The witnesses for the defense, for the most part, were treated by the Special Judge-Advocate as virtual accomplices of the accused; and, as soon as, by a searching cross-examination, he had extorted from them a reluctant admission of the slightest sympathy with the South (as in almost every case he was able to do), he swept them aside as impeached, and their testimony as unworthy of a moment's consideration. A former slave, who announced himself or herself as ready to give evidence against his or her former master, was a delicious morsel for the Bureau of Military Justice; and several such were sworn for the prosecution. While, on the other hand, nothing so exasperated the loyal Bingham or so astonished the Court as the apparition of an old slave-woman, summoned by the defense, eagerly endeavoring to exculpate her former master.
Several priests testified as to the good character of Mrs. Surratt as a lady and a christian, but the effect of their testimony was immediately demolished in the eyes of the Court, when, on cross-examination, although they refused to substantiate what the Judge-Advocate called "her notorious intense disloyalty," they could not remember that they had ever heard her "utter one loyal sentiment."
Chapter IV.
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."