true then this Government is an absolute despotism charles I. of England thought it necessary to issue commissions to try not only soldies but other dissolute persons who might commit murder of other outrages, but the Commons of his realm compelled auch commissions, saying that no man ought to be" judger to death but by the laws established in the realm, and such commissions for the trial of civilians have not existed it is believed either in England or American from the time of Charles to this hour. If I have committed an offense against either the laws of the State of Missouri or of the Unites States I admit that I may be lawfully called to answer if need be with my life. At the very point where I now am and at the very point where the offense is alleged to have been committed the courts of both the State and Federal governments are open and free with full power and ability to try and punish all offenders. But suppose they were ot; suppose an insurreciton or rebellion swells into such strength in any district as to defy the ordinary civil tribunals - is the Government then powerless? Must it submit? The answer is it must draw the sword and enforce its authority by the sword. But it by no means the follows that military commissions shall issue to try persons not in the land or naval forces for murder or other offenses. The powers of the Government in the case of insurrection and civil war were very fully and ably discussed in the case of Luther v. Borden and others [the Dorr Rebellion in Rhode Island] by the Supreme Court of the United States. The Chief jusitce acknowledges the power to arrest but by no means admits the power of the military to try and punish for offenses. It is said " the officers engaged in its military service might lawfully arrest anyone who from information before them was so engaged in the insurrecton. " No more forces, however, can be used than necessary to accomplish the object [8th Howard, p. 46]. The undersigned submits that if the offense with which he is charged can be tried by this commission then any killing whether of soldier or civilian at any point in the State of Missouri may be so tried. Nay, more, that any offense committed in the State may be punished at the discretion of the commission; and if it can be done in Missouri in virtue and by authority of a general order of the commandant of the department so it may be done in New York; and thus it will be determined that during a civil war all civil government may be rightfully suppressed at the descretion of a subordinate military officer, and in place of it a military despotism established, at least during the existence of such civil war. Against such doctrines the undersigned pleads and protests. In the examination of this question it should be remembered that there is a vast difference between a war waged against a foreign people and the military authority of the nation in arms to suppress an insurrection or to put down a rebellion of own people.
Before General Scott started to Mexico in 1847 as early in fact as May, 1846, he presented for the cthe Secretary of War a project for a law giving to courts - martial in an enemy's country authority to punish offenses which in the Uhited States are punishable by the crominal courts of the land. Congress did not, however, act upon the recommendation, and General Scott afterward, in 1846, submittes to Mr. Marcy, Secretary of State [War], the draft of a letter which he recommended should be dispatched each commander of an army operating in Mexico. "I am aware, 'said he, " that it presents grave topics for consideration, which is invited. It will be seen that I have placed all necessary restrictions on martial law: first, by restrictiong it to a foreign hostile country; second, to offenses enumerated with some