Year: 1865

Mr.. John McLane, assistant counsel for
Mrs. Mary Surratt. 1t commences by
asking if the Commission has jurisdic-
tion Of the cases before it, and calling at
tention to the great importance of the
question, and refers to the duty of the
Commission to consider it, and declares f
the Commission is unauthorized the act
establishing it is a usurpation on the part
of the Executive.


Itthen proceeds to say the Constitution
defines the powers and duties of the ex-
ecutive, and provides punishment for his
violation of them Therefore he acquires
no power beyond what the Constitution
confers, and this act, beyond authority,
can furnish no defence against the legal
consequences of what are done under it ;
aud whatever is done is utterly vain. The
commission must therefore decide this
question before announcing juj jgment.-
| That tribunal like this has no jurisdlc-
ton over them, other than military Off
GERS, is believed to e evident That often
ces defined and punished by the civil law,
and whose trial is provided for by the
same law, are not the subject Of military
jurisdiction is of course true. A militia
rv, in contradistinction from civil Of
fence, must therefore be made to appear;
and when it is, it must also appear that
military law provides for its trial and pun
ishment by a military tribunal. If that
law does not provide a mode of trial, or
afix punishment, the case is unprovi
ded for, and, as far as the military power
is concerned, is to go unpun~hed5 but,
as either the civil, common or statute law
embrace every ofeose that the United
States or States have deemed it necessary
to punish, in all such cases the civil courts
are clothed with every necessary jurisdic
ton In military court if the charge
does not state crime provided for gener-
ally or specifically in any of the Articles
of War, the prisoner must be discharged
| (OBricn, pp. 26, 27)


The one code, the civil, embraces alt
citizens, whether soldiers or not, etc
There the military has no jurisdiction over
any citizen as such. If the provisions Of
the Constitution clearly maintain the same
doctrine, the executive has no authority
to declare war, to raise aud support ar
mics, to provide and maintain navy, Or
to make rules for the government Of eth
or Of these forces. These powers are eS-
elusive in Congress. The army cannot be
raised, Or have laws for its government
and regulation, but as Congress shall pro
vide. The power of. Congress was gran
ted by the convention without objection,
In England, the king, as General Of the
whole kingdom, has this sole power, tho
Parliament frequently interposed. But
with US it was thought safest to give the
power to Congress, since otherwise sum
mary and severe punishments might be
| Inflicted No members of the Conven-
| ton or Commentators on Constitution,
since, has since intimated that even this
Congressional plwer could be applied to
citizens not belonging to the army or ma
Wy. The power given to Congress, to
make laws for the government and regu
lation of the land and naval forces No
artificeof ingenuity can make these words
include those who do not being to the ar
my and navy, and they are therefore to be
considered to exclude all others as if neg
stive werds to that effect had been added,
aud this is not only the obvious meaning
of the terms considered by themselves,
but is demonstrated from other provisions
of the constitution. So jealous were oJr
ancestors of ungranted power, and SO Wig
liant to protect the. citizen against it, that
they were unwilling to leave him to the
safeguard which proper constructions Of
the constitution, as originally adopted,
furnished.


Thus they resolved, that nothing should
be left in doubt. They determined, there
fore, not only to guard him against exec
utive and judicial, but against congress
sional abuse With this view they adop-
ted the 9Th constitutional amendment,
which declares that no person shall be
held to answer, for a capital or other Sise


infamous crime unless on a presentment
or Indictment Of grand jury, except in
cases arising in the land or naval forces or
IN the militia when in active service in
time Of war or public danger This view
is elaborated by reference to the highest
legal authority, and the constitutional
questions are discussed at length.


The sixth amendment which our faith
ers thought so vital to individual liberty
when assailed by governmental proseou-