I respectfully submit that the plea to the jurisdiction of the court ought to be sustained for the reason that by the constitution and laws of the land this commission has no right or authority to subject me to trial or punishment for the offense set forth in the pecification under charge 1. In the examination of the question raised by the plea it may be assumed that this is nt only in form but in fact a government of law, under a written constitution, and the life of no ciitizen ought to be or can be legally forfieted except in obedience to or by the authority of law. I do nor propose to abuse the liberty accorded to me of offeriing argument in support of the plea by discussing right of arrest during an insurrection or rebellion, or martial law, or any kindred subjects, but shall confine myself as closely as possible to the particularr question under consideration.
I, a citizen of the United States, and an inhabitant of the State of Missourii, one of the United States, in a district where the laws of the State are in force and can be executed, am called upon to answer to the charge of murder, not before the judiciary departmetn either of the Uniter States or of the state of Missouri, without presentmemnt or indictment, without a jury and beyond the judicial district in which the offense is alleged to have been committed. Against the exercise of this power I hold up the Constitution of the United States and claim its protection. Article V declares " that no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a 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. " It will be perceived that the only cases excepted are those arisiing in the land or naval forces of the United States or in the militia; and it will not be pretended tis case arose in the land or naval forces of the United States either nor in the militia. But even in cases arising in the land or naval forces it would not be competent for a militia commisson to punish for a capital offense without some law to justify it, and therefore by section S, Artiicle I of the Constitution it is declared that " Congress [and Congress alone] shall have power to make rules and regulations for the government of the land and naval forces. " The offense charged against the undersigned is not embraced in any such rules and regulations, or in the rules and articles of war. The jurisdiction then of the commission is not conferred either by the Constitution or laws of the United States. Where shall we look for it? It may be in the order of the general commanding in this department. But from whence does he derive his authority? If legitimate if must be from the Constitution and laws. If not derived from that source it is respectfully submitted that it is a usurpation of authority that no one either officer or private in the army of out of it is bound to obey. In thebrief interval since the adjourment yesterday no oportunity has occurred to examine the general orders of the commandant of this department; yet it is believed that they do declare that the courts [loyal] are not and will not be suppressed but that they will be in aid of the military, and restricts the enforcement of martial law to the city of Saint Louis, the railroad and rivers of the State. I know that the argument offerd to sustain the power is " that the life of the Government is in danger; we cannot afford the protection of law to traitors; that necessity is above all law and the safety of the people is the only law. " In American history these are new doctines, and if they be