p.-ition that it has no legal existence as a court, and that the appointment was a usurpation and without authority of law, has been solemnly ruled by the Supreme Court of the United States. That court say : "The acceptance of the judicial office is a recogni- tion of the authority from which it is derived. If a court should enter opon the inquiry (whether the authority of the government which lished it existed,) and should come to the conclusion that the government under which it acted had been put aside, it would cease
9 to be a court and be incapable of pronouncing a judicial decision upon the question it undertook to try. If it decides at all, as a court, it necessarily affirms the existence and authority of the government under which it is exercising judicial power."—(Luther vs. Borden, 7 Howard, 40.) That is the very question raised by the learned gentleman in his argument—that there was no authority in the President, by whose act alone this tribunal was constituted, to vest it with judicial power to try this issue ; and by the order upon your record, as has already been shown, if you have no power to try this issue for want of authority in Ihe Commander-in-Chief to constitute you a court, you are no court, and have no power to try any issue, because his order limits you to this issue, and this alone. It requires no very profound legal attainments to apply the ruling of the highest judicial tribunal of this country, just cited, to the point raised, not by the pleadings, but by the argument. This court exists as a judicial tribunal by authority only of the President of the United States ; the acceptance of the office is an acknowledgment of the validity of the authority conferring it, and if the President had no authority to order, direct, and constitute this court to try the ac- cused, and, as is claimed, did, in so constituting it, perform an uncon- stitutional and illegal act, it necessarily results that the order of the President is void and of no effect; that the order did not and could not constitute this a tribunal of justice, and therefore its members are incapable of pronouncing a judicial decision upon the question presented. There is a marked distinction between the question here presented and that raised by a plea to the jurisdiction of a tribunal whose existence as a court is neither questioned nor denied. Here it is argued, through many pages, by a learned Senator, and a distinguished lawyer, that the order of the President, by whose authority alone this court is constituted a tribunal of mili- tary justice, is unlawful; if unlawful it is void and of no effect, and has created no court; therefore this body, not being a court, can have no more power as a court to decide any question whatever than have its individual members power to decide that they as men do not in fact exist. It is a maxim of the common law—the perfection of human reason— that what is impossible the law requires of no man. How can it be possible that a judicial tribunal can decide the
Page 1: TRIAL OF THE CONSPIRATORS FOR THE A
Page 4 and 5: The crime charged and specified upo
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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
Page 28 and 29: V wmm 28 by citizens in time of war
Page 30 and 31: 30 authorize it—bis office not be
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
Page 40 and 41: 40 tion. suspend as far as may be n
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 48 and 49: V ———— 48 ria, cli. 35, ent
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58 Jefferson Davis was as strongly
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60 rebellion. You hear it in the re
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62 suggested in the letter of Oldha
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64 that Booth was one of the party
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66 also George Harper, one of the c
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68 the meeting of Thompson and Surr
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V 70 Jefferson Davis's purpose to m
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. _.dMi •9M 72 Mr. Kerr, who woul
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^«^M 74 The learned gentleman, (Mr
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V 76 he lived, and all that was ask
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78 Richmond, which the gentleman (M
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80 that the proprietor admits that
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N 82 says he went to Gardner's part
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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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«i V 88 and Arnold, was the declar
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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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4 W 100 except that he was bound to
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102 the two about which Weichmann t
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V 104 of which could be readily ins
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V 106 save by some evidence which 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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116 merely a suspicious person, but
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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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N 122 selves ; his act, done in the
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Abraham Lincoln - American Memory

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