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John Armor Bingham.

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 6 of 14)
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period, within that part of the United Kingdom of England and Ire-
land called Ireland at or on the day the act shall receive her Majesty's
roval assent, or after, by warrant for high treason or treasonable
practices, or suspicion of high treason or treasonable practices, signed
by the lord lieutenant, or other chief governor or governors of Ire-
laud for the time being, or his or their chief secretary, for such causes
as aforesaid, may be detained in safe custody without bail or main
prize, until the first day of March, 1849; and that no judge or justice
shall bail or try any such person or persons so committed, without
order from her Majesty's privy council, until the said first day of
March, 1849, any law or statute to the contrary notwithstanding.
The 2d section of this act provides that, in cases where any persons
have been, before the passing of the act, arrested, committed, or de-
tained for such cause by warrant or warrants signed by the officers
aforesaid, or either of them, it may be lawful for the person or per-
sons to \vhom such warrants have been or shall be directed, to detain
such person, or persons in his or their custody in any place whatever
in Ireland; and that such person or persons to whom such warrants
have been or shall be directed shall be deemed and taken, to all in-
tents and purposes, lawfully authorized to take into safe custody and
be the lawful jailers and keepers of such persons so arrested, com-
mitted, or detained.

Here the power of arrest is given by the act of Parliament to the
governor or his secretary; the process of the civil courts was wholly
suspended; bail was denied and the parties imprisoned, and this not
by process of the courts, but by warrant of a chief governor or his
secretary; not for crimes charged to have been committed, but for be-
ing suspected of treasonable practices. Magna charta it seems op-
poses no restraint, notwithstanding the parade that is made about it
in this argument, upon the power of the Parliament of England to
legalise arrests and imprisonments made before the passage of the
act upon an executive order.and without colorable authority of statute
law, and to authorize like arrests and imprisonments of so many of
six million of people as such executive officers might suspect of trea-
sonable practices.



49

But, says the gentleman, whatever may be the precedents, English
or American, whatever may be the provisions of the Constitution,
whatever may be the legislation of Congress, whatever may be the
proclamations and orders of the President as commander-in-chief, it is a
usurpation and a tyranny in time of rebellion and civil war to subject
any citizen to trial for any crime before military tribunals, save such
citizens as are in the land or naval forces, and against this usurpa-
tion, which he asks this court to rebuke by solemn decision, he appeals
to public opinion. I trust that I set as high value upon enlightened
public opinion as any man. I recognize it' as the reserved power of
the people which creates and dissolves armies, which creates and
dissolves legislative assemblies, which enacts and repeals fundamental
laws, the better to provide for personal security by the due adminis-
tration of justice. To that public opinion upon this very question of
the usurpation of authority, of unlawful arrests, and unlawful im-
prisonments, and unlawful trials, condemnations, and executions t/y
the late President of the United States, an appeal has already
been taken. On this very issue the President was -tried before
the tribunal of the people, that great. nation of freemen who cover
this continent, looking out upon Europe from their eastern and upon
Asia from their western homes. That people came to the consideration
of this issue not unmindful of the fact that the first struggle for the
establishment of our nationality could not have been, and was not, suc-
cessfully prosecuted without the proclamation and enforce/ment of
martial law, declaring, as we have seen, that any inhabitant who,
during that war, should kill any loyal citizen, or enter into any. com-
bination for that purpose, should, upon trial and conviction before a
military tribunal, be sentenced as an assassin, traitor, or spy, and
should suffer death, and that in this last struggle for the maintenance
of American nationality the President but followed the example of
the illustrious Father of his Country. Upon that issue the people
passed judgment on the 8th day of last November, and declared that
the charge of usurpation was false.

From this decision of the people there lies no appeal on this earth.
Who can rightfully challenge the authority of the American people
to decide such questions for themselves? The voice of the people,
thus solemnly proclaimed, by, the omnipotence of the ballot, in favor
of the righteous order of their murdered President, issued by him
for the common defence, for the preservation of the Constitution, and
for the enforcement of the laws of the Union, ought to be accepted,
and will be accepted, I trust, by all just men, as the voice of God. j

4B



50



MAT IT PLEASE THE COURT: I have said thus much touching the right
of the people, under their Constitution, in time of civil war and re-
bellion, to proclaim through their Executive, with the sanction and
approval of their Congress, martial law, and enforce the same according
to the usage of nations.

I submit that it has been shown that, by the letter and spirit
of the Constitution, as well as by its contemporaneous construction,
followed and approved by every department of the government, this
right is in the people ; that it is inseparable from the condition of
war, whether civil or foreign, and absolutely essential to its vigorous
and successful prosecution ; that according to the highest authority
upon constitutional law, the proclamation and enforcement of martial
law are "usual tinder all governments in time of rebellion;" that our
own ] ighest judicial tribunal has declared this, and solemnly ruled
iuat the question of the necessity for its exercise rests exclusively
with Congress and the President ; and that the decision of the politi-
cal departments of the government, that there is an armed rebellion
and a necessity for the employment of military force and martial law
in its suppression, concludes the judiciary.

In submitting what I have said in support of the jurisdiction of this
honorable court, and of its constitutional power to hear and determine
this issue, I have uttered my own convictions ; and for their utter-
ance in defence of my country, and its right to employ all the means
necessary for the common defence against armed rebellion and secret
treasonable conspiracy in aid of such rebellion, I shall neither ask
pardon nor offer apology. I find no words with which more fitly to
conclude all I have to say upon the question of the jurisdiction and
constitutional authority of this court than those employed by the
illustrious Lord Brougham to the House of Peers in support of the
bill before referred to, which empowered the lord lieutenant of
Ireland, and his deputies, to apprehend and detain, for the period of
seven months or more, all such persons within that island as they
shpuld suspect of conspiracy against her Majesty's person and govern-
ment. Said that illustrious man : "A friend of liberty I have lived,
and such will I die ; nor care I how soon the latter event may
happen, if I cannot be a friend of liberty without being a friend of
traitors at the same time a protector of criminals of the deepest
dye an accomplice of foul rebellion and of its concomitant, civil
war, with all its atrocities and all its fearful consequences." (Han-
sard's Debates, 3d series, vol. 100, p. 635.)



51



MAY IT PLEASE THE COURT : It only remains for me to sum up the
evidence, and present my views of the law arising upon the facts in
the case on trial. The questions of fact involved in the issue are :

First, did the accused, or any two of them, confederate and con-
spire together as charged ? and

Second, did the accused, or any of them, in pursuance of such con-
spiracy, and with the intent alleged, commit either or all of the sev-
eral acts specified ?

If the conspiracy be established, as laid, it results that whatever was
said or done by either of the parties thereto, in the furtherance or exe-
cution of the common design, is the declaration or act of all the other
parties to the conspiracy; and this, whether the other parties, at the
time such words were uttered or such acts done by their confederates,
were present or absent here, within the intrenched lines of your
capital, or crouching behind the intrenched lines of Richmond, or
awaiting the results of their murderous plot against their country, its
Constitution arid laws, across the border, under the shelter of the
British flag.

The declared and accepted rule of law in case,s of conspiracy is
that

"In prosecutions for conspiracy it is an established rule that
where several persons are proved to have combined together for the
same illegal purpose, any act done by one of the party, in pursuance
of the original concerted plan, and in reference to the common object,
is, in the contemplation of law as well as in sound reason, the act of
the whole party; and, therefore, the proof of the act will be evidence
against any of the others, who were engaged in the same general
conspiracy, without regard to the question whether the prisoner is
proved to have been concerned in the particular transaction."
(Phillips on Evidence, p. 210.)

The same rule obtains in cases of treason: "If several persons
agree to levy war, some in one place and some in another, and one
party do actually appear in arms, this is a levying of war by all,
as well those who were not in arms as those who were, if it were
done in pursuance of the original concert, for those who made the
attempt were emboldened by the confidence inspired by the general
concert, and therefore these particular acts are in justice imputable
to all the rest." (I East., Pleas of the Crown, p. 97; Roscoe, 84.)

In Ex parte Bollman and Swartwout, 4 Cranch, 126, Marshall, Chief
Justice, rules: "If war be actually levied that is, if a body of men be



52

actually assembled, for the purpose of effecting, by force, a treasonable
purpose, all those who perform any part, however minute, or hoivever
remote from the scene of action, and who are actually leagued in the
general conspiracy, are to be considered as traitors."

In United States vs. Cole et al, 5 McLean, 601, Mr. Justice McLean
says: "A conspiracy is rarely, if ever, proved by positive testimony.
When a crime of high magnitude is about to be perpetrated by a
combination of individuals, they do not act openly but covertly and se-
cretly. The purpose formed is known only to those who enter into
it. Unless one of the original conspirators betray his companions
and give evidence against them, their guilt can be proved only by cir-
cumstantial evidence. * * It is said by some writers on evidence
that such circumstances are stronger than positive proof. A witness
swearing positively, it is said, may misapprehend the facts or swear
falsely, but that circumstances cannot lie.

"The common design is the essence of the charge ; and this may
be made to appear when the defendants steadily pursue the same
object, whether acting separately or together, by common or differ-
ent means, all leading to the same unlawful result. And where
prima facie evidence has been given of a combination, the acts or con-
fessions of one are evidence against all. * * It is reasonable that
where a body of men assume the attribute of individuality, whethei
for commercial business or for the commission of a crime, that the
association should be bound by the acts of one of its members, in
carrying out the design."

It is a rule of the lasv, not to be overlooked in this connexion, that
the conspiracy or agreement of the parties, or some of them, to act
in concert to accomplish the unlawful act charged, may be established
either by direct evidence of a meeting or consultation for the illegal
purpose charged, or more usually,- from the very nature of the case,
by circumstantial evidence. (2 Starkie, 232.)

Lord Mansfield ruled that it was not necessary to prove the actual
fact of a conspiracy, but that it might be collected from collateral
circumstances. (Parson's Case, 1 W. Bkckstone, 392.)

"If," says a great authority on the law of evidence, " on a charge
of conspiracy, it appear that two persons by their acts are pursuing
the same object, and often by the same means, or one performing
part of the act, and the other completing it, for the attainment of the
same object, the jury may draw the conclusion there is a conspiracy.
If a conspiracy be formed, and a person join in it afterwards, he is
equally guilty with the original conspirators." (Roscoe, 415.)



53



"The rule of the admissibility of the acts and declarations of any one
of the conspirators, said or done in furtherance of the common de-
sign, applies in cases as well where only part of the conspirators are
indicted, or upon trial, as where all are indicted and upon trial.
Thus, upon an indictment for murder, if it appear that others, together
with the prisoner, conspired to commit the crime, the act of one,
done in pursuance of that intention, will be evidence against the
rest." (2d Starkie, 237.)

They are all alike guilty as principals. (Commonwealth vs. Knapp,
9 Pickering, 496.; 10 Pickering, 477; 6 Term Reports, 528; 11 East.,
584.)

What is the evidence, direct and circumstantial, that the accused,
or either of them, together with John H. Surratt, John "Wilkes Booth,
Jefferson Davis, George N. Sanders, Beverley Tucker, Jacob Thomp-
son, William C. Cleary, Clement C. Clay, George Harper, and
.George Young, did Combine, confederate, and -conspire, in aid of the
existing rebellion, as charged, to kill and murder, within the military
department of Washington, and within the fortified and intrenched
lines thereof, Abraham Lincoln, late, and, at the time of the- said
combining, confederating, and conspiring, President of 1 the United
States of America and commander-in-chief of the army and navy
thereof; Andrew Johnson, Vice President of the United States;
William H. Seward, Secretary of State of 'the United States; and
Ulysses S. Grant, lieutenant general of the armies thereof, and then
in command, under the direction of the President?

The time, as laid in the charge and specification^ when this con-
spiracy was entered into, is immaterial, so that it appear by the evi-
.dence that the criminal combination and agreement were formed be-
fore the commission of the acts alleged. That Jefferson 'Davis, one
of the conspirators named, was the acknowledged chief and leader of
the existing rebellion against the government of the United States,
and that Jacob Thompson, George N. Sanders, Clement C. Clay,
Beverley Tucker, and others named in the specification, were his duly
accredited and authorized agents to act in the interests of said rebel-
lion, are facts established by the testimony in this case beyond all
question. That Davis, as the leader of said rebellion, gave to those
agents, then in Canada, commissions in blank, bearing the official
signature of his war minister, James A. Seddon, to be by them filled
up and delivered to such agents as they might employ to act in the
interests of the rebellion within the United States, and intended to
be a cover and protection for any crimes they might therein commit



54

in the service of the rebellion, is also a fact established here, and
which no man can gainsay. Who doubts that Kennedy, whose
confession, made in view of immediate death, as proved here,
was commissioned by those accredited agents of Davis to burn
the city of New York? that he was to have attempted it on
the night of the presidential election, and that he did, in com-
bination with his confederates, set fire to four hotels in the
city of New York on the night of the 25th of November last?
Who doubts "that, in like manner, in the interests of the rebellion
and bv the authority of Davis, these his agents also commissioned
Bennett H. Young to commit arson, robbery, and the murder of un-
armed citizens, in St. Albans, Vermont? Who doubts, upon the
testimony shown, that Davis, by his agents, deliberately adopted the
system of starvation for the murder of our captive soldiers in his
hands ; or that, as shown by the testimony, he sanctioned the burn-
ing of hospitals and steamboats, the property of private persons,
and paid therefor from his stolen treasure the sum of thirty-five
thousand dollars in gold? By the evidence of Joseph Godfrey Hyams
it is proved that Thompson the agent of Jefferson Davis paid him
money for the service he rendered in the infamous and fiendish pro-
ject of importing pestilence into our camps and cities to destroy the
lives of citizens and soldiers alike, and into the house of the Presi-
dent for the purpose of destroying his life. It may be said, and
doubtless will be said, by the pensioned advocates of this rebellion,
that Hyams, being infamous, is not to be believed. It is admitted
that ho is infamous, as it must be conceded that any man is infamous
who either participates in such a crime or attempts in anywise to
extenuate it. But it will be observed that Hyams is supported by.
the testimony of Mr. Sanford Conover, who heard Blackburn and the
other rebel agents in Canada speak of this infernal project, and by
the testimony of Mr. Wall, the well-known auctioneer of this city,
whose character is unquestioned, that he received this importation of
pestilence, (of course without any knowledge of the purpose,) and
that Hyams consigned the goods to him in the name of J. W. Harris
a fact in itself an acknowledgment of guilt ; and that he received
afterwards a letter from Harris, dated Toronto, Canada West, Decem-
ber 1, 1864, wherein Harris stated that he had not been able to
come to the States since his return to Canada, and asked for an
account of the sale. He identifies the Godfrey Joseph Hyams
who testified in court as the J. W. Harris who imported the pes-
tilence. The very transaction shows that Hyams' s statement is



55

truthful. He gives the names of the parties connected with this
infamy, (Clement C. Clay, Dr. Blackburn, Rev. Dr. Stuart Robin-
son, J. C. Holcombe all refugees from the confederacy in Canada,)
and states that he gave Thompson a receipt for the fifty dollars paid
to him, and that he was by occupation a shoemaker ; in none of which
facts is there an attempt to discredit him. It is not probable that a
man in his position in life would be able to buy five trunks of cloth-
ing, ship them 'all the way from Halifax to Washington, and then
order them to be sold at auction, without regard to price, solely upon
his own account. It is a matter of notoriety that a part of his state-
ment is verified by the results at Newbern, North Carolina, to
which point, he says, a portion of the infected goods were shipped,
through a sutler ; the result of which was, that nearly two thousand
citizens and soldiers died there about that time with the yellow fever.
That the rebel chief, Jefferson Davis, san-ctioned these crimes,
committed and attempted through the instrumentality of his accred-
ited agents in Canada Thompson, Clay, Tucker, Sanders, CleaVy,
&c. upon the persons and property of the people of the north, there
is positive proof on your record. The letter brought from Richmond,
and taken from the archives of his late pretended government there,
dated February 11, 1865, and addressed to him by a late rebel sena-
tor from Texas, W. S. Oldham, contains the following significant
words : "When senator Johnson, of Missouri, and myself waited on
you a few days since, in relation to the project of annoying and har-
assing the enemy by means of burning their shipping, towns, &c.,
<fcc., there were several remarks made by you upon the subject,
which I was not fully prepared to answer, but which, upon sub-
sequent conference with parties proposing the enterprise, I find
cannot apply as objections to the scheme. First, the 'combusti-
ble materials' consist of several preparations, and not one alone,
and can be used without exposing the party using them to the
least danger of detection whatever. * * * Second, there is no
necessity for sending persons in the military service into the enemy's
country, but the work may be done by agents. * * * I have
seen enough of the effects that can be produced to satisfy me that
in most cases, without any danger to the parties engaged, and in
others but very slight, we can, first, burn every vessel that leaves a
foreign port for the United States ; second, we can burri every trans-
port that leaves the harbor of New York, or other northern port,
with supplies for the armies of the enemy in the south ; third,
burn every transport and gunboat on the Mississippi river, as well



56

as devastate the country of the enemy, and fill his people with ter-i
ror and consternation. * * * For the purpose of satisfying your
mind upon the subject, I respectfully, but earnestly, request that you
will give an interview with General Harris, formerly a member of
Congress from Missouri, who, I think, is able, from conclusive proofs,
to convince you that what I have suggested is perfectly feasible and

practicable."

No one can doubt, from the tenor of this letter, that the rebol Davis
only wanted to be satisfied that this system of arson and murder
could be carried on by his agents in the north successfully and with-
out detection. With him it was not a crime to do these acts, but
only a crime to be. detected in them. But Davis, by his indorsement
on this letter, dated the 20th of February, 18G5. bears witness to
his own complicity and his own infamy in this proposed work of de-
struction and crime for the future, as well as to his complicity in
what had before been attempted without complete success. Ken-
nedy, with his conlederates, had failed to burn the city of New York.
"The combustibles" which Kennedy had employed were, it seems,
defective. This was "a difficulty to be overcome." Neither had
he been able to consummate the dreadful work without subjecting
himself to detection. This was another "difficulty to be overcome."
Davis, on the 20tli of February, 18G5, indorsed upon this letter these
words : "Secretary of State, at his convenience, see General Harris
and learn what plan he has for overcoming the difficulties heretofore ex-
perienced. J. U."

This indorsement is unquestionably proved to be the handwriting
of Jefferson Davis, and it bears witness on its face that the monstrous
proposition met his approval, and that he desired his rebel Secretary
of State, Benjamin, to see General Harris and learn how to over-
come the d'jfivulty heretofore experienced, to wit : the inefficiency of
"the combustible materials" that had been employed, and the lia-
bility of his agents to detection. After this, who will doubt that he
had endeavored, by the hand of incendiaries, to destroy by fire the
property and lives of the people of the north, and thereby "fill them
with terror and consternation;" that he knew his agents had been
unsuccessful ; that he knew his agents had been detected in their
villany and punished for their crime ; that he desired through a more
perfect "chemical preparation," by the science and skill of Professor
McCulloch, to accomplish successfully what had before been unsuc-
cessfully attempted?

The intercepted letter of his agent, Clement C. Clay, dated St.



57

Catherine's, Canada "West, November 1, 1864, is an acknowledgment
and confession of what they had attempted, and a suggestion made
through J. P. Benjamin, rebel Secretary of State, of what remained
to be done, in order to make the "chemical preparations" efficient.
Speaking of this Bennett II. Young, he says : "You have doubtless
learned through the press of the United States of the raid on St; Albans
by about twenty-five confederate soldiers, led by Lieutenant Bennett H.
Young; of their attempt and failure to burn the town; of their robbery
of three banks there of the aggregate amount of about two hundred
thousand dollars ; of their arrest in Canada, by United States forces ; of
their commitment and the pending preliminary trial." He makes ap-
plication, in aid of Young and his associates, for additional documents,
showing that they acted upon the authority of the Confederate States
government, taking care to say, however, that he held such authority at


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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 6 of 14)
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