ARGUMENTS FOR THE DEFENSE.
The testimony for the several defenses of the eight accused closed on the
7th of June, and the testimony in rebuttal ended on the 14th, with the
evidence of the physicians on the sanity of Payne.
Thereupon, General Ewing endeavored to extract from the Judge-Advocate an
answer to the two following questions: First.--Whether his clients were on
trial for but one crime, viz.: Conspiracy, or four crimes, viz.:
Conspiracy, Murder, Attempt at murder, Lying in wait? and
Second.--By what statute or code of laws the crimes of "traitorously"
murdering, or "traitorously" assaulting with intent to kill, or
"traitorously" lying in wait, were defined, and what was the punishment
affixed?
The Judge-Advocate's reply to the first question was, in substance, that
all the accused were charged with conspiring to assassinate the President
and the other members of the Government named, and further, with having
executed that conspiracy so far as the assassination of the President and
the assault on the Secretary of State were concerned, and "to have
attempted its execution so far as concerns the lying in wait and other
matters."
Assistant Judge-Advocate Bingham added:
"The act of any one of the parties to a conspiracy in its execution is
the act of every party to that conspiracy; and therefore the charge
and specification that the President was murdered in pursuance of it
by the hand of Booth, is a direct and unequivocal charge that he was
murdered by every one of the parties to this conspiracy, naming the
defendants by name.
"Mr. Ewing.--I understand * * * but I renew my inquiry, whether these
persons are charged with the crime of conspiracy alone, and that these
acts of murdering, assaulting, and lying in wait, were merely acts
done in execution of that conspiracy.
"Mr. Bingham (interrupting).--And not crimes?
"Mr. Ewing.--Or whether they are charged with four distinct crimes in
this one charge?
"Mr. Bingham.--'Where parties are indicted for a conspiracy, and the
execution thereof, it is but one crime at the common law. And that as
many * * * overt acts in the execution of the conspiracy as they are
guilty of, may be laid in the same count.'
"Mr. Ewing.--It is then, I understand, one crime with which they are
charged.
"Mr. Bingham.--One crime all round, with various parts performed.
"Mr. Ewing.--The crime of conspiracy.
"Mr. Bingham.--It is the crime of murder as well. It is not simply
conspiring but executing the conspiracy treasonably and in aid of the
Rebellion.
"Mr. Ewing.--I should like an answer to my question, if it is to be
given: How many crimes are my clients charged with and being tried
for? I cannot tell.
"Mr. Bingham.--We have told you, it is all one transaction."
General Ewing, not being able to get an answer intelligible to himself to
the first question, then respectfully asked an answer to the second: By
what code or statute the crime was defined and the punishment provided?
"The Judge-Advocate.--I think the common law of war will reach that
case. This is a crime which has been committed in the midst of a great
civil war, in the capital of the country, in the camp of the
Commander-in-Chief of our armies, and if the common law of war cannot
be enforced against criminals of that character, then I think such a
code is in vain in the world.
"Mr. Ewing.--Do you base it, then, only on the law of nations?
"The Judge-Advocate.--The common law of war.
"Mr. Ewing.--Is that all the answer to the question?
"The Judge-Advocate.--It is the one I regard as perfectly appropriate
to give.
"Mr. Ewing.--I am as much in the dark now as to that as I was in
reference to the other inquiry."
It is significant that the ready Special Judge-Advocate rendered no aid to
his colleague on the latter branch of the inquiry.
According to the theory of the prosecution, then, Mary E. Surratt was
tried, as a co-conspirator of Jefferson Davis and seven of his agents, of
the seven men tried with her, and of Booth and her own son, for the crime
of "traitorous conspiracy" to murder the President, Vice-President,
Secretary of State and Lieutenant-General, of the United States; and for
the following crimes committed in pursuance thereof:
1. Assassination of the President, with Booth.
2. Attempt to murder the Secretary of State, his two sons and two
attendants (five crimes instead of one), with Payne.
7. Lying in wait to kill the Vice-President, with Atzerodt.
8. Lying in wait to kill the Lieutenant-General, with O'Laughlin.
Eight separate species of crimes, beside the generic one of "traitorous
conspiracy." And she, a citizen, a non-combatant, a woman, was tried on
this nine-fold, omnibus charge, jointly with seven men, under "the common
law of war"!
* * * * *
On the 16th of June (Friday), Mr. Clampitt read the argument of Reverdy
Johnson against the jurisdiction of the Commission--one of the most cogent
and convincing ever delivered in a court of justice.
The Supreme Court of the United States, subsequently (December, 1866), in
deciding the Milligan case, did but little more than reiterate the
propositions maintained by this great lawyer.
He opened his address by reminding the Court that the question of their
jurisdiction to try and sentence the accused was for the Court alone to
decide, and that no mandate of the President, if in fact and in law the
Constitution did not tolerate such tribunals in such cases, could protect
any member of the Commission from the consequences of his illegal acts. He
then advanced and proved the following propositions: that none but
military offenses are subject to the jurisdiction of military courts, and
that the offenders when they commit such offenses must be subject to
military jurisdiction--in other words, must belong to the army or navy;
that the President himself had no right to constitute military courts of
his own motion, but that such power must first be exercised by Congress
under the constitutional grant to that body to make rules for the
government and regulation of the land and naval forces; that, by the fifth
and sixth amendments of the constitution, every person, except those
belonging to the land or naval forces or to the militia in active service
in time of war, and, being such, committing a military or naval crime, is
guaranteed an investigation by a grand jury as a preliminary to trial, and
a speedy and public trial by an impartial jury. He then took up and
examined the grounds on which the jurisdiction of the Commission was
sought to be maintained. Calling the Court's attention to the
constitutional provision that, if the institution of such Commission was
an incident to the war power, that power was lodged exclusively in
Congress and not at all in the President, and, therefore, Congress only
could authorize such tribunals, he showed that, neither by the articles of
war nor by the two acts, relied on, passed during the Rebellion, had
Congress ever authorized any such tribunal; and that a military commission
like the present and under present circumstances "is not to be found
sanctioned, or the most remotely recognized, or even alluded to, by any
writer on military law in England or the United States, or in any
legislation of either country."
And, in this connection, he pronounced the suggestion that the civil
courts and juries of the District of Columbia could not safely be relied
upon for the trial of these cases, "an unjust reflection upon the judges,
upon the people, upon the marshal, an appointee of the President, by whom
the juries were summoned, and upon our civil institutions themselves;" and
he closed his remarks upon this branch of his subject by saying that the
foregoing suggestion,
"upon another ground, is equally without force. It rests on the idea
that the guilty only are ever brought to trial; that the only object
of the Constitution and laws in this regard is to afford the means to
establish alleged guilt; that accusation, however made, is to be
esteemed _prima facie_ evidence of guilt, and that the Executive
should be armed, without other restriction than his own discretion,
with all the appliances deemed by him necessary to make the
presumption from such evidence conclusive. Never was there a more
dangerous theory. The peril to the citizen from a prosecution so
conducted, as illustrated in all history, is so great that the very
elementary principles of constitutional liberty, the spirit and letter
of the Constitution itself repudiated it."
After depicting the peril to the rights of the citizen of confiding to the
option of the Executive the power of substituting a secret for a public
tribunal for the trial of offenses, he established the following
propositions: That the creation of a Court is an exclusively legislative
function; that constitutional guarantees are designed for times of war as
well as times of peace; that the power to suspend the writ of Habeas
Corpus carries with it only the temporary suspension of the right to
inquire into the cause of the arrest, and does not extend in any way over
the other rights of the accused. The distinguished advocate then further
maintained that, conceding the articles of war provide for a military
court like this, yet the offense charged in the present case being nothing
less than treason could not under the provision of the constitution,
regulating the trial of treason, be tried by a military commission; and,
also, that under the articles of war persons who were not and never had
been in the army were not subject to military law. And, in order to
illustrate this branch of his argument as forcibly as possible, passing in
review the guaranteed and historic rights of accused persons on trials
before civil courts, he arrayed the open and flagrant violations of these
rights which had been permitted by the Commission on the present trial:
First, in the character of the pleadings, which for indefiniteness and
duplicity would not have been tolerated by any civil tribunal. Second, as
to the rules of evidence, which, according to the Judge-Advocate, allowed
proof of separate and distinct offenses alleged to have been committed,
not only by the parties on trial, but by other persons, and which the
accused, however innocent, could not be supposed able to meet. Third, he
quoted Lord Holt to show that in a civil court "these parties could not
have been legally fettered during their trial." Referring to the row of
miserable beings weighed down with shackles as they had entered the
court-room, as they confronted their epauletted judges, and as they
departed to their solitary cells, day by day, for more than a month, he
repeated the words of the great jurist, then 200 years old:
"Hearing the clanking of chains, though no complaint was made to him,
he said, 'I should like to know why the prisoner is brought in ironed.
Let them be instantly knocked off. When prisoners are tried they
should stand at their ease.'"
Then, characterizing the claim, that martial law prevailing in the
District of Columbia therefore warranted the Commission, as alike
indefensible and dangerous, and at the same time irrelevant because
martial law had never been proclaimed and the civil courts were in the
full and undisturbed exercise of all their functions, the counsel drove
this point home as follows:
"We learn, and the fact is doubtless true, that one of the parties,
the very chief of the alleged conspiracy, has been indicted, and is
about to be tried before one of those courts. If he, the alleged head
and front of the conspiracy, is to be and can be so tried, upon what
ground of right, of fairness or of policy, can the parties who are
charged to have been his mere instruments be deprived of the same mode
of trial?"
At the close of his speech he recurs to the warning that the President's
command can furnish no justification to the members of the tribunal. If
their function were only to act as aides to the President to enable him to
discharge his prerogative of punishment, and is to that extent legal, then
it is only so because the President might have dispensed with the Court
altogether, and ordered the punishment of the culprits without any formal
trial.
No, he warned them, in the most courtly and courteous manner, they could
not shield themselves behind the President.
"Responsibility to personal danger can never alarm soldiers who have
faced * * * death on the battle-field. But there is a responsibility
that every gentleman, be he soldier or citizen, will constantly hold
before him and make him ponder--responsibility to the constitution and
laws of his country and an intelligent public opinion--and prevent his
doing anything knowingly that can justly subject him to the censure of
either. I have said that your responsibility is great. If the
Commission under which you act is void and confers no authority,
whatever you may do may involve the most serious personal liability."
He then cited the case of Governor Wall, hung in London in 1802 for
murder--a soldier, under his government in the island of Goree, having
been whipped to death by sentence of a regimental court-martial, twenty
years before.
"In that instance want of jurisdiction in the court-martial was held
to be fatal to its judgment as a defense for the death that ensued
under it. In this, if the Commission has no jurisdiction, its judgment
for the same reason will be of no avail, either to Judges, Secretary
of War, or President, if either shall be called to a responsibility
for what may be done under it."
The learned counsel then added:
"The opinion I have endeavored to maintain is believed to be the
almost unanimous opinion of the profession and certainly is of every
judge or court who has expressed any."
And he cited the then recent charge of Judge Bond to the grand jury at
Baltimore, in which the Judge declared in reference to such military
commissions as the present, that,
"Such persons exercising such unlawful jurisdiction are liable to
indictment by you as well as responsible in civil actions to the
parties."
And he quoted to the Court that portion of the charge of Judge Rufus W.
Peckham to a grand jury in New York City, delivered during the progress of
this very trial, wherein the right of a military commission to try was
denied:
"A great crime has lately been committed that has shocked the
civilized world. Every right-minded man desires the punishment of the
criminals, but he desires that punishment to be administered according
to law, and through the judicial tribunals of the country. No
star-chamber court, no secret inquisition, in this nineteenth century,
can ever be made acceptable to the American mind.
* * * * *
"Grave doubts, to say the least, exist in the minds of intelligent
men, as to the constitutional right of the Military Commission at
Washington to sit in judgment upon the prisoners now on trial for
their lives before that tribunal. Thoughtful men feel aggrieved that
such a commission should be established in this free country, when the
war is over, and when the common law courts are open and accessible to
administer justice according to law, without fear or favor. * * *
"The unanimity with which the leading press of our land has condemned
this mode of trial ought to be gratifying to every patriot."
On the twenty-third, General Ewing, too, assailed the jurisdiction of the
Court in a short but powerful speech from which are taken the following
extracts:
"The jurisdiction of the Commission has to be sought _dehors_ the
Constitution, and against its express prohibition. It is, therefore,
at least of doubtful validity. If that jurisdiction do not exist; if
the doubt be resolved against it by our judicial tribunals, when the
law shall again speak, the form of trial by this unauthorized
Commission cannot be pleaded in justification of the seizure of
property or the arrest of persons, much less the infliction of the
death penalty. In that event, however fully the recorded evidence may
sustain your findings, however moderate may seem your sentences,
however favorable to the accused your rulings on the evidence, your
sentence will be held in law no better than the rulings of Judge
Lynch's courts in the administration of lynch law.
"Our judicial tribunals, at some future day * * * will be again in the
full exercise of their constitutional powers, and may think, as a
large proportion of the legal profession think now, that your
jurisdiction in these cases is an unwarranted assumption; and they may
treat the judgment which you pronounce and the sentence you cause to
be executed, as your own unauthorized acts.
"Conviction may be easier and more certain in this Military
Commission, than in our constitutional courts. Inexperienced as most
of you are in judicial investigation, you can admit evidence which the
courts would reject, and reject what they would admit, and you may
convict and sentence on evidence which those courts would hold to be
wholly insufficient. Means, too, may be resorted to by detectives,
acting under promise or hope of reward, and operating on the fears or
the cupidity of witnesses, to obtain and introduce evidence, which
cannot be detected and exposed in this military trial, but could be
readily in the free, but guarded, course of investigation before our
regular judicial tribunals. The Judge-Advocate, with whom chiefly
rests the fate of these citizens, is learned in the law, but from his
position he can not be an impartial judge, unless he be more than a
man. He is the prosecutor in the most extended sense of the word. As
in duty bound, before this court was called, he received the reports
of detectives, pre-examined the witnesses, prepared and officially
signed the charges, and, as principal counsel for the Government,
controlled on the trial the presentation, admission and rejection of
evidence. In our courts of law, a lawyer who has heard his client's
story, if transferred from the bar to the bench, may not sit in the
trial of the cause, lest the ermine be sullied through the partiality
of counsel. This is no mere theoretical objection--for the union of
prosecutor and judge works practical injustice to the accused. The
Judge-Advocate controls the admission and rejection of evidence--knows
what will aid and what will injure the case of the prosecution, and
inclines favorably to the one and unfavorably to the other. The
defense is met with a bias of feeling and opinion on the part of the
judge who controls the proceedings of the Court, and on whom, in great
measure, the fate of the accused depends, which morals and law alike
reject."
Whatsoever else may be pleaded in excuse or palliation of the acts of the
Commission, it can never be said that its members were driven on by an
overpowering sense of their duty as soldiers, in blind ignorance of the
Constitution and the law. Each and every officer was made fully aware of
his awful responsibility and apprised of the precarious footing of his
authority.