Abraham Lincoln - American Memory

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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 author-
ity 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