The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1865-06-20
e-4niont OF Counsel for tho Defo. nee
!. OF Mrs. Surratt, Harold, Ar
mold andO'Laughlin.
Messrs. Johnson, Stone and Cox CHALLENGE
the Jurisdiction of the Court.
RESPONSIBILITY OF ITS MEMBERS.
Mr.. Johnson Asserts that Courts Martial Have
Jurisdiction Over Soldiers Only,
&C., &C., &c.
WASHINGTON, Juno 10, 1855

WASHINGTON, Juno 10, 1895
Mr.. AIKEN stated to the Court that he should DO
prepared until wednesday read the Argument
casa Of Mrs. Surratt. The delay attributable to
voiumissus evidence previously to be examined by him
ARGUMENT or Mr.. JoHHsON IN BEHALF OF MRS.
sURHATT.
Mr.. CLAMPrrr read the argumene addressed TO the
President and gentlemen OF the commission, signed by
Hon ReveSty johnson, and cencurreA in by Mr. Free-
rick A. Aiken and Mr.. John W. ClaMptt Is associate
council for Mrs Mary 4. Surraa.
1t commences by asking :-Has the commission juris-
diction Of the before tr That question: in all
courts civil, criminal and military, considered
and answered afnrmatvey before jud gmsnt can
be pronounced, and 1t must be answered
rectly, the judgment pronounced is void.
Ever interesting and vital inquiry IL 10 Of engrosslng
interest and awful importance when lead
the unauthorized taking OF human life In such
the Court Gallo upon to render and the officer who Is to
approve Judgment have it executed have con.
PeculiaS themselves As each responsibility
is involved, which, however eonscentously AID
firmly met Ii calculated fail to awaken great
solictudc and induce the mature censide ration
The nature OF the duty such that honest
affords no mpunity The legal personal conseauences
even Of honest mistaken judgment cannot be
avoided Every member composing the commission VII
meet all the responsibility that belongs to it, becomes
gentlemen and soldiers So far the question Of ursdic
ton has not been discussed Tho pleas which specially
presented it, fled overruled But that will
not because properly should not prevent the commits
sion from considering with the dcberaion which its
grave nature demands 1t for them oGecide it, and
thoy acting does and could decide II
thorized 1t Is mere nuitythe usurpaon Of power
not vested in the executive and comforting authority
upon them To hold otherwise would be to make tho
executive the exclusive and conclusive judge Of its
powers and that wond be TO make that department.
omnlpOent Tho powers OF the President under
the constitution arc great, are amply sufficient
to give all needed efficiency to tho Office The
convention that formed the constitution and the
people who adopted II considered these powers
sufficient and granted others In the minds Of both
nd subsequent events have served TO strengthen the
mpressionl danger liberty to BIZ dreaded
the executive than from any other department of the
government so far therefore, from meaning to extend
its powers beyond what deemed necessary the
wholesome operation of the government, they
this vicw before entering execution OF his ONCE
the President is required to taxa oath to 81 athfuly
discharge is duties and 70 tho Des, Of his ability pre-
States" He Is also liable g to be removed from
Office on impeachment for and conviction Of
mIsdcmcanors ifhe violates the CONSTITUTION, il he
fails preserve it, and above all il he usurps powers
not granted he 10 false " his official oath and liable
indicted and convicted and TO be imprisoned For such
offence his removal from office Is the necessary
sequence In such contingency "he shall be removed
Is the command of the constitution What stronger evil
dence could there be that his powers, all OF them in
peace and In war; only such the constitution con
iersY But Il this evident from the instrument
itself the character Of the men who composed the
the American people ut that period would prove It.
Hatred OF monarchy, made the more intense by the
conduct Of the monarch from whose government they
had recently separated and deep stated love Of
tutonal liberty made tho more Keen and active by the
sacrifices which had illustrated their revolutionary
constituted them people who could be induced
delegate any executive authority not carefully restricted
and guarded render its abuse usurpaton almost
impossible IL those observations well founded
follows that executive act beyond executive authority
furnish defence against the legal consequences
4 Of what done under It, Unless Jurisdiction
exists the authority try not exist and whatever
done is JUDGE and utterly void This doctrine
Is as applicable military TO other courts The qics
ton them being always open, and s proper dec sion
senal TO the validity Of It's Judgment the commission
must decide before pronouncing such judgment whether
\ ma narfia md
| crime imputed to them. That tribunal like
this has no jurisdiction over other than mill
tary offences is believed TO be evident. That offences
defined and punished by the civil law whose trial Ia
provided for by the same law not the subjects Of
military Jurisdiction is OF course, true. military
contradistinguished from civil offence must there
FORE be mado To appear and when 1t is must also ap
Ishment by military tribunal II thai law does no,
furnish mode Of trial. aix punishment the Is
unprovded for and far the military power
cerned, Is 10 go unpunished But either the civil
law embraces every species of offence
the United States the States have deemed necessary
TO punish, in all such the civil clothed
with every necessary jurisdiction. In n military court
II the charge does not state crime provided for gen
orally specifically by any Of the articles Of the
II sufficient that the charge Ia Of crime known the
4 military law The offender, when he commits it.
be subject TO military jurisdiction The general law has
j "supreme and undisputed jurisdiction all" The
military law puts forth such prctensonta solely
| 10 enforce the soldier the additional duties he
has assumed II constitutes tribunals for the trial Of
breaches Of military duty only (OBren 20 27) 'The
i code 1.-THE civil embraces all citizens whether
soldiers or not the other he military has jursdc
ton over any citizen az such. 10. The provisions "
the constitution clearly maintain the samo doctrine The
executive has authority to declare war; TO raise and
support armies, 70 provide and maintain a navy to
make ''rrcs for the government and regulation Of
either force These powers exclusively In Congress
The army be raised have law for govern
and regulation, except Congress shall provide
| The power Of Congress granted by the
vention without objection. In England the king the
gcncrasimo of the whole kingdom has this sole power
though Parliament has frequently interposcd and rcsu
nd IN ifacIf tlut Wi In
give the entire power 70 Congress- since otherwise
mary and punishmcns might DO inflicted ut tho
mere will Of the Executive 70 Story Com, sec ], 1872
No member of the convention any commentato
the constitution since has ntmated that this Con
Ing to the army or navy The power given Congress
Ia to make rules for the government and regulation
| mako tbcsc words include those who do hot
belong to the army and navy and they are
therefore to BIO construed to exclude all others
az II negative words TO that effect had been
added and this only The obvious meaning Of the
terms considered by themselves but is demonstraabe
from other provisions Of the constitution so jealous
were Of ungnntcd power and vgilant
TO protect the citizen against IT, that they were unwilling
leave him to the safeguards which proper
ton Of the constitution as originally adopted furnished
In this they resolved that nothing should DO left In
doubt They determined, therefore, not only to guard
siona abuse With this view they adopted tho nth const
tu,ions amendment which declares that mo person shall
be held for . capital otherwise Infamous
crime unless on q presentment Indictment Of grand
Jury except In arising In the land naval forces
In the militia when In active service In time OF
public danger" This view elaborated by reference 70
the highest legal authority and tho constitutional qucs
tions are discussed at length Tho sixth amendment
which fathers thought vital 10 individual liberty
when assaed by governmental prosecution is but dead
letter totally inefficient for hs purpose, whenever tho
government shall deem II proper 70 try citizen by a
military commission. Against such doctrine tho very
instincts Of froemen revolt II has foundation but
in the principle Of unrcsancd tyrannic power and pas
sve Obedience. II II DO well founded then We In.
| deed nation OF slaves and not Of frecmcn.
The counsel then proceeds 10 examine with somewhat
OF particularly, tho grounds which he Is Informed
the Jurisdiction Of this commission IL maintained, and
contends In the second place. that the power In qucs
ton claimed under the authority supposed to be given
10 the President In certain 10 suspend the writ Of
| habcas corpus and 10 declare martial law, the
claim n equally, " not more evidently, untena-
BILE The act Of 1906 establishing the Articles Of
War; provides for no military court like th,s and II Il
maintained that II does not embrace the crime charged