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Trial of the conspirators, for the assassination of President Lincoln, &c. : argument of John A. Bingham, special judge advocate, in reply to the arguments of the several counsel for Mary E. Surratt, David E. Herold, Lewis Payne, George A. Atzerodt, Michael O'Laughlin, Samuel A. Mudd, Edward Spangle online

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Online LibraryJohn Armor BinghamTrial of the conspirators, for the assassination of President Lincoln, &c. : argument of John A. Bingham, special judge advocate, in reply to the arguments of the several counsel for Mary E. Surratt, David E. Herold, Lewis Payne, George A. Atzerodt, Michael O'Laughlin, Samuel A. Mudd, Edward Spangle → online text (page 1 of 14)
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Delivered June 27 and 28, 1S65, before the Military
Commission, Washington, O. t .











MAY IT PLEASE THE CouET : The conspiracy here charged and speci-
. fied, and the acts alleged to have been committed in pursuance thereof,
and with the intent laid, constitute a crime the atrocity of which has
sent a shudder through the civilized world. All that was agreed
upon and attempted by the alleged inciters and instigators of this
crime constitutes a combination of atrocities with scarcely a parallel
in the annals of the human race. Whether the prisoners at your bar
are guilty of the conspiracy and the acts alleged to have been done
in pursuance thereof, as set forth in the charge and specification, is a
question the determination of which rests solely with this honorable
court, and in passing upon which this court are the sole judges of the
law and the fact.

In presenting my views upon the questions of law raised by the
several counsel for the defence, and also on the testimony adduced
for and against the accused, I desire to be just to them, just to you,
just to my country, and just to my own convictions. The issue joined
involves the highest interests of the accused, and, in my judgment,
the highest interests of the whole people of the United States.

It is a matter of great moment to all the people of this country
that the prisoners at your bar be lawfully tried and lawfully convicted
or acquitted. A wrongful and illegal conviction or a wrongful and
illegal acquittal upon this dread issue would impair somewhat the
security of every man's life, and shake the stability of the republic.



The crime charged and specified upon your record i$ not simply
the crime of murdering a human being, but it is the crime of killing
and murdering on the Uth day of April, A. D. 1865, within the mili-
tary department of Washington and the intrenched lines thereof, Abra-
ham Lincoln, then President of the United States, and commander-
in-chief of the army and navy thereof ; and then and there assault-
ing, with intent to kill and murder, William H. Seward, then Secre-
tary of State of the United States ; and then and there lying in wait
to kill and murder Andrew Johnson, then Vice President of the United
States, and Ulysses S. Grant, then lieutenant general and in command
of the armies of the United States, in pursuance of a treasonable
conspiracy entered into by the accused with one John Wilkes Booth,
and John H. Surratt, upon the instigation of Jefferson Davis, Jacob
Thompson, and George N. Sanders and others, with intent thereby
to aid the existing rebellion and subvert the Constitution and laws of
the United States.

The rebellion, in aid of which this conspiracy was formed and this
great public crime committed, was prosecuted for the vindication of
no right, for the redress of no wrong, but was itself simply a criminal
conspiracy and gigantic assassination. In resisting and crushing this
rebellion the American people take no step backward, and cast no
reproach upon their past history. That people now, as ever, proclaim
the self-evident truth that whenever government becomes subversive
of the ends of its creation, it is the right and duty of the people to
alter or abolish it; but during these four years of conflict they have
as clearly proclaimed, as was their right and duty, both by law and
by arms, that the government of their own choice, humanely and
wisely administered, oppressive of none and just to all, shall not be
overthrown by privy conspiracy or armed rebellion.

What wrong had this government or any of its duly constituted
agents done to any of the guilty actors in this atrocious rebellion?
They themselves being witnesses, the government which they as-
sailed had done no act, and attempted no act, injurious to them, or
in any sense violative of their rights as citizens and men; and yet for
four years, without cause of complaint or colorable excuse, the incit-
ers and instigators of the conspiracy charged upon your record have,
by armed rebellion, resisted the lawful authority of the government,
and attempted by force of arms to blot the republic from the map of
nations. Now that their battalions of treason are broken and flying
before the victorious legions of the republic, the chief traitors in this
great crime against your government secretly conspire with their

hired confederates to achieve by assassination, if possible, what they
have in vain attempted by wager of battle the overthrow of the
government of the United States and the subversion of its Constitu-
tion and laws. It is for this secret conspiracy in the interest of the
rebellion, formed at the instigation of the chiefs in that rebellion,
and in pursuance of which the acts charged and specified are alleged
to have been done and with the intent laid, that the accused are
upon trial.

The government in preferring this charge does not indict the whole
people of any State or section, but only the alleged parties to this un-
natural and atrocious conspiracy and crime. The President of the
United States, in the discharge of his duty as commander-in-chief of
the army, and by virtue of the power vested in him by the Constitu-
tion and laws of the United States, has constituted you a military
court, to hear and determine the issue joined against the accused,
and has constituted you a court for no other purpose whatever. To
this charge arid specification the defendants have pleaded, first, that
this court has no jurisdiction in the premises; and, second, not guilty.
As the court has already overruled the plea to the jurisdiction, it
would be passed over in silence by me but for the fact, that a grave
and elaborate argument has been made by counsel for the accused,
not only to show the want of jurisdiction, but to arraign the President
of the United States before the country and the world as a usurper of
power over the lives and the liberties of the prisoners. Denying the
authority of the President to constitute this commission is an aver-
ment that this tribunal is not a court of justice, has no legal existence,
and therefore no power to hear and determine the issue joined. The
learned counsel for the accused, when they make this averment by
way of argument, owe it lo themselves and to their country to show
how the President could otherwise lawfully and efficiently discharge
the duty enjoined upon him by his oath to protect, preserve, and de-
fend the Constitution of the United States, and to take care that the
laws be faithfully executed.

An existing rebellion is alleged and not denied. It is charged that
in aid of this existing rebellion a conspiracy was entered into by the
accused, incited and instigated thereto by the chiefs of this rebellion,
to kill and murder the executive officers of the government, and the
commander of the armies of the United States, and that this conspi-
racy was partly executed by the murder of Abraham Lincoln, and by
a murderous assault upon the Secretary of State; and counsel reply,
by elaborate argument, that although the facts be as charged, though


the conspirators be numerous and at large, able and eager to com-
plete the horrid work of assassination already begun within your
military encampment, yet the successor of your murdered President
is a usurper if he attempts by military force and martial law, as com-
mander-in-chief, to prevent the consummation of this traitorous con-
spiracy in aid of this treasonable rebellion. The civil courts, say
the counsel, are open in the District. I answer, they are closed
throughout half the republic, and were only open in this District
on the day of this confederation and conspiracy, on the day of the
traitorous assassination of your President, and are only open
at this hour, by force of the bayonet. Does any man suppose that if
the military forces which garrison the intrenchments of your cap-
ital, fifty thousand strong, were all withdrawn, the rebel bands
who this day infest the mountain passes in your vicinity would allow
this court, or any court, to remain open in this District for the trial
of these their confederates, or would permit your executive officers to
discharge the trust committed to them, for twenty-four hours?

At the time this conspiracy was entered into, and when this court
was convened and entered upon this trial, the country was in a state
of civil war. An army of insurrectionists have, since this trial begun,
shed the blood of Union soldiers in battle. The conspirator, by
whose hand his co-conspirators, whether present or absent, jointly
murdered the President on the 14th of last April, could not be
and was not arrested upon civil process, but was pursued by the
military power of the government, captured, and slain. Was this
an act of usurpation? a violation of the right guaranteed to that
fleeing assassin by the very Constitution against which and for the
subversion of which he had conspired and murdered the President ?
Who in all this land is bold enough or base enough to assert it ?

I would be glad to know by what law the President, by a military
force, acting only upon his military orders, is justified in pursuing,
arresting, and killing one of these conspirators, and is condemned for
arresting in like manner, and hy his order subjecting to trial, accord-
ing to the laws of war, any or all of the other parties to this same
damnable conspiracy and crime, by a military tribunal of justice a
tribunal, I may be pardoned for saying, whose integrity and impar-
tiality are above suspicion, and pass unchallenged even by the
accused themselves.

The argument against the jurisdiction of this court rests upon the
assumption that even in time of insurrection and civil war, no crimes

are cognizable and punishable by military commission or court-martial,
save crimes committed in the military or naval service of the United
States, or in the militia of the several States when called into the
actual service of the United States. But that is not all the argument :
it affirms that under this plea to the jurisdiction, the accused have
the right to demand that this court shall decide that it is not a ju-
dicial tribunal and has no legal existence.

This is"a most extraordinary proposition that the President, under
the Constitution and laws of the United States, was not only not au-
thorized but absolutely forbidden to constitute this court for the
trial of the accused, and, therefore, the act of the President is void,
and the gentlemen who compose the tribunal without judicial authority
or power, and are not in fact or in law a court.

That I do not misstate what is claimed and attempted to be estab-
lished on behalf of the accused, I ask the attention of the court to
the following as the gentleman's (Mr. Johnson's) propositions :

That Congress has not authorized, and, under the Constitution,
cannot authorize the appointment of this commission.

That this commission has, "as a court, no legal existence or au-
thority," because the President, who alone appointed the commission,
has no such power.

That his act "is a mere nullity the usurpation of a power not
vested in the Executive, and conferring ilo authority upon you."

We have had no common exhibition of law learning in this De-
fence, prepared by a Senator of the United States ; but with all his
experience, and all his learning, and acknowledged ability, he has
failed, utterly failed, to show how a tribunal constituted and sworn,
as this has been, to duly try and determine the charge and specifica-
tion against the accused, and by its commission not authorized
to hear or determine any other issues whatever, can rightfully en-
tertain, or can by any possibility pass upon, the proposition pre-
sented by this argument of the gentleman for its consideration.

The members of this court are officers in the army of the
United States, and by order of the President, as Commander-in-
Chief, are required to discharge this duty, and are authorized in this
capacity to discharge no other duty, to exercise no other judicial
power. Of course, if the commission of the President constitutes
this a court for the trial of this case only, as such court it is compe-
tent to decide all questions of law and fact arising in the trial of the
case. But this court has no power, as a court, to declare the au-
thority by which it was constituted null and void, and the act of ttie


President a mere nullity, a usurpation. Has it been shown by the
learned gentleman, who demands that this court shall so decide, that
officers of the army may lawfully and constitutionally question in this
manner the orders of their Commander-in- Chief, disobey, set them
aside, and declare them a nullity and a usurpation ? Even if it be con-
ceded that the officers thus detailed by order of the Commander-in -
Chief may question and utterly disregard his order and set aside his
authority, is it possible, in the nature of things, that any body of men,
constituted and qualified as a tribunal of justice, can sit in judgment
upon ihe proposition that they are not a court for any purpose, and
finally decide judicially, as a court, that the government which ap-
pointed them was without authority? Why not crown the absurdity
of this proposition by asking the several members of this court to
determine that they are not men living, intelligent, responsible
men ! This would be no more irrational than the question upon which
they are asked to pass. How can any sensible man entertain it?
Before he begins to reason upon the proposition he must take for
granted, and therefore decide in advance, the very question in dis-
pute, to wit, his actual existence.

So with the question presented in this remarkable argument for
the defence : before this court can enter upon the inquiry of the want
of authority in the President to constitute them a court, they must
take for granted and decide the very point in issue, that the President
had the authority, and that they are in law and in fact a judicial
tribunal ; and having assumed this, they are gravely asked, as such
judicial tribunal, to finally and solemnly decide and declare that they
are not in fact or in law a judicial tribunal, but a mere nullity and
nonentity. A most lame and impotent conclusion I

As the learned counsel seems to have great reverence for judi-
cial authority, and requires precedent for every opinion, I may
be pardoned for saying that the objection which I urge, against
the possibility of any judicial tribunal, after being officially quali-
fied as such, entertaining, much less judicially deciding, the pro-
position that it has no legal existence as a court, and that the
appointment was a usurpation and without authority of law, has been
solemnly ruled by the Supreme Court of the United States.
^ That court say : "The acceptance of the judicial office is a recogni-
tion of the authority from which it is derived. If a court should enter
upon the inquiry (whether the authority of the government which
established it existed,) and should come to the conclusion that the
government under which it acted had been put aside, it would cease


to be a court and be incapable of pronouncing a judicial decision upon
the question it undertook to try. If it decides at all, as a court, it
necessarily affirms the existence and authority of the government
under which it is exercising judicial power.": (Luther vs. Borden, 7
Howard, 40.)

That is the very question raised by the learned gentleman in his
argument that there was no authority in the President, by whose
act alone this tribunal was constituted, to vest it with judicial power
to try this issue ; and by the order upon your record, as has already
been shown, if you have no power to try this issue for want of author-
ity in the Commander*in- Chief to constitute you a court, you are no
court, and have no power to try any issue, because his order limits
you to this issue, and this alone.

It requires no very profound legal attainments to apply the ruling
of the highest judicial tribunal of this country, just cited, to the
point raised, not by the pleadings, but by the argument. This court
exists as a judicial tribunal by authority only of the President of the
United States ; the acceptance of the office is an acknowledgment of
the validity of the authority conferring it, and if the President had
no authority to order, direct, and constitute this court to try the ac-
cused, and, as is claimed, did, in so constituting it, perform an uncon-
stitutional and illegal act, it necessarily results that the order of the
President is void and of no effect; that the order did not and could
not constitute this a tribunal of justice, and therefore its members
are incapable of pronouncing a judicial decision upon the question

There is a marked distinction between the question here
presented and that raised by a plea to the jurisdiction of
a tribunal whose existence as a court is neither questioned
nor denied. Here it is argued, through many pages, by a learned
Senator, and a distinguished lawyer, that the order of the President,
by whose authority alone this court is constituted a tribunal of mili-
tary justice, is unlawful; if unlawful it is void and of no effect, and
has created no court; therefore this body, not being a court, can have
no more power as a court to decide any question whatever than have its
individual members power to decide that they as men do not in fact

It is a maxim of the common law the perfection of human reason
that what is impossible the law requires of no man.

How can it be possible that a judicial tribunal can decide the


question that it does not exist, any more than that a rational man can
decide that he does not exist?

The absurdity of the proposition so elaborately urged upon the
consideration of thi& court cannot be saved from the ridicule and con-
tempt of sensible men by the pr-etence that the court is not asked
judicially to decide that it is not a court, but only that it has no
jurisdiction; for it is a fact not to be denied that the whole argument
for the defence on this point is that the President had not the law-
ful authority to issue the order by which alone this court is constitu-
ted, and that the order for its creation is null and void.

Gentlemen might as well ask the Supreme CourfoT the United
States upon a plea to the jurisdiction to decide, as a court, that the
President had no lawful authority to nominate the judges thereof
severally to the Senate, and that the Senate had no lawful authority
to advise and consent to their appointment, as to ask this court to
decide, as a court, that the order of the President of the United States
constituting it a tribunal for the sole purpose of this trial was not
only without authority of law, but against and in violation of law. If
this court is not a lawful tribunal, it has no existence, and can no
more speak as a court than the dead, much less pronounce the judg-
ment required at its hands that it is. not a court, and that the Pres-
ident of the United States, in constituting it such to try the question
upon the charge and specification preferred, has transcended his
authority, and violated his oath of office.

Before passing from the consideration of the proposition of the
learned senator, that this is not a court, it is fit that I should notice
that another of the counsel for the accused (Mr. Ewing) has also ad-
vanced the same opinion, certainly with more directness and candor,
and without any qualification. His statement is, "You," gentlemen,
"are no court under the Constitution." This remark of the gentle-
man cannot fail to excite surprise, when it is remembered that the
gentleman, not many months since, was a general in the service of
the country, and as such in his department in the west proclaimed
and enforced martial law by the constitution of military tribunals for
the trial of citizens not in the land or naval forces, but who were
guilty of military offences, for which he deemed them justly punish-
able before military courts, and accordingly he punished them. Is
the gentleman quite sure, when that account comes to be rendered
for these alleged unconstitutional assumptions of power, that he will
not have to answer for more of these alleged violations of the rights
of citizens by illegal arrests, convictions, and executions, than any of


the members of this court? In support of his opinion that this is no
court, the gentleman cites the 3d article of the Constitution, which
provides "that the judicial power of the United States shall be vest-
ed in one supreme court, and such inferior courts as Congress may
establish," the judges whereof "shall hold their offices during good

It is a sufficient answer to say to the gentleman, that the power of
this government to try and punish military offences by military tribu-
nals is no part of the "judicial power of the United States," under
the 3d article of the Constitution, but a power conferred by the 8th
section of the 1st article, and so it has been ruled by the Supreme Court
in Dyres vs. Hoover, 20 Howard, 78. If this power is so conferred
by the 8th section, a military court authorized by Congress, and con-
stituted as this has been, to 'try all persons for military crimes in
time of war, though not exercising "the judicial power" provided
for in the 3d article, is nevertheless a court as, constitutional as the
Supreme Court itself. The gentleman admits this to the extent of
the trial by courts-martial of persons in the military or naval ser-
vice, and by admitting it he gives up the point. There is no express
grant for any such tribunal, and the power to establish such a court,
therefore, is implied from the provisions of the 8th section,. 1st article,
that " Congress shall have power to provide and maintain a navy,"
and also ' ' to make rules for the government of the land and naval
forces." From these grants the Supreme Court infer the power to
establish courts- martial, and from the grants in the same 8th section,
as I shall notice hereafter, that " Congress shall have power to de-
clare war," and "to pass all laws necessary and proper to carry this
and all other powers into effect," it is necessarily implied that in
time of war Congress may authorize military commissions, to try all
crimes committed in aid of the public enemy, as such tribunals are
necessary to give effect to the power to make war and suppress insur-

Inasmuch as the gentleman (Gen. Ewing,) for whom, personally, I
have a high regard as the military commander of a western depart-
ment, made a liberal exercise, under the order of the Commauder-
in-Chief of the army, of this power to arrest and try military of-
fenders not in the land or naval forces of the United States, and
inflicted upon them, as I am informed, the extreme penalty of the
law, by virtue of his military jurisdiction, I wish to know whether he
proposes, by his proclamation of the personal responsibility awaiting
all such usurpations of judicial authority, that he himself shall be

subjected to the same stern judgment which he invokes against
others that, in short, he shall be drawn and quartered for inflicting
the extreme penalties of the law upon citizens of the United States
in violation of the Constitution and laws of his country ? I trust that
his error of judgment in pronouncing this military jurisdiction a usur-
pation and violation of the Constitution may not rise up in judgment
to condemn him, and that he may never be subjected to pains and
penalties for having done his duty heretofore in exercising this right-
ful authority, and in bringing to judgment those who conspired
against the lives and liberties of the people.

Here I might leave this question, committing it to the charitable

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Online LibraryJohn Armor BinghamTrial of the conspirators, for the assassination of President Lincoln, &c. : argument of John A. Bingham, special judge advocate, in reply to the arguments of the several counsel for Mary E. Surratt, David E. Herold, Lewis Payne, George A. Atzerodt, Michael O'Laughlin, Samuel A. Mudd, Edward Spangle → online text (page 1 of 14)
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