The judge advocate then submitted the case to the commission. The court was then cleared for deliberation. Having maturely considered the evidence adduced, the commission find the accused, Charles Walsh, as follows: Of the specification, first charge, guilty; of the first charge, guilty. Of the specification, second charge, guilty; of the second charge, guilty. And the commission do therefore sentence him, the said Charles Walsh, to be imprisoned for the term of five years, at such place as the commanding general may direct. Said imprisonment to date from the 7th day of November, 1864. H. L. BURNETT, Judge Advocate D. O. and N. D., Judge Advocate of Commission. Colonel 89th Indiana Volunteer Infantry, President of Commission. Having maturely considered the evidence adduced, the commission find the accused, G. St. Leger Grenfel, as follows: Of the specification, first charge, guilty; of the first charge, guilty. Of the specification, second charge, guilty; of the second charge, guilty. And the commission do therefore sentence him, the said G. St. Leger Grenfel, to be hung by the neck until he is dead, at such time and place as the commanding general may direct; two-thirds of the members concurring therein. H. L. BURNETT, Judge Advocate D. O. and N. D., Judge Advocate of Commission. Colonel 89th Indiana Volunteer Infantry, President of Commission. The commission then adjourned to meet on Wednesday, April 19, 1865, at 11 o'clock a. m. COURT-ROOM, April 18, 1865. We, the subscribers, members of the commission, recommend that the sen tence in the case of R. F. Semmes be remitted. BENJAMIN J. SPOONER, Colonel 83d Indiana Vols. M. N. WISEWELL, Colonel V. R. C. S. H. LATHROP, Lieutenant Colonel U. S. A. P. VON RADOWITZ, Lieutenant Colonel A. D. C. ALBERT HEATH, Lieutenant Colonel 100th Indiana Vols. N. C. MACRAE, Major U. S. A. S. P. LEE, Major 6th Regiment V. R. C. R. P. De HART, Colonel 128th Indiana Vols. COURT-ROOM, CINCINNATI, OHIO, April 19, 1865. The undersigned, members of the military commission, assembled by virtue of Special Orders No. 274, northern department, December 27, 1864, do most respectfully request the commanding general to pardon the accused, Charles Walsh, and remit the sentence awarded by this commission, believing as they do that his long confinement and the punishment incident thereto, together with the fact of his services to the United States government prior to his arrest, and the fact of a very numerous family requiring his aid and support, justify this request. C. D. MURRAY, Colonel Eighty-ninth Ind. Vols., President Commission. ALBERT HEATH, One hundredth Regiment Ind. Vols. (Signed by the request of Lieutenant Colonel Heath by Ben. Pitman.) N. C. MACRAE, Major U. S. A. S. P. LEE, Major Sixth Regiment V. R. C. S. H. LATHROP, Lieutenant Colonel, A. A. G. HEADQUARTERS NORTHERN DEPARTMENT, Cincinnati, Ohio, April 27, 1865. The proceedings, findings, and sentences in the foregoing cases of Charles Walsh, Buckner S. Morris, Vincent Marmaduke, R. T. Semmes, Charles Travis Daniel, and G. St. Leger Grenfel, are approved and confirmed. The penitentiary at Columbus, Ohio, is designated as the place of confinement of the prisoners, Charles Walsh and R. T. Semmes. The post commandant of Cincinnati, Ohio, is charged with their immediate removal and delivery to the officer in charge of said penitentiary. The prisoner, Buckner S. Morris, will be released upon taking the oath of allegiance. In the cases of the prisoners. G. St. Leger Grenfel and Charles Travis Daniel, (the latter escaped,) the proceedings are forwarded for the action of his Excellency the President of the United States. The military commission of which Colonel C. D. Murray, eighty-ninth Indiana volunteer infantry, is president, is dissolved. JOSEPH HOOKER, Major General. Reply of Judge Advocate Burnett before the military commission in the case of the United States vs. Charles Walsh, Buckner S. Morris, and George St. Leger Grenfel, April 18, 1865. MAY IT PLEASE THE COURT: Upon the brief review which I propose to make of this case I enter with great reluctance. It is an unpleasant duty at best. It is particularly unpleasant in this case. I sought to evade it, being willing that the court, at the conclusion of the case, should take the testimony and investigate it themselves, and save me from making any further remarks upon it. You, gentlemen, will bear me witness that I sought, by all the power in my hands, to save myself from this duty. I desired it because I felt that the case was in the hands of men of intelligence and experience, in whom I had perfect faith. I did not feel that I had the power to enlighten you, or to change your minds. It needed no comment from me to determine your minds, gentlemen, upon the matters in issue in this case, and, having performed my duty of placing the case before you, I desired that my lips might be sealed, and that the accused might stand before you viewed solely in the light of the testimony given beforethis court; but they would not. After two speeches were delivered, and the third almost finished, I still was willing to keep silent, and they would not. After that was before the court, and many things had been said that I thought erroneous, not from inclination, but from the bias which the gentlemen had unwittingly, perhaps, acquired in the defence, it then became my duty to speak, and not shrinking from that duty I come up here to-day to perform it, and with God's help I will perform it, without fear, favor, or affection. I ask only that the Omnipotent, who rules the wills of men, and who commands their destinies, may guide me, so that I may do no man wrong, and say no word that will prejudice these accused in your minds; that may do my duty to my country this day, in her hour of sore affliction, God giving me strength. I Upon the question of jurisdiction I have but few words to say; it has been fully discussed, and you have already passed upon it. That which I desire to say is mainly in answer to the new matter that has been brought up, rather than from any necessity that I think exists to convince you of the power of this commission to hear and determine the case before you. Military commissions do exist, and, I agree with the gentleman on the part of the defence, from necessity; from the condition of the country and the government. When that necessity passes away, there passes with it all that the state of anarchy, unrest, and confusion brought into existence. Military commissions. come into existence only in times of war, from the fact that "certain offences,” as Benét well says, "which in times of peace are civil offences, become, in times of war, military offences, and punishable by military courts." In times of war the civil power to a certain extent, is powerless to meet the new condition of disorder. It is powerless to reach out and take possession of armed bodies; to meet conspiracies which are of sufficient strength and power to overcome the civil force. For these reasons the civil law for the time sleeps; it is never dead. Military power comes into existence merely to prolong the life of the civil power; never predominant; it never was intended to predominate over the civil power, but it was intended that the arm of the government which was most powerfulthe military arm being for the time the executive arm-should be employed to prolong the life and power of the government. And why? Because it is only the military power that can reach out and take possession of those forces which were sent out to destroy it. it is Our government contains three branches, the executive, the legislative, and the judicial, all coequal and coextensive in power in times of peace. But in times of war the legislative power cannot meet this armed force which is grappling at the life of the republic. And of what value would be a judicial decision of the government or any of its civil courts to meet an invading army, or to suppress an insurrection? The legislative and judicial powers of the government are powerless, like the head without the hand and arm; the legislative may direct and the judicial acquiesce in the movements of an army, but it is the executive hand and arm that must grapple with the antagonist, and, if possible, destroy him, to save the head and the heart. In time of war the executive power is that in which, for the time being, is centred the very existence of the legislative and judicial branches of the government. The executive, for the time being, becomes, and must be, all-powerful. If hampered with the checks that surround it in times of peace its arm would fall powerless, and the enemy would bind and destroy the nation. And is not this perfectly consistent? The chief executive officer, as commander-in-chief, is the great fountain-head of power, and it is he who transmits the necessary power to his subordinate officers to carry out the behests of that chief executive. The subordinate military commanders, in their departments, exercise the executive powers of the commander-in-chief. The Constitution, which describes the President of the United States as the commander-in-chief, does not say how he shall exercise those powers; the only rule that he has for his guidance in the exercise of his power as commander-in-chief of the army and navy is the rule of nations, the written and the unwritten mili tary laws of nations; and these laws and customs of war have grown into existence, as have the common laws, from the immemorial usages of nations. Considerable comment has been made upon the military lex non scripta by which a nation may be guided in times of emergency. I see no cause for the ridicule which the counsel have sought to attach to the term or to the fact. The written and unwritten laws of nations are the sober realities which the experience of peoples and nations have taught them in cases of like emergency, and it would be unwise were it possible, which I contend it is not, for the Chief Executive to be guided by any other law than that which gives to him, in times of war, the supreme control and shaping of events for the general good, as to him at the time shall seem best. The framers of the Constitution, in that instrument, simply said that the President should be commander-in-chief of the army and navy, but the path that he should take and the direction of the power that he should employ to save the life of the nation was left solely to his own discretion. It must be so, for, being trammelled, he would be rendered powerless. He, then, is the fountain-head of military commissions, and as commander-in-chief he dele. gates those powers to subordinate military commanders, and they, within their province, judge of the requisite power to be exerted for the suppression of disorder and insurrection. In this department General Hooker is the direct representative of the commander-in-chief, the President; in this department he is the judge of the necessity which shall call a military court into existence, and of the means to be employed for the suppression of the rebellion; and there is no other power, judicial or legislative, that can judge of that necessity, or determine the means to be employed to meet the existing emergency. If he or the President unwarrantably exercises that power, then the persons suffering have their remedy. If the President, in times of peace, exercises an unwarrantable power, and calls a military tribunal to take the place of civil courts, he is subject to impeachment and trial before the House and Senate. If General Hooker, as commander of this department, transcends his power and permits military courts to act when such a course is neither necessary nor justifiable, charges may be laid against him, and he can be punished before either a civil or a military tribunal. The exigency or necessity of military courts is equally definable, and also the remedies for their abuse. A word in justification of this commission. Four years ago in this country there began a great struggle growing out of certain theories of government, as to whether this nation should exist as a unit, or should be separated into sovereign and professedly independent parts; whether within the limits of the United States there should exist one government dedicated to the equality of the human race, and another government founded on a system of human bondage, in which one man was made to labor that another might live in idleness and luxury. The great question was to be determined whether or not man was capable of self-government; whether a self-governing nation could maintain itself, or whether a republican form of government was in reality an impracticable theory, destitute of the elements of vitality. A portion of these States resolved themselves into fragments, each State becoming a separate government, and that which before was a grand and united nation, became a turbulent antago nistic body of separate elements. The struggle has continued for four years. It has held at bay the entire power of this government. Its pestilent sophistries permeated all classes of society, and there was no State in this Union in which were not found lurking traitors to the government, and enemies to the republic. In some parts of the country, the rebellion dominated the civil power; in other parts it was dominated by the civil power, but wherever this rebellion was found, whether in the southern or the northern States, the government had the right to exercise its power, grapple those in arms, and suppress their machinations. And was she not right? H. Ex. Doc. 50- -37 In the argument of Judge Bartley it is claimed, that only where military operations are in progress, is the existence of military courts authorized. I reply, that wherever the army moves or has its being, in the great work of saving the life of the republic, there exists martial law, and that, too, without any special proclamation upon the subject. Where the army moves in the work of suppressing this rebellion, martial law is predominant and of necessity holds the civil law in subjection. In some of the States of the north, the civil law may be only partly silent, but in every case where the suppression of the rebellion necessitates it, the civil law must be silent to the extent necessary to make the operations of the military arm efficient. Wherever the civil law interferes with or contravenes the operations of the army while engaged in the great struggle of preserving our nationality, the civil law must for a time give way for the operations of the stronger military arm, but only for the time being, and only that the civil law may live and not die. Judge Bartley inquires: whence comes this sublimated authority, this higher law than the Constitution? by whom is it ordained, and who is the vicegerent, and where are his credentials? The law of self-preservation, of self-defence, is ordained by Jehovah. Whenever he created an existing thing, he gave it the right and the power to defend its own existence. The humblest creeping thing, if attacked, will turn and defend its life. Is that right which is given to the meanest of the animal kingdom, denied to man and nations? I say, then, that this right is ordained of God. Who, asks the counsel, is its vicegerent? I am its vicegerent; so are you, gentlemen; and the man that will not exercise it in the defence of his life and his rights is unworthy to live upon the earth which God has made. The nation that will not exercise the requisite power to preserve its life is a nation that no freeman would seek to preserve. I tell you that those very men that would shackle the government with these so-called peace constructions of the Constitution, that would tie the arms of the republic when this fiendish rebellion is at our throats, are the men who would laugh when the nation was in her death throes. Where are our credentials? ask the counsel. They are the credentials which God gave to man when he made him in his likeness and image, that he should walk upright on the face of the earth. Those are the credentials of this higher law, this law of self defence and self-preservation. It is admitted that the military power of the government may imprison at will, in times of war. Is the right to try according to the known rules of law a higher power than the right to imprison at will? You take from a man his liberty; if the Constitution gives you that right, where does it stop and say you shall not try and punish? Life and liberty stand upon the same basis. If these cases had been brought before this commission for the first time a few days ago, I should have said this is not the tribunal; the civil courts are the proper tribunals; the necessity for military commissions has passed away. I believed it, and have recently so decided in different cases in my office, honestly believing there was no longer any necessity for military commissions, and that the civil powers should again assert their sway. But to-day, standing face to face with the awful realities that have shocked and appalled us, I do not know that I could so decide. Three months or more ago, when we commenced these trials, this unnatural rebellion was raging, and the government was unequal to the task of subduing it. There was then a necessity for the military power to take cognizance of these cases, and on conviction to punish the offenders. You, gentlemen, believed with me, and, having commenced this case, you are bound to respect your own decision, and to go forward and conclude your investigation. It has been said by the counsel who argued against the jurisdiction of this commission, that the war upon the Constitution in the north is more fatal to the liberty of the nation than the war upon the Union in the south. Pardon me, gentlemen, if I say that such utterances are utterly abhorrent to me. |