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BOGARAD, Allen Boyd, 1935 — A RHETORICAL ANALYSIS OF THE SPEAKING OF JOHN A. BINGHAM WITH EMPHASIS ON HIS ROLE IN THE TRIAL OF THE LINCOLN CONSPIRATORS.

The Ohio State University, Ph. B., 1963 Speech, theater

University Microfilms, Inc., Ann Arbor, Michigan A RHETORICAL ANALYSIS OF THE SPEAKING OF JOHN A. BINGHAM

WITH EMPHASIS ON HIS ROLE IN THE TRIAL

OF THE LINCOLN CONSPIRATORS

DISSERTATION

Presented in Partial Fulfillment of the Requirements for the Degree Doctor of Philosophy in the Graduate School of The Ohio State University

By

Allen Boyd Bogarad, B, A,, M. A,

The Ohio State University 1963

Approved by

Adviser Department of Speech ACKNOWLEDGMENTS

I wish to express my indebtedness to those who helped make this work possible: to Dr. Paul A. Carmack whose advice, encouragement, an.d patience were never ceasing; to Dr. Franklin Knower and Dr. Keith Brooks who read the manuscript; to Milton Ronsheim of the Cadiz

Republican for the use of Bingham’s papers; to many librarians, lawyers, and my colleagues for their assistance and criticism; to my infant son, Leonard, who remained unruffled by his father's frenetic activity; and most important, to my wife, Carley,

11 TABLE OP CONTENTS

Page

ACKNOWLEDGMENTS...... 11

INTRODUCTION . . , ...... 1

Chapter I. THE DEVELOPMENT OF A S P E A K E R ...... 3

Franklin College Orator Courtroom and Campaign Speaker Congressional Debater Basis for Successful Speaking Speech Philosophy

II. THE TRIAL BEGINS ...... 27

A Murder Is Investigated Judges on The Bench Obstacles for The Accused Bingham Debates Ben Butler Duties of The Judge Advocate

III. CROSS-EXAMINATION AND D E B A T E ...... 61

The Charge against The Prisoners The Sophistry Continues Floating Evidence Advantages Protected Bingham and Ewing Clash

IV. THE SPEECH: ON JUR I S D I C T I O N...... 95

Audience Attitude and Courtroom Atmosphere The Legality of The Court Is Challenged Bingham Answers Johnson and Ewing Ex Parte Milligan

V. THE SPEECH: ON CONSPIRACY ...... 12?

Bingham Clouds The Issue Arguments against The Accused

111 iv

Chapter Page VI. RHETORICAL CONSIDERATIONS SU]!5MARIZED .... 17%.

Hunting Ground for False Enthymemes Pathos and The Prosecutor BÏnghâni’s Use of Language Ethical Appeals and The Advocate's Character In Perspective

VII. CONCLUSIONS ...... 206

BIBLIOGRAPHY ...... 209

AUTOBIOGRAPHY...... 21? INTRODUCTION

In his book. Oratory- Sacred and Secular, or The

Extemporaneous Speaker, William Pittenger selected John A.

Bingham of Cadiz, Ohio as the finest specimen of the extem­

poraneous speaker of that generation,^ Bingham’s reputation

as a dynamic orator was, in that era, as well-known as is

his name forgotten in this one. The mention of John A,

Bingham brings--at best— only faint recognition from the 2 most serious scholars of American Public Address,

Chosen as chief manager in the impeachment proceed­

ings of Johnson, Special Judge Advocate in the trial of

Lincoln’s assassins, architect of the Fourteenth Amendment,

Minister to Japan for twelve years. Congressman for eighteen

years, today Bingham is relatively unknown. The lessons of

his speaking and philosophy of speech, however, are too

important to go unnoticed. He was a speaker, just that,

and one whose sense of values chased relentlessly, but

unsuccessfully his too quick tongue,

^William Pittenger, Oratory Sacred and Secular, or The Extemporaneous Speaker (New York: IbbB), p, 159, P Earl W, Wiley, an exception, in his paper "State History and Rhetorical Research" on page five does speak of Bingham's uncanny skill in running debate and in extempora­ neous speaking and gives note to Bingham's "closing argu­ ments in the prosecution of the assassins of Lincoln and in the impeachment proceedings against Johnson," The purpose of this study, then,is to examine the speaking of John A. Bingham. To this end, primary emphasis will be placed upon his role in the trial of the Lincoln

’’assassins.” This trial was crucial to his political life.

More important, however, for the rhetorical critic, it provides the basis for understanding Bingham’s methods and evaluating his entire speaking career. CHAPTER I

THE DEVELOPMENT OF A SPEAKER

Franklin College Orator

Born in Mercer, Pennsylvania in l8l^, reared in

Cadiz, Ohio in the home of his uncle, schooled in Cadiz and later at the Mercer Academy, Bingham received his rhetorical training at Franklin College in New Athens, Ohio, A cata­ logue from this institution shows the curriculum at that time was steeped heavily in the then popular classical edu­ cation.^ In his freshmen year, Bingham studied Virgil and

Horace, Cicero's select orations, English Grammar, Roman

Antiquities, Ancient Geography, Greek Grammar, Arithmetic

Revised and Algebra as far as Quadratics, His schedule for the sophomore year contained the Greek New Testament,

Graeca Minora, Neilson's Greek Exercises, Jamison's Elements of Rhetoric, Graeca Majora, Grecian Antiquities, and Alge­ bra, His familiarity with the classical rhetorics, the heavy influence on style, and a continued curriculum which - was to include Blair and Campbell taught him to respect classical education generally and rhetorical theory specifi­ cally,

^Franklin College Bulletin. I8 3 8 , The Ohio State Historical and Archaeological Society Museum, It was not only from his more formal studies at

Franklin, however, that he was to come to know and under­ stand the concepts of Platonic and Aristotelian rhetoric,

Cicero and his contemporaries, and Quintilian; for the school, in keeping with the times, maintained two highly competitive and excellent literary societies. W, G,- Shot- well, an acquaintance of Bingham in later life, described the college, its oratorical training, and literary societies in his delightful book. Driftwood;

Franklin College, where he received all the oratorical education he ever had was a small college, perhaps never, during those years, able to number a hundred students in its enrollment, with usually no more than four in its faculty or board of instructors. But the instruction was thorough; and the surroundings were good. It was in a highly moral community, made up of Scotch Covenantors and Presbyterians with some Meth­ odists and a few Quakers. And the college had two ex­ cellent literary societies, between which was a strong rivalry. And as the number of members was small, all were expected and, indeed, required under the penalty of e small fine, to participate in the performances. There were classes in declamation, essay, oration, and debate; and the members of the society were divided, by a programme committee, into the different classes. So that the art of public speaking was cultivated assiduously, in the societies, as Latin and Greek, in the College, and perhaps even more successfully. Visi­ tors were always welcome to the society meetings and were encouraged to come, so that there was usually a well-filled hall. And there was a public performance given at the end of the first College term of the year, the societies annually alternating in this, and, of course, putting forward their best members. At the end of the second term, there was a public contest between the two societies, in which each was represented on all the four classes,— declamation, essay, oration, and de­ bate. While at the end of the third and last term of the year there was the Commencement. As the number of graduates was usually small, the societies were asked to fill up the commencement programme so that each term closed with an oratorical exhibition; and thus the students had ample opportunities for the cultivation and exhibition of their talent for public speaking. It was, indeed, a rare opportunity for a young man, like Bingham, of natural parts; and he was careful to improve it.

Courtroom and Campaign Speaker

Bingham’s academic career ended in 1837 "owing to ill-health."3 He began the study of law, taught school in

Pennsylvania briefly, and returned to Cadiz to be admitted to the bar. His uncle was associate judge in the county; and the bar could boast of such men as Beebe, Dewey, Shot- well, and Estep. Also popular in Harrison and Jefferson county judicial proceedings at the time was Edwin M. Stan­ ton. There developed between Stanton and Bingham a friendly rivalry and an association which lasted even through the great debates of Reconstruction, but which, for now, found fruition in the Harrison campaign of l6ij.O. The two had a political debate at Wintersville which "broke up in a row.

It was renewed again at nearby TJnionport. Of course, the outcome was unsatisfactory, "each man claiming the victo­ ry. "5

Bingham himself gave an account of this meeting some years later:

A committee of three on each side arranged the preliminaries, and the debate was held at Mintersvllle,

G. Shotwell, Driftwood, Being Papers on. Old-Time American Towns and Some Old People (New York: 19^7)* ' pp: ^ 3lbid.. p. 179.

^Ibid., p. I8l.

^Ibid. before an immense crowd, in a grove. I charged Van Buren, Stanton’s candidate, with having violated the U.S. Constitution, Almost everything was reduced to a Constitutional question in those days. I read from a pocket edition I carried, the article violated. Stanton had an hour to open; and I followed for an hour and a half; and then he closed in half an hour. He used a ponderous volume of State Papers, having a copy of the Constitution on the back of it. And he read his copy, denouncing mine as spurious. But he skipped a line in reading it; and when he closed I had no right to reply. But I was mad and I got on a chair on the platform and charged him with skipping the line and challenged him to another debate. He said he had to go to Virginia, just across the river, on business on the day I mentioned and could not meet me then. And so the meeting broke up in a row. The challenge, however, was renewed, I think, through the papers; and Stanton accepted then; and we debated once more, this time in Bloomfield, in a grove, and before another large crowd.o

These two rivals were pitted against each other on other occasions also. They met at a murder trial in Steu­ benville, Ohio. Bingham had been selected to assist in the prosecution; Stanton, on the other hand, represented the de­ fendant. "Bingham had a well-established reputation even in this neighborhood for eloquence."^ He was more popular than

Stanton and was expected to have influence on the jury. Na­ turally, Stanton knew this; therefore when time came for the argument, Stanton waived his right to speak for his client and, therefore, deprived Bingham of the right to answer ac­ cording to law. "He thus cut Bingham out of all part in the closing scene,--indeed, the very part for which he had been

Gibld., p. 82.

?Ibid. specially employed. But Bingham took it all good-humoredly Û and laughed when he recalled it."

There are certain significant elements in the pre­ ceding account. First, Bingham was employed for the trial primarily ta deliver the summation. Although the selection

of a special prosecutor was a somewhat common practice,

Bingham was uncommonly adept at it. His powerful delivery, his grasp of materials, and his ability to summarize led

S., P. Short to write to Bingham on May 2ij., 1851 for assist­ ance in prosecuting an attempted rape: "I must have your

services at any cost."^

Second, Stanton, no mean speaker in his own right, respected Bingham's skill in oratory--so much that he chose not to sum up for his client in order to prevent Bingham's

speaking. Indeed, his fame grew as the prosecution's pro­ vider of peroration. This was his role both in the trial of

"Lincoln’s assassins" and in the impeachment of Andrew

Johnson,

Yet, Bingham’s skill was not only of concern to his

opponents in the courtroom. During the "Log Cabin and Hard

Cider" campaign of 1014.0 , he spoke frequently in the sur­ rounding counties and in Wheeling, Virginia. His impact on his auditors was recognized by the Democrats and disturbed

them so much that a correspondent of Stanton felt it impor­ tant to write him in July asking that he come to Bloomfield

&Ibid.

9Bingham Papers, Cadiz, Ohio. on the following Saturday, even though Stanton was pre­ viously engaged. The Whigs, in order to capture the Demo­ cratic audience, were sending Bingham there to speak,

Here, then, was the young Bingham— too effective to be permitted to speak unchallenged. "His aim was to build up a party and assist in shaping its policy, , , He wished to convert others to his way of thinking; and in this he was noticeably successful,

Bingham was active in local politics and in estab­ lishing his law practice in the following years, Riggs gave this picture of Bingham’s activities:

In the morning the work of building a log cabin, the symbol that Whigs used in this year to demonstrate the homely virtues of their presidential candidate, was begun. After the noonday meal, it , , , started to

Russell Riggs, "The Ante-Bellum Career of John A, Bingham: a Case Study in the coming of the Civil War" (unpublished Ph,D, dissertation. Dept, of History, Hew York University, 19^9), p. 214-, llghotwell, op, cit,, p. I8i|., Shotwell gave further testimony of the importance of speech in Bingham’s political success when he commented that: "There is no way to public office so certain and, at the same time, so honourable, as by cultivating the art of public speaking. It assembles the electors of a neighborhood and brings the speaker before them. If they like him they will vote for him. There is an instinctive feeling that they owe him something, for his entertainment and his long trips, perhaps at night and over bad roads, to their meetings. It is his business to please as well as convince. And by both he makes friends. The periodic return of the campaign keeps first impressions alive and strengthens them. If he becomes a candidate, even though not nominated at first, he usually has the means of adding to the list of his friends, in subsequent campaigns. From year to year they naturally increase in numbers and in interest; and so success generally crowns his efforts. This was the secret of Bingham’s success. He was an acceptable public speaker from the start and grew in popularity and in power as the years went by; and public office naturally followed," rain, so the meeting was moved to the courthouse where, among others, "Mr. John Bingham of Pennsylvania" ad­ dressed the people in "eloquent strains." The rain subsided, the work of the building was completed, and after the Whig enthusiasts had entered the cabin, they "were entertained again by an excellent speech from Mr. Bingham." % About a week after this occasion, Bingham and Josiah Scott, his partner, debated Democrats in Deersville. The Whig papers insisted that the two trounced the Democrats. When

the Democratic chairman wanted to end the debate, the crowd demanded to hear more; and Bingham spoke again.

On July 29» 18^2, he was Whig speaker in a debate on tariff with Thomas L, Jewett. They were to speak on alter­ nate hours from ten in the morning until five o ’clock with only a recess for lunch. The debate was not completed, how­

ever, because Jewett refused to talk, contending that Bing­ ham had not spoken to the point. At this time, Bingham arose and spoke for another hour,^^ Obviously, he was cap­ able of speaking for long periods of time.

Moreover, he must have been an effective campaigner, for the Democrats found it necessary to describe him as a

"reputed and notorious blackguard.He was a delegate to the Whig National Convention in l8ij.8 and spoke at the Ohio

Whig ratification meeting on the Fourth of July, Later, his strong anti-slavery feelings would cause him to leave

^%iggs, op. cit.. p. 20.

l^Cadiz Organ. June 11, 18^D.

^ a d i z Republican. July 28, l8if2..

^^Cadiz Sentinel. September 18, l 8 )|)[, 10

the party. In the meantime, however, he "took to the stump"

for Taylor,

The Daily Ohio State Journal recorded in I850 that

Bingham spoke for solidarity of the Union and against expan­

sion of slave territories "in a most eloquent and feeling manner" and "was frequently cheered.He stumped for

Salmon P. Chase in August, September, and October of l85^ 17 and crowds "cheered him with enthusiasm." Indeed, Bing­ ham’s skill in campaign speaking made him an asset to the

Republicans and to himself.He was nominated in 1854 by

his party and sent to Congress by his constituency for the

term commencing in March of the following year. His long

years in the courtroom and on the stump had readied him for

his reward— Washington,

Congressional Debater

After election to the House, Bingham’s reputation

tookvon national proportions. His first major speech in

Congress concerned the status under which Kansas would be 19 admitted to the Union, It was, in part, quite effective

18 The Daily Ohio State Journal, November 21, 1850. 17 See Cadiz Republican for the above mentioned months.

^^Not all the reports on Bingham were favorable. Newspapers of the opposition Democratic Party were not at all kind to him. For example. The American Union, August 21, 1 8 5 1 , called him "a worm, a bitter, an unscrupu- lous politician, [who] is famed for nothing but abuse of Democrats." 19 U.S., Congressional Globe, 34 Congress, 1 session. Appendix, pp. 122-25* ~ 11 20 and was acknowledged so by newspapers across the nation.

His place, as one of the valuable young men of the party, was firmly established by his vitriolic speech against the attack on Sumner by Brooks. Joshua Giddings wrote to Chase on January lij., 1857 that the oration made by Bingham on the

President's State of the Union Message was the best ever de- 21 livered in "our body on the subject." Greeley's New York

Daily Tribune said that the speech "was in every sense a most masterly exposition of the whole subject . . . Qing- hai^ has justly taken rank as one of the ablest debaters in the body, and is destined to attain an enviable reputation 22 for statesmanship."

Early the next year Bingham spoke before Congress on the Lecompton Constitution proposed for Kansas. The

National Era called the address "bold and able. The

Ashtabula Sentinel said that "it fully sustained the reputa­ tion which [singhai^ had previously acquired. For beauty of diction, conservativeness of thought, force of its logic . .

. it has seldom been surpassed.In 1859, he gave a

ZOgee Ashtabula Sentinel, April 13, 1856 and The National Era, April È1)., 15561 21 Riggs, op. cit., p. 2 0 3 .

^ % e w York Daily Tribune, January 16, 1857.

23u.s., Congressional Globe, 35 Congress, 1 session, pp. 399-U.O.

^^Phe National Era, January 28, 1858.

^ % h e Ashtabula Sentinel, February ]+, I858. 12 complete statement of his views of citizenship in relation to the Oregon Bill,^^ The Cadiz Republican quoted a Wash­ ington correspondent as saying: "The speech of Mr. Bingham was, in its closing portions, so eloquent that every eye in the vast hall was riveted to the Speaker and the hammer fell amid a silence so complete that you could have heard the 27 rustling of a paper in the Hall,”

In August of the same year he went stumping with

Wade, On one occasion, Wade "became ill; and Bingham spoke for two and a half hours "in a strain of argumentation and pQ eloquence which is very rare in our political orators,"

By this time he had long been a rabid abolitionist, and his ideas on the subject gave rise to many of his great

speeches. The Hew York Times in January, i860 printed the following opinion: "Mr, Bingham speaks forcibly and with the heat of suppressed passions; he trots out anti-slavery quotations from Thomas Jefferson, and seems to have all the weapon extracts of Republican arguments worn smooth to his 29 hand by long use,"

Because his district was gerrymandered, Bingham was not re-elected in 1863; but he made one of his most famous

speeches on January 14 of that year. The costly victory at

^ ^ . 8 . , Congressional Globe. 35 Congress, 2 session, pp, 981-8 5 ,

^^The Cadiz Republican, February 23, 1859, Pfi Ibid,, September 7» l859,

^^New York Times, January 16, i860. 13 stone River had led certain factions in Congress to view the war effort as a complete failure and to press for peace with the South on any terms. Bingham debated Clement L.

Vallandighara of Ohio on the subject. Miller has included most of the arguments on both sides in Great Debates in

American History and has even inferred that Bingham's speech is a significant forerunner to Lincoln’s Gettysburg Ad­ dress.An excerpt of Bingham’s concluding remarks follows in order to give a concrete example of the type of public address by which Bingham gained his reputation.

I take courage from that, for the inference to be drawn, both from the spoken arguments of ray colleague CVallandigham] and his official conduct in this house, is that he would permit nobody to volunteer. The gentleman would disband your army, withhold all supplies and permit me alone to volunteer against all these rebels in arms. That is magnanimity. Talk about volunteering, sneeringly, when you, who have sworn to support the Constitution of the United States, stand by and see it torn and rent in tatters, and deny the right to maintain it by arms. When violent hands are laid upon the old flag of the Union, stained, as it is, all over with the blood of its defenders, shed by their assassins and murderers, you deny the right to uphold it, and refuse to vote supplies to your citizen soldiery, who peril all their own institutions. You talk about volunteering! My colleague said that you cannot maintain this Union or the authority of this Government, by force of arms; that you must do it by compromise; and he under­ takes to make this good by some carefully considered references to history. There is one thing in the his­ tory of the world which he has overlooked, and that is

30 Marion Miller, ed,, Great Debates in American History. VI (New York: 1913) This speech, al­ though certainly representative of Bingham’s addresses, is atypical in one respect: language. It contains more fig­ urative language than is usual for Bingham and those figures are sustained in greater depth than in other speeches. Ik this great fact, that there is not a single well- authenticated instance upon record of a great govern­ ment, assailed by internal dissensions and armed rebellion, which submitted and surrendered to the rebellion and survived— not one. Yet the gentleman would have us, in the light of that great warning, lay down our arms, disband our armies, submit to the re­ bellion for the time being, and undertake to settle this great controversy afterward in favor of republican institutions by compromise! No government can survive a base surrender of its own authority to armed rebels. The rebels in that event become the government, Mr, Speaker, I know the effect of such an appeal to the people of the country. I know that the good people of this land, who have given the first born of their homes for the defence of the Union and the Con­ stitution and the suppression of the rebellion, love their noble sons and cherish them as they do the apple of their eye. I know that after their day’s work is done, in the quiet twilight of the evening they mourn over their absence and the broken circle of their homes. I beg them to remember that, though by dis­ banding your army they may for the moment make whole again the golden circle of their homes, they may there­ by lose to themselves and their children a country. I ask them to remember that beautiful utterance, than which none more beautiful ever fell from the human lips, of one of the dying Fathers of the Republic, "I commit my spirit to God and my daughter to my country." How could he, how could any man, die in peace while leaving his child without a country and a government to shelter and protect it when he was gone? No, sir, there is something more important to be considered here to-day than the question whether this life or that life, even though it be the noblest and the most promising in the land, shall survive this war, and that question is, shall ■’he Republic live immortal among the nations, and cover with the aegis of its pro­ tection your children and mine, and all the children of this land, when we ourselves shall be no more upon the earth? Yes, sir, the great question of to-day is, shall the Republic live? Any sacrifice of blood, any present loss to us of "this intellectual being," is not too great to be made, if thereby we may maintain in­ tact that Constitution which our fathers gave us.

3^Ibid., pp. 275-76. 15 It is not surprising=-in light of the evidence of

Bingham* s success as a speaker— that he was chosen for two major roles in United States history: special prosecutor of the assassins of Lincoln and chief manager in the impeach­ ment proceedings against Andrew Johnson.

This success must be examined, therefore, in rela­ tion to his speaking ability; and his ability, in relation to his speech philosophy.

Basis for Successful Speaking

«^ohn A. Bingham was endowed with those physical qualities which nature begrudgingly gives to would-be I 32 speakers. His person was handsome; his face, square with deep-set, hollow,blue eyes, more piercing than perceptive,

A tight upper lip which gave his mouth a pouting and humor­ less expression accented a strong, challenging jaw. His cheek bones were high; his forehead, broad, leading into a predominant, straight nose* It was a strong, aristocratic, uncompromising countenance.

His clothes, however, were at times unkempt and in need of pressing. His coats were sometimes too large for him as only a man too busy or too careless of his appearance

can wear them.

32shotwell, op. cit., p. 1 8 5,

33por verification of these observations, see the picture of Bingham and other members of the Tribunal in the Lincoln trial in Theodore Roscoe’s The Web of Conspiracy (Hew Jersey: 1959); other pictures of Bingham at the time support this description. 16

Shotwell described his face as "clean-cut and sensi­ tive, that responded so quickly and naturally to the move­ ments of his raind."^'^ From all accounts, his voice was of fine quality and not without power and range. He began his

speeches in a soft and conversational tone,

thus commanding, because requiring, attention to hear him; but as he proceeded and warmed to his subject his voice increased in volume, till it rang out in clarion notes, that could be heard to the farthest corner of a ' great hall or the remotest limit of an open-air meet­ ing. 35

It was a voice "of the stump" come to maturation in the many groves from Wintersville to Bloomfield and made ready for the challenge of the Congress and the courtroom.

His gestures were free and natural, and his whole body spoke with force and seeming forthrightness. Shotwell described his manner as follows;

His speeches were always carefully conned, but not often reduced to writing. As they fell from his lips, they seemed to be the natural and spontaneous outpour­ ings of a full heart. His expression was clear and his language well chosen. His earnestness often amounted to intensity and his sarcasm was keen and cutting. His gestures were natural and graceful and to a handsome figure, always dressed in good taste, he united a graceful manner. Though he was not a wit and did not attempt to be, nevertheless his earnestness and telling hits often provoked the wildest enthusiasm in his audi­ ence. Politics to him was always serious business.^

3^Shotwell, op. cit., p. l8S.

3^Ibid., p. 1 8 4 .

3&Ibid., p. 1 8 3 . 17 This testimony is confirmed by Pittenger as he al­ most too excitedly described Bingham’s speaking;

Mr. Bingham, in speaking, is calm, clear, and pointed. His manner indicates confidence and his words flow freely. Imagination is allowed full play, and the spirit of poetry breathes everywhere. He abounds in lofty and beautiful imagery, that places the truth in the clearest light. While the subject is never lost sight of, a thousand graces and beauties cluster around it from every hand. From the elevation and certainty of his language, many casual hearers have been led to imagine that his speeches were written and committed. But the reverse is the case. Some of his highest ef­ forts have been made with no time even for the pre- arrangement of thought. This is one secret of his great success as a debater. He is always ready, with or without warning, to speak the thoughts that are in his mind. But, he prefers, of course, to have time to arrange matters in a d v a n c e . 37

At first impression, the style of John A. Bingham seems high-flown, figurative, perhaps a little too ornate.

It is quite easy to dismiss it by categorizing it as an example of the style of the times. Indeed, one has merely to read the Congressional Globe to reaffirm this judgment.

Yet, such a categorization does not permit a facile dismissal of Bingham’s style. After all, his fame as a

speaker rests not only on the content of his speeches, but also on his language and delivery. In fact, after close

37pittenger, op. cit.» p. 190. It must be kept in mind that both Shotwell and Pittenger probably show some prejudice in their opinions of Bingham. To Shotwell, the older Bingham was boyhood idol and friend. Pittenger asked and received from Bingham a letter on speech which he used as a preface for his book. And, perhaps, as repayment, he became too zealous in acclaim. Nevertheless, Pittenger se­ lected Bingham as one of America's best extemporaneous speakers and then asked for the letter - not vice-versa. 18 examination of his public addresses, one is tempted to place primary emphasis on the latter.

This problem of lofty language will be studied in detail later in this work. It is sufficient here to say that most critics find his language too flowery, A biogra­ pher of the early portion of Bingham's life judged his lan­ guage irritating for the above reasons, "It was steeped," he said, "with humorless self-righteousness that indicated that the man was not above lying to himself,

Speech Philosophy

Before further judgments on Bingham's speaking are made, it seems only fitting that he should at this time speak for himself. Too often, orators fail to gather in one place their ideas on speech; and, hence, what is often de­ veloped by the critic is little more than hypothesizing on what the man might have said had he an Inclination to exam­ ine his own thoughts.

Bingham, fortunately, wrote a letter to William

Pittenger on November 19, 18^7, In it he described briefly his ideas on presentation and language. Certainly, the pit­ falls for the critic are as manifest here as in the former system of hypothesizing;--in a sense, more so--for now the critic's task is complicated by the necessity of constant comparison of philosophy and action. This is true in the case of John A, Bingham. His letter to Pittenger reads.

3®Rigga, op, cit., p. 3^3 , 19

Dear Sir— I thank you for calling my attention to your forthcoming work on Extemporaneous Speaking. Unwritten speech is, in my judgment, the more efficient method of public speaking, because it is the natural method. The written essay, says an eminent critic of antiquity, "is not a speech, unless you choose to call epistles speeches," A cultivated man fully possessed of all the facts which relate to the subject of which he would speak, who cannot clearly express himself without first memorizing word for word his written prep­ aration, can scarcely be called a public speaker, what­ ever may be his capacity as a writer or reader. The speaker who clothes his thoughts at the moment of ut­ terance, and in the presence of his hearers, will illustrate by his speech the admirable saying of Seneca: "Pit words better than fine ones," It is not my purpose to enter upon any inquiry touching the gifts, culture and practice necessary to make a powerful and successful speaker. It is con­ cluded that in the art of public speaking, as in all other arts, there is no excellence without great labor. Neither is it the intent of the writer to suggest the possibility of speaking efficiently without the care­ ful culture of voice and manner, of intellect and heart, an exact knowledge of the subject, and a careful arrangement, with or without writing, of all the facts and statements involved in the discussion. Lord Brougham has said that a speech written before delivery is regarded as something almost ridiculous; may we not add, that a speech made without previous reflection or an accurate knowledge of the subject would be regarded as a mere tinkling cymbal, I-intend no depreciation of the elaborate written essay read for the instruction or amusement of an assembly; but claim that the essay, read, or recited from memory, is not a speech, nor can it supply the place of natural effective speech. The essay delivered is but the echo of the dead past, the speech is the utterance of the living present. The delivery of the essay is the formal act of memory, the delivery of the unwritten speech the living act of in­ tellect and heart. The difference between the two is known and felt of all men. To all this it may be an­ swered that the ancient speakers, whose fame still survives, carefully elaborated their speeches before delivery. The fact is admitted with the further state­ ment, that many of the speeches of the ancient orators never were delivered at all. Five of the seven orations of Cicero against Verres were never spoken, neither was the second Phillippic against Marc Antony, nor the re­ ported defence of Milo, We admit that the ancient speakers wrote much and practised much, and we would commend their example, in all, save a formal recital of written preparations. There is nothing in all that has 20 come to us concerning ancient oratory, which by any means that proves to be effective in speech, what is said should be first written and memorized; there is much that shows, that to enable one to express his own thoughts clearly and forcibly, reflection, culture and practice are essential. Lord Brougham, remarking on the habit of writing speeches, says: "That a speech written before delivery is something anomalous, and a speech intended to have been spoken is a kind of byword for something laughable in itself, as describing as incongruous existence," This distinguished man, in his careful consideration of this subject, says: "We can hardly assign any limits to the effects of great practise in giving^^ power of ex­ tempore composition," and notices that it is recorded of Demosthenes, that when, upon some rare occasions, he trusted to the feeling of the hour and spoke offhand, "his eloquence was more spirited and bold, and he seemed sometimes to speak from a supernatural impulse," If this be true of the great Athenian who notoriously would not, if he could avoid it, trust to the inspira­ tion of the moment and who for want of a prepared speech, we are told by Aeschines, failed before Philip--might not it be inferred that one practised in speaking, would utter his thoughts with more spirit and power when not restrained by a written preparation and fettered by its formal recital? Did not Pox often, in the Parliament, achieve the highest results of speech without previous written prep­ aration; and is it not a fact never to be questioned, that the wonderful speech of Webster in reply to Hayne was unwritten? In his admirable lecture on Eloquence, Mr, Emerson says; "eloquence that so astonishes, is only the ex­ aggeration of a talent that is universal. All men are competitors in this art, , , , A man of this talent finds himself cold in private company, and proves him­ self a heavy companion; but give him a commanding oc­ casion, and the inspiration of a great multitude, and he surprises us by new and unlooked for powers," Indeed, there is in this lecture of Mr, Emerson, in few words, much to sustain your theory. He says, "the word eloquence strictly means out-speaking; the main power, sentiment--the essential fact is heat, the heat which comes of sincerity. Speak what you know and believe, and are personally answerable for. This goes by weight and measure, like everything else in the uni­ verse, A man to be eloquent must have faith in his subject, , , » The author of power— he is the great man who always makes a divine impression, a sentiment more powerful in the heart than love of country, and gives perceptions and feelings far beyond the limits of thought. Eloquence is the power to translate a truth 21

into language perfectly intelligible to the person to whom you speak. Such a practical conversion of truth, written in God's language, is one of the most beautiful weapons forged in the shop of the Divine Artificer, God and Nature are altogether sincere, and art should be sincere." How can sincerity be fully attained in the great art of public speech, if every word to be uttered must be previously written down in the closet,^ and memorized and recited? Was not Lord Brougham right in saying a speech written before delivery is inconsis­ tent with the inspiration of the moment, and the feel­ ings under which the orator is supposed to speak? What feelings? The felt-conviction of truth of what he has to say. What inspiration? The inspiration which at the moment clothes and expresses the honest thought of appropriate words. Surely the living voice, rightly cultivated, and rightly employed, is a power in the world, and to con­ demn you for calling attention to what you believe to be the most efficient method of human speech, would be one of those decisions of ignorant arrogance which it costs no labor and needs no intellect to pronounce. Is not the man who well and truthfully speaks his own thoughts as Shakespeare and Bacon wrote, in some

^%hls objection to a closet is an interesting one in light of the following testimony of Shotwell, Op. cit, « pp, 229-30, "When he was not busy in Washington, he [Bing­ ham] was usually speaking far and wide in the campaigns of his party. As Illustrating the pressure upon him; in the attic of his home in Cadiz, he had under the dome, with win­ dows on all sides, that surmounted the roof for purposes of ventilation, a floor laid, surrounded by a balustrade and shut off from the house by a closed stairway and a door, to which he carried the key. It was a place of seclusion, to which he could retire for study and reflection, when quiet was desired. He insisted upon this before appearing for a speech; and yet it was hard to secure, at home, where those desiring political favours would arrange to be present at his public meetings and see him then about matters of pri­ vate concern. When invited by his friend Colonel John A, Norris to become his guest while in the city of Columbus, for the purpose of making a speech, he replied that he would accept, but that his acceptance must be on one condition, viz, that he should not be unduly interrupted while there, in as much as quiet and rest were necessary, to him, before and after speaking." 22

sense their peer? Is not the mere reciter of their words, hut their shadow?. It is said of Plato, that he poured forth the flood of his eloquence as by inspiration, and that, had the Father of the gods spoken in Greek, he would have used none other language than Plato's; and yet this master of language takes pains in reporting the apology of Socrates on trial for his life, to represent him as saying that it would not become him to speak "studied terms and expressions, but only the truth expressed in the plainest language." I quote the words of Socrates as given by Plato: "Among the false statements which my accusers made, there was one at which I especially marveled, namely when they warned you to take care not to be led astray by me, in as much as I was a powerful speaker. It did appear to me supremely audacious in them to make such an assertion, which must immediately afterwards be disproved by the fact; for you will see that I have no skill in speaking, unless they call a man a powerful speaker because what he says is true. If they mean this, I certainly must allow that I am a speaker of a very different kind from them; for they, as I have said, have not spoken a word of truth; from me you shall hear the whole truth; and that not clothed in ornate sentences with studied terms and expressions; you will have from me plain facts expressed in the plainest language. Indeed, Athenians, it would ill be­ come me at my age to come before you with a studied discourse like a boy. And there is one thing, 0 Atheni­ ans, which I must beg and entreat of you: if I use, in ray defense, the same terms which I have been accustomed to use in the market-place and in the shops where most of you have heard me talking, do not wonder at that or take offense. For this is the fact, I now enter a court of justice for the first time though I am more than seventy years old; I am, therefore, altogether strange to the kind of language used here; and there­ fore, excuse me, as if I were a stranger, if I speak to you in that tone and in that manner in which I have been brought up. I ask you a thing which is, I think, reasonable, that you take no account of the manner of my address to you— it might be better, it might be worse, perhaps— but to consider this, to attend to this, whether I say what is right or not, for that is the virtue of the judge, as to speak truly is the virtue of the advocate." No matter if the speech be not clothed in ornate sentences with studied terms, it is the virtue of the judge to consider whether the speech is right, as to speak truly is the virtue of the advocate. It is only, it seems to me, when men speak wisely, truly, an'', naturally, that the full significance of Quintilian's words can be realized; "May I perish, if 23 the all-powerful Creator of nature and the Architect of this world has impressed man with any character which so eminently distinguishes him as the faculty of speech.” Let him who would use this faculty effective­ ly, and attain to that great power which rules the minds of men, and moves the passions, and affections of the soul, see to it that he speaks what he knows and be­ lieves, plainly and directly from the heart to the heart.

Very truly your friend J. A. B.4 O

Although the purpose of Bingham's letter is rather limited in scope, it does lend itself to an analysis of his chief criterion for effective speech— naturalness. Certain­ ly, all that is unnatural in speaking, Bingham would say, is" brought about by first writing and then memorizing the speech. Indeed, he chose to define all such efforts as non­ speech, as essays legitimate only if read for the "instruction or amusement of the audience."

This is not to say that he opposed diligence in the cultivation of the speech arts. On the contrary, he demanded of the public speaker great labor in practice, a cultivation of "voice and manner, of intellect and heart, an exact knowl­ edge of the subject, and a careful arrangement . . . of all of the facts and statements involved in the discussion.”

Here the classical influence on his rhetoric is apparent.

Inventio, Disposltio, and Actio were of great importance to

Bingham. In essence, he took issue with the Ciceronian con­ cept of Hemoria and, perhaps, its possible effect on Elocu- tio.

^^Pittenger, op. cit., pp. 7-10. 2h For the former, he leaned heavily on the authority of Seneca, Brougham, Emerson, and Socrates in concluding that **Sincerity cannot be fully attained in the great art of public speech, if every word to be uttered must be previously written down in the closet, and memorized and recited,”

Thus, Bingham insisted that sincerity and, hence, eloquence are dependent on some supernatural impulse, the inspiration of the moment, and the feelings under which the orator is supposed to speak. All that can be achieved through the memorization of the speech, Bingham maintained, is ornate sentences made up of studied terms. The virtue of the ad­ vocate is wholly dependent on his ability to speak truly, and truth can only be attained without prior memorization,

"Why,” the critic might ask, "is a speaker less sincere writing in a closet, without the many distractions of a heated crowd, than he is relying on the impulses he re­ ceives from that crowd? Cannot the orator come closer to his own intent and integrity when alone than when badgered and cajoled by the audience?" No, Bingham would argue. It is from the heart and to the heart that an orator speaks.

It is a trust that he must have in his own feelings.

Certainly, it is not the intention of this writer to deprecate Bingham simply because he spoke extemporaneously.

He understood, better than most speakers of his time, that the attributes of this form of public address were many. He cultivated the speech arts assiduously and added to his

"book knowledge" a background of highly successful 25 speech-making. But, his impulsiveness and reliance on

”supernaturalness" were to lead him astray in the great trials of his career. Relying almost completely on the

sliding rule of necessity and the demands of the moment, it is of little wonder that his most important addresses would he fraught with dismal inaccuracies and untruths. Logic is a tight fist, not an open heart.

Hence, what Bingham failed to understand was that with all of the positive values of extemporaneous speaking, conviction or "heat" as Emerson put it, and the special

effectiveness of adapting to individual audience situations, pitfalls exist in unwritten speech. He was,to stumble many times in each of them. It is not, in essence, greater sin­ cerity that he gained by extempore speech, only greater audience conviction. His audiences trusted him because his

speeches were uncluttered with words previously digested and

committed. They accepted him as sincere because he knew what he wanted to say so well that previous planning was unnecessary. To maintain that he found truth more effective­ ly when confronted with an audience than when searching his

own thoughts in private was logic of the basest sort. He

confused conviction with truth throughout his life. More­

over, the chief aspect of Bingham's language lost in heated

speech was not fine words, but exact ones.

Certainly, his Congressional speeches were of good,

often excellent quality. He knew his material well and presented it effectively. He trusted, however, in his 26 feelings; his feelings were untrustworthy. He did service to his friends; his friends were ill-chosen. To Bingham, the sole question to be asked in determining the virtue of the speaker was, did he speak truly? The answer, as applied to his own speaking, is the crux of this study. CHAPTER II

THE TRIAL BEGINS

A Murder Is Investigated

On April li}., l865, John A. Bingham was at his home in Cadiz, Ohio. There had been no session of Congress called for March ij.; and he was, doubtless, busy with per­ sonal matters. On the other side of the Alleghenies in

Washington,, D.C. at Ford's Theatre, "Mrs. Mountchessington" and her daughter had exited after damning the poor manners of the stage Yankee, Harry Hawk, who then stood alone facing the audience. The time was fifteen minutes past ten.

President and Î4rs. Lincoln with their guests.

Miss Harris and Major Rathbone, sat in a box immediately

over the stage. The play. Our American Cousin, was a poor

one by present standards, but was met with amusement by the

audience that night. The visiting Yankee in his high- pitched, nasal voice spoke the celebrated lines; "Don't

know the manners of good society, eh? Wal, I guess I know

enough to turn you inside out, old gal, you sockdologizing

old mantrap--"^ A shot crashed through the laughter of the

audience; President Abraham Lincoln slumped over in his

chair; and John Wilkes Booth, fighting off Major Rathbone,

^Philip Van Doren Stern, The Man Who Killed Lincoln (New York: 1939), p. 135 et passimT

27 26 mounted quickly to the balustrade and leaped to the stage.

His foot caught in a flag that covered the front of the

Presidential box, and he landed on his left foot with such force that it broke. In the hall echoed the sound of his triumphant words, "Sic semper TyrannisJ"

Bingham, in sleepy Cadiz, was as shocked and horri­ fied as any in Washington when he heard the news. He was to receive soon afterwards a telegram that would change his life; for Edwin M. Stanton wired Bingham to come to Washing­ ton at once to help in the investigation of the assassina­ tion, 3

Bingham hurried to the nation’s capital. When he arrived, he found that the Secretary of War and the head of the Secret Service, Lafayette C. Baker, had already begun arresting everyone who might have had the slightest knowl­ edge of the assassination plot. Washington was in a state of panic; and at this crucial time, Stanton took control of the government. Of this situation, DeWitt concluded, "a pilot more unfit to ride the whirlwind and direct the storm

. . . could not have been found. . . . He felt no hesitation

%tern, op. cit., p. 135» There is some controversy concerning Booth's words. Most scholars, however, agree with the above account. Bishop suggests that Booth shouted "Revenge for the South," See Jim Bishop, The Day Lincoln Was Shot (Hew York: 1955)» p. 210.

^Shotwell, op. cit., p. 201. See also Bingham Papers, Columbus, Ohio. 29 in assuming the functions of the Executive or in acting without advising with him."4^

If there were a particular task that should have been performed by the Secretary of War, it was to assuage the fears, the apprehensions, even the hysteria that gripped the city of Washington, Yet,

instead of endeavoring to mollify the prevailing mad­ ness, every movement he made seemed designed to keep it up to the highest pitch , , . h e rushed to the con­ clusion that the two-fold assassination was the outcome — still iracomplete— of a great conspiracy stretching from Canada to Richmond, the source of which was the President and cabinet of the Southern Confederacy.”^

The plot of the conspirators is too well-known to be dealt with here. In essence. Booth’s accomplices were

supposed to lay waste to the executive branch of the govern­ ment, (1) Lewis Payne rode up to Secretary of State Seward's home, entered, and slashed his way through the entire house­ hold. He severely wounded the secretary and several others.

He then dashed out shouting, ”1 am mad.” (2) Davy Herold was waiting outside for Payne, but heard the screams and was frightened away. Later, he met Booth and accompanied him on the journey that ended in Garrett’s barn. (3) George

^David Miller DeWitt, The Assassination of Abraham Lincoln and Its Expiation (New York: 1909), p. 56.

^Ibid., p. 57* Perhaps, Otto Eisenshiml gives the most critical portrait of Stanton. He leaves with the reader the impression that the Secretary of War was the "one man who profited greatly by Lincoln’s death"— and not by accident! See Why Was Lincoln Murdered? (New York: 1937), Chapter XXIX, "The Case Against Stanton," pp. 397“43^« 3 0

Atzerodt ("Port Tobacco”) was planted in Kirkwood House to kill Vice-President Johnson, He made no attempt to do so,

(i|.) It was thought that General Grant was also to come under the assassin's knife, but the general had unexpectedly left town.^ Michael O'Laughlin spent the night carousing, rather than lying-in-wait for Grant as the prosecution later charged. (5) John Surratt had by this time left the city and, it seems, was permitted to escape, (6 ) Others— Mrs,

Surratt, whose home had been the base for the conspirators;

Edward Spangler, the stagehand who supposedly had helped

Booth escape; Dr, Mudd, who set Booth's leg; and Samuel

Arnold, who had advocated a plot to kidnap the President, but had withdrawn prior to the murder— also came under the long arms of the War Department,7

The methods of Stanton and Baker during the investi­ gation could best be described as a Nineteenth-Century witchhunt. Indeed, a strange melange filed through the prisons of Washington and the Secret Service office, Roscoe described it as;

Gentlemen in top hats, young women in calico, clerks in alpaca, dowagers in crinoline, merchants in Sunday

^This departure is not fully explained. It had been announced publicly that the Grants would accompany the President and his wife to the theatre that evening. The decision not to attend seems a breach of etiquette--to say the least. It is hinted by some that Grant was warned of danger. See Eisenschiml, op, cit,, p, 6 3 .

?8 ee especially the accounts in DeWitt, Roscoe, and Eisenshiml, 31 go-to-meeting, verminous vagrants, soldiers, sailors, incoherent farmers, glib horse-traders. Northerners, Southerners, scholars, fools, drunkards, and tea- totalers, penitents and rogues, . . , Hasty dockets were scribbled on these individuals. Primary charges ranged from "Implicated in assassination" and "acces­ sory" to "suspicious conduct," "Secession sympathizer" and "disloyal utterances,

On April 26, Booth was shot and Herold captured in

Garrett's barn in Virginia, This capture proceeded with as much hindrance from the powers in Washington as help,^

Thus, it was a bizarre investigation to which Bing­ ham had been called. He associated with Baker and Stanton

in what was to become a black mark on the whole of American history.

Baker's force introduced the nation to midnight raids, entries without warrant, summary arrests and imprison­ ment without bail. Worse, it indulged in some of the ugliest police corruption, some of the worst injustices on national record, , , , Baker's fédérais engaged in everything from bribery to blackmail.1 0

It was not.a pretty scene, but one in which Bingham

took an active part,^^ L, E, Chittenden, Lincoln's Register

^Roscoe, op, cit,, p. 268. 9 Posters of the wanted men were inaccurate; hours were lost in identifying Booth as the assassin--although many had seen him at the theater; Major A, C, Richards and others who were on the trail as early as April 1^ were de­ layed by red tape. Historians hint that may of the diffi­ culties encountered ware the deliberate efforts of the War Department to shield Booth and his cohorts. See Roscoe, op, cit.. Chapter 11, "Manhunt on a Gheckrein" and Chapter 15, "The Paper Dragnet,"

^^Roscoe, op, cit,, p, 197. XI For example, see Eisenshiml, op, cit., p, )|)[)|, 32. of the Treasury, gave a vivid account of the proceedings.

He stated that Baker dealt with every accused person in the same manner; with a reputable citizen as with a deserter or petty thief. He did not require the formality of a written charge; it was quite sufficient for any person to suggest to Baker that a citizen might be doing some­ thing that was against the law. He was immediately arrested, handcuffed and brought to Baker's office, at that time in the basement of the Treasury. There he was subjected to a brow-beating examination. . . . Men were kept in his rooms for weeks, without warrant, affidavit or other semblance of authority. ^

Indeed, the mysterious methods of the corrupt Baker were equal to those of the conniving Stanton. In 1867, a judiciary committee met to investigate the possibility of impeaching President Johnson. The appearance of Baker's

History of the United States Secret Service which mentioned

Booth's diary caused the committee to become interested in the trial of Lincoln'' s assassins. (They obviously hoped to implicate Johnson.) Although there was still a degree of uncertainty concerning the affair at this early date, a minority report of certain insightful committee members was as scathing of Baker as anything to be found in such reports.

They wrote:

And there can be no doubt that to his many previous outrages, entitling him to an unenviable immortality, he has added that of wilful and deliberate perjury; and we are glad to know that no one member of the committee deems any statement made by him as worthy of the slightest credit. What a blush of shame will tinge the cheek of the American student of future ages,

^%jUc1us E. Chittenden, Recollections of President Lincoln and His Administration (New York: 1901), pp. 34-5-i}-6 , Emphasis added by present writer. 33 when he reads that this miserable wretch for years held, as it were, in the hollow of his hand, the lib­ erties of the American people, ^

Now, it was John A. Bingham who was helping this

"miserable wretch" in his investigations. This certainly is

a point of some curiosity, Bingham was competent as an in­ vestigator, but no better than a dozen of Stanton’s own men. Therefore, he was probably called to Washington to perform the exact function that he was later to carry out;

that of being Special Judge Advocate in the military trial

of the conspirators, Stanton was well aware of Bingham's

effectiveness in summing up the case for the prosecution

and wanted him for that specific purpose. If this is true,

and from all available sources it seems to be, Stanton was

set on having a military trial for the assassins only hours

after the assassination occurred. As a matter of fact, some

historians intimate that he wanted a military trial for the

assassins of Lincoln before the President was murdered.

Bingham was more than ready for such an assignment.

After he had been unsuccessful in his bid to be reelected to

Impeachment Investigation, Hep, Com. No, 7» l}.0 Congress, 1 session, p. Ill,

^Eisenshiml built a strong case which implicates Stanton in the assassination. He concluded that the least crime of Stanton was to leave the President unprotected when the War Department had definite information about the plot. 3k Congress, Lincoln appointed him a Judge Advocate, In the letter's words.

President Lincoln appointed me judge advocate in the army with the rank of major, , , , It surprised me and I immediately went to the White House to see the Presi­ dent and remonstrate with him, "I don't know a thing about martial or military law,” I said to him, "Nei­ ther does any common law lawyer,” he replied, "and you'll learn just as quickly as anyone. My surgeon- general has got into trouble and I want you to investi­ gate the matter, and if he is innocent protect him,

Obviously, Lincoln thought much of Bingham's skill.

As it so often happens in the ironic twists of history,

Bingham was called upon to act in the very capacity assigned to him by Lincoln in the trial of those accused of murdering that "Great Emancipator,"

Judges on The Bench

So it was that on May 9, l8 6 S, the Military Tribunal sitting in the case of the assassination of the President of the United States officially began. It was little more than three weeks since the crime had been committed, and only eight days after the new President had ordered the Commis­ sion to be formed.

There was great concern over the legitimacy of such a commission, and President Johnson requested that his

Attorney-General render an opinion on the jurisdiction of such a court. The question is a pertinent one for this study and will be dealt with at length in Chapter Four,

^^Bingham Papers, Columbus, Ohio, 33 Although the Assistant Adjutant General was assigned the task of selecting the nine officers to sit as the judges in this trial, it was Edwin M. Stanton who actually detailed the commission. The officers selected were: Major General

David Hunter, Major General Lew Wallace, Brevet Major Gener­ al August V. Kautz, Brigadier General Alvin P. Howe, Briga­ dier General Robert S. Poster, Brevet Brigadier General

James A. Ekin, Brigadier General T. H. Harris, Brevet

Colonel C, E. Tompkins, and Lieutenant Colonel David R.

Clendenin.^^

The officers were "hand picked" and not without reason. General Hunter was the presiding officer. He had been a good soldier, stern and exacting; yet, it is doubtful that he sat as an impartial jurist. Indeed, one would be surprised if he had. Hunter was a friend of Lincoln and had accompanied the President to Washington from Springfield in

1861, for there were many threats of assassination at that time. However, it was not only his love of the Union and devotion to Lincoln which would have disqualified him in any civil court. He had accompanied the body of the late Presi­ dent from Washington to Springfield and had witnessed the suffering of all of the people as that slow train made its way West. Lincoln had been entombed only five days when

Hunter sat down to preside at the trial of those who had

^^Benn Pitman, The Assassination of President Lincoln And the trial of the Conspirators (Cincinnati: 1865), p. 17* 36 planned the assassination. It would be difficult for any man to be objective in such a situation.^7

General Wallace was the second ranking member of the

court. He was to gain fame and fortune later for authoring

Ben Hur. At the trial, however, "his votes . , , were so

consistently against all the accused, that shortly afterward

Stanton appointed him President of the military court which

hanged Captain Wirz, the former commander of the Anderson-

ville prison.Wallace’s attitudes and conduct are best

pointed out by what Wirz’ counsel stated in a letter to

President Johnson after the Confederate commander had been

sentenced. As Eisenshiml pointed out, it "might have ap­

plied with equal force to the trial of the prisoners accused

of having conspired to assassinate L i n c o l n . The attorney

wrote:

If 1 have the Government’s patronage and perhaps the prospect of an office or two [as actually had been the case with some of the witnesses for the prosecution in the Wirz trial] , and can also give a promise of safe conduct and perhaps a reward, 1 do not doubt in the least that [^ong those from whom the government had drawn its witnesses] 1 shall within four weeks find enough testimony to try, condemn, and hang every member of the Wirz Military commission on any charge what­ ever, provided it is done before such a commission.^®

^jRoscoe, op. cit., p. ij.3 3 »

^^Eisenshiml, op. cit., p. 232.

lb id.

2®Irving McKee, "Ben-Hur" Wallace (Berkeley: 19^7), p. 89. 37 There was little doubt as to the type of service to be rendered by General "Ben-Hur" Wallace. Of the other offi­ cers, Howe and Ekin were of the opinion that any man who

served in the Confederacy was untrustworthy (a point which will be discussed at length later). Poster seemed to be the fairest and most competent of all.

The last of singular interest was Brigadier General

Harris. Twenty-seven years after the trial, he published a book entitled Assassination of Lincoln; a History of the

Great Conspiracy. The general's book is as tragic as it is funny. He showed a complete lack of interest in the truth; he continued to maintain that certain things were so after

investigations by many learned bodies proved that they were clearly false. Frighteningly, he still believed Sanford

Conover's testimony after it had been shown to be the verbi­

age of a perjurer*

One paragraph of the book will give ample illustra­ tion of the type of mind which passed judgment on eight humans. Concerning his first encounter with Dr. Mudd, the

"objective" officer said:

He might just as well have admitted his complicity in the conspiracy. Mudd's expression of countenance was that of a hypocrite. He had the bump of secretiveness largely developed; and it would have taken months of favorable acquaintanceship to have removed the unfavor­ able impression made by the first scanning of the man. He had the appearance of a natural born liar and de­ ceiver, 21

^ T , M, Harris, Assassination of Lincoln; a History of the Great Conspiracy (Boston: I8 9 2 ), p, Ü0. 38 Well, there It is then. An accused man was not innocent until proven guilty, but only until the general had time to examine quickly the lumps on his head! To such a man the lives of the accused were entrusted. "Stanton had organized this military commission not to administer justice but to convict the accused.

Even the rather staid New York Times was to call this trial by military commission "... an anomaly. It is one for which no precedent is to be found in the history of any free country, and one to which the European despotisms have rarely ventured.Indeed, it was a "court of death" as Roscoe titled chapter twenty-two of his book; and it was to this court that Bingham was to give his most penetrating arguments in an attempt to "convince" the military men of the guilt of the accused.

But, it was not to the officers alone that Bingham was to address his remarks.Public opinion was at a fever pitch, and the cry for vengeance was heard throughout the land. Letters to the leading newspapers screamed for "jus­ tice." An example would be, "dozens of guerillas have been

turned-off with a drum-head court-martial. Are the midnight

22&eorge Port Milton, The Age of Hate; Andrew Johnson and the Radicals (New York: 1930), p. l99.

Z^New York Times, May 11, l865-

^^his problem will be considered in detail when, in chapter four, a discussion of the occasion and audience for Bingham's address is presented. 39 band of conspirators and assassins . . . deserving of more

consideration than thieves • » . and guerillas?”^^ The pressures of such letters and the demands for blood had

their effects. Indeed, it was not altogether a safe or pro­ fitable policy to question either the jurisdiction or compe­

tence of the nine officers. Thus, the New York Times

immediately retracted its skeptical editorial and commented:

We hope to see this conspiracy e^osed in all its ram­ ifications, We hope to see every man connected with it, or cognizant of its plans and purposes, dragged to the justice and ignominy which are his due. We have no party relations which would make us dread or depre­ cate the revelations of such an inquest, or object to any means which the government may think likely to achieve suc E ^ result.^

One can but be reminded of a headline appearing in

a revived ghost town’s newspaper, "Horse Thief Hanged After

Past Trial, No Tomfoolery." There was certainly to be no

"tomfoolery" in the trial of the assassins.

Obstacles for The Accused

However, if the judges were of a predetermined mind

and, hence, biased, the treatment of the prisoners was still

incredible. Samuel Bland Arnold, writing in 190h, commented

at length on his incarceration and treatment. The most in­

genious torture designed by Stanton was the use of specially

designed hoods. Arnold described the hood as follows,

^^New York Times, May 1^, 1865. 26 Notice the change of attitude in the Times during the first week of the trial. Emphasis added by thepresent writer. ko This covering for the head was made of canvass [si

Arnold also described the difficulties he encountered with iron bracelets and an ice bath. As the inç>risonment con­ tinued, the hood was changed, Arnold stated:

A differently constructed hood had been prepared for the head cover, of a much more torturous and painful patern [ s i ^ than the one formerly used. It fitted the head ti^tly, containing cotton pads which were placed directly over the eyes and ears, having the tendency [sic] to push the eye balls far back in their sockets, one small aperture allowed about the nose through which to breathe, and one by which food could be served to the mouth, thence extending from the crown of the head backwards to the neck. These cords were drawn as tight as the jailor in charge could pull them, causing the most excrutiating [si^ pain and suffering, and then tied in such a manner around the neck that it was im­ possible to .remove them. Thus hooded and doubled Q i ^ ironed I remained day after day, until months had cir­ cled themselves a w a y , 2°

To be so kept week after week, without light, with terrible pressure on the head, eyes, and ears certainly would have

its effects. In addition, the prisoners wore heavy iron bracelets on their wrists which were joined together by an

iron bar; and their ankles were shackled and joined by short 29 chains which hindered their walk, DeWitt described the procession as the accused were herded into the courtroom,

27 Samuel Bland Arnold, Defence of a Lincoln Conspir­ ator (Hattiesburg, Mississippi: l9li3), p, ^7,

Ibid,, pp, 59-60. 29 ^DeWitt, op, cit,, p. 103. Dr, Mudd, however, wore regular handcuffs which were joined by a chain. Ip. **Payne and Atzerodt, in addition, have iron balls attached to their legs, which the guards carry • « • the canvas bags they wear in the cells are removed.Only Mrs. Surratt was spared the agony of Stanton’s hoods, and she was kept iso­ lated.

In truth, all of this sadistic punishment was or­ dered by Edwin M. Stanton. On April 23, he issued the following: ’’fo r want of better security against conversa­ tion [prisoner^ shall have a canvas bag put over the head of each and tied around the neck, with a hole for proper breathing and eating, but not seeing . . . The fantastic difficulties brought on by such punishment could but lead to

Payne’s attempt to bash his head open against the iron hold of the monitor to which the prisoners were first taken.

Padded hoods were to come later "for the protection of the prisoners’’ Why Stanton hooded his prisoners would cause great speculation among later historians.

It was a trying time. The War was, for all practical purposes, over. The most hardened veterans of military prisons had seen many horrible forms of torture, '

but the War between the States does not reveal a single instance of hooding suspects; and a thorough search

3°Ibid.

^^David M. DeWitt, The Judicial Murder of Mary E» Surratt (Baltimore: 1895), p. Ï). Ëareaft'er, this book will be ref erred to as Surratt ; the other work by DeWitt will be simply Assassination.

32Ibid. k2 through all of the refined processes of inflicting agony which were in vogue among Oriental or Spanish inquisitors, has failed to disclose a single instance of this particular punishment. Stanton must have in­ vented it specially for the occasion. The object of this departure from the recognized methods of torture— if there are such things— seems to be without rhyme or reason. Yet Stanton's actions were seldom without a definite purpose.33

However, along with the biased judges, the tortures might have been endured had the accused been given ample

time to find defense counsel. This was denied them,

Spangler was without counsel until three days after the

trial had o p e n e d . 3b Indeed, under the circumstances, it

is amazing that they acquired attorneys of the stature and

quality that they did.

Of the attorneys for the accused, certainly the

name of Reverdy Johnson is interesting. This very able

statesman was to defend Mrs. Surratt. The judges, seeing

difficulty, immediately launched an attempt to prove the

Senator unfit to appear before the court. Because he was

attacked by several of the judges, Johnson withdrew from

active participation in the case, not so much from embar­ rassment- -indeed, he made a shambles of their charges--but

33gisenshiml, op. cit.. p. 1?6. Both Roscoe and Eisenshiml suggest that Stanton, for fear of implication in the conspiracy, devised the hoods to keep the prisoners silent. They contend that the transfer of the prisoners to Dry Tortugas adds weight to this argument.

3blbid., p. 2 3 7 . k3 because he realized from the attitude of the jurists that his presence would do his client more harm than good.3^

Surely, the appearance of General Thomas Swing, Jr. at the defense table shocked the officers on the bench. He was capable, and, after the leave-taking of Johnson, became the best of what remained of the counsel for the accused.

Frederick Aiken, John Clampett, W. S. Doster, Walter Cox, and Frederick Stone were capable lawyers; but if the case was to be won by the defense, it would take more than aver­ age capabilities.^^

Coupled with the difficulties that the accused en­ countered in acquiring counsel was the greater disadvantage of attempting to present an adequate defense. The obstacles placed in their way by Holt, Bingham and staff were insur­ mountable.

In civil courts and in normal courts-martial proceed­ ings it was customary for the accused to be given a pre-trial copy of the indictment or the charges to be faced. The accused was normally presented with a list of the witnesses who would appear against him. He was offered adequate opportunity to procure counsel. His counsel was given adequate opportunity to prepare a defense.3'

•5^ •^"^Pitman, op. cit., p. 22. See also Roscoe, op. Git., pp. Ij46-i}.7.

^^Townsend said, "The counsel for the accused strike me as being commonplace lawyers. They either have no chance or no pluck to assert the dignity of their profession. Reverdy Johnson is not here. The first day disgusted him, as he is a practicioner of law . . ." George Alfred Townsend, Life, Crime and Capture of John Wilkes Booth (New York;”lü65), pp. 67-9. 37 Roscoe, op. cit., pp. i}lp.-i|2. kk None of these "privileges" was afforded the accused or

their counsel. Strange as it seems, the prisoners did not know the nature of the accusation or the charge and specifi­

cation until the opening day of the trial.Thus, the de­

fense attorneys' time was spent in finding witnesses, writ­

ing briefs and arguments, and in dealing with surprise

witnesses.

However, if the exigencies of time were to play

havoc with the barristers' defense, the kind and variety of

testimony that they heard each day would swamp them. Stan­

ton, in an attempt to tie the entire conspiracy to the Con­

federacy, encouraged testimony which told of the attempted

burning of New York, mistreatment of the Union prisoners of

war, "smuggling clothing infected with yellow fever and

smallpox into Union cities, planning to dump strychnine and

prussic acid into the New York reservoir. . . . The de­

fense had difficulty knowing where to begin. Witnesses

testified to things that ran helter-skelter, seemingly with­

out pattern from:

Spangler's Easter whereabouts, Atzerodt's umbrella, the broken lock on the door to the Presidential Box at Ford's, Paine's barbarous temper. Booth's gimlet,

^®Guy W. Moore, The Case of Mrs. Surratt: Her Controversial Trial and Execution for Conspiracy in the Lincoln Assassination Worman, Oklahoma; 19^1^), p. 33»

^^Roscoe, op. cit., p.

^^DeWitt, Assassination, p. 93» 45 Lloyd's inebriacy, Arnold's bookkeeping job, hearsay evidence concerning John Surratt, and the alleged opinions of Mrs, Surratt's splenetic brother * , ,41 and all in one day]

It was an impossible maze; and to the credit of the defense counsel, they somehow seemed to keep up with most of it. A. 0, Hall, writing in the Green Bag, a magazine for lawyers, reviewed the case in I8 9 6 , and stated:

No lawyer of experience in criminal jurisprudence can now read the testimony . » * without arriving at the conclusion that, if it had been offered in calm times before a learned court, the great bulk of it would have been excluded either on the ground of incompetence or irrelevance--and mainly of the latter g r o u n d . 42

What possible value did all of this testimony have?

Certainly, it had no real bearing on the guilt of those in the dock. The answer given by Hall was that "The military

Commission seemed to be not only ascertaining the guilt , , , but also educating public sentiment of the North as to the alleged conspiracy of Confederate officials with the assas­ sination, "^3 Apparently, it was Stanton's method of damning the Confederacy and at the same time tying the accused to that Confederacy,

Yet, here lies one of the strangest twists of the entire trial. If Jefferson Davis was one of the guilty parties in the conspiracy— indeed, the chief felon,— why was

4 ^Ro3coe, op, cit,, p.

^ A , 0, Hall, "The Surratt Cause Celhbre," Green Bag. VIII (May, 1896), 197. ------

. ' 43ibid. 1^6 he not brought to trial? He had been captured on May 10 and was held in prison for the duration of the trial. Why, if the assassination was the handiwork of the entire Con­ federacy, was not the chief Confederate brought before the tribunal?

Countless witnesses testified before the court to show the link between the accused and Davis, his helpers and agents in Canada, Later, Mr, Rogers, a member of the House

Judiciary Committee, found the testimony of Sanford Conover and others who were ”star” witnesses against the Confederacy to be absolute perjuries; and, hence, he destroyed once and for all the link that Holt, Bingham, and Stanton had forged to illustrate Southern complicity in the murder of Lincoln,

Rogers' report, however, was long after the fact and did not help the accused who were hanged.

Obviously, the War Department attempted to bring this all-encompassing charge to bear in order to stir up public sentiment against the South--as Hall suggested; it was al­ ready high. Thus, they gained favor for the trial, Rogers, in his minority report, maintained,

I do not say that "Judge Holt" did himself originate the charges or organize the plot of the perjurers, because I do not know that he did; I merely say that a plot based on the assassination was formed against Davis, Clay and others, and that the plotters did, and even yet, operate through the Bureau of Military justice, and that the argument forwarded by Mr, Holt to the Committee on the Judiciary looked to me like a shield extended over the plotters , , • may be, with a desire to save certain officers of the government from the charge of having been betrayed into the , , , blunders of an 47 excitement, which it was their province to allay or control, not to increase.44

Rogers would not stop with this condemnation of Stanton and his aides; and, in fact, he came closest, even at this early date, to discovering the reasons for dragging the en­ tire Civil War before the trial of Lincoln's assassins:

I believe this was done to hide the disgraceful fact that the assassination of Mr. Lincoln was seized upon as a pretext to hatch charges against a number of historical personages, to blacken their private char­ acter, and afford excuse for their trial^through the useless forms of a military commission.

The Misuse of Evidence and Testimony

How could John A. Bingham have kept his hands clean in such company? The fact is, he, as much as any of the others of the commission and those in Stanton's confidence, helped to muddy the waters in which he played.

For example, in respect to the testimony of Conover, one has but to look to a statement of Arnold:

Asst. Judge Bingham of Ohio seemed to have been on the most friendly terms with Sandford (^iQ Conover. I saw him in the witness room approa^ Connover [si0 button hole him with his right hand and placing his left upon his shoulder enter into earnest conversation for sometime after which Connover ( ^ i ^ disapeared ^ 1 0 from the court for a short time, only to return again with startling disclosures collected on his visit to Canada. There he unswore to all he had before sworn to here previously before the Court and on his return unswore to all he had sworn to in Canada. To credit a witness like this was premeditated murder outright. Peter Pepper was a pygmy by the side of Sanfor ^ i ^ Conover,4° *“ "

44c,S., House Report No, 104, P» 136. ^^Ibid,

Arnold, op. cit., p. I3 , 48 Here, then, if Arnold’s statement is to be trusted, was Bing­ ham definitely influencing future testimony. However, even if Arnold's accusation is taken as the angry protestation of a convicted conspirator attempting to cast doubt on the pro­ ceedings which found him guilty, there is little doubt that

Bingham did tamper with evidence and, hence, influence the outcome of the trial.

For instance. Exhibit I for the prosecution was a picture of John Wilkes Booth. Colonel Wells, a witness for the prosecution, gave testimony during the trial concerning

Samuel A. Mudd. Wells remarked that Mudd had said "he did not recognize the wounded man. I exhibited to him a photo­ graph of Booth, but he said he could not recognize him from that photograph."^? The Judge Advocate had made much of the fact that Dr. Mudd had known Booth prior to the assassina­ tion and that when he set Booth’s broken leg, he was well aware of the fact that he was aiding the murderer of Abraham

Lincoln. Furthermore, Bingham emphasized in his final argu­ ment that Mudd refused to identify Booth from a photograph.^®

Certainly, this testimony appears on the surface to be dam­ aging. If Mudd had actually met Booth, it seems only rea­ sonable that he should have recognized a picture of the actor shown to him after Booth had left his home. Why could Dr.

Mudd not identify the assassin from the photograph shown him?

^?Pitman, op. cit., p. 169 .

48ibid., p. %D0 . k9 "The answer to this query is amazing: the photo­ graph of Booth used throughout the trial was not a picture of John Wilkes Booth at all, but one of his brother

Edwin.The implications of such a deception or error are tremendous. How could the doctor have identified Booth from a picture that was not the correct Booth? More amazing than this is the fact that the counsel for the defense never discovered the subterfuge. "One look at the picture would have established the fact that the judge advocate was not acting in good faith."^0 Why the substitution was made is a mystery. Why the prosecution continued to use it in the trial is more than mysterious.

Moreover, the testimony concerning the picture ap­ pears differently in Poore's transcript of the trial^^ than it does in the Pitman edition. Why? Eisenshiml concluded that:

Of all the mysteries and problems arising out of Lincoln's assassination, the enigma of how Edwin's pic­ ture came to be substituted for that of his brother is one of the most intriguing. The careful language of Wells and Bingham in alluding to the photograph--not to

^*^Eisenshiml, op. cit., p. 261}..

^^Ibid.

Ben Poore, Conspiracy Trial for the Murder of the President (Boston: 186^-1866)I Poore's edition is extremely useful for the details which Pitman chooses to summarize.. It is, however, organized chronologically (through June 13) and, therefore, difficult to study because, as explained previ­ ously, the testimony was given without regard to organization. There are some variations in the two texts (Pitman and Poore) --such as the one mentioned--but they are few. 50

mention Pitman’s changed wording--makes it appear highly probable that they were aware of the substitu­ tion. 52

By what stretch of the imagination could Bingham have be­ lieved that he was helping the ends of justice by prolonging this deception?

Another example of Bingham’s complicity in tampering with evidence is, perhaps, better known than the preceding instance. Although much of the evidence given during the trial was of a spurious nature, there was one item which was definitely the genuine article. When Booth was shot and killed in Garrett’s barn, several items were taken from his body. Among these was Booth's personal diary in his hand­ writing. Lieutenant Colonel Conger took the diary to Lafa­ yette Baker who then hurried the book to Stanton, Stanton admitted to all of this and remarked that he studied it do carefully and read it thoroughly.Yet, the Secretary of

War kept the diary until the military commission was met.

He then gave it to Judge Advocate Holt who locked it care- 511 fully in his own safe.

Why had he suppressed it? The probable answer is a

simple, but interesting one. The content of the diary might have done much to show that Booth's plot to kill the

^^isenshiml, op. cit.. p. 2 65.

53u .s ,, Impeachment Investigation, loc. cit., p. 2 8 1 .

^^Milton Lomask, Andrew Johnson: President on Trial (New York: I960), pp. This fact, however, is still debatable. It is possible that Stanton kept the diary throughout the trial. $1

President was hatched shortly before the assassination occurred and that until that time there had been only a plot' to kidnap the Executive, Hence, several of the accused could not possibly have known of Booth* s plan to murder

Lincoln and would thereby have been vindicated from the assassination plot,^^

If the prosecution could exhibit Booth's pipe, his compass and spur, why could they not exhibit the diary? The infamous Baker, relieved from his post in the Secret Service,

supplied an answer. In his book^^ he had often referred to the diary. Therefore, the House Judiciary Committee called him as a witness. He insisted that "the diary had been mutilated since it had been taken from the body at Garrett's farm,"^^ Indeed, eighteen pages were missing.

Baker's fantastic accusation was quickly denied by

Holt and Stanton. They maintained that the diary had been unchanged from the time it had been taken from the body.

Yet, Stanton had kept the diary for two years. Had he tampered with it? Had Holt removed the pages? What did

Bingham know about the diary? Who was to be believed?

It has also been suggested that the diary was suppressed because it implicated persons in high places,

^^Lafayette C, Baker, History of the United States Secret Service (Philadelphia: 106?),

^^Elsenshiml, op, cit., p. li|.0. 52

Bingham Debates Ben Butler

The diary, however, was a skeleton that would not stay in the closet. On March 21, 1867 a seemingly innocuous debate took place in the House of Representatives. The topic under consideration was the relief of the destitute in the South; and Bingham was advocating government aid to the destitute, regardless of their attitudes and sentiments concerning the rebellion.

While speaking, Bingham wandered over to the other side of the House, and a debate ensued that would affect not only the career of Bingham, but also the career of the Pres­ ident of the United States, Andrew Johnson. Ben Butler lost no time in commenting that Bingham had "got over on the other side not only in body, but in spirit."^® Bingham was angered and replied:

I desire to say . . . that it does not become a gentle­ man who recorded his vote fifty times for Jefferson Davis, the arch-traitor in this rebellion, as his candidate for President of the United States, to under­ take to damage this cause by attempting to cast an imputation on my honor. I repel with scorn any man, whether he be the^haro of Port Pisher taken or Port Pisher not taken.

Here, then, is another example of Bingham's delicate-nature

--his need to defend his honor constantly. Note that Bing­ ham attacked Butler ^ hominem. Butler did, of course, make the first remark.

^ ^ . S . , Congressional Globe, I4.O Congress, 1 session (March 21, 166?); p7"26^.

^^Ibid., p. 2 6 3 . This refers to Butler's failure to take Port Pisher, North Carolina in I864. 53 At this point in the argument, Butler defended his voting for Davis while the latter was still a senator and a loyal Unionist and began to badger Bingham agains

The gentleman has the bad taste to attack me for the reason that I could not do any more injury to the ene­ mies of my country. I agree to that. I did all I could, the best I could. . . . And because I could not do more I feel exceedingly chagrined; but if during the war the gentleman from Ohio did as much as I did in that direction I shall be glad to recognize that much done. But the only victim of that gentleman's prowess that I know of was an innocent woman hung upon the scaffold, one Mrs. Surratt. And I can sustain the memory of Port Pisher if he and his present associates can sustain him in shedding the blood of a woman tried by a military commission and convicted without suffi­ cient evidence in my judgment.

Bingham was stunned by Butler's indictment and in a very rare moment lost control of himself— so much so that he responded in "gibberish" and several days later found it necessary to ask permission to revise his remarks for the record.Indeed, it must have been a severe blow to a man who spoke so fluently to lose at such a crucial time that

"power of oration" for which he was famous.

When Bingham reopened the debate, he discussed the trial at length, saying, "the gentleman denounces me as having executed an innocent person without evidence. I have executed no person, but acted as the advocate of the United ip. States ..." He continued, showing himself to be simon

60lbid.

^^ilton, op. cit., p. I1.30. ip U.S., Congressional Globe, i^.0 Congress, 1 session. p. 263. 34 pure and deeply hurt by the unjust cuts of the "rude" Butler, and concluded: "When summoned to that stern duty I pro­ tested that I was not equal to the task, and those who sum­ moned me to its discharge know best with what reluctance I entered upon it. . . .

Five days later, Butler took issue with Bingham's statement that he "acted as the advocate of the United

States":

Sir, he makes a wide mistake as to his official posi­ tion, He was the special judge advocate whose duty it was to protect the rights of the prisoner as well as the rights of the United States, and to sum up the evi­ dence and to state the law as would a judge on the bench. Certainly it was his duty to present to the commission all the evidence bearing upon the case. Now there was a piece of evidence within the knowledge of the special judge advocate and in his pos­ session, which he did not produce on this momentous trial,54

Butler at this point revealed that the evidence was the diary of Booth:

That diary came into the possession of the government, but it was not brought before the military commission . , , that . , , diary has eighteen pages cut out, . , , Now what I want to know is this: was that diary whole when it came into the hands of the Government? And second, if it was good judgement [sic] , . , to put in evidence the tobacco pipe which was found in Booth's pocket, why was not the diary , . , put in evidence • , , ? Why was a remarkable piece of evidence, which was found on the body of the great conspirator, concealed? No, I will take that back; I will not say "concealed"; but why was it not brought forward on that trial?°5

°3lbid.

Ibid.

Ibid, It must be remembered that, through Bingham, Butler was attacking President Johnson who was thought by Butler to have been a party to the assassination,

Bingham replied: (1) that Butler did not have all of the facts; (2) that the diary of Booth was evidence of a nature that was not admissible being "declarations of an accused felon, made after the fact"; and (2 ) that he never

saw any writing by John Wilkes Booth which revealed the plans for the conspiracy. "If anybody else saw it, then let whoever else saw it answer for it, . . *

Bingham emphasized that he was only second in com­ mand, but hurried to assure Butler that Holt was also beyond reproach. He concluded:

How if the gentleman seeks to condemn me for anything said in the argument on that trial , » • every word of which is my own and that of no other man , . , let him read from that passage and show to this House and to the world wherein 1 did injustice to any person con­ nected either directly or indirectly with that trial . , » when the gentleman chooses again to assail me let him read my argument upon the subject, and let him an­ swer it, let him show where it is false; let him show wherein it is corrupt; let him show, above all things, wherein it is malicious or unjust.

Perhaps, Harper* s presented the most telling criti­ cism of the argument :

The most painful and interesting episode of the debate was the altercation between General Butler and Mr,

6 &lbld,. p, 361+,

^^Ibid, Butler did not, so far as it is known, accept Bingham’s challenge; the present writer attempts to answer this challenge in chapters four and five. 56

Bingham. Both gentlemen lost their tempers. Each said what he will as certainly regret as the country already regrets it.°°

Duties of the Judge Advocate

Admittedly, Butler's accusation was a vicious one; but several of his points are worth consideration. Special note should be given to the comments he made on Bingham's official role in the trial. To quote again,

the gentleman says he was "the advocate of the United States only." Sir he makes a wide mistake as to his , » position. He was the special Judge advocate whose duty it was to protect the rights of the prisoner as well as the rights of the United States, and to sum up the evidence and state the law as would a Judge on the bench.

Bingham had insisted that this was not his official position. The truth of this matter is easily discernible.

Throughout the trial, references were made by Bingham and others to Benet's Military Law and Courts-Martial. Indeed, it was often the only source needed to bring final proof to a point of law. Doubtless, Bingham, in referring to this book, was more than familiar with it. He knew the law well and had been a Judge Advocate for more than two years.

During these two years, it was Benet's text which was used as the final authority in military law.

Benet wrote at length concerning the duties and responsibilities of the Judge Advocate. He maintained that

^harper's, April 6 , 186?* 69 Captain S. V. Benet, Military Law and Courts- Martial (Mew York: 1861;.). The book was first published in 1862 and was brought out in a new edition in 186^.. 57 the Judge Advocate was, indeed, the prosecutor of the United

States as Bingham stated; that he should advise the court in matters of form and law; and that he should be an officer of

the court "for the purpose of recording its proceedings, and 70 administering the regular oaths," The real task of the

Judge Advocate was to help the court in finding the truth

concerning the issue under consideration. "The object of

the court is not the conviction of the prisoner, as a

necessity, but the arriving at the truth . . , and justice

does not mean a conviction rather than an acquittal,"?^

But Butler's point was not that Bingham did not help

in finding the truth— although he certainly made such an

accusation--but that Bingham did not understand his role as

Special Judge Advocate. Was Bingham also to be the counsel for the accused? Benet stated that the Judge Advocate

should

take care that the prisoner shall not suffer from want of knowledge of the law, or fro:., a deficiency in exper­ ience or of ability to elicit from witnesses, or to develop by the testimons-,a full statement of the facts bearing on the defence.

Benet further quoted from the sixty-ninth article of

the rules and articles of war:

It is provided that the judge advocate . . . shall pro­ secute in the name of the United States, but shall so far consider himself as counsel for the prisoner after

70lbid.. p. 1 9 8 .

71lbld.. p. 195.

^^bid., p. 196. 58

the said prisoner shall have made his plea, as to object to any leading question to any of the witnesses or any question . . . the answer to which might tend to criminate himself.'3

It is obvious that Bingham, although he surely understood the code of Benet, failed to live up to his chief function.

The court in such proceedings depended entirely on the opin­ ions of the Judge Advocate concerning "legality as well as the regularity of its proceedings; and if he errs all may go wrong. "7^^ Bingham erred, and all did go wrong.

However, it might be argued in Bingham's behalf that being prosecutor and at the same time lending any assistance to the defense is a kind of "fence-straddling" which is, at best, difficult. Benet, quoting from Sir C. J, Napier, pointed out,

"the judge advocate, being both prosecutor and counsel for the prisoner, can, nine times out of ten, make the latter appear innocent or guilty at his pleasure: he is like a man playing a game of chess with himself, he can cause either . . . side to win."75

This warning went unheeded in the trial of the Lincoln con­ spirators.

Furthermore, Butler was concerned not only with Bing­ ham' s misunderstanding of his role as a Judge Advocate, but also with his suppression of evidence. He stated: "Cer­ tainly, it was his duty to present to the commission all the evidence bearing on the case." Indeed, it seems that Butler

73, Ibid., p. 192.

7^Ibid.. p. 19i&. 75lbid.. p. 196.. 59 had been reading Benet In the days which intervened between the first debate and the second; for Benet wrote:

While a judge advocate should never omit any thing which may be of service to the prisoner, neither should he permit a criminal to escape punishment through any leniency in the conduct of the trial. His course should be thoroughly impartial, his every effort being directed to the attainment of truth.

John A. Bingham had been far from impartial; he had deliberately withheld important evidence from the accused and from the officers on the bench several times; he con­ tinued to impede the progress of the counsel for the defense in discovering truth; he was, in fact, one of the chief tar­ gets of the criticism which the trial received in later years.77

The House Committee which investigated the testimony of witnesses six months after the trial was shocked to find that those witnesses called to testify as to the complicity of the Confederacy in the assassination were perjurers, imposters and the like who admitted to the fabrication of 7 A evidence. The entire conspiracy trial began to fall apart: "it began to look as if nine-tenths of the . . , 79 evidence against the Confederate leaders had been faked,"

If this had been faked, how much more of the testimony and

76lbid,. p, 195.

77Eisenshiml, op, cit,, p, 2 1 7 , 78 ' Roscoe, op, cit., p, 1^94. 79 '^Ibid. 60 evidence of that military trial in Washington was false?

Only a few instances of the dishonest practices employed by the War Department and the Judge Advocate's office have been given here. Bingham and the others cannot be excused for the injustices they committed against the eight who stood trial.

One of Benet's chief warnings was: "Truth and equity should be most conspicuously seen at all courts- 80 martial, but chicanery never permitted to open the door."

Had the author of that statement been attempting to describe the exact opposite of the trial of the Lincoln conspirators, he could not have worded it more succinctly.

80 Benet, op. cit., p. 195» CHAPTER III

CROSS-EXAMINATION AND DEBATE

The Charge against The Prisoners

On Tuesday, June 27, 186^, John A. Bingham, Special

Judge Advocate in the trial of the conspirators in the as­ sassination of President Abraham Lincoln, stepped before the appointed Military Commission in Washington, D.C, to present the final argument. His supposed function “corresponds to the charge of a judge in jury trials rather than to the summing up of the counsel."^ As he turned and faced the accused, they might have seen a man of strict impartiality, of logic too tight and too tough to be swayed by the venge­ ful clamorings of a public swelled with hate. They saw in­ stead a man who was "decidedly non-judicial"^' and impartial only in the sense that he treated each of the conspirators as though guilt were beyond doubt.

Indeed, had they any questions concerning the nature of the "concluding remarks," these questions should have been answered long before Bingham rose to speak; for these conspirators needed to look no further than the cross- questioning carried out by the Assistant Judge Advocate in

^DeWitt, Assassination, p. 125.

Zjbid.

61 62 the earlier proceedings. General Thomas Ewing, counsel for defense, doubtless thought back to the evasive tactics of

Bingham and Holt when he j ^ i n ^ attempted in vain to find out specifically the crime for which Samuel Arnold was on trial and, secondly, under what system of laws the crime was defined. Unquestionably, the charges against the conspira­ tors were of a curious nature. Designed to cover all of the conspirators generally, the charge read:

For maliciously, unlawfully, and traitorously, and in aid of the existing rebellion against the United States of America, on or before the 6th Day of March A.D. 1865, and on divers other days between that day and the l5 th day of April, A.D. l865, combining, confederating, and conspiring together with one John H. Surratt, John Wilkes Booth, Jefferson Davis, George N. Sanders, Beverly Tucker, Jacob Thompson, William C. Cleary, Clement C. Clay, George Harper, George Young, and others unknown, to kill and murder, within the Military De­ partment of Washington, and within the fortified and entrenched lines thereof, Abraham Lincoln, late . . . Andrew Johnson . , . William H. Seward . . . and Ulysses S. Grantj and in pursuance of and in prosecut­ ing said malicious, unlawful, and traitorious conspira­ cy aforesaid, and in aid of said rebellion, afterward, to-wit, on the lij.th day of April, A.D. 1865, within the Military Department of Washington aforesaid, and within the fortified and entrenched lines of said Military Department, together with said John Wilkes Booth and John H. Surratt, maliciously, unlawfully, and traitor- iously assaulting, with intent to kill and murder, the said William H. Seward . . . and lying in wait with in­ tent maliciously, unlawfully, and traitoriously to kill and murder the said Andrew Johnson . . . and the said Ulysses S. Grant.3

The specification, near its conclusion, detailed certain of the charges: David Herold was accused of aiding Booth's escape; Lewis Payne was accused of assaulting Seward; George

^Pitman, op. cit., pp. 1 8 -1 9 . 63 Atzerodt was accused of lying in wait for Johnson; Michael

O ’Laughlin was accused of lying in wait for Grant, Samuel

Arnold was accused of aiding and.abetting; Mrs. Mary Eugenia

Surratt and Dr. Samuel Mudd were also given general charges

— harboring, concealing, aiding, assisting, encouraging, re­ ceiving, entertaining!^

Roscoe probably best described the difficulties pre­ sented by the charge and specifications when he spoke of

Arnold:

The palpable absurdity of the indictment in Arnold's case must have embarrassed the Judge Advocate General, The Array lawyers in the bureau of Military Justice had tried to fashion a bill of particulars broad enough to cover all possible escape angles. The product was a Joseph's coat of patchwork charges that, in effect, fitted none of the accused,5

Ewing naturally saw the illogicality of applying the general charge to certain of the accused, and he pounced on the maze of the indictment. He stood to reply to Bingham's definition of conspiracy:

I understand that law of conspiracy perfectly well, but I want to renew again my inquiry, whether thesepersons are charged with the crime of conspiracy alone, and that these acts of murdering, assaulting, and lying-in- wait, were merely acts done in the execution of that conspiracy , ,

Bingham, recognizing a threat, and probably to interrupt

Swing's thought pattern asked, "And not crimes?"? Swing,

^Ibid.. p, 2 0 ,

^Roscoe, op, cit., p. ^68 ,

^Pitman, op, cit., p. 2^6, 7 l b i d .. p., 2 4 7 . 64 however, continued as if he had not heard the retort, "Or whether they are charged with four distinct crimes in this g one charge?"

Here, then, was the crux of the issue for the accused, Arnold, admittedly, had taken part in the earlier conspiracy to abduct Lincoln. He withdrew, though, when that plan failed--or so he contended. How, Ewing wanted to know, could this man be held for "combining, confederating, and conspiring, together with . . . Jefferson Davis . . . and others unknown, to kill and murder, with in the Military

Department of Washington and entrenched lines thereof

Abraham Lincoln . . . ?" Indeed, Arnold had left Washington and was residing at the time of the assassination at Fortress Q Monroe, where he had gone to take a job.^

Bingham, although somewhat disturbed by the reason­ ing of Ewing, replied:

I answer the gentleman again, that where parties are indicated for a conspiracy, and the execution thereof, it is but one crime at the common law, and that upon all authority, as many overt acts in the execution of that conspiracy as they are guilty of, may be laid to the same countj and I rest it upon the authority of Hale, and Poster, and H a w k i n s .

Bingham bad successfully, or so he thought, evaded the dif­ ficulty of Arnold's absence from Washington. He had even named authorities to substantiate his position. Ewing,

8lbid»

^See Roscoe, op. cit., p. ^6 8 .

^^Pitman, op. cit., p. 2 4 7 . 65 however, was unimpressed with this reasoning. He queried,

"It is, then, I understand, one crime with which they are charged?"^^ Bingham must have been perplexed: if he ad­ mitted that it was all one crime, he realized that for some of the conspirators the charge was meaningless. He scrambled out of the dilemma by asserting, "One crime all round, with various parts performed," Swing, encouraged now, attempted to name the single crime, "The crime of conspiracy,The

Assistant Judge Advocate was not to be trapped. Mustering together all of his amazing evasiveness, he stated, "It is the crime of murder as well. It is not simply conspiring, but executing the conspiracy treasonably and in aid of the rebellion,"^ Swing, apparently, had had enough. It seemed that Arnold was at one time being accused of the crime of conspiracy and simultaneously with crimes which, because of his location on the day of the murder and because of his withdrawal from the "gang," would have been impossible for him to commit, Ewing, therefore, demanded, "1 should like an answer to my question, if it is to be given: How many distinct crimes are my clients charged with and being tried for? 1 cannot tell," "It is all one transaction,"^^

^^Ibid.

IZlbid. 13lbid.

l^ibid.

l^lbid. 66

Bingham replied simply. Frustrated in his attempt to un­ wind this judicial double talk, Ewing pressed on with an­ other question which would prove difficult to answer. Bing­ ham refrained from entering this argument, in part, perhaps, because he disagreed with the Judge Advocate’s position.

The exchange is given so that the reader might see the dif­ ficulties under which the defense counsel labored.

Kr. Ewing, Inasmuch as I get no answer intelligible to me in response to that question, a question of the ut­ most gravity, a question deeply affecting the lives and liberties of those whom I represent, I now respectfully ask an answer to the other branch of the inquiry: By what code or system of laws is the crime of "traitor­ ously” murdering, or ”traitorously” assaulting with intent to kill, or "traitorously" lying-in-wait, de­ fined?

The Judge Advocate. I think the common law of war will ^ reach that case. This is a crime which has been com­ mitted in the midst of a great civil war, in the capi­ tal of the country, in the camp of the Commander-in- chief of our armies, and if the common law of war can not be enforced against criminals of that character, than I think such a code is in vain in the world.

Mr. Swing. Do you base it, then, only on the law of nations?

The Judge Advocate, The common law of war.

I'lr, Ewing. Is that all the answer to the question?

The Judge Advocate. It is the one which 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.

General Wallace. I understand Mr, Ewing to make an application that the Court shall direct the Judge

Ï6 ~ " See Bingham's final address. He seldom mentioned the "common law of war." 67 Advocate or his assistants to open the case, responding to the questions which he has propounded,

Mr, Ewing, That is my application.

The commission overruled the application,^7

Edward Bates, former Attorney General, was dumb­ founded by the ” . , . legal quibbling through which the

Judge Advocate had robbed the prisoners of a proper defense, T ft his anger rose,”

"The Laws and usages of war,” he maintained.

What are they? Who knows them? Are they written in any book? Are they prescribed by any acknowledged authority? There is no such thing as the Laws of War, War is the very reverse of Law— and its existence al- waySi^mplies . , , the absence or disregard of all

The Sophistry Continues

Arnold, then, had little reason to expect fair-play from Bingham. Moreover, the most fantastic claim of the

Assistant Judge Advocate was made earlier against this same man. Again, it was Swing who found himself engaged with

Bingham in circular arguments, Arnold, it was shown, had been a member of the Confederate Array, Bingham attempted to construe this to illustrate that the accused had shown "in­ tent" in the conspiracy by this act and by his sending of certain letters to Booth prior to the assassination, Ewing maintained, as coolly as possible, that even though Arnold

^^Pitman, op, cit., p. 2^7 .

^^Eisenschiml, op, cit., p,

^*^Sdward Bates, Diary, (Annual Report of the American Historical Society: 1930), P» 501. See Eisenschiml, op. Pit,, pp. 68 had been a "Reb" and had corresponded with Booth, "he did not enter into that to assassinate the President."^0

Bingham rose to the height of irrationalism as he maintained,

Yes, he entered into it to assassinate the President; and everybody else that entered into the rebellion entered it to assassinate everybody that represented this Government, that either followed the standard in the field, or represented its standard in the coun­ cils.21

The Commission overruled Ewing*s objection.

Indeed, Bingham's charge was a fantastic one. Could he, in all honesty, maintain that each Confederate soldier, each and all, had a hand in the assassination of Lincoln?

If he did choose to maintain this, should not the dock for the prisoners have been slightly enlarged? As Roscoe humorously stated.

Here was a blanket indictment half the size of the American continent! For if Arnold could be thus charged, so could every Confederate soldier from top general to smallest drummer boy! In which case, the conspiracy trial surpassed anything in the history of kangaroo courts. Only three ex-Confederate servicemen sat in the dock. There should have been three hundred thousand!22

Townsend of the Hew York World could but remark, it "is like attributing the measles to the creation of^ m a n . "23

?n Pitman, op. cit., p. 239.

21lbid.

22&oscoe, op. cit., p. it.6 9 .

23îownsend, op. cit., p. 1|.2. 69 f-' * One must certainly ask how Bingham, with his legal background and astute mind, could have hoped, under any circumstances, to convince the judges of such patent nonsense*

The point is this; the judges undoubtedly agreed with Bing­ ham.

Now, the Assistant Judge Advocate did at times make statements which more than adequately test the imagination.

They were not, however, without purpose. This seemingly wild assertion blurted out by Bingham was, in reality, the consequence of no little thought. He had probably waited patiently throughout the trial to make use of this one com­ mon denominator which would help him achieve his end— the conviction of all the accused.

Each of the prisoners had "either followed the

[confederate standard in the field, or represented its standard in the councils." The judges were soldiers. They had recently seen the ravages of war and the atrocities inher­ ent in such conflict. They had probably come to detest the

Confederate and to hold him responsible for the deaths of all the good men who gave their lives while serving the Union.

Hence, Bingham had obviously decided that it would be easier to persuade the judges of the guilt of Confederates generally than of the prisoners specifically. There was little guess­ work needed to arrive at this decision. The evidence of the judges' attitudes toward the character of Confederate sol­ diers was no mystery. 70

On May 30, “Edward Johnson was called as a witness for the defense on the part of Mary E. Surratt.It was hoped that he would impeach the testimony of H. Von Stein-

acker. As soon as Johnson appeared on the stand. General

Howe, a member of the military tribunal, said,

Mr, President: It is well known to me, and to very many of the officers of the army, that Edward Johnson, the person who is now introduced as a witness, was educated at the National Military Academy at the Government expense, and that, since that time, for years he held a commission in the army of the United States. It is well known in the army that it is a condition precedent to receiving a commission, that the officer shall take the oath of allegiance and fidelity to the Government. In I86I it became my duty as an officer to fire upon a rebel party, of which this man was a member, and that party fired upon, struck down, and killed loyal men that were in the service of the government. . . , He is brought here now as a witness to testify before this commission, and he comes with his hands red with the blood of his loyal country­ men, shed by him or by his assistance, in violation of his solemn oath as a man, and his faith as an officer. I submit to this commission that he stands to the eye of the law as an incompetent witness, because he is notoriously infamous. To offer as a witness a man of this character , , , and to administer the oath to him and present his testimony, is but an insult to the Commission, . , . I move, therefore, that this man, Edward Johnson, be ejected from the Court as an in- ^ competent witness on account of his notorious infamy»25

General Ekin rose to second the motion. Mr, Aiken,

counsel for the defense, stated that he "was not aware that

the fact of a person's having borne arms against the United

States disqualified him from becoming a witness in a court

of justice,"26 He further pointed out that "Mr. Jett, who

^Pitman, op. cit., p, 6ij.,

Z^ibid.

Z^Ibid, 71 has also borne arms against the Government, was introduced here as an important witness by the prosecution . . . and his testimony . . . was not objected to.”^7 indeed, the very witness that Mr. Johnson was called upon to impeach was Steinacker who had also served in the Confederate array.

The Judge Advocate was aware of the somewhat dif­ ficult and embarrassing situation and pointed out to the objecting generals that the law would not permit the Court to declare Johnson an incompetent witness. General Howe withdrew his objection and Johnson was questioned briefly.

In the cross-questioning, Bingham refrained from mentioning the relationship of the witness to Steinacker and had

Johnson reiterate that he had graduated from West Point, was commissioned, served in the United States Army, and 28 then resigned to become a Confederate officer. Although

Johnson was a competent witness according to the law, Bing­ ham simply drew from him testimony which had caused Howe and

Ekin to demand his incompetency in the first place* "In­ deed, throughout the entire trial the commission acted upon the theory that false swearing was to be expected from any witness for the defense who had participated in the re­ bellion either in word or deed."^9 It was clear to Bingham

27Ibid.

Z^Ibld., p. 65.

29DeWitt, op. cit., p. 112. 72 that to condemn the Confederacy was to convict the con­ spirators. To this end he applied himself vigorously.

Floating Evidence

But, if the accused still had doubt as to the type of persuasion to be used by Bingham, they had only to re­ call other debates which took place on May 30. Earlier that same month, Charles Duel and James Ferguson discovered, while working as builders, a letter floating in the river at Morehead City, North Carolina. The letter had been written in cipher, but the code was supposedly so simple that these two men reasoned it through and sent their find­ ings to the War Department "just in time for the Conspiracy

T r i a l . "30 The letter reads:

Washington April the 1^, >65 Dear John. I am happy to inform you that Pet has done his work well. He is safe, and old Abe is in hell. Now sir all eyes are on you. You must bring Sherman. Grant is in the hands of old Gray ere this. Red Shoes showd a lack of nerve in Sewards case, but he fell back in good order. Johnson must come, old Crook has him in charge, mind well that brothers oath and you will have no difficulty, all will be safe and enjoy the fruits of our labour . . . Now I say again the lives of our brave officers and the life of the South depends upon the carrying the program into ef­ fect. . . . its ordered no more letters shall be sent by mail. .... We receive great encouragement from all quarters . . . don't loose your nerve.

O'B no. five. 31

3%oscoe, op. cit., p. lj.5 5 .

33-Ibid., pp. i}.5 ^-5 6 . 73

Here, then, was a letter written on April 1 $ and not found until May 2. The letter, as Mr. Cox, counsel for the defense,pointed out, was "no more blurred, I think, than any paper on this table. It looks as if it had been written and dropped in the water for the very purpose of being picked up by the Government agents, to be used as evi­ dence.If it seemed difficult for the defense counsel to believe that such a letter had actually been written by a co-conspirator as argued by Bingham, it was even more in­ credible that it should be admitted as evidence before the military tribunal. Mr. Ewing pointed out the following reasons: first,

I really believe the letter to be fictitious, and to bear upon its face the evidence that it is so. In the second place, it is testimony that^is wholly inadmissible under the plainest rules of evidence. It is not signed; the handwriting was not proved, it was in cipher; it was not shown at all that it was traced to anybody proved or charged to be connected with this conspiracy, or that it was in the possession of anybody shown or charged to be connected with this conspiracy.33

For most cases in most courtrooms, Ewing would have needed to go no further to show why this letter was totally inadmissible as evidence. However, recognizing the serious­ ness of his task, he continued.

The rule in regard to declarations in cases of con­ spiracy is, that they may be admitted when they are declarations of one of the conspirators. This is not shown to be the declaration of one of the conspirators;

32|pitman, op. cit., p. 68.

^^Ibid., p. 66. 7i^ and when the declarations are those of a conspirator, they must accompany some act of the conspiracy, being not merely a declaration of what had been done, or was going to be done, but some declaration connected with an act done in furtherance of the common design. The rule is very succinctly stated in„Benet on Military Law and Courts-Martial, page 2 8 9 .^^

To add authority to his statement, Ewing quoted at length from Benet, and then concluded:

In this case, it is a declaration not only of some per­ son who is not shown to be connected with the conspira­ cy, but it is a declaration of some person whose exist­ ence nobody knows anything of— a nameless man. The letter is as completely unconnected with the subject of investigation as the loosest newspaper paragraph that could be picked up a n y w h e r e . 35

Now for most reasonable men the issue would have been forgotten, Bingham, however, probably irate at the possibility of having an objection sustained by the tribunal, gathered his forces and argued that although he was gener­ ally in agreement with the basic contentions of Ewing, the letter contained intrinsic evidence too important to go unadmitted. Then, seeing that intrinsic evidence would not be enough to retain the letter, he hurried to sum up:

Allow me to say one other word in this connection. There are, I know, some rules of law that draw very harshly on conspirators that are engaged in crime. It may seem very hard that a man is to be affected in the remotest degree by a letter written by another who is not upon his trial, or a letter that has never been delivered, which could only speak from the time of its delivery; and yet the gentleman knows very well that up­ on principle it has been settled that a letter written

3^Ibid.

3Sibld. 75 and never delivered is admissible upon the trial of conspirators,36

Ewir^ quickly interjected, "Written by a co­ conspirator"; whereas Bingham somehow managed, "Of course.

But the fact that it was written by a co-conspirator is pa­ tent of its f ace."37

In essence, Bingham maintained that although he re­ cognized certain difficulties in entering the letter into evidence, it would make such good evidence that on this basis alone it should be allowed, Mr, Cox, able to stand no more, spoke out in aid of his colleague Ewing:

, , there has not been a particle of proof produced to the Court showing that the letter did emanate ei­ ther from Booth, or any one of his associates. The logic of my learned friend on the other side seems to be this: It is sufficiently established, at least by prima facie evidence before the Court, that Booth was engaged in a conspiracy with some unknown per­ sons; this letter comes from an unknown person; ergo, it is a letter from somebody connected with Booth in this conspiracy, , , , He says the charge is that these accused were engaged in a conspiracy with somebody un­ known; this letter comes from somebody unknown; there­ fore it is admissible in evidence. That is about the substance of-lt, I submit to the Court that this is chop logic.3°

Bingham was now lost. He found, however, in Ewing's argument a flaw. Ewing had stated that the handwriting was not proved, Bingham maintained that it was not necessary to prove handwriting, and Cox admitted to this. But, he

36ibid,. p. 6 7 .

37lbld.

3Glbid,. p, 68, 76 admitted to it only so far as it need not be proved "when it is found in the custody of parties implicated in the con­ spiracy. That I may admit, but that assumes the whole ques­ tion. The letter was not found in the custody of any per­ son. It was found floating upon the water, . . ,"39 What possibly could be left for Binghara to maintain now? He weakly asserted

that the writer of the letter . , . was a party to this conspiracy--a fact clearly enough shown, I think, to hang him if he were found with that paper in his pock­ et, though no man knew his name, and no man ever testified about the. ^iter, unless he could explain how he came by it.

That was Bingham’s last word on the matter: that the letter was of a nature that had it been found on any person, it would certainly have condemned that person to the gallows. The fact that it was not found on any person did not seem to concern Bingham. After this excursion into the world of absurdity, the commission decided--"without blushing so far as is known"^--that the letter should be admitted; and, thus, once again the Commission overruled the motion of General Swing.

Advantages Protected

Bingham, throughout the trial was adament on this: that association with known conspirators (i.e., any and all

^*^Ibid.. p. 69.

^Olbid.

^^isenschlml, op. cit., p. 2i|.6. 77 of those entered into the rebellion against the Union) was an admission of guilt; that such individuals were untrust­ worthy had they fought in the war on the side of the Confed­ eracy, and more specifically, had probably participated in the Lincoln Conspiracy if they had so much as talked to

John Wilkes Booth, All this he maintained from time to time in the trial when it was to his advantage. It seems strange, then, that when Ewing attempted to question John T. Ford, about certain dealings with Booth, it was Bingham who came to the theatre owner’s aid with the following statement;

A party who conspires to do a crime may approach the most upright man in the world with whom he has been, before the criminality was known to the world, on terms of intimacy, and whose position in the world, was such that he might be on terms with reputable gentlemen. It is the misfortune of a man that is approached in that way; it is not his crime, and it is not colorably his crime either. . , , The law is too Jealous of the reputation and character of men to permit any such proceedings as that, ^

How Bingham could have maintained this in light of his own statements on associative guilt is beyond compre­ hension, V/hat he stated, in effect, is what the various counsels for the defense had attempted to establish from the trial’s beginning; that an intimate acquaintance with

Booth before (and Bingham’s own words are quoted) "the crim­ inality was known to the world," in no way could be used to convict a man on that basis alone. Here, however, was

Bingham, disclaiming the very means he had employed and was

^ i t :man, op. cit., p. 103. 78 to employ in the conviction of certain of the conspirators.

His argument seems to be this: had an individual known

Booth intimately prior to the assassination and been ar­ rested as a conspirator because of this intimate associa­ tion, he was obviously guilty. However, any individual, intimate with Booth prior to the assassination, who was not in the prisoner’s dock was obviously not guilty.

Bingham’s "tightrope act" with words was to be used several times for no more imperative reason than to impede the defense counsel in finding the truth: a search in

Tidaich, by the very nature of his title, Bingham was supposed to be helping. During the questioning of Reverend B. P.

Wiget, p]r. Aiken, counsel for Mary Surratt, asked the then

President of Gonzaga College, "is there an institution in the city of Richmond for theological studies?"^ Bingham immediately realized that Aiken was attempting to impeach a portion of the testimony of the "State’s star witness,"

Louis Welchman. Bingham stood and, in that way that a humorless man tries to be humorous, objected to the ques­ tion, asking:

What is the necessity of inquiring into that? You might as well ask whether it was an octagon or not; whether it was two stories or forty stories high. If immater­ ial questions were allowed to be asked and answers

^^Dr. Mudd whose friendship with Booth could hardly have been termed "intimate," but who was in the prisoners’ box was guilty; however, Welchman who had known Booth in­ timately, but was a witness for the prosecution was not guilty. ^Pitman, op. cit.. p. 135. 79

obtained, and the witnesses contradicted, the case would never end, if the court lived to be as old as Methusalah, provided a succession of counsel could be obtained to keep up the f i r e . "45

It did not seem likely that a witness should not be permitted to testify simply because there was not sufficient

time. Surely, the Judge Advocate and his assistants had al­ ready "dragged" enough useless testimony before the judges

to make such an appeal ludicrous, Bingham, aware certainly of this much, then quoted from Wharton’s American Criminal

Law that " , , , it is only such matters as are relevant to

the issue that the witness can be contradicted,"^^ Since

this matter was irrelevant to Bingham’s purposes, he natur­

ally continued his objection,

Aiken, however, was determined to trap Weichman in a

falsehood and attempted to press on with his questioning of

the Reverend Wiget,

Mr. Aiken said he would recall the recollection of the learned Assistant Judge Advocate to the fact that the answer of Mr. Weichman was on the record that he was a student of divinity, and that he desired to go to Richmond to continue his studies there. Mr. Weichman was interrogated as to these points, and the foundation was thus laid for impeaching his credibility as a wit­ ness, These questions to the witness now on the stand (which I have a right to put) are for that very pur­ pose, W

General Wallace, recognizing difficulty, attempted

to clarify the situation: "The witness Weichman did not

4Sibld.

^ ^Ibid.

4^lbid, 8o state that there was a theological academy, or any thing of that kind, in Richmond.Mr. Aiken quickly retorted that

"He [Weichma^ said that he belonged to that diocese, and wanted to go to that diocese to finish his studies,The

Judge Advocate stated that Weichman "said nothing about a theological school there. He said he wished to go there for the purpose of continuing his theological studies.Aiken recognized the subterfuge and, while he may have wondered how Weichman could have continued his studies as a theolog­ ical student if there were no theological school in Rich­ mond, restrained himself to say only that "the inference was, if he was going to complete his theological studies, that there was a school there.Indeed, by this time,

Aiken was probably either too confused or too disgusted to understand why he had raised the question in the first place,

Bingham, demanding the last word, carped at Aiken, "You do not propose to contradict inferences I suppose.The

Commission sustained the objection by Bingham, and the ques­ tion went unanswered.

It was only another example of the constant attempts on the part of the Judge Advocate and his assistants to

ÏÜIbid.

SOlbid., pp. 135-3 6 .

^^Ibid., p. 1 3 6 .

52ibid. 81 discourage any line of questioning which might in some way or another prove injurious to their case,

Bingham and Ewing Clash

Aside from this, a question does arise concerning

Bingham's need to argue over such seemingly simple Issues,

The answer seems apparent, Mr. Bingham disliked having his word doubted by others, or his competence challenged. More

Important, however, was the fact that to him it was iuçera- tive to have the upper hand at all times, Aiken was not up to the task' of combatting the Bingham ego. With Ewing, how­ ever, it was a different story. Perhaps, nothing points up this rivalry more than the testimony and questioning of

James Judson Jarboe, witness for the defense in behalf of

Samuel H, Mudd, Bingham, in cross-examination, was getting nowhere with Jarboe and, hence, launched out at him with an argument ^ hominem. Again attempting to incriminate every­ one in sympathy with the rebellion and, thus, to impeach the witness, Bingham asked the following questions and received these answers,

Q, How have you stood yourself in relation to this rebellion since it broke out?

A, I do not exactly understand you,

Q, Have you made any declarations against the Govern­ ment of your country since this rebellion broke out?

A, Ho, sir.

Q,. Have you joined in any glorification down in Prince George’s County, Maryland, over-rebel victories?

A. No, sir. 82

Q, Have you wished for the success of the rebellion?

A. 0, no sir; I could not expect that,

Q. Did you want it, whether you expected it or not? Did you want this rebellion--this Southern Confederacy to triumph?53

Swing, by this time a little tired of the constant badgering of witnesses by the prosecution, stated to the witness that "he has the privilege of declining to answer,

I do not care about interfering further than that. What

I called him to, was one single question of fact,"^^ Bing­ ham, recognizing Ewing’s displeasure, was quick to reply,

"I have already stated to the witness that if he thinks his

answer to any question will criminate him, he can say so,

and decline to answer,Now Holt, not realizing the per­

sonal feud between Bingham and Ewing, stated that he "did not think a mere wish is such criminality as should be pro­

tected from exposure,The Judge Advocate had made Jar­

boe’ s unmade wish a criminal act. It had become too much

for Ewing. Before the military tribunal and, hence, the world, he exploded, "I think this a species of inquisition, which counsel ought not to indulge in," Holt replied

weakly in support of the questions that "Loyalty is a

23lbid,, p, 2 1 4 ,

54ibid,

^^Ibid,

56lbid.

5^ibid, 83 question of feeling and conviction, as well as of action.

Bingham then gave Jarboe an interesting "either-or" dilemma;

"If the witness thinks it will criminate him to make a full and complete answer, he can say so. If he does not think it will criminate him, he must answer the question."^9 To this,

Jarboe, not in the least ruffled by Bingham, replied with what was the singularly most effective retort of the trial:

"I hardly know what would criminate me here."

Bingham, taking no notice of this slam at the en­ tire Court, continued:

Q. I should like to know whether it is your opinion that the Southern Confederation was criminal or not?

A. I do not know much about it.

Q. Have you expressed yourself that it was all right?

A. What was all right?

Q. The Southern Confederacy and the rebellion?

A. I do not think that I did.

Q,. Did you hot think that?

A. I think a good many things,

Q. State whether you made an assault upon a man at the election about four years ago, and what you did to him.

A. Are you going to try me for that?

Q. Ho, but I ask you the question?

28ibid. 29ibid. ^^Ibid. Emphasis added by present writer. 84 A. I have been tried for that same offense twice.

Q. State whether you made an attack, about four years ago, at the time of the election, on a Union man dowc there, and killed him,

A. There was a pretty smart attack made upon me,

Q. What became of the man?

A, It would be very hard for me to tell now,

Q, Was he killed or not at the time?

A, I understand that he was.

Q, Do you know who did it?

A, No, I do not know exactly who did it,

Q,, Do you know whether you had a hand in killing him?

A, I do not know, I have answered all the questions so often that--

Q, You can answer that question or let it alone. If you cannot answer it without criminating yourself, you need not,

A, I have answered it several times,

Q, You have not answered me yet,

A, I have answered these questions before other courts; I have been asked these questions over and over,

Q,. Did you kill him, or did somebody else kill him?

A. I cannot tell whether some one else did it,

Q, Did you have a hand in it?

No answer,

%, Where was it that this man was killed?

A, I understand that he was killed at the election,

Q, Do you not know that the man was killed? Were you not there?

No answer. 85 Q. What was the man's name that was killed?

No answer,

Bingham. I shall not insist on an answer. If you do not wish to answer, you need not answer. It is your privilege to decline or do so.°l

Temporarily stymied, Bingham withdrew from the questioning. Certainly, James Judson Jarboe was a match for the Assistant Judge Advocate. If the situation had not been so serious, the ludicrousness of the whole line of questioning would have erupted the Court in laughter. Mr,

Ewing, realizing that Jarboe had not hurt himself in testi­ mony, still attempted to get to the truth of the attack on the character of this witness and asked, "Have you any statement you wish to make in regard to the difficulty about which the Judge Advocate has been questioning you? If you have any thing to say to the Court, say it,"^^ Jarboe re­ plied, "Well, I do not know. If the judge wants to know all the particulars about it-"^3 Bingham interrupted the wit­ ness stating that he did "not insist on knowing any more.

You have declined to answer, as is your right.Jarboe .r ^ was now angry. He realized that Bingham was attempting to silence him and, hence, impeach him as a witness. He replied

6llbld,, p. 215 .

62ibld,

63lbid,

G^Tbld, 86 sharply, "I have answered these questions before, and have been tried for that thing by our courts.Mr. Ewing immediately pressed the advantage; "What was the result?"^^

Bingham objected, "You need not state.Jarboe could not be censored. Curtly he replied, "I was acquitted."^® The injured Bingham retorted, "I object to all that."^^

Now, one might ask,What it was that the Advocate objected to: the fact that Jarboe was acquitted, that his entire cross-examination was shown to be fruitless; or, perhaps, was there really a point at law? Ewing, joyful in the annoyance of his opponent, answered, "You have been going into the question whether he was tried or not, and I ask him the question in what court he was tried.Ewing, not having asked this exact question, somewhat ignobly dangled the herring in front of Bingham and the latter, probably more than a little irate, said, "The gentleman has made an issue with me. I deny his assertion.Ewing realized that Bingham was at least somewhat in the right and hurried to back up his own questionable statement: "The

^^Ibid.

6&Ibid.

67lbid.

6Gibid.

69lbld.

7Qjbid.

71jbid. 87 witness can state in what court he was t r i e d . Bingham replied, "He can not state where. I did not ask him in what court he was tried. He chose not to answer my ques­ tions, and that was all."^8

The lines were drawn. James Judson Jarboe was no longer at the center of contention. At last, a personal challenge had been made to Bingham by Ewing; and they were about to wage war. Ewing began:

If the court please, I think the character of the cross-examination of this witness has been most extra­ ordinary, catching the witness, badgering him with questions, and snapping him up when he started to an­ swer, and undertaking to present to the Court the impression from his answers that he was a felon, and then not allowing the witness to state that he was tried for the offense alleged against him, in a high court of the country, and was acquitted. That is not fair.74

These charges by Swing were directly aimed at Bingham’s tactics. The counsel for the defense accused the Special

Judge Advocate of catching and badgering the witness and snapping him up. But, the most serious attack on Bingham concerned his attempt to give a false impression of the witness and then not permitting the witness to speak in his own behalf to clear his name. Ewing was restrained in call­ ing Bingham unfair. Certainly, the implication was that

Bingham was something more base than that. Ewing, however,

72lbid.

73ibid.

74jbid. 88 was not finished. He bore down on Bingham and the point at issue;

And more than that, the gentleman is certainly wrong. He drew out of the witness, on cross-examination, the fact that he was tried. How, I want to know where he was tried. I want to know whether there was a solemn inquiry into it; and whether he was tried in a high court,(2

Binghara was probably somewhat deflated by this affront and not a little angered that he had been accused of mistreating a witness. He stated, "Whether I badgered the witness or the witness badgered me and justice both, is a question that will appear by the record. The point I make is, that I never asked this witness a question whether he was tried."7^ Ewing interjected that it had been drawn out of the witness. It was all too much for Bingham, "I did not draw it out of him. What I tried to draw out of him was legitimate; but as the gentleman chooses to arraign me here, , . , "77 Ewing recognized that he had gone too far in "dressing down" his opponent and quickly stated, "I take that back,"7® Bingham, now somewhat pleased with him­ self in getting Ewing to back off, began again. One can imagine his somber voice;

I am glad of it,' Holding myself as the humblest man here, I beg leave to say, in vindication of my conduct,

7^Ibid,

7^Ibid,

77jbid,

T^ibid, 89

that there is not a law book on evidence fit to be brought into a court of justice, which does not say that I had the right to ask him whether he had been guilty of murder; and I am not going to let this wit­ ness go away from this court with the impression that I have invaded any right of his, I had a right to ask him whether he was guilty of murder, and he had a right, as I told him to refuse to answer it if he saw fit. Now, what I say to the Court is, that he never answered my questions.79

Ewing immediately saw the flaw in Bingham’s argument and pounced on it, "You did not ask him whether he was guilty of murder,Bingham, trapped, quickly replied,

"I asked him whether he killed a man, and whether he had any thing to do with it."

Ewing, That is not necessarily murder,

Bingham, If I may ask whether he was guilty of murder, I may ask him whether he killed a man . , .

Ewing, qÏou did not ask him whether he had committed murder.

John A, Binghara, probably reaching back somewhere into his earlier life, back to his classes at Franklin, back to Aristotle and the Enthyraeme replied, "The greater includes the less,"^^ Ewing, in utter disbelief of the Advocate’s logos, could but reply, "But you asked the less,"®3

Binghara was piqued. Unwilling to continue this toe-to-toe battle with Ewing (Although he was superior to

79ibid.

8 0 lbid, 8llbid, GZibid.

Q3lbid. 90

Ewing in running debate, he realized that he was in the wrong on this issue. He simply did not want to admit it),

Bingham launched into a tirade;

What I say is that the law authorized me to ask squarely whether he was guilty of murder, and he is not to go out of court with the impression that I have invaded any rights of his. I never asked him about any trials. He did not answer my questions. He had a right not to answer them, but I never asked him about trials at all. He never stated whether he had killed the man; he did not even state whether he had a hand in killing the man, and he would not tell me whether the man was killed at all or not. Now in that stage of the case, upon that record, the gentleman proposes to prove by parol evidence what appears on record. The man has not admitted yet that anybody was killed; and if nobody was killed, how could he be tried? Then in the next place, if he was tried, how are you going to prove it by parol? We have not the benefit of any testimony on the subject. The truth is, I do the witness the justice to say that he has not answered my question at all. He has not stated that the man was killed; he has stated that he understood he was killed. He would not state that he himself had a hand in it, and he would not state that he knows the man's name. That is the way it „ stands, and I object to any thing further about it.°^

This was the second time that Bingham had objected

to the discussion at hand. Yet, the Court which had so

often hurried to sustain his previous objections failed to

act.

This repetitious harangue was not worthy of the

speaker who had so successfully locked horns with Vallandig- ham and Stanton, It was the kind of forensic bickering that

would lead critics to think of Bingham as a "vindictive,

brow-beating lawyer,Ewing, however, was unimpressed with

G^Ibld.. p, 215-16,

^^George Fort Milton, The Age of Hate: Andrew Johnson and the Radicals (New York: 1930)# p, 199. 91 the speech and took up the argument again. "He has stated that he was tried, and I now ask him in what court?"

Binghara. I did not ask him if he was tried.

Ewing. He stated that he was tried, and now I ask simply in whatogourt? I do not ask the result of the investigation.

Ewing realized that he had already ascertained the result of the investigation. His strategy now was to avoid another tangle with Bingham, The latter, perhaps tired of the squabble or, taken in by Ewing’s own straw men, replied meekly, "If there was nobody killed, there was nobody hurt,

I r e c k o n . Ewing was obviously pleased with the apparent advantage. He asked Jarboe:

Q. In what court were you tried? (No objection)

A. In Prince George's County Court.

Q. Were you, during last spring, winter, or fall, in any house on H street, in the city of Washington?

A. I do not recollect. I do not think I was in any house on H street, though.

Q. Have you any acquaintances living on H street, be­ tween Sixth and Seventh?

A. I do not think I have.

Q. Do you know in what part of the city Mrs. Surratt lives?

A. I do not. I never saw her house in my life. I do not know any thing about Mrs. Surratt’s residence.

®^Pitman, op. cit., p. 216.

87 Ibid.

GGlbid. 92

The evasive Jarboe had finally made a definitive statement. He was never quite sure of anything absolutely except this: he had had nothing, absolutely nothing to do with Mrs. Surratt. Bingham, attempting to regain some com­ posure, began final questioning:

Q,. You say you were tried in a court. What were you tried for?

A. I suppose I was tried for what you stated awhile ago.89

Bingham was angry again. Here was a witness who not only refused to give clear answers, but impetuously put words into Bingham’s mouth.

Bingham, No, sir, I did not state it at all.

Witness, You said I killed a man,

Bingham. No, I did not. ,

Witness. You asked me if I did not.

Bingham. I asked you if you did, and you did not an­ swer the question. Now I ask you for what you were tried,

A. I was tried in that case.

Q, What were you tried for? Were you tried for murder?

A. Well, if I understand the case aright, I do not think--

Q, Were you charged in that case with the murder of a Union man?

G^lbid. 93

A. I do not know whether he was a Union man or not.

Was he called a Union man?

A. That I do not know.

Q. But you were tried for murder?

No answer,

Q. In what County?

A, Prince George's.

Q,. V/hen?

A, I do not recollect exactly when it was.

Q., Since the rebellion broke out?

A. Yes, I think it was somewhere about the first of the w a r . 90

Bingham thus ended the issue over James Judson

Jarboe. Ha regained a little of the lost ground in the final questioning, but he was not at all satisfied with the duel with Ewing. The military men on the bench had per­ mitted it to run out without interruption--perhaps, because it was an exciting interlude of heated debate or, perhaps, to their credit, because they saw that Ewing did have a de­ gree of right on his side and they were attempting to be fair. At any rate, the animosity felt by Bingham would not make it easier for any of the accused.

Many years before, he had heard his own voice while on the hustings of Ohio and had "fallen hcpelessly in love with it." To be attacked in open court for his treatment of witnesses was more than his inflated ego could bear.

90lbid. 94 The only surprising thing is that it did not happen sooner.

As the incidents in this chapter point out, (1) Bingham entered debate with Ewing over the loosely-worded charge and displayed a deliberate evasiveness and an almost un­ canny knack for double talk; (2) he developed vulgar appeals to the emotions of the judges when condemning Arnold as a

Confederate soldier; (3) his treatment of Johnson in cross- examination was decidedly unfair; (4) his logic concerning the admissibility of the "floating letter" was dilapidated;

(5) his subterfuge in the questioning of Wiget was a prime example of his technique of detracting from all that the defense counsel might say, regardless of merit, and the lengths to which he would go to protect the State’s wit­ nesses; (6) the Jarboe incident showed Bingham as an ef­ fective, if somewhat illusive debater. Most important, how­ ever, was (7) the incident concerning John T. Ford, Here

Bingham clearly showed his regard for truth: that it was of value only when it helped his own cause. Indeed, the only consistent aspect of Bingham’s entire manipulation of wit­ nesses and arguments with the defense counsel was that he was irrevocably pragmatic. He approved of all that in any way tended to incriminate the accused and fought all that might help them. He was not concerned with searching for the truth, much less discovering it. CHAPTER 17

THE SPEECH: ON JURISDICTION

Audience Attitude and Courtroom Atmosphere

When John A. Bingham rose to speak before the

Military Commission in Washington, D.C., there was little doubt as to the direction his final remarks would take.

The accused and their respective counsel, however, still had hopes that the Assistant Judge Advocate would live up to the rules and procedures set down for him in Benet.

Others, indeed, the vast majority of those watching the trial and those reading of it, hoped that Bingham would lash out at the conspirators and all those who sat in their defense.

The expectations of the accused would be short-lived. Bing­ ham’s speech, a damning assault on all of the conspirators, proved to be for them the **unkindest cut of all."

There remained in Washington, as well as in the rest of the country, strong traces of war hysteria. The nation had been outraged by the assassination of Lincoln; and for­ getting for the moment the Emancipator’s words "with malice toward none, with charity for all," the citizenry clamored for revenge. The New York Times remarked that there could be no real objection to any means the government might use

95 96 to achieve the "justice" which was due all of the conspira­ tors*^ The National Intelligencer commented immediately after the assassination that " . . . suspicion, apprehen­ sion, and agony pervaded the people."^

What could be expected from a people who, after suffering through the years of the Civil War, "the rumble of artillery, the galloping of cavalry, the clank of sabres, and the rhythmic tread of marching infantry,"3 finally thought that safety was at last in sight. They had grown accustomed to the screams and suffering of the wounded Union soldiers who made up an "endless army of wounded, mangled, ragged, limping, bandaged, and smoke-blackened soldiers, that boats, trains, and ambulances hurried to the cities."^

The suffering, it was thought, was over; and there was an atmosphere of superpatriotism as the beaten Confed­ eracy collapsed. While the trial was in its second week, over two hundred thousand Union soldiers met in Washington for a gigantic victory parade. Great crowds of people lined

Pennsylvania Avenue as infantrymen, cavalry, color guards, and bands marched by. The shouts were tumultuous as the

"boys in blue" passed; the beloved Generals Meade, Sherman,

% e w York Times, May 16, 1865*

^ h e National Intelligencer, April 15, 1865.

^Milton, op. cit.. p. 9.

^Edna M. Coleman, Seventy-five Years of White House Gossip (New York: 1925), p. 285* 97 and Sheridan in the parade and Grant on the reviewing stand were in plain view of the cheering crowds,^

What objectivity could the judges of the military tribunal have had as their superior officers were being so lauded, as the waves of thronging people shouted, "the

Union forever!" "Hurrah, boys, hurrah!" and "Down with the traitor! Up with the star!"? Each had a love for the

Union, a hate for those who would have destroyed it, and a sadness, an immense sadness over the loss of their beloved

Lincoln. The people of the North probably felt great frus­ tration— to have won the war only to lose the leader who made that victory possible. Woe to those who had a hand in the assassination. Indeed, even to question the guilt of the conspirators who were on trial or to express any but outraged feelings concerning the assassination was unhealthy,

"Men, not knowing truth from rumor were uneasy, restless, and inclined to violence. A mob rushed a man to a laa#)- post to be hanged because he had expressed pleasure at Lin­ coln’s death."?

The public cried for "justice," and they would have it. As has been seen, the Court satisfied their demands by

^Por a full account of such events see the New York Times, which said on the 24th that "public interest and en- thusiasm [wer^ unabated." See also Harper’ s. June 10, 1865.

^Roscoe, op. cit., p. 447*

?Moore, op. cit., p» 27. 98 admitting varied testimony into evidence which is best de­

scribed by the term ”hate-mongering” : "the wideness of the

subjects discussed makes one imagine that the object of the

Commission is to write a cyclopedia . . . Throughout the

trial the nation's newspapers and magazines told stories and

showed pictures of Southern brutality and atrocities. On

June 1 7 , Harper* s published pictures of Union soldiers who had been prisoners of war.^ These photographs showed such fantastic cruelties that it is of little wonder that readers who saw them and at the same time heard of the "connection" between these acts and the conspirators wanted revenge.

As the trial progressed, the summer weather in

Washington became oppressive. One can surely sympathize with the officers of the tribunal as they sat in hot, high-

collared uniforms listening to the endless testimony.

Roscoe compared it to working "chess problems in a turkish bath."ll The room in which the trial was held was only a large cell in the northeast corner of the Old Penitentiary.

To make matters worse, the courtroom was on the third floor; and the four grated windows--two on the north side and two on the east side— could not possibly have allowed enough

^Townsend, op. cit., p. 69.

^Harper'8, June 17, 1865.

^^One can also synç>athize with the prisoners as they sat shackled in their cells with canvas hoods over their heads!

11Roscoe, op. cit., p.. I4.58. 99 ventilation to alleviate the high temperatures. Although the room had been refurbished for the trial, it was still inadequate for the purpose, "The room selected . . . is on the north side of the east wing, and measures 30 feet by Cramped into this small area were at times more than fifty people,"The prisoners' dock extends 20 feet along the west wall, and is on a slightly raised platform,

surrounded by a plain railing. The Court sits at a large table on the north side; and on the left and facing the pri­

soners is the witness stand.Other reports maintained

that the witnesses faced the Court.In either event, the

witnesses could not have seen the defense counsel nor have

received any aid from them, such as a nod of the head in­

dicating when they should or should not answer questions.

The space taken by the benches, stands, and chairs

left little breathing room. Moreover, there were large pillars in the middle of the room which supported the eleven foot ceiling. The waving of fans, the continual buzzing of flies, and the crowded conditions would prove to be as sti­ fling to justice as they were to comfort. These distractions would have their effects on the Court,

^%arper' s, June 3>» 186$, Other accounts list different sizes, DeWitt claimed it to be feet by 20,

l^Ibid. See the picture in the article,

% b i d .

% oscoe, op, cit., p, i|if2. 100

Henry Kyd Douglas, a former officer in the famous

Stonewall Brigade, was a prisoner in the pentitentiary; and his cell opened into the courtroom. Naturally, he had a view of the entire proceedings. Douglas kept a diary and re­ corded his impressions of the trial.

My room opened into the courtroom and was used for a witness room during the day. The day after I arrived I looked in upon the Courtj it was a strange scene. . • • It was the most solemn tribunal I ever faced. I never saw a smile upon the face of a judge, counsel, or spectator.!'

Under the circumstances, it is not unusual that Douglas noted the solemnity of the Court.

Furthermore, his comments concerning Holt and Bing­ ham can be summed up in his statement that "there was never any attempt on the part of the Commission to curb or ques­ tion the arbitrary insolence and injustice of the Judge

Advocates."!® Douglas continued his degradation of the tribunals

If justice ever sat with unbandaged, blood-shot eyes, she did on this occasion. The temper, the expressions, the manners, the atmosphere pervading the Court made it an unprecedented spectacle. The Commission illus­ trated the very spirit and body of the times; and passion decided everything. Of judicial decorum, fair­ ness, calmness, there was absolutely none.!?

!®Douglas certainly could have given a prejudiced account. He was a Confederate held as prisoner by the United States Government.

!?Henry Kyd Douglas, I Rode with Stonewall (Chapel Hill: 1 9 4 0 ), p. 341. '

l®Ibid.

l^Ibid.. p. 3 4 2 . 101

Douglas was, indeed, perplexed by all that happened before him and could but compare the female spectators to ladies of an earlier time when vengeful attitudes also prevailed:

"It taught me to regard with more leniency the women who excited the bloody excesses of the French Revolution,"^®

He described them as follows:

Ladies of position, culture and influence enough to be admitted sat about the Court, near the Judges, talked to the prosecutors, and with scowls and scorn, white teeth and scorching eyes, augmented the general horror.21

This, then, was the audience to which Bingham would address his remarks. The general public, worked to a fever pitch in this "the emotional climax of the bloodiest war in modern history,"^2 waited for the hanging as witnesses paraded before the Court; and Bingham’s immediate auditors in the courtroom, distracted and full of hate, made ready subjects for General Wallace as he doodled and made pencil sketches of the proceedings.^^ It was an interested audi­ ence, but not one interested in finding the truth.

It was to this audience on June 2? and 28, 1865 that

Bingham gave his "Argument in Reply to the Several Arguments in Defence of Mary E, Surratt and Others, Charged with Con­ spiracy and the Murder of Abraham Lincoln, Late President of

^^Ibid,. p.- 3k3.

Zllbid,

22kcKee, op. cit.. p. 76. 23ibid. 102 the United States.” The speech was to last for more than nine hours; its merits would still be argued in legal and historical circles for nine decades. It has not, however, been discussed by interested rhetoricians, and it is to this end that the present writer hurries.

Bingham immediately set the boundaries for his address. Its purpose was twofold: to present his ” . . * views upon the questions of law raised by the several coun­

sel for the defence, and also on the testimony adduced for and against the accused . . ,” 2lj. Thus, he organized his

speech into two distinct divisions. The final five hours would be taken up with the testimony as presented through­ out the trial. Bingham, however, had other chores to tend before he could begin his summation.

The Legality of the Court is Challenged

During the trial the defense counsel specifically and the legal profession generally had raised doubts con­

cerning the legitimacy of such a Military Commission. Now, as the trial neared its close, Reverdy Johnson submitted an

argument concerning the legality of such a commission.

^ J o h n A. Bingham, The Argument of John A. Bingham. Special Judge Advocate.(Washington: IB6 5 ), p. 3 .

^^This issue had been settled in the first few days of the proceedings. Each of the accused challenged the jurisdiction of the court and were summarily overruled. It is probable that Ewing and Johnson were offering their argu­ ments more for public sentiment and for history than for practical purposes. 103

He was followed by General Ewing who also chastized the pro­ ceedings, The military judges were not happy to hear the constitutionality of their commission questioned. As

DeWitt caustically commented: "they were constrained , * * to tolerate two powerful attacks upon their right to try the defendants, which must have ruffled their professional equanimity."^6

Indeed, the more thoughtful writers of the time were uneasy after listening to Johnson’s close-knit reasoning.

Harper’s commented that

the views of an accomplished lawyer like Mr. Johnson will be regarded with respect by all who understand the question. We have little doubt that Judge Advocate Holt will demonstrate the constitutionality of this military trial, while its policy still remains an open question.^

Judge Peckham of the New York Supreme Court spoke for the whole bench as he charged a jury as follows:

It is almost as necessary that the public should have undoubted faith in the purity of criminal justice, as it is that justice in fact be administered with integrity. Grave doubts, to say the least, exist in the minds of intelligent men as to the constitutional right of the recent military commission at Washington to sit in judgment upon the persons now on trial for their lives before that tribunal. Thoughtful men feel aggrieved that such a commission should be estab­ lished in this free country, when the war is over, and when the common-law courts are open and accessible to administer justice according to the law, without fear or favor.2o

^DeWitt, Assassination, p. llj.3. Roscoe disagreed, reporting that they were uninterested and that "General Hunter dozed" during the speeches,

^^Harper* s. July 1, 1865.

^DeWitt, A s sa S3 ination, p. 262. loll.

Here was the issue then. Stanton and company were

concerned over the public "faith in the purity" of the proceedings and were intent on ending whatever doubts per­

sisted— even among "thoughtful men." Hence, Bingham was

called upon to justify the tribunal.

Before examining Bingham's argument concerning

jurisdiction, it is necessary to study those arguments which he attempted to refute--namely, those of Johnson and Ewing»

Reverdy Johnson began by questioning the authority of the

executive to form such a commission.

The executive possesses no power over the soldier ex­ cept such as Congress may . . . confer upon him. If , » . the creation of a military commission . . V is incidental to war power, it must be authorized by the department to which that power belongs, and not by the executive.29

Johnson returned to this theme with greater en^hasis later

in his argument. He attempted to show that the President

had no constitutional authority to create such a commission

and, therefore, that the commission was a nullity. "In thé

absence, then, of all mention of military commissions in the

Constitution, and in the presence of the sole authority it

confers on Congress . . . how can the power be considered

as in the President?"^®

Here, then, was the first question that Bingham

would be forced to answer. Johnson, however, was far from

finished. His next major point followed the pronouncement

^^Pitman, on. cit.. p. 2^3. 30lbid.. p. 256» 10^ by Judge Peckham that civil courts were open in the district and that they should be used. Johnson contended that the only reasons for not having the conspirators tried before a civil court would be: (1) the incompetence of such a court or (2) the desire of the War Department for having a secret trial. He tightly arranged his argument to declare that

If it be suggested that the civil courts and juries for this district could not safely be relied upon for the trial of these cases because either of incompetency, disloyalty or corruption, it would be an unjust re­ flection upon the judges, upon the people . . . and upon our civil institutions themselves.

Bingham’s second task, then, would be to show why the civil courts could not be used.

Johnson went on to say that the Constitution gives every accused person the right to a public trial and that although only a small part of the trial had been secret,

"the principle itself is inconsistent with American liberty, as recognized and secured by constitutional guarantees.

Johnson also denied the supposed authority of the President to suspend the writ of habeas corpus in all respects save that of arresting parties suspected of being guilty of a crime. His best argument, perhaps, was that "traitorously conspiring" is nothing more than treason; and if this be so,

"it is treason as known to the Constitution and Laws and can

% b i d ., p. 255.

32ibid. 106 only be tried and punished as they provide."33 Finally, he argued that only members of the army and navy could be tried before a miliatry tribunal.

Among other things, Bingham, then, would have to show that (1) the President did have the authority to ap­ point the commission, (2) the civil courts were inadequate for the just purposes of the trial, and (3) other than military personnel could be tried before such tribunals.

General Ewing followed Johnson’s reasoning closely, but dealt more specifically with the constitutionality of the court. He cited article after article in the Consti­ tution referring to such crimes. His comments are summed up as follows:

Under the constitution none but courts ordained and established by Congress can exercise judicial power, and these courts must be composed of judges who hold their offices during good behavior. They must be independent judges, free from the influence of Execu­ tive power. Congress has not "ordained and established" you a court, or authorized you to call these parties before you and sit upon their trial, and you are not "judges" who hold your offices during good behavior. You are, therefore, no court under the constitution, and have no jurisdiction in these cases, unless you ob­ tain it from some other source, which overrules this constitutional provision. . • « The President cannot confer judicial power upon you, for he has it not. . . . The President, under the constitution, may constitute courts pursuant to the Articles of War, but he can not give them jurisdiction over citizens. The article pro­ vides that "no person shall be held to answer for a capital or otherwise infamous crime, unless on a pre­ sentment or indictment of a grand jury, except in cases

33lbid.. p. 258. 107 arising in the army and or naval forces, or in the militia when in actual service in time of war or public danger.

Ewing's arguments were effectively presented. He con­ tinued to quote from the Constitution that "the trial of all crimes, except in cases of impeachment, shall be by jury" and that "in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an im­ partial jury of the State and district wherein the crime shall have been committed."3^

Bingham Answers Johnson and Swing

The defense counsel had made some telling hits. The public demanded answers to the accusations that the Constitu­ tion had forbidden this tribunal to try the conspirators.

They were concerned with the question which Johnson had asked and which appeared to be the most nagging; "Is it that the constitutional guarantees referred to are designed only for a state of peace?" Bingham was called upon to counter these charges. The government had been pleased with their able spokesman and was confident that he would clar­ ify the difficult problem of jurisdiction. As Senator John

Sherman of Ohio was later to comment, "A very useful man he was too in those stirring days."3&

3^4-Ibid. . p. 26i|..

3^Ibid.

3^Bingham Papers, Columbus, Ohio. 108

The Special Judge Advocate recognized the importance of answering the questions posed by Johnson and Ewing, His task was a difficult one and two-fold: first, to make his arguments understandable to the many millions of men and women awaiting justification of the trial and, second, to develop a legal argument thoughtful enough to allay the fears and stop the doubts of many lawyers and jurists who were outspoken against this "kangaroo court." It was not an easy task, but one to which Bingham came well-equipped. His years as a successful lawyer had given him much experience in countering forensic arguments; he had an amazing knowl­ edge of legal précédant, the Constitution, and all texts of legal importance in his day. For the man on the street, the layman, the non-lawyer, he would rely on his experience as a stump orator and extraordinary debater in the Congress.3?

His reply to the several counsel for the defense would walk the tight rope between legal jargon and language fiery enough to incite any crowd listening to a stump speech which in part exalted the rights of a great nation wronged by traitors. Bingham recognized first of all the general public when he assured them that

it is a matter of great moment to all the people of this country that the prisoners at your bar be lawfully

3?See John Sherman, Recollections of LO Years in the House, Senate, and Cabinet, an Autobiography (Chicago; ld9^). He says that Bingham ^took an active part in all the debates during this long period. He was a man of genial, pleasing address, rather too much given to long flights of oratory, but was always a favorite with his colleagues and associates." 109

tried and lawfully convicted or acquitted, A wrongful and illegal conviction or a wrongful and illegal ac­ quittal upon this dread issue would impair somewhat the security of evervoman’s life, and shake the stability of the republic.3°

Bingham quickly surveyed the speeches of Reverdy

Johnson and Thomas Ewing, Jr. and answered them in a style better fitted to the campaign trail than the courtroom. It was an obvious attempt to mollify the fears of the public.

His argument began and depended in large measure on the fact that the Booth conspiracy was but a small part of a much greater rebellion. Indeed, the tremendous work that went into showing the relationship of Jefferson Davis to the con­ spirators was now making itself felt. Bingham stated:

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 govern­ ment, and the commander of the armies of the United States . . . and counsel reply by elaborate argument, that although the facts be as charged . . . the suc­ cessor of your murdered president is a usurper if he attempts by military force and martial law, as commander-in-chief, to prevent the consummation of this traitorous conspiracy in aid of this treasonable re­ bellion. 39

Now, there was a refutation of the arguments which were made by Johnson and Ewing that any layman could understand.

Bingham maintained that although the civil courts were open in the-District, "They are closed throughout half the repub­ lic, and were only open in this District on the day . . ,

^^Bingham, op. cit.. p. 3.

3^Ibid., pp. 5-6. 110 of the traitorous assassination of your President, and are only open at this hour, by force of the bayonet.His argument continued to illustrate that martial law was in effect in the District, that the war was not yet over, that the accused were really a part of the war inasmuch as they were acting on behalf of the military and civilian leaders of the South and were carrying out a military act.

Bingham then presented a rather interesting argument as to the reasons that the court could not call itself void and without jurisdiction..

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 . , . this court has no power, as a court to declare the authority by which it was constituted null and void . . . ^^

It is a tight little argument. The officers making up the court were detailed to the Court by order of the President,

Bingham maintained that they had no choice, that they were simply obeying orders, that they could not question the authority of the Commander-in-Chief in this matter. What he did, in essence, was to take the burden from the officers in the courtroom and place it squarely on the President. Now if Ewing chose to attack the President, Bingham could show that the General was less than patriotic. (Indeed, much of

Bingham's later argument would be directed against the characters of both Johnson and Ewing. )

^°Ibld.. p. 6.

^Ibid.. p. 7* Ill

Bingham maintained that the court could take no action concerning its jurisdiction, "Why not," he said,

crown the absurdity of the proposition by asking the several members of this court to determine that they are not 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 be­ gins to reason upon the proposition he must take for granted, and therefore decide in advance, the very question in dispute, to wit, his actual existence. . . , So with the question presented in this remarkable argument for the defense: before this court can enter upon the inquiry , . . 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 . . . to finally and solemnly decide and declare that they are not in law or in fact a judicial tribunal.

This sophistic diatribe was inserted simply to ridicule

Ewing and Johnson in the public's eye.

Having dealt with the "impossibility of the court calling itself a nullity," Bingham began his argument again.

This facet of his speechmaking is an interesting one: after having established his point and made it conclusive, he reiterated and repeated until the auditor had heard the same argument in as many forms as the speaker was able to put it.

He stated after "proving" his argument a second time, "How can it be possible that a judicial tribunal can decide that it does not exist, any more than a rational man can decide that he does not exist?"^^ Here Bingham resorted to shifting the meanings of words. Note that he does not state that

^ I b i d ., p. 8.

^3xbid., pp. 9-10* 112 such a coramlssion cannot decide as to its jurisdiction, but that it cannot decide the question that it does not exist.

Certainly, he was aware of the difference between physical existence and legal jurisdiction; he was clouding the issue.

Did the President have the authority to give such jurisdic­ tion to the Court? Indeed, did the President have the right to create such a court? These were queries which Bingham initially avoided. He was to answer them, but not until he had made the entire conflict a fuzzy one. The issue was muddled enough. Why, one might ask, did the Special Judge

Advocate play with words? The answer is evident. He was attempting to belittle the defense counsel and, hence, make light of their case.

But his ^ hominem arguments did not end with such )|)| subtleties. He immediately attacked General Ewing by maintaining that the officer had himself recently been en­ gaged in the West where martial law had been enacted in military tribunals. Bingham remarked sarcastically, "Is the gentleman QEwing] quite sure . . . 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 members of this court?"^^

^Margaret Leech, Reveille in Washington (New York: 191+1)» "He was conspicuous in this trial tor his bullying of defense counsel," P. I+I3 .

^^Bingham, op. cit., pp. 10-11. 113 Moreover, Bingham was far from finished with Ewing.

The Special Judge Advocate continued:

I wish to know whether he proposes, by his proclamation of the personal responsibility awaiting all such usur­ pations of judicial authority, that he himself shall be subjected to the same stern judgment which he in­ vokes against others— that, in short, he shall be drawn and quartered for inflicting the extreme penal­ ties of law upon citizens of the United States . . . I trust that his error of judgment in pronouncing this military jurisdiction a usurpation and violation of the Constitution may not rise up in judgment to condemn him.4b

Now, Bingham had compared two things which were not particularly analogous: the trials held by Ewing in the

West and the trial being held in Washington. But more than this, he attempted to make Ewing out to be a beast. The

General had in no place maintained that the officers of the court should be punished for their part in the trial much less that they be "drawn and quartered.” Bingham had put words in Swing's mouth that were never there and then pro­ ceeded to damn the general for those planted words.

If the assault on the character of Ewing seems high­ handed, it was nothing in comparison to that which Bingham saved for Reverdy Johnson. "His [Johnson's^ plea in behalf of an expiring and shattered rebellion is a fit subject for public consideration and for public condemnation*”47 Bing­ ham maintained. He had stretched the limits of credulity severely with his statement. He implied that by arguing

4&Ibid.. pp* 11-12.

47lbid., p. 1 3 , Ill], against the jurisdiction of the military tribunal, Johnson had knowingly made an impassioned plea in behalf of the rebel government. He further attempted to prove Johnson’s disloyalty by associating him with Benjamin Wood:

Let the people also note, that while the learned gentle­ man Johnso:^ .... condemns as a usurpation the means œaployed so effectually to suppress this gigantic insurrection, the New York News, whose proprietor. Benjamin Wood, is shown by the testimony on your record to have received from agents of the rebellion twenty- five thousand dollars, rushes into the lists to cham­ pion the cause of the rebellion, its alders and abet­ tors, by following to the letter his colleague [Mr. JohnsoiQ and with great plainness of speech . . . de­ nounces the court as a usurpation and threatens the members with the consequences.

Bingham, hence, accused Johnson of being a colleague of

Wood and, more, of being among those who had championed the cause of the rebellion. He summed up against Johnson by asserting that "it does seem to me that the speech in its tone and temper is the same as that which the country has heard for the last four years uttered by the armed rebels themselves and by their apologists, , . . "^9

To Bingham, then, and through Bingham to the general public, Reverdy Johnson, a learned and loyal United States

Senator, was made to seem either a rebel or one of the rebel apologists. Bingham acted as if he were personally wounded as he climbed to the height of his argument:

Youngest born of nationsi is she not immortal by all the dread memories of the past--by that sublime and

4 # I b i d .

49ibid. 115

voluntary sacrifice of the present, in which the brav­ est and noblest of her sons have laid down their lives that she might live, giving their serene brows to the dust of the grave and lifting their hands for the last time amidst the consuming fires of battle! I assume, . . . that self defence is as clearly the right of na­ tions as it is the acknowledged right of man, and that the American People may do . , . against organized armed rebels, their aiders and abettors, whatever free and independent nations anywhere upon this globe, in time of war, may of right do. All this is substantially denied by the gentleman in the remarkable argument he has here made.^O

Now, it is probable that if Johnson had been present, he A. would have replied, "All what is substantially denied?" But

Johnson was not present as Bingham made his summation»

Bingham next contended that "there is nothing fur­

ther from my purpose than to do injustice to the learned

gentleman or to his elaborate and ingenious argument.He made his last tirade against Johnson for the letter's com­

paring the commission to the Spanish Inquisition, Bingham must nearly have shouted when he asked, "Was this dealing

fairly by this government? Was there anything in the con­

duct of the proceedings here that justified such a remark?"

He posed several more questions. Among these were: "Were

they not informed of the accusation before them?" Yes, they

were— immediately prior to the opening of the trial, "Has

any part of the evidence been suppressed?" Yes, in fact,

perhaps the most important items of evidence were suppressed.

"Have not all the proceedings been published before the

^Qjbid,, pp, 13-14..

^^Ibid., p,. 14. 1 1 6 world?" Yes, they were; but some testimony was altered be­ fore it was published, "What, then" Bingham asked, "was done . . . which justifies this clamor about a Spanish in­ quisition?"^^ Certainly, had the prisoners in the dock, shackled and nightly silenced by hoods, been permitted to speak, they might have answered these rapidly fired rhetorical questions.

Hence, Bingham had presented an argument which he had made popular earlier in the trial. Any person who made derogatory remarks against the government or any part of the government (i,e, the military commission) was disloyal. No disloyal person could be believed in any way, Johnson had made derogatory remarks against the tribunal; Johnson was, therefore, disloyal and was not to be believed.

For the remainder of his reply concerning the jur­ isdiction of the Court, Bingham mixed together sweeping condemnations of the Confederacy, further blasphemous attacks on the character of Johnson, some truth, much fantasy, and, not surprisingly, several keenly insightful comments on the law. The Special Judge Advocate stirred in his potpourri of legal argument fact and fiction as if they were one and the same. He so indiscriminately fused together truths, false­ hoods, certainties of the law and emotional conjecture that the reader is hard-pressed to determine where one leaves off and the other begins.

^^Ibid., p, lij.. 117

Bingham’s first attempt at refuting Johnson’s argu­ ments was filled with legal precedent. He quoted freely from many sources--using at times the same texts employed by

Johnson— to illustrate that military law and martial law are two distinct entities. He quoted from Chancellor Kent at length and concluded that:

Military Law is a system of regulations for the govern­ ment of the armies in the service of the United States, authorized by the Act of Congress of April 10, I806 • . . and naval law is a similar system . . . under the act of Congress of April 23, I8 0 0. But martial law is quite a distinct thing, and is founded upon paramount neces­ sity, and proclaimed by a military chief.53

Bingham enlisted General Scott; the ex-Attorney General Mr.

Caleb Cushing; ex-Secretary of War, Mr. William L. Marcy;

Sir Mathew Hale, author of History of the Common Law; Opin­ ions of Attorneys General; and Benet to prove his point.

His contention was that martial law and, hence, the military commission were legal because they were necessary.

The truth is, that the right of the people to proclaim and execute martial law as a necessary incident of war . . . and include under this law offences committed in time of war in the interests of the public enemy, and by concert and agreement with the enemy . . . as legit­ imate duties.of those entrusted with carrying out martial law.5q

Indeed, this was Lincoln’s own feeling when he proclaimed martial law on September 2i}., 1862. A noted by respected constitutional authorities, Kelly and Harbison, Lincoln’s

policy of arbitrary arrests and military trials for suspected citizens was essentially precautionary and in

23%bid.. p. 1 7 . 5^Ibid.. pp. 20-21, 118

case of civil war perhaps necessary . . . he did not believe that such a policy would subvert the Constitu­ tion or permanently impair the rights of citizens, and his belief proved to be correct.55 .-

It was to this point that Bingham next spoke. He condemned both Johnson and Swing for maintaining that no competent authority had declared martial law.^^ He quoted as support for his chief premise on the argument of neces­ sity, Lincoln's proclamation of martial law:

Be it ordered, that during the existing insurrection, and as a necessary means for suppressing the same, all rebels and insurgents, their aiders and abettors, with­ in the United States, and all persons discouraging vol­ unteer enlistments, resisting military drafts, or guilty of any disloyal practice, affording aid and comfort to rebels, against the authority of the United States shall be subject to martial law, and liable to trial and punishment by courts-martial or military commission.5'

Bingham then spoke concerning the right of the President to declare martial law and to put into force such military commissions as he deemed necessary. He missed no opportun­ ity to enlist Lincoln in his behalf nor to damn Johnson for maintaining that Lincoln's proclamation was a usurpation of power. He continued to build his argument with precedents from the Act of Congress of June 17, 1776, Chandler's

Criminal Trials, and Mr. Hallam's Constitutional History of

Alfred H. Kelly and Winfred A. Harbison, The American Constitution: Its Origins and Development [New York: 19^5)7 p. W . ------

^ ^ e r e Bingham is again clouding the issue somewhat as he correlates martial law generally with this particular tribunal.

^?Bingham, op. cit., p. 22. 119

England. He maintained that the President most assuredly had

the right to call for such military tribunals; he referred

to his main argument when he asserted:

Here is a conspiracy, organized and prosecuted by armed traitors and hired assassins receiving the moral sup­ port of thousands in every State and district, who pronounced the war for the Union a failure, and your now murdered but immortal Commander-in-Chief a tyrant; the object of which conspiracy, as the testimony shows, was to aid the^tottering rebellion which struck at the nation’s life.^

Once again, after bringing forth a rather effective

argument concerning Lincoln’s prerogative of declaring such

commissions legal, Bingham entered into a diatribe attempting

to show that the entire conspiracy was only a small part of

a much greater rebellion and that, therefore, the assassina­

tion was a military act and punishable by the commission.

He put together in the same paragraph, the following of­

fenses to maintain that Jefferson Davis and John Wilkes

Booth werojworking in consort. "The chiefs of the rebel­

lion, " said Bingham,

conspired with others to poison the fountains of water which supply your commercial metropolis . . . to se­ cretly deposit in the habitations of the people and in the ships in your harbors inflammable materials . . . to murder by slow and consuming torture of famine your soldiers . . . to import pestilence in infected clothes to be distributed in your capital and camps . . . and, finally, to crown this horrid catalogue of crime . . . to kill and murder in your capital the executive of­ ficers of your government and the commanders of your armies.59

^^Ibid.. pp. 30-31 .

, 59lbid.. p. 31. 120

After a rather close-knit argument concerning Presidential authority, Bingham, in his next breath, attempted to attri­ bute all of the atrocities of the war to the accused. He

Insisted that all of the above was clearly shown in evidence to be true. The fact that it was not did not seem to deter him in his plea. Even the leading journals condemned the advocate for such sweeping and biased generalizations.

Commenting on the last few days of the trial. Harper’s

stated, "There has been further evidence offered to prove the connection of the rebel authorities with the burning of

steam boats . . . the evidence in relation to President

Lincoln does not have any special Importance."

Bingham quickly moved from his damnation of the en­

tire Confederacy to the crux of his argument:

Who will dare to say that in time of civil war "no per­ son shall be deprived of life, liberty, and property, without due process of law?" This is a provision of your Constitution than which there is none more just or sacred in it; it is, however, only the law of peace, not of war. In peace, that wise provision of the Constitu- tion must be, and is, enforced by the civil courts; in war, it must be, and is, to a great extent, inopera­ tive and disregarded.^

Bingham brought weighty authority to bear in supporting his

contention. He quoted at length from no less a source than

Chief Justice Marshall; he used John Quincy Adams’ testimony

liberally; Justice Story and Alexander Hamilton were mentioned

^% a r p e r ’ s, July 1, 1865. Emphasis added by present writer.

Bingham, op. cit., pp. 35“36. Emphasis added by present writer.4 + T AT* 121 for further aid. Indeed, one remarkable aspect of this portion of the speech is his continual employment of strong authority. Furthermore, Bingham not only used authority, but he also piled up, high and deep, laws and statutes which enhanced his argument.

At this point an interesting change occurred in the

Advocate's case. After spending more than three hours il­ lustrât ing-- among other things--that the Executive had the power to call together such a commission, Bingham proceeded to explain that Congress also ratified President Lincoln's proclamation. On March 3» 1863, Congress passed into law an act that "attempted to regularize and modify the Presi­ dent's control of political prisoners so that the authority of the courts would be respected without restricting too seriously the executive and military authorities. law became known as the Habeas Corpus Act and in theory, at least, replaced executive decree by Congressional regula­ tions in "matters of arrest, confinement and release of prisoners.” In practice,however, the act had little ef­ fect: "Judge Advocate Holt ruled that the new law did not apply to prisoners triable by military commissions, a ruling which left the executive department without restraint in all cases where martial law was instituted.Hence, Bingham

^%elly and Harbison, op. cit., pp. lti*.l-i)2.

&3lbid..63lbid. p. i|42 .

64ibid. 122 argued that if the President did not have the authority

(which Bingham said he had), then certainly he gained such authority upon the passage of the Habeas Corpus Act, He paraphrased a portion of the thirty-eighth article of the act and stated:

it is provided that all persons who, in time of war or rebellion against the United States, shall be found lurking or acting as spies in or about the camps, etc., of the United States or elsewhere, shall be triable by a military commission, and shall, upon conviction, suffer death. , , , If it was competent for Congress to authorize their trial by courts-martial, it was equally competent for Congress to authorize their trial by mil^^ary commission, and accordingly they have done

Bingham then reiterated his premises that the President and

Congress, both acting upon proper authority, had legally established such military commissions. He spent nearly twenty minutes supporting his contentions with precedents from English and American law and went once again into a tirade against Reverdy Johnson for the latter’s unbelievable gall in questioning such authority.

Bingham concluded his argument, and his peroration is an interesting one. Juxtaposing himself with the “trai­ torous” Johnson, Bingham quoted from Lord Brougham:

A friend of liberty have I 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 its concomitant, civil war. with all its atrocities and its fearful consequences.

^^Bingham, op. cit., p. ij.5.

^^Ibid.. p. 50. 123 Bingham had begun with a condemnation of the accused and their counsel and ended on the same note. His final re­ marks condemned once again Johnson and Ewing for "befriend­ ing" the accused and, hence, for being accomplices of the

"foul rebellion." Certainly, the charges were ungrounded— a Union general and a United States Senator, both accom­ plices of the rebellioni As opposed to these "black­ guards," Bingham pictured himself as a friend of liberty, ready to die in the service of his country. It was a stir­ ring climax, but not completely accurate.

Indeed, the entire speech is so baffling that one barely knows what to make of Bingham’s motives. He had pre­ sented legal arguments rather effectively; but he had made of his case a chaotic,shambles by his constant "side-trlps" into extraneous and libelous sophistries. Furthermore, the argument over jurisdiction still prevails. Most legal authorities maintain that the court was without jurisdiction.

However, others deny this and state that, all things being considered, the President was within his rights to call such a commission and, hence, the commission was met with jurisdiction.

Edwin M. Stanton, Judge Advocate Holt, and President

Johnson were not altogether satisfied with Bingham’s speech.

Knowing that an outcry would come from legal circles after

Bingham’s remarks, Johnson assigned to Attorney-General

Speed the task of reducing to writing the verbal opinion he had given as to jurisdiction prior to the trial. 12i{. Speed* s argument, coming after the trial, was much different from that of Bingham, and the degree of difference showed the contempt which the President of the United States must have held for the Special Judge Advocate's plea.^?

Ex Parte Milligan

But, perhaps, the key to the entire affair came ten months after the trial of the assassins when the Supreme

Court rendered its famous decision in ex parte Milligan.

L, P. Milligan and his cohorts were placed under military arrest in Indiana on October 5» 186I|., Milligan was tried before a military commission in Indianapolis and found guilty of conspiring "to release and arm rebel prisoners and to march with these men into Kentucky and Missouri in order to cooperate with rebel forces there for an invasion of

Indiana.Milligan was sentenced to be hanged in May, 1865

--the same month that the assassins of Lincoln had gone on trial. President Johnson, however, commuted the sentence to life imprisonment. Milligan thereupon petitioned for a writ of habeas corpus, and the case reached the Supreme Court of the United States. '

In April, 1866 the majority of the Supreme Court ruled according to the Act of Congress of I863 (the same that

Bingham had used in support of his argument) that the

8?see James Speed's "Opinion on the Constitutional Power of the Military to Try and Execute Assassins of the President," Pitman, op. cit., pp. 14.03-0 9 .

^®Kelly and Harbison, op. cit., p. I4J4.6 . 125 government was not within its rights to hold Milligan,

David Davis, speaking for the majority of the court stated

that the ’’Constitution of the United States is a law for

rulers and people, equally in war and in peace.Hence,

Bingham's entire argument concerning the necessities of war

seemed to be refuted, Davis continued:

Ho doctrine • , , was ever invented by the wit of man than that any of its provisions can be suspended during the great exigencies of government. Such a doctrine leads to anarchy or despotism, but the theory of neces­ sity on which it is based is false; for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence,

” , , , the theory of necessity , , , is false.” This pre­

sented a crushing blow to the arguments of the Special

Judge Advocate,

However, it must be kept in mind that a minority of

four justices upheld the right of Congress to provide such

a military commission. In regard to the question that civil

courts were open at the time of military trial. Chief Jus­

tice Chase, commenting for the minority, maintained: ’’Those

courts might be open and undisturbed in the executions of

their functions, and yet wholly incompetent to avert threat­

ened danger, or to punish, with adequate promptitude and

certainty, the guilty conspirators,”*^^ Of course, it must

be seen that the Milligan decision was concerned with areas

69lbid.

70lbid.

71lbld., p , i | 4 7 . 126 far removed from the theatre of war. Washington, it might be argued, had no such favored geographical position.

It would seem that ^ parte Milligan established once and for all that civil liberties are not to be denied be­ cause of necessity. However, one author states:

It is questionable . . . whether the majority opinion in ex parte Milligan was a realistic approach either to the“7Jivil Iffar experience or in providing for a future contingency of a similar kind. Davis* declaration that the Civil War had demonstrated that military rule in nonmilitary areas was never necessary scarcely coin­ cided with the facts. To be sure, the rebellion might well have been suppressed without resort to martial law in the loyal states, but actually it was not. '2

The arguments about jurisdiction still go on, and it might be maintained that John A. Bingham did little to clarify the issue. In his attempt to castigate an entire section of the country and to chastize an eminent statesman,

Bingham lost sight of his main goal.

T^Ibid.. pp. iiij.7-48. CHAPTER V

THE SPEECH: ON CONSPIRACY

Bingham Clouds The Issue

The final five hours of John A. Bingham's address were spent in examining the evidence given during the trial

and in presenting his "views of the law arising upon the facts in the case."^ The Special Judge Advocate found him­

self in a somewhat compromised position. If he attempted to

review all of the evidence presented by the government, he would be forced to submit much nonsense to the Court. If, however, he selected only the testimony which was consistent

and factual, his argument would be untenable. The govern­ ment '8 case, as presented, was a weak one. Not known for

his prudence, Bingham chose the first alternative. The re­

sult of this bravado is more than curious. One writer, after

reading the speech, could but remark,

Bingham's argument makes strange reading. Hard facts, dubious speculation, sheer fantasy, and down-right per­ jury are quoted as if all were of equal value. It is hard to imagine any court taking such stuff seriously, but this was a special military commission acting under unusual circumstances.^

^Bingham, op. cit., p. ^1.

^Philip VanDoren Stern, ed., The Assassination of President Lincoln and the Trial of the Conspirators by Pit­ man, Facsimile Edition (New York: p. xxii”

127 128

The questions concerning fact which Bingham chose to examine were ’’first, did the accused, or any two of them, confederate and conspire 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 several acts specified?"^ Nearly the first ten min­ utes of the Advocate's speech were taken up with quotations of law, all designed to illustrate ’’conspiracy” as inter­ preted under the law. He used Phillips, Marshall, and Lord

Mansfield liberally to accomplish this task.

Prom the outset, however, he began to cloud the issue. For instance, in commenting on conspiracy, he quoted:

In prosecutions for conspiracy it is an established rule 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 contemplation of law as well as in sound reason, the act of the whole party, , ,

To Bingham, the two key phrases relating to conspiracy were:

(1) "to have combined together for the same illegal purpose" and (2) "any act done by one of the party, in pursuance of the original concerted plan, and in reference to the common object," Yet, he refused to consider the original concerted plan to capture the President and dealt with each of the

^Bingham, op, cit,, p, ^1, It is curious that here Bingham referred to "either or all of several acts," Earlier he had insisted that.it was all one crime with several parts,

^Ibid. 129

accused as if his part in the assassination conspiracy were

a certainty, regardless of his knowledge of i t . ^ It seemed

a little enough oversight at the time, but one that would

condemn— without sufficient evidence— several of the accused*

Generally, however, Bingham* s examination of the

nature and meaning of "conspiracy” was handled effectively.

Had he, after presenting his comments on the law, gone

immediately to a presentation of the facts concerning those

sitting in the prisoner's dock and had he acted more like

an attorney than a Grand Inquisitor, his speech would have

been much more effective. Instead, committing himself to an

examination of all of the evidence brought forth by the

government, he launched into a final tirade against Jeffer­

son Davis, other Southern leaders, and the entire Confeder­

acy.

It was Stanton's desire to implicate the South

generally and its leaders specifically. This is obvious;

the reasons for such action are somewhat blurred. As Eisen-

shiml stated:

What his motives were, there is no certain way of knowing; what their effect was, soon became evident. The eyes of the public were diverted from many events that would not have stood close scrutiny, events that were intimately connected with the mishandling of the news dispatches during the night of the murder, the in­ adequate pursuit and other curious activities and™dere­ lictions of the War Department. Incidentally, e#l hopes

^During the trial, the defense counsel continued to bring up the plot to capture, but Bingham almost completely ignored their arguments. 130

of establishing a friendly reunion of the South and the North were frustrated. By accusing the erstwhile Confederate Chief of having caused Lincoln's death, the hatreds of war were to be continued ad infinitum.®

Perhaps, then, Bingham was attempting to wave the

"bloody shirt" high and add kindling to an already bright flame of hatred in the North. Perhaps, it was to make

Lincoln’s plan of peaceful reconstruction an impossibility and to help the radicals in their campaign to damage Presi­ dent Johnson’s attempts to carry out such a program. Cer­ tainly, it was not for the most obvious purpose of convicting

Jefferson Davis and others. Indeed, as has been already seen, Davis had by this time been captured by Federal forces and had been languishing in prison for more than a month and a half. To have brought him to the trial would have been a simple matter; it was, however, a course not sought by the powers in the nation’s capital. Still, Bingham made efforts to convict the Southern leaders ^ absentia. Had he been able to do this with reliable evidence and unshakable testimony, all attempts to hurry reconstruction and pacify the war hysteria would have ended. The radicals in Congress would have been unhampered by pleas for mercy if it could have been shown that Davis had been the chief conspirator in the assassination. On April 2^, the New York Herald sup­ ported this assumption when it stated:

There was great probability that all of the other of­ fenses and outrages of the chief traitors would have

^Eisenshiml, op. cit.. p. 207. 131

been forgiven and forgotten by the generous Northern people in the glad welcome extended to peace, and in the general joy of a restored Union ► . ► but the de­ liberately planned assassination has caused a sudden revulsion in public sentiment.'

The government had no such airtight case.

The prisoners in the dock were but mere pawns being used to "mate" the king; but whether the king to be destroyed was Jefferson Davis or the generous feelings of the Northern people is still somewhat of a mystery. The prisoners sat in dumb silence as the government pressed its case against the Confederacy* "On them would fall the deadliest of all penalties--the penalty of serving as an example."^

Bingham took two hours to examine the "evidence” concerning the complicity of Southern leaders in the con­ spiracy, The deletion of this testimony would have added immeasurably to the effectiveness of the address. The

Special Judge Advocate again dragged before the Court such matters as the burning of New York City; the rebel raid on

St. Albans, Vermont; the starvation and, hence, murder of

Union prisoners of war; and the importing of pestilence into

Union camps and cities. The fact that he would reiterate all of this nonsense is startling, but not so much as the methods he employed to prove his allegations.

Bingham relied heavily on the testimony of Richard

Montgomery, alias James Thompson. Montgomery had met Jacob

?The New York Herald. April 25, 1865. Q Roscoe, op. cit., p. 1^59. 132

Thompson in January; and the latter maintained that Jeffer­ son Davis proposed to assassinate Lincoln, Stanton, Grant, and others* He stated that he had known in advance of the raid on St. Albans and the arrangements to fire the city of q Hew York. An interesting bit of evidence; it came from a more interesting source. Montgomery was a professional spy^^ who had been convicted as a burglar in Hew York City and possessed a rather lengthy police record. He was an able liar and was later exposed as a perjurer. "It was shown later that at the time when he was supposed to have had these conversations with Thoiqjson in Montreal, the latter was not within three hundred miles of that city,"^^

Bingham next brought forth the testimony of Dr. James

Merritt. The doctor maintained that he had learned both in conversation and from a letter of rebel agents in Canada that the assassination was a certainty and would be carried into effect. Merritt claimed that he immediately gave such information to Squire Davidson, a Justice of the Peace in

Galt, Canada, but that Davidson would not report it because he thought it was ridiculous.Dr. Merritt attempted to build ethos for himself when he stated that "I continued ray

hitman, op. cit., pp. 2 5 - 2 6 . See also Bingham, op. cit., p. 6 3.

^®This in itself does not act against his character, for many served in this capacity.

^^Eisenshiml, op. cit., p. 2 1 3 .

^^Pitman, op. cit.. p. 36. 133 intimacy with these rebel sympathizers for the purpose of giving information. . . . I have never received a dollar from the Government for furnishing any information from

Canada. . . . Now here was a loyal Unionist— a man who would act as a spy without remuneration.

Bingham made full use of Merritt's testimony, in spite of the fact that he probably knew that Merritt was a liar, an unscrupulous physician--a quack. The British Min­ ister in the United States learned of Merritt's accusations and immediately saw that if a Canadian official had known of the plot to kill Lincoln and had not reported it, an international incident might follow. He wrote to the County

Attorney's office in Berlin, Canada and received from that attorney two letters: the first by the solicitor and the second by J. Davidson, the Justice of the Peace in question.

Both denied the visit made by Merritt, and Davidson stated:

"I know nothing of the man j_Merrit^ personally but from inquiry I find that his character stands very low in the neighborhood in which he lives.

Furthermore, Dr. Merritt received a letter from

James Fry, Provost Marshall General in Washington, on

April 20, 186^ which read in part: "The Secretary of War authorizes me to pledge you protection and security, and to pay all expenses connected with your journey both ways, and

^^Ibid.

^^Eisenshiml, op. cit., p. 216. m in addition to promise a suitable reward if reliable and useful information is furnished.What man, priding him­ self on his ability to lie and perjure, could pass up such an opportunity? Certainly, the very nature of the letter in­ sured that Merritt would present "useful information."

Otherwise, he would be forced to forfeit the reward. Con­ trary to Merritt*s statement concerning his personal purity in never receiving funds for his activities as an informer, the doctor accepted six thousand dollars from the government for his testimonyI

Moreover, when Bingham rose to speak on the 2?th, the Acting Secretary of State had in his possession the letters from the British legation in Washington showing the testimony of Merritt to be perjured. The Secretary im­ mediately forwarded the letters to Judge Advocate Holt who, receiving them on the next day, was well aware that much of what Bingham attested to in the final day of his alignment was fallacious. It is quite probable that Holt informed

Bingham of the letters; however, it is not a certainty.

Eisenshiml believes that he did know: "It is therefore an unquestionable fact that Holt, Bingham, and presumably, their

commander-in-chief, Stanton, willfully suppressed the truth

and used testimony which they knew to be perjured."^? Still,

^^Pitman, op. cit., p. 86.

l^Clara E. Laughlin, The Death of Lincoln (New York: 1909), p. 2 1 0 .

^^Eisenshiml, op. cit., p. 217. 135 whether or not Bingham knew this is open to question. How­

ever, it is beyond doubt that he knew of the character of

Dr. Merritt and probably that the testimony of this witness was purchased at a good price by the Secretary of War. Yet, he concluded concerning Merritt and Montgomery that: "the

court must be satisfied, by the manner of this and other witnesses to the transactions in Canada, as well as by the fact that they are wholly uncontradicted in any material matter that they state, that they speak the truth. . .

Bingham also relied on the testimony of Sanford

Conover who had previously participated as a witness in a

trial in Montreal against the St. Albans raiders. He swore

there that he was a Virginian and had never served in the rebel forces. On May 20 he swore to the following in front

of the Military Commission in Washington, D.C.:

I was born in New York, and educated there. Since October last, I have resided in Montreal, Canada. Pre­ vious to that, I resided a short time in Baltimore. Before that, I was conscripted, from near Columbia, S.C., into the rebel service, but was detailed as a clerk, and served as such in the rebel War Department in Richmond, for upward of six months. 1°

It seemed that, when giving testimony, Conover was "born" wherever it was most convenient. The lie concerning his re­ bel service is interesting. More interesting was the fact

that Bingham would rely on this man’s testimony "which stamps

T A ■‘• Bingham, op. cit., p. 6?. 19pitman, op. cit., p. 28, 136 these ruffian plotters [Confederate leader^ with the guilt of this conspiracy,”^® Ihdeed, after the House investiga­ tion uncovered the fraud, Conover was sentenced to ten years in Albany prison for perjury.

This, then, was the extent of Bingham's case against the Confederate leaders. Earlier testimony had supplied other sources; but it was of such a ridiculous nature that the %)eoial Judge Advocate decided to build his arguments on the "strength” of testimony of such men as Montgomery,

Merritt, and Conover. He knew their character; he probably knew that their testimony was fraudulent; but he failed to point out their perjuries. Worse, he aided these perjurers

--wittingly or unwittingly— by giving sanction to their re­ marks: he compounded the felony by giving credence to their lies.

Bingham accomplished this with seeming conviction and with apparent popular success. On June 6, the New York

Times headlined "THE REBEL LEADERS IN CANADA DIRECTLY IM­

PLICATED IN THE MURDER." Bingham’s final speech made the accusation a certainty for most of the populace of the North,

It should be noted that the government had in its possession evidence which portended of "Davis’ sanction, if not direct sponsorship of the assassination plot."^^ Why

Bingham and Holt chose to use the poorest evidence will

^^Bingham, op. cit., p. 72.

^^Roscoe, op. cit., p. 50if. 137 remain a mystery. Whether or not the Confederate leaders instigated the conspiracy is another open question.

Arguments against The Accused

By the second day of the speech, John A, Bingham had examined the jurisdiction of the Court, attacked the character of the defense counsel, given testimony as to the meaning of a conspiracy, and "dragged" the entire Confederacy before the Court. Up to this point, his address was loosely organized. Finally, he reached the goal which he had orig­ inally set for himself. The questions Bingham had raised were: (1) Did the accused confederate and conspire to­ gether?, and (2) Did they "commit either or all of the sev­ eral acts specified?" The second question was dependent on the first. In answering them, Bingham attempted to sum up the testimony which illustrated the conspirEoyiT) / First, he brought all of his oratorical skill to bear to "prove beyond doubt" that John Wilkes Booth had con­ spired against Lincoln; Now, this certainly was not much of a point in issue. The President was dead; that John

Wilkes Booth was the assassin was a fact denied by none.

Bingham, however, did not use such simple proofs. His rea­ son for this seems to be that he wanted to show that Booth was conspiring to kill the President as early as October, l86i[. and to refute the argument that there had ever been a plot to capture Lincoln.

\ \ 138

The final proof of Booth's early plans to kill the

President is amusing after so many years. On November 11,

I86I4. John Wilkes Booth was on a streetcar in New York City when a very valuable letter, which he had on his person, was dropped, A Mrs. Mary Hudspeth, whose daughter picked up the package, delivered the envelope and its contents to Major

General Dix who then sent it to the War Department. There were two letters in the envelope, one of which read:

. . . Abe must die, and now. You can chose your wea- pons--the cup, the knife, the bullet. The cup failed us once, and might again, , . . You know where to find your friends. Your disguises are so perfect and com­ plete that without one knew your face, no police tele­ graphic dispatch would catch you. . . . Strike for your home, strike for your country; bide your time, but strike sure. . . , Get introduced; congratulate him; listen to his stories--not many more will the brute tell to earthly friends. Do any thing but fail and meet us at the appointed place within the fortnight. , . , Chas. SelbyZZ

Mrs. Hudspeth was certain that it was Booth who had dropped the letter even though the owner of the letter was supposedly in disguise. Her certainty was based on the fact that the "letter-dropper” had a scar on his jaw. Booth had such a scar. It was not difficult for the Special Judge

Advocate to make the connection.

Bingham relied heavily on the testimony of Mrs.

Hudspeth and the "Selby" letter. In the same envelope Mrs.

Hudspeth had found another sheet of paper, later to be

^^itman, op. cit., p. ij.0. 139 known as the "Leenea" letter. Upon receiving both letters.

General Dix wrote the following to his superiors in Wash­ ington :

My dear sir; The inclosed was picked up in a Third Avenue railroad car. I should have thought the whole thing got up for the Sunday Mercury, but for the gen­ uine letter from St. Louis in a female hand[ the Leenea letterl, The Charles Selby is obviously a manufac­ ture.23

The defense counsel made much of the fact that the first government official to examine the Selby letter was certain that it was a hoax, Bingham, however, attempting to refute such incontrovertible testimony, stated that “The gentleman does not deal altogether fairly in his remarks touching the letter of General Dix; because upon a careful examination of the letter, it will be found that he did not form any such judgment as that it was a hoax for the Sunday Mercury . .

The Special Judge Advocate had done it againi First, he intentionally confused the issue by not mentioning that it was the first letter that Dix thought to be “gotten up" for the Sunday Mercury, not the Selby letter. Second, Bing­ ham maintained that a careful examination of Dix* s letter would show that the general definitely did not state that the Selby letter was a hoax, Bingham had lied. Dix could not have stated it more succinctly— “The Charles Selby is

Ibid., p. 1^1. Emphasis added by present writer.

2kBingham, op, cit., p, 7k. / lifO obviously a manufacture.” However, the Special Judge Advo­ cate was the last speaker at the trial; and no one would have the opportunity to refute his subterfuge.

Having thus implicated Booth in the conspiracy,— not by obvious fact, but by forged letters— Bingham hurried to show the guilt of the other assassins. The key witness for the government in constructing the conspiracy and guilt of several of the accused had been one Louis J, Welchman,

Still in his early twenties at the time of the trial, Welch­ man had studied for the ministry, taught school for a short period, and had finally become a clerk in the War Depart­ ment, He had taken a room at Mrs, Surratt's boarding house and was a very close friend of John Surratt. Throughout the trial his testimony showed him to be quite close to the conspirators, but, according to Welchman, never with knowl­ edge of the assassination plot.

His testimony was particularly damaging to both Mrs.

Surratt and Dr. Mudd, However, the evidence against Welch­ man himself is startling. In December, 1865» a report made to the War Department stated, "Welchman was an accomplice of the conspirators but whose status was subsequently changed,

Welchman had remarked to other government clerks that he could make a great sum of money if he wanted to participate in a plan being worked on by several of his friends. The boots that were worn by Payne when he was captured were lent

^^Eisenshiml, op, cit., p, 292, li+l to Welchman by a friend. Furthermore, he knew a secret cypher used by Confederate blockade runners. John Wilkes

Booth had wired Welchman this mysterious telegram on March 23,

1865: ”TELL JOHN TO TSLS&RAPH HUMBSR AND STREET AT ONCE.

The Special Judge Advocate could have certainly set an interesting snare for Welchman if the government had so desired. Colonel John A. Foster wrote concerning him: "It seems extremely improbable that Welchman was ignorant of the entire plot, if he was not an accomplice.It is probable that Welchman was, if not guilty, at least concerned that he would be accused. Hence, it was with great fear that he gave testimony against the accused. That the government threatened this witness is almost a certainty. Welchman wrote to Assistant Judge Advocate Burnett on May 5» 1865 that "I have the honor to call your attention to the follow­ ing additional facts in my recollection. You confused and terrified me so much yesterday that I was almost unable to 26 say anything." The young man, "terrified" as he was by government officials, would recall many interesting and damaging facts during the trial.

Bingham relied heavily on the testimony of Louis

Welchman to illustrate Dr. Samuel Mudd's complicity in the

^^Pitman, op. cit., p. 120.

^^Eisenshiml, op. cit., p. 292.

ZGlbid.. p. 280. 1 4 2 conspiracy. Welchman had testified that while he was walk­ ing down Seventh Avenue the previous January with John

Surratt, Dr. Mudd and John Wilkes Booth stopped and began conversing. Mudd had known Booth previously through a business transaction and also was acquainted with Surratt; the doctor made introductions— whereupon Booth invited the gentlemen to his room in the National Hotel. There, Welchman testified.

Dr. Mudd then went out into a passage and called Booth out. , . when they returned. Booth called Sur­ ratt, and all three went out together and had a private conversation, leaving me alone. I did not hear the conversation. . . . On returning to the room the last time Dr. Mudd apologized to me for his private conver­ sation, and stated that Booth and he had some private business; that Booth wished to purchase his farm, but that he did not care about selling it, . , . Booth also apologized, and stated to me that he wished to purchase Dr. Mudd'a farm. Afterward they were seated round the center-table when Booth took out an envelope and on the back of it made marks with a pencil. I should not con­ sider it writing, but from the motion of the pencil it was more like roads or l i n e s . 29

The Assistant Judge Advocate was to make much of this testimony. He maintained that the conversation, had it been perfectly innocent, would not have been held in secrecy, that the ”silly device” or deception concerning the sale of the farm was a poor excuse for holding the conversation in private. Bingham deduced that if it had concerned the farm,

"why should they disclose the fact to the very man from whom they had concealed it?"^® Had he stopped at the point where

29pitman, op. cit., p. llij..

^^Bingham, op. cit.. p. 77. m he questioned the alibi for the secret conversation, his argument would have been effective. However, leaping to conclusions, Bingham stated that "it would seem that this plotting the roads was intended . , , to point out the shortest and safest route for flight from the capital . *

• «31 This assumption was completely without basis in fact.

Welchman had said that the lines drawn on the envelope "were more like roads and lines." He had ascertained this by watching the motion of the pencil! Roscoe stated of Bing­ ham* s contention, "Again the Judge Advocate’s argument dealt in vapor. The lines could have represented the battle lines of Bull Run, the boundaries of land for sale, or the drain­ age streams of a cow pasture.

Furthermore, Thomas Ewing, counsel for Dr. Mudd, proved that Mudd had not been in Washington on the day in question and, in fact, had not been there since the twenty- third of December. Bingham maintained that (1) the defense counsel had in no way impeached the testimony of Welchman and that

(2 ) it is not material whether this meeting in the ho­ tel took place on the 23rd of December or in January. . . . The witness is not certain about the date of this meeting. The material fact is, did this meeting take place either on the 23rd of December or in January last?33

3^Ibid. 32 Roscoe, op. cit., p. ^J3. ^^Bingham, op. cit., p. JÔ, First, Bingham argued that Weichman was not wrong and then

contrarily stated that although the meeting probably took

place on the twenty-third of December, this fact alone was

not material,He spent nearly five minutes "proving"

that no matter which was the date of the conference, the

conversation most certainly did occur. The Assistant Judge

Advocate realized that Welchman, the star witness for the

prosecution, had been partially impeached; and he rushed to

the government clerk’s aid. After having had the testimony

that Mudd had been in Washington in January refuted, Bingham

concluded, " , , , he failed in the attempt to show that he

could not have met Booth, Surratt, and Weichman on the

23rd of December.That the State’s own witness did not

declare that he met Mudd prior to January did not deter Bing­

ham, "This matter," the Special Judge Advocate said, "is

entitled to no further attention. It can satisfy no one,

and the burden of proof is upon the prisoner to prove that

he was not in Washington on January last,"3^ Bingham hesi­

tated not one moment in his argument after so misconstruing

the onus probandi.

He hurried to show that Mudd was in Washington at

other times during the winter of 1865» The "proof" he used

% b i d ,, p, 79.

35ibid,, p, 81,

3^Ibid,, p. 82. Emphasis added by the present writer. 145 to illustrate this, however, was unfortunate. He recalled the testimony of the Reverend Mr. Evans, Evans, however, also swore that he saw James Jarboe coming out of the Sur­ ratt house at the same time that he saw Dr. Mudd. Now Jar­ boe had previously testified that he did not even know where the Surratt house was; let alone having visited there!

Mrs. Surratt’s daughter, Anna, and Honora Fitzpatrick, a boarder in the Surratt home, also negated the contentions of

Reverend Evans; and this part of the prosecution's argu­ ment was weakened considerably.3? That Dr. Mudd had repaired

Booth'8 injury and had given him comfort on the morning of

April 15 was an argument not so easily refuted by the de­ fense counsel, and it was upon this that Bingham finally would base his case.^®

"John A. Bingham brought to bear on Dr. Mudd every weapon in his imposing arsenal."39 In essence, the three most important arguments used by the Assistant Judge Advo­ cate were: first, that Mudd had set Booth's wounded leg knowing that he was John Wilkes Booth, murderer of President

Lincoln; second, that when asked by army men following the

37The government called other witnesses to prove that Mudd had stayed in constant touch with Booth. By and large, this testimony was countered by testimony of witnesses brought by defense counsel. 30A1though Bingham, in his final address, dealt with each of the accused first as to his part in the conspiracy and then as to his guilt in the actual murder, for the pur­ pose of clarity, the present writer will discuss both as­ pects simultaneously for each of the prisoners.

^"^Eisenshiml, op. cit.. p.. 259. 346 assassination whether two men had com© to his home. Dr. Mudd supposedly said, "Ho"; third, that the doctor did not im­ mediately report the incident to the authorities.

On the first charge, the defense counsel pointed out that although the doctor had, indeed, set Booth's leg, the actor was in disguise and that even if Mudd had recognized the assassin, he had no way of knowing at the time that it was Booth who murdered Lincoln.

As to the second contention of the Assistant Judge

Advocate, it was clearly stated in testimony by Lieutenant

Lovett who was the leader of the party sent to question Mudd that "we first asked [Mudd] whether there had been any strangers at his house, and he said there were."^ Bingham's third argument held less weight than the first two. It was shown by testimony and denied by no one that Dr. Mudd went to his cousin George Mudd the day following Booth's visit and informed him that two men had been at his home. He re­ quested that George send this infoimation to government per­ sons. There had been a lapse of several hours— from Saturday night to Sunday at noon;— but still he made the report.

^®Even the federal agents in the area of Mudd's farm had not announced that the assassin for whom they were searching was John Wilkes Booth,

^Poore, op. cit., p* 2^8. It must be noted that there was conflicting testimony on this point.

^Interestingly enough, it was through Dr. Mudd's testimony to his cousin who then reported it to the authori­ ties that the doctor was questioned in the first place. In essence. Dr. Mudd's own information led to the charges 147 This testimony also refuted Bingham's second argu­ ment, "Here the prosecution's argument broke down. Why would Samuel Mudd ask his cousin to inform the authorities,

and, then, when the Fédérais finally did get around to his house, promptly deny the very visit he had reported?"43

Bingham's case against the physician seemed dismissed by the

above testimony and the arguments presented by Thomas Ewing

in defense of Dr. Mudd, Somewhat stymied by the refutation mounted by the defense, Bingham launched into some of his most unfair arguments. He stated,

. « • Booth left his house on crutches, and went in the direction of the swamp. How long he remained there, and what became of the horses which Booth and Herold rode to his house, and which were put into his stable, are facts nowhere disclosed by evidence. The owners testify that they have never seen the horses since.. The accused give no explanation of the matter, and when Herold and Booth were, captured they had not these horses in their possession.^

It seems that Bingham was not only accusing Dr, Mudd of being

a horse thief, but was also maintaining that, even though

the question of the horses had never been asked during the

trial, the prisoner should have given some explanation as to

their whereabouts. How the accused, hooded, kept in con­ finement, never permitted to speak in their own behalf, could have given any explanation was a puzzle not solved by Bingham.

against him. Had he said nothing, as the prosecution con­ tended, he might never have been accused in the conspiracy. See Pitman, op, cit., p. 206.

^^Roscoe, op. cit., p. 473. 44Bingham, op. cit.. p. 113, lij.8

The Special Judge Advocate had preceded this soph­ istry by arguing;

, * , he stated that Booth was the murderer of the President, and Boyle was the murderer of Secretary Seward but took care to make the further remark that Booth had brothers, and he did not know which of them had done the act. When did Dr. Mudd learn that Booth had brothers?45

Certainly, most of the nation had by this time heard of

Edwin and Junius Booth, both actors of some repute,

Furthermore, Bingham said of Mudd's statement to his cousin, ” . , • they are additional indications of the guilt of the accused, in this, that they are manifestly suppres­

sions of the truth and suggestions of falsehood and decep­ tion; they are but the utterances and confessions of guilt."^7 Obviously, he was attempting to argue as follows;

Dr. Mudd had been accused of being a member of the conspir­ acy; conspirators lie; therfore. Dr. Mudd lied in whatever he said.

In all, the government's case against Dr. Mudd was

a weak one. Bingham, bent on convicting all of the accused, however, bore down on the doctor with such force that Town­

send of the New York World remarked, "Dr. Mudd, if he be

42ibid.

^^Eisenshiml says, "If Bingham had not had the closing argument, would he have dared to pretend indignation at the awful secret possessed by Dr. Mudd and shared by millions of other theater-goers and newspaper readers— that Booth had brothers?" Op. cit., p. 259.

^^Bingham, op.c it ., p, 116. 149

Innocent, is in only less danger than if he Iwere g u i l t y .

In the case of Lewis Payne, actually Lewis Thornton

Powell, Bingham was certain of a conviction. The strong young man admitted proudly that he had conspired with Booth in the assassination plot and had attempted to murder

Secretary of State Seward. There was no defense except in­ sanity that could be offered in the assassin’s behalf; and

Bingham, making the most of his case against this conspira­ tor, implicated beyond doubt, raised his voice to speak out:

At the same hour, when these accused and their co­ conspirators in Richmond and Canada, by the hand of John Wilkes Booth, inflicted this mortal wound which deprived the republic of its defender, and filled this land from ocean to ocean with a strange, great sorrow, Payne, a very demon in human form . . . sweeps by his [Seward's] servant, encounters his son, who protests that the assassin shall not disturb his father, pros­ trate on a bed of sickness, and receives for an answer the assassin’s blow from the revolver in his hand, re­ peated again and again, rushes into the room, is en­ countered by Major Seward, inflicts wound after wound upon him with his murderous knife, is encountered by Hansell and Robinson, each of whom he also wounds, springs upon the defenceless and feeble Secretary of State, stabs first on one side of hiè throat and then on the other, again in the face, and is only prevented

^®Townsend, op. cit., p» 68» It is altogether pos­ sible that Mudd did know of the original plot to kidnap the President. It is probable that Booth, once injured, changed his route of escape and went to Dr. Mudd knowing that he would set his leg, and, hence, aid him in his flight. At least, the doctor could have been an accessory after the fact. Bingham’s case against Mudd failed because of inade­ quate proof. Had he acted more to ascertain the truth than to convict the doctor of the major crime, he might have sub­ stantiated the lesser.. In the Assistant Judge Advocate’s zeal, however, he again clouded his own case. 150

from literally hacking out his life by the persis­ tence and courage of the attendant Robinson.49

Bingham went on in the same style, building a highly emo­ tional scene which would certainly appeal to all who would read it or hear it. He lost no chance to bring in those less surely guilty (the leaders in Richmond and Canada and

Dr. Mudd) with this man who was most assuredly without in­ nocence. Bingham illustrated here, among other things, why he was known at the time for his great powers of descrip­ tion. The government’s case against Payne was flawless, and

Bingham did well in sticking to the facts and pointing up the guilt of this young savage.

It would be more difficult for the Assistant Judge

Advocate to bring about a conviction against Samuel Arnold.

As was shown in earlier testimony, the accused had accepted a position at Portress Monroe and was not in Washington at the time of the assassination--nor for several weeks pre­ ceding it. However, Samuel Arnold had been a member of the group which had plotted to capture Lincoln. When that at­ tempt failed, he left the capital. Yet, Bingham had one particular piece of evidence which would prove to be especial­ ly damaging to Arnold. It was a letter referred to during the trial as the "8am" letter. The prisoner had written it to John Wilkes Booth, and after the assassination it was y found in the actor’s trunk. This letter led not only to

1^9Bingham, op. cit., p. Ill, 151

Arnold»s arrest, but also to that of Michael O'Laughlin.^O

It read in part:

Dear John: Was business so important that you could not remain in Balt, till I saw you? I came as soon as I could, but found you had gone to W — — --n, I also called to see Mike, but learned from his mother he had gone with you. . . . How inconsiderate you have been! When I left you, you stated we would not meet in a month or so. Therefore, I made application for em­ ployment, an answer to which I shall receive during the week, I told my parents I had ceased with you. Can I, then, under existing circumstances, come as you re­ quest? You know full well that the government sus­ picions something is going on there; therefore the undertaking is becoming more complicated. Why not, for the present desist, , , » Suspicion rests upon me now from my whole family and even parties in the county , , , None, no not one, were more in favor of the enter­ prise than myself, and to-day would be there, had you not done as you have— By this I mean, manner of pro­ ceeding, . , , Time more propitious will arrive yet. Do not act rashly or in haste, I would prefer your first query, "go and see how it will be taken in R-d," and ere long I shall be better prepared to again be with you , . , Your friend Saitpl

Arnold’s defense maintained that the letter only proved that the accused had withdrawn from the Booth "gang" before the plot to assassinate the President was formed,

Bingham was hard pressed to show how Arnold, far re­ moved from the "Military Department of Washington," could have had a part in the murder. His arguments against the prisoner were brief and inconclusive. The Assistant Judge

Advocate could easily have damaged the defense counsel's con­ tentions that the letter illustrated Arnold's withdrawal

^^See Harris, op, cit., p, 8l.

^%itman, op. cit., p, 236, 152 from the venture if he had emphasized more that this with­ drawal seemed temporary. Had not the prisoner stated:

" . . . Why not for the present desist . . . Time more pro­ pitious will arrive yet , . • ere long I shall be better prepared to again be with you."? Bingham, perhaps, realiz­

ing the absurdity of the initial "charge" against the con­

spirators as it applied to Arnold, or, perhaps, thinking

that the letter in itself was sufficient to incriminate him

in the assassination conspiracy, spent little time in re­

futing the arguments of the defense counsel. In all, the

government’s case as presented against Samuel Arnold was

particularly weak.

Included in the "Sam" letter was a mention of Mike,

which referred to Michael O ’Laughlin. The government charge

against this individual read "... on the night of the

13th and llfth of April , . • the said Michael O ’Laughlin did,

then and there, lie in wait for Ulysses S. Grant . . . with

the intent, then and there, to kill and murder the said

Ulysses S. Grant.Bingham relied on the testimony of

three witnesses to show that on the night of the 13th of

April,.O ’Laughlin had gone to the home of Edwin M. Stanton,

where General Grant was spending the evening and had "lain

in wait" for him. The first witness, David Stanton, testi­

fied that the prisoner had asked "where the secretary was. .

^^Ibid., p. 20. 153 , . He said nothing further . . . Major Kilburn Knox also testified that 0 ‘Laughlin had inquired for Stanton.

John C, Hatter, the third witness, stated that O'Laughlin had asked to see General Grant,

This was all of the testimony introduced by the pros­

ecution to show that the accused was "lying in wait with the

intent to kill," Walter Cox, counsel for O ’Laughlin, pointed out that the identification was less than certain, that one of the witnesses had even confused the time when the in­ quiries were made,^^ and that in a large crowd the accused would not attempt "then and there," as the charge specified,

to kill Grant. "The story," said Cox,

becomes still more improbable when we’re required to believe that this small and feeble man ventured single- handed, into a brilliantly lit house to assault Mr, Stanton or General Grant, or both, where he could hardly fail to be seized, with a crowd at the front to intercept his,retreat, and wholly ignorant of the exit by the rear,5°

But, still, the most damaging argument against the govern­ ment’s case was that O'Laughlin would never have attempted

to kill Grant on the 13th because "It is evident that the

different parts of this plot were to be executed simultane-

ously--it was essential to success,Had O ’Laughlin

^^Ibid., p. 226.

54jbid.

^^Ibid,, p, 345.

^^Ibid., p, 31^6.

27lbid. isk attempted to murder Grant "then and there," he would have

spoiled the plans to murder the President the next evening.

Why, then, it might be asked, was Bingham so intent on

showing that O ’Laughlin attempted to take Grant’s life on

the 13th of April rather than on the li^.th? The answer:

Grant was not in the city of Washington on the llj.th of April,

Although O ’Laughlin had been drinking with cronies

during most of the evening, Bingham argued that "all this

time, from 7 to 11 o ’clock p,m», must be accounted for

satisfactorily before the alibi can be established,"^^ The

Assistant Judge Advocate maintained that all of the evening

was not accounted for satisfactorily and that O'Laughlin

might easily have slipped away from his drinking companions

to carry out his part in the assassination. Whether or not

O ’Laughlin did slip away from his friends was totally im­

material, He had been charged only with lying in wait to

murder Grant, Grant was not in the city. Even if O ’Laughlin

had intended to kill the general, he was surely aware by the

evening of the l^th that Grant had left Washington, What

possible connection could the accused have had with the

plot?^9 Cox contended, "The accused was not at the theater,

nor at Secretary Seward's, nor at the Kirkwood, nor anywhere

else where it can be conceived that any part of the massacre

^®Bingham, op, cit., p, 92,

^^That O ’Laughlin was free of all guilt is not a certainty. As Roscoe stated, "O'Laughlin , , ,. might have carried out some detail which abetted Booth’s getaway. 1^5 was to be performed. No conceivable part of the enterprise can be assigned to him,

Bingham’s logic faltered. Bent on showing that

O ’Laughlin had slipped away from his companions on the

evening of the ll^-th to "lie in wait" to kill a man who was not in the city, the Assistant Judge Advocate only confused the issue. The fact remains that Bingham could make no

sense of the government’s specification against the prisoner.

If Bingham’s arguments against Arnold and O ’Laughlin were weak, his brief attack on George A, Atzerodt, on the

other hand, showed the Special Judge Advocate as an effective forensic orator, Atzerodt had admitted to being a member of

the earlier plot to kidnap the President. He made the fur­

ther admission that he had known of the plan to kill Lincoln

and had been asked to murder Vice-President Johnson, The prisoner maintained that he refused to do so.

However, Bingham more than countered the counsel of

the accused on this argument by stating that;

Robert R. Jones, the clerk at the Kirkwood House [where Vice-President Johnson was staying! states that on the lij-th, the day of the murder . , , Atzerodt registered his name at the hotel, G, A„ Atzerodt, and took No, 126, retaining the room that day, and carrying away the key,

touched off a disturbance somewhere to distract the police, or flashed an important message to the underground, , , , O ’Laughlin claimed he had visited Booth that morning to collect a debt. But the fact was that he had come to Wash­ ington in answer to Booth’s telegraphic summons. Booth undoubtedly used him for something," Op, cit,. p, ij.71,

^®Pitman, op, cit,, p, 3I4.6 , 156

In this room, after the assassination, were found the knife and revolver with which he intended to murder the Vice-President,

Bingham argued effectively that, if, as the defense counsel contended, Atzerodt had not planned to kill Johnson, why did he first inquire as to the letter's room number, take a room in that hotel himself, and put there certain weapons?

It was a sound argument, Bingham concluded that "his

[Atzerodt* s^] confession in his defence is conclusive of his guilt.The facts against the prisoner were compelling; and the Special Judge Advocate used them well to sum up a concise, but substantial case against the accused. It was only another example of his ability to wander with seeming ease from absurd sophisms to skillful refutation,

Frederick Stone, counsel for David E, Herold, stated while arguing his client’s case, “There is no reasonable doubt, from the evidence in this case, that the accused,

Herold, was guilty of aiding and abetting Booth in his es- 6 ^ cape from justice, , , » " The defense counsel then rein­ forced the doom of the accused by adding that,

of the fact that this boy, Herold, was an aider and abettor in the escape of Booth, there is no rational or reasonable doubt. He was clearly guilty of that crime, and must abide by the consequences. But the accused, by his counsel, altogether deniesthat he was guilty of the murder of Abraham Lincoln . , or that he aided and abetted in the murder , . ,

^^Bingham, op. cit., p. 96,

^^Ibid.. p, 97. ^^Pitman, op. cit., p. 262.

^^Ibid, Emphasis added by the present writer* 157

Here was Herold’s counsel maintaining that he was definitely guilty of aiding Booth in his escape. There was little that Bingham needed to say, then, to convict this con­ spirator. The military commission was in no mood to ” split hairs" over the difference between aiding the escape of the assassin and helping with the assassination. Indeed, by

Bingham’s earlier definition of conspiracy, Herold was im­ plicated beyond doubt. He had accompanied Booth throughout his flight from justice and had been captured in Garrett’s barn where Booth was shot and killed,

Bingham skillfully traced Booth’s flight illus­ trating Herold’s part in it and missed no chance to point up his complicity. At one place in the Assistant Judge Advo­ cate’s argument, he made it appear the Booth was simply the follower of Herold. Bingham stated, "We next find Herold and his confederate Booth, after their departure from the

House of Dr. Mudd, across the Potomac in Port Conway.He

spent little time in convincing the military commission that

David Herold was deeply implicated in the conspiracy,

Herold’s own counsel had made any attempt by Bingham to show the prisoner as an aider of Booth to be superfluous. It was evident that Herold would receive the worst punishment that the Court would mete out. As for the address of Mr, Stone,

Roscoe aptly concluded, "Perhaps, that speech, more than

^^Bingham, op, cit,, p. 118. Notice how Bingham misses no chance to implicate others of the accused (i,e. Dr. Mudd), 158 anything contrived by the prosecution, put Herold on the path to the gallows.

The most insignificant prisoner facing the military commission was one Edward Spangler, a stagehand at Ford's

Theatre. Against this individual, Bingham spent approxi­ mately ten minutes summing up evidence and generally bring­ ing discredit upon himself for building what was, perhaps, his poorest argument. The Assistant Judge Advocate's case against Spangler maintained that: (1) he provided ”a bar for the outer door of the passage leading to the President's box, so that when he [Bootl^, entered . . . he would be se­ cure from interruption from the rear. . . . In performing the work . . . a mortise was cut in the w a l l ."87 and that he had broken the lock on the President's box. (2) He had made damning remarks against President Lincoln. (3) He aided

Booth in escaping from the theatre.

Spangler was fortunate in having as counsel the very capable Thomas Ewing. He effectively broke down each of

Bingham's arguments. The prosecution's first contention against the accused was unproved during the trial. The fact that Spangler had broken the lock on the presidential box

88rosco6, op. cit., p.

87Bingham, op. cit., p. 103, Aft other testimony was brought against Spangler dur­ ing the trial, but Bingham singled out these three for his most important sallies against the prisoner. 159 was definitely disproved, Thomas J, Raybold, an employee

of Ford’s Theatre, testified on June 2 that he could not find the keys to the box, and desiring to enter

, , , I put my shoulder against the door of No. 8, , , . to force it open, but it did not give way to that and I stood from it with my back and put my foot against it close to the lock, and with two or three kicks it came open, . , , When the President came to the thea­ ter, boxes 7 and 8 were thrown into one by the removal of the partition between them. The door to No, 8--the one I burst open--was the one always used, and was the door used on the night of the assassination. The other one could not be used."9

Bingham’s argument was severely compromised. He

stated that:

the attempt has been made, on behalf of the prisoner, to show that this was done some time before, accident­ ally, and with no bad design, and had not been repaired by reason of inadvertance; but that attempt has utterly failed, because the testimony adduced for that purpose relates exclusively to but one of the two inner doors, while the fact, is, that the screws were drawn on both • • » '

Nowhere could Bingham produce sufficient evidence to substan­ tiate his charge or to show that Spangler had actually tamp­

ered with the President’s box in any manner,

Bingham’s second contention was less meaningful than

the first. Had every person who had damned Lincoln been taken to the prisoner’s dock, some of the highest officials

in Washington would have been there in chains. The only real "proof" produced by Bingham against Spangler was the testimony of Jacob Ritterspaugh. Ritterspaugh, another

^Pitman, op. cit., pp. 109-10,

^^Bingham, op, cit., p, lOlj.. 160 carpenter at the theatre, had shouted as Booth made his getaway that the assassin was John Wilkes Booth, Spangler turned and slapped Ritterspaugh and supposedly told him to

shut up and not to mention which way Booth had fled.?!

James Lamb, called by the defense, testified that on the following morning Ritterspaugh had related to him what had happened in the altercation with Spangler, Lamb said,

"Ritterspaugh did not say to me that when Spangler hit him on the face he said, 'Don't say which way he went,' I am certain that Ritterspaugh did not say that to me, or words to that effect,"?^ Louis J, Garland was called to the stand and testified.

On the night of the assassination I went to Mr, Gif­ ford's room and Mr, Ritterspaugh was there asleep, I woke him and asked him where Spangler was , , , the last he had seen of Mr, Spangler was when he was standing behind the scenes, and that he did not know where he had gone; that when the man was running past he had said that was Mr, Booth, and Spangler had slapped him on the mouth and said to him* "You don't know who it is; it may be Mr, Booth, or it may be some­ body else," He did not say then that Spangler , , , said "Don't say which way he went" nor anything to that effect.73

James J, Gifford, asked by Thomas Ewing whether Ritterspaugh had told him that Spangler slapped him and said, "Don't say which way he went," replied, "To the best of my knowledge, I never heard him say so. He asked me if he could amend the

7!pitman, op, cit,, p. 97.

72lbid,, p, 107.

73ibid,, p, 108, 161 statement he had made. . . . He told me he had made a mis­ statement, and had not told all he knew,"*^^

To all of this, Bingham countered.

An attempt has been made by the defence to discredit this testimony of Ritterspaugh, by showing his con­ tradictory statements to Gifford, Garland, and Lamb, neither of whom do in fact contradict him. None but a guilty man would have met the witness with a blow for stating which way the assassin had g o n e , >5

As he had done so many times earlier in the trial, Bingham refused to accept as damaging any testimony offered against a State’s witness. Ritterspaugh had been at least somewhat impeached. It is impossible to ascertain what Spangler actually did say at the time.

It was further maintained by Bingham that Spangler had slammed the door after Ritterspaugh followed Booth from the theatre. No one, however, saw him do it. In fact,

Bingham was not able to produce any evidence to convict the stagehand; and, in essence, the only charge of significance which could be brought against Spangler was that he had slapped Ritterspaugh as Booth fled. But this in itself was not conclusive enough to bring about a conviction. Even the military men sitting as judges were hard pressed to put credence in the specific charges against Spangler.

The lone woman in the prisoner’s dock was Mary E.

Surratt, mother of John Surratt and owner of the boarding

74%bid., p. 109.

f^Bingham, op. cit., p. 105. 162 house in which the conspiracy was planned. Bingham’s argu­ ments against this woman were brief, but interesting. The first of his chief contentions was that John Wilkes Booth gave to Mrs, Surratt ten dollars with which she could rent a carriage to take her to Surrattsville, "Gan anyone tell,"

Bingham argued,

how it comes that she should apply to Booth for a con­ veyance and how it comes that he, of his own accord, having no conveyance to furnish her, should send her ten dollars with which to procure it? There is not the slightest indication that Booth was under any obliga­ tion to her, or that she had any claim upon him, either for a conveyance or for the means with which to procure one, except that he was bound to contribute, being the agent of the conspirators in Canada and Richmond, what­ ever money might be necessary to the consummation of this infernal plot.

The fact is that Mrs, Surratt never saw the ten dollars, and it is questionable whether she even knew of it. It is pro­ bable, however, that she did ask Booth for his buggy, Louis

Weichman testified that:

I was sent by Mrs, Surratt to the National hotel to see Booth, for the purpose of getting his buggy. She wished me to drive her to the country on that day. Booth said that he had sold his buggy, but that he would give me $10 instead, that I might hire one. He gave me the $10, and I drove Mrs, Surratt to Surratts- ville on that day , , , ''

Weichman further testified that:

When Mrs, Surratt sent me to Booth and he offered me the $10, I thought at the time it was nothing more than an act of friendship, I said to Booth, "I am come with an order for that buggy that Mrs, Surratt asked you for

^^Ibid,. pp. 99-100,

^^Pitman, op, cit,. p, 113, 163

last evening." He said, "I have sold my buggy, but here are ten dollars, and you go and hire one," I never told Mrs. Surratt that. '°

Next, Bingham maintained:

Upon that journey of the 11th the accused, Mary E. Surratt, met the witness John M. Lloyd at Uniontown . » * she whispered to him in so low a tone that her attendant [Weichma]^ could not hear her words, though Lloyd, to whom they were spoken, did distinctly hear them and testifies that she told him he should have those "shooting irons" ready . . * "for they would soon be called for." On the day of the assassination she . , . immediately went again to Surrattsville, and then . . . she delivered to Lloyd a field glass, and told him "to have two bottles of whiskey and the carbines ready as they would be called for that night."'?

The two trips which Mrs. Surratt made to Surratts- ville were important aspects of the case against her. It was obvious that the fate of the only woman among the ac­ cused rested on the word of John M. Lloyd* Lloyd’s own testimony is interesting. He said of the two meetings, "I am confident that she named the shooting irons on both occa­ sions; not 30 positive about the first as I am about the last; I know she did on the last occasion.

Here was an opening for the defense counsel. Upon

Lloyd’s testimony would hang the guilt of Mrs. Surratt, and the tavernkeeper had stated that he was more certain that she

?^Ibid., p. 117. Emphasis added by the present writer.

^^Bingham, op. cit., p. 100. ®®Pitman, op. cit., p. 86. John M. Lloyd had rented the tavern from ^Irs. Surratt. The evidence against him was in^ressive. He had kept ammunition and various weapons for the conspirators; he had misdirected police officials. As Eisenshiml stated, "He was a drunken sot who was held in general contempt and. his hanging probably would have been 16i| had mentioned the weapons on the second visit. This oc­ curred on April li^-th.. Mrs. Emma Offutt, sister-in-law of

Lloyd, swore :

On the evening of the li}.th of April, Mr. Lloyd was very much in liquor, more so than I have ever seen him in my life. I insisted on his lying down, arid I had to help nim take off his coat. In a few minutes he got up and said he was too sick, and would go into the dining-room; but he went into the bar-room after that. For the last fcursor five months I have noticed his drinking freely.

B. P, Gwynn also testified that "about half-past ij. on that day, the li|.th, I parted with Lloyd on the road from Marl­ boro, about five miles from Surrattsville, and did not see him afterward. He had been drinking right smartly."^2 more damaging to the acceptability of Lloyd's testimony was his admittance that " . . » I was right smart in liquor that afternoon, and after night I got more so.”®^ Here was

Lloyd, then, a key witness, testifying to his drunkenness on the li}.th of April, Other witnesses attested to his exces­ sive drinking and inebriation on that day. Joseph T. Nott said, '

For some weeks past Mr, Lloyd had been drinking a good deal; nearly every day, and night, too, he was pretty tight. At times he had the appearance of an insane man approved by everyone,” Op. cit.. p. 293»

Q * i Pitman, op. cit., p, 12$. Emphasis added by the present writer, 82 Ibid.. p. 126,

G^Ibid,. p, 87» 1.65

from drink. . , . pretty tight that evening [the ll^th of Apri]]

And yet Lloyd had insisted that he was more certain that she had said it when he was completely drunk than when he was supposedly sober. "Such admissions should have invalidated this drunkard’s evidence. What little reliability it had was jeopardized by Lloyd’s statement that it was forced out of him by threats. . . .

To all of this, Bingham countered, *^An effort is made to iirgjeach Lloyd, But the court will observe that no witness has been called who contradicts Lloyd’s statement in any material metter; neither was his general character for truth assailed.This statement by the Assistant Judge

Advocate is, perhaps, the most disturbing one that he uttered during the speech, Lloyd’s testimony dealt with two private conversations held with Mrs, Surratt, How, it might be asked, could anyone have contradicted his statements?

Perhaps, no one’s character had been more rigor­ ously attacked during the trial than that of John M. Lloyd.

Bingham spent nearly five minutes trying to repair the dam­ age inflicted by testimony brought against this witness.

How then is he impeached? Is it claimed that his testi­ mony shows that he was a party to the conspiracy? Then

G^Tbid., p, 127. 85Eisenshiml, op. cit., p, 205. 86.^Bingham, op. cit., p, 100. 166

it is conceded by those who set up any such pretence that there was a conspiracy. . . .His receipt and concealment of arms are. unexplained evidence that he was in the conspiracy.

Bingham's comments seemed to illustrate that Lloyd was in­

deed a party to the conspiracy. He attempted to clarify

this seeming blunder by continuing:

The explanation is that he was dependent upon Mary S. Surratt; was her tenant; and his declaration, given up­ on in evidence by the accused herself, is that "she had ruined him, and brought this trouble upon him.” But because he was weak enough, or wicked enough, to become the guilty depositary of these arms, and to de­ liver them on the order of Mary E. Surratt to the assassins, it does not follow that he is not to be be­ lieved on oath. It is said that he concealed the facts that the arms had been left and called for. He so testifies himself, but he gives the reason that he did it only from apprehension of danger to his life. If he were in the conspiracy, his general credit being un­ challenged, his testimony being uncontradicted in any material matter, he is to be believed, and cannot be disbelieved if his testimony is substantially corro­ borated by other reliable witnesses.

Lloyd's testimony was useless by the time the defense

counsel finished with him, and Bingham only made matters more difficult for the tavernkeeper. The charge that Mrs.

Surratt had gone to Lloyd specifically to discuss the "shoot­

ing irons" was also countered by the defense. On both

occasions, Mrs. Surratt had gone to her old home on matters

of business. Mrs. Offutt, Mr. Weichman, Mr. Gwynn, and Mr.

Nothey all testified to this effect.®^

G^Ibld. p. 100-01.

GGlbid., p. 1 0 1 .

^^Pitman, op. cit., p. 116 eb passim. 1 6 7

The entire case boiled down to two accusations,

First, on the l[|.th Mrs. Surratt carried a package, given to her by John Wilkes Booth, to Surrattsville. The package was supposedly a field-glass. Mrs. Offutt’s testimony tended to show that Mrs. Surratt did not give the package directly to

Lloyd and that Mrs. Surratt "said she was requested to leave it [the paokag^ there,Whether or not Mrs. Sur­ ratt knew the contents of the package or its purpose is a question still argued by historians.

Second, when Lewis Payne came to her home on the

17th of April and was confronted there by government of­ ficials, Mrs. Surratt swore that she did not recognize the man. As Bingham was quick to point out.

If not one word had been said, the mere act of Payne in flying to her house for shelter would have borne wit­ ness against her, strong as proofs from Holy Writ. But when she denies, after hearing his declarations, that she had sent for him, and calls God to witness that she had never seen him and knew nothing of him, when, in point of fact, she had seen him four successive days in her own house, in the same clothing which he then wore, who can resist for a moment,the conclusion that these parties were alike guilty?^

The defense had atterr^jted to maintain that Mrs.

Surratt had failing vision. This, coupled with her shock and fear at being so accosted late in the evening by offi­ cers of the law and by Payne dressed in a poor disguise,

90lbid., p., 12^.

^^ingham, op. cit., p. IO3 , 168 prompted her statement, Mrs. Offutt testified that:

I know that Mrs, Surratt's sight is defective. . , , On being told by a servant that Mrs, Surratt was com­ ing toward the door, I went there to her, and said "Why, Mrs. SurrattÎ" When she said, "Oh, Mrs. Offutt, is that you?" and then she added, "I can scarcely see." I led her into the parlor and she told me that her eyes were failing very fast.92

Honora Fitzpatrick, Mrs. Surratt's boarder, also testified that she failed to recognize Payne in his disguise and that 98 IVLrs. Surratt's eyes were indeed failing. Others would swear pro and con to the matter of Mrs, Surratt's vision.

The facts that Payne had gone to her "for shelter," as Bing­ ham put it, and that she denied knowing him after the assas­ sin had spent time in her home were difficulties not fully explained by the defense.

Interestingly enough, Bingham scarcely mentioned

Louis Weichman in his reference to Mrs. Surratt's complicity in the conspiracy. He used his testimony liberally to show that the Surratt home had been the headquarters of the as­ sassins, but scarcely mentioned him by name, "On that occasion Booth, having disposed of his carriage, gives to the agent she employed ten dollars with which to hire a convey­ ance , , . This agent was Weichman. " . , ► She whis­ pered to him [iLloydi] in so low a tone that her attendant

92pitman, op. cit,, p. 1 2 6 ,

93lbid,, p. 13 2 ,

*^^Bingham, op, cit., p, 99. Emphasis added by the present writer. 169 could not hear her words. . . • Mrs, Surratt’s atten­ dant was Weichman, Perhaps, Bingham felt that Weichman's character had been attacked too much already and simply avoided the use of his name in order not to damage the government clerk's reputation more. Indeed, it was the testimony of Weichman as well of that of Lloyd which finally convicted Mrs. Surratt, Why Bingham spent no more time than this examining such important testimony is mysterious.

In the final analysis, the Judge Advocate's Office could prove in no substantial way that" Mrs. Surratt was actually aware of the assassination plot, much less that she had a part in it, "According to both the prosecution and the court, as represented by General Harris, the life of Mrs, Surratt depended on the truth of Lloyd's uncontra­ dicted statement that she asked him on the afternoon of

April lif to have the shooting irons ready.It was, then, primarily upon the word of a drunkard, frightened for his own safety, that Mrs, Surratt would be convicted,

Bingham had stated:

It is almost imposing upon the patience of the court to consume time in demonstrating the fact, which none conversant with the testimony of this case can for a moment doubt, that John H, Surratt and Mary E, Surratt

95'ibid.. p. 1 0 0 ,

^^isenshiml, op, cit,, p. 288, 170

were as surely in the conspiracy to murder the Presi­ dent as was John Wilkes Booth himself» . • • That Mary E. Surratt is as guilty as her son of having thus conspired, combined, and confederated tOgdo this mur­ der, in aid of this rebellion, is clear.

In 1866, John Surratt was finally captured. After much de­ lay, he was brought to trial before a civilian court. Thus, in June 1867, all of the evidence brought against Mrs.

Surratt was once again opened to the public and the testi­ monies of both Lloyd and Weichman were further impeached.

Furthermore, John H, Surratt who Bingham maintained was the conspirator second only to Booth in importance was set free,

"it was not conclusively shown that Surratt was in Washing­ ton on the night of the assassination; the jury could not agree, the case was nol-prossed, and Surratt went free."*^®

It is altogether possible that had several of the accused who then faced the military commission been so fortunate as to have had a civilian court try their case, they too might have been set free,

Bingham finished his speech by quickly reviewing his main contentions and reiterating his discussion on conspir­ acy.

^"^Bingham, op. cit., pp. 98-99. q 8 Moore, op. cit., p. 77* For the complete trans­ action of the trial, see Trial of John H. Surratt in the Criminal Court for the District of Columbia, 2 vols. (Washington: 1867). See also Eisenshiml,In the Shadow of Lincoln* s Death (New York: I9J4.O). 171

By all the testimony in the case it is, in my judg­ ment, made as clear as any transaction can be shown by human testimony, that John Wilkes Booth and John H. Surratt, and the several accused . . . did conspire with Jefferson Davis . . . and others unknown, to kill and murder . . . Abraham Lincoln . . . 99

Walter S, Cox, speaking in behalf of the accused, had remarked in his final address that:

I can not forbear the remark that, upon this trial, both the accused and their counsel have labored under disadvantages not incident to the civil courts, and un­ usual even in military trials, . . . I am constrained, further, to notice, the manner in which the trial has been conducted, and which, I think, can hardly have a parallel.100

Cox continued in this vein at length. It was a final, but open attack upon the court and the Judge Advocate’s Office,

Bingham’s peroration is interesting in this light.

After all that had taken place during the trial he could but remark:

I am not conscious that in this argument I have made any erroneous statement of the evidence, or drawn any erroneous conclusions; yet I pray the court, out of tender regard and jealous care for the rights of the accused, to see that no error of mine, if any there be, shall work them harm. The past services of the members of this honorable court give assurance that, without fear, favor, or affection, they will discharge with fidelity the duty enjoined upon them^by their oaths. Whatever else may befall, I trust in God that in this, as in every other American court, the rights of the whole people will be respected and that the Republic in this, its supreme hour of trial, will be true to itself and just to all— ready to protect the rights of the humblest, to redress every wrong, to avenge every crime,

^9gingham, op. cit., p, 1 20.

^^*^Pitman, op, cit., p, 333, 172

to vindicate the majesty of law, and to maintain in­ violate the Constitution, whether assailed secretly or openly^Q^y hosts armed with gold, or armed with

Bingham's self-vindication ended the trial.

The military commission retired to discuss the case and pass judgment. According to military law. Holt, Burnett, and Bingham accompanied the army officers to help in answer­ ing any questions concerning the law which might arise.

The Commission, the Judge Advocate and his assistants met; and on June 30 found Samuel A. Mudd guilty and sentenced him to life imprisonment,

Lewis Payne was found guilty and was sentenced

"to be hanged by the neck until dead."

Samuel Arnold was found guilty and sentenced to life imprisonment,

Michael C'Laughlin was found not guilty of lying in wait for Grant, but was found guilty on the general charge and thus was sentenced to life imprisonment,

George A, Atzerodt was found guilty and sentenced to death,

David E. Herold was found guilty and sentenced to death,

Edward Spangler was found not guilty of the specifi­ cation or the charge, but was sentenced to six years at hard labor for his part in Booth's escape,

^^^Bingham, op, cit,, p, 122, 173 But the sentence which caused the greatest uproar was that of Mary S. Surratt. The commission found her guilty and sentenced her to be hanged along with Payne, 102 Atzerodt, and Herold,

All eight had been found guilty; and on July 5

President Johnson approved the sentences and signed the necessary affidavits. On July 6 , the accused learned of the findings of the court; and on July 7, the condemned were hanged. The New York Times commented that, "the justice of the verdict in the case of the conspirators of the li|.th of April is such as to command the approval of the whole country and what is of high importance in this in­ stance— history."^03

John A. Bingham returned to Cadiz, Ohio after the trial and was rewarded by the plaudits of thousands for his part in it.

102por the findings of the court, see Pitman, op, cit.. pp, 2ij.7 -i|.9 ,

^°^ew York Times. July 7, l86^. CHAPTER VI

RHETORICAL CONSIDERATIONS SUMMARIZED

Hunting Ground for False Enthymemes

John A. Bingham was certainly not unknown prior to his speech to the military commission, and the address did much to popularize his name. The impression made by Bing­ ham on his immediate audience was also favorable. Many years later General Wallace would remark that the speech was a "lengthy and comprehensive argument in which the case was carefully reviewed."^ The public was generally pleased with the results of the trial and especially with the per­ formance of the Assistant Judge Advocate,^ One rather literate gentleman wrote:

And now . , . grant me space in your columns to give expression to my most unqualified admiration of . . . Bingham. In the entire range of my readings, I have known of no productions that have so literally held me captive. For careful analysis, logical argumentation, profound and far-reaching research; for overwhelming un- ravellment of complications that would have involved an ordinary mind only in inextricable bewilderment, and

%jew Wallace, Lew Wallace: An Autobiography II (New York: I9 0 6 ), 8I4.9 » 2 It was ©nly a few liberal Northern newspapers and foes of the administration which opposed the trial and its procedures. See Roscoe, op. cit., p. l|.88. 175

for a literal rending to tatters of all the metaphysi­ cal subtleties of the array of legal talent engaged on the other side, I know no . . . productions in the English Language superior to these* Not Locke or Bacon were more profound, not Daniel Webster was clear­ er and more penetrating; not Chillingworth was more logical.3

This renown grew as his argument was "appended . . . to the ’Brief Review’ of the testimony submitted to the pres­ ident ’because of the full and exhaustive examination of the questions of law and fact to be found therein’ . . .

Secretary of War Stanton ordered that Bingham’s argument be distributed "throughout every congressional district in the country that the legal profession might be furnished with information necessary to vindicate the action of the govern­ ment."^ Few speeches in American history enjoyed such im­ mediate circulation as did Bingham’s summation.

The address received many favorable reviews and, not unexpectedly, some adverse criticism. Congressman Charles

Eldredge wrote to Judge Advocate Holt,

Do not, I pray you, flatter yourself that you and the Secretary of War can, by the circulation of these documents at your own or the people’s expense, con­ vince your countrymen that arrests without warrant, imprisonment without trial . . . and the worse than mockery of your victims in military trials, are any­ thing but crimes . . .

%ingham Papers, Columbus, Ohio. Letter dated July 7, 1865 from an unidentified newspaper.

^DeWitt, Assassination, p. 262.

5lbld.

^Eisenshiml, op. cit., p. 235» See also Nettie Kudd, The Life of Dr. Samuel Mudd (New York: 1906). 176

After carefully examining Bingham* s speech, modern readers can certainly come to understand why the address originally received such mixed reviews* If Bingham's descriptions met with popular approval, his logic left much to be desired, Aristotle stated, "Besides genuine argu­ ments • , . which the honest speaker may use, there are spurious arguments which he must be prepared to meet,"7

Aristotle called these spurious forms of argument "Sham

Enthymemes." He discussed nine of them: diction, fallaci­ ous combination and separation, indignation, a sign, the accidental, consequence, post hoc for propter hoc, time and manner, and substituting the absolute for the particular,®

Interestingly enough, John A, Bingham, in his speech before the military commission, made use of every one of these forms. He interchanged without discrimination such words as "the murderers," "the conspirators," "plotters," and "assassins," as if all were homonyms or "equivocal terms, the same or similar names for different t h i n g s . The entire

Charge against the prisoners as argued by Bingham can be seen as nothing more than fallacious combination. Moreover, the Assistant Judge Advocate’s attacks against Ewing, John­ son, and the entire Confederacy swelled with self-righteous

^Aristotle, The Rhetoric of Aristotle, trans. Lane Cooper (New York: 1^^2), p. iVS:,

®Ibid., pp, 172-76.

9lbid., p, 173. 177 indignation, Spangler’s striking Ritterspaugh is but one exan5)le of Bingham's use of a "sign," “a single instance used as a logical proof.” Furthermore, a major portion of his case rested on nothing more than the accidental: the finding of spurious letters and chance encounters. The argument that those who had sympathy with the Confederacy abetted the assassination was a consequence upon which Bing­ ham relied heavily, "Another topos consists in treating as a cause what is not a cause, , , , People assume post hoc to be propter hoc; and this is especially true of men in public life.”10 Aristotle would certainly have disapproved of Bingham's continuous argument that the secession of rebel states and the Civil War directly caused the assassination of Lincoln, The Assistant Judge Advocate's entire case against Michael O'Laughlin amounted to nothing more than the building of a spurious argument based on "omitting any re­ ference to time and manner,"H As stated in the Rhetoric concerning substituting the absolute for the particular,

"{Here the fallacy lies in the fact thalQ probability is not something absolute,"!^ Bingham disregarded this warning in his failure to limit the probable relationship of the

IQibid,. p, 175. llfbid.

l^Ibid,. p, 176, 178 conspirators, one to another and to the plot specifically,

"The thing is a ^logical] fraud; the probability concerned is not genuine but spurious. . . . "^3

Generally, Bingham’s use of the accepted enthymeme is sparse. He at times made excellent use of "Existing

Decisions" in discussing the law. His two favorite forms were "Attributed Motives" and "Previous Mistakes." The infrequent appearance of enthymemes can probably be attri­ buted to his reliance on narration and description and to his penchant for elaboration.

The preponderance of fallacious arguments in Bing­ ham’ s speech in the trial of the Lincoln conspirators was not for him atypical. He played a leading role in the im­ peachment of Andrew Johnson. He was elected by the House of

Representatives as one of the managers or prosecutors and became the chairman of the managers. In this capacity he presented the final speech or summation against the Presi­ dent, The address took three days and was filled with the same type of circumlocutions, arguments ad hominem, and legal double talk which were so prevalent in the trial of

Lincoln’s assassins. The Nation said that Bingham’s speech contained "rhetoric so rank , . , that the argument has to be followed through it like a trail through a tropical jungle.

^3lbid., p. 177,

^ h e Nation. May 7, 1868, 179

Defending the President were such notable speakers as Benjamin Robbins Curtis, William S. Groesbeck, and

William M. Evarts. It was a long and legalistic trial, and

Bingham's address was strangely out of place. His speech was to be called an "emotional . . . harangue,and the speaker was referred to as follows: " • . • bad-tempered and unkempt Chairman Bingham of the managers, reminding one of his colleagues of a ’singed cat’,"^^ It was an address designed to excite the galleries and "to supply partisan senators with justification for their predetermined course."1 ?

Bingham's personal assaults on the character of President

Johnson are remindful of those which he used against Reverdy

Johnson during the Lincoln conspiracy trial. Although some of his legal arguments were effective, in general, his logos contained the same dismal misstatements which were prominent in the case against Mrs. Surratt and others*

Bingham could talk upon any subject for any length of time, and his self-sufficiency was so entire that the possibility of failure never entered his mind, A cer­ tain measure of sincerity, we may accord to Butler, Boutwell, Stevens and Williams, because in one way or another, they believed Andrew Johnson was guilty of a long string of offences for which he ought to be turned out of office. With Bingham, it was not so. . . • The thought is constantly recurring to the reader's mind that the speaker does not, at heart, believe what he is

^^Milton Lomask, Andrew Johnson; President on Trial (New York: I960), p. 75.

^^Ibid., p. 2 8 8 .

^^Alphonse B, Miller, Thaddeus Stevens (New York and London: 1939), p. 357. 160 saying. The speech is full of self-glorifying demoli­ tions of positions the defendant had never taken up, of wholesale begging of the questions in dispute, of reiterations of propositions unaccompanied by proof and of refutations which do not refute, accon^anied by vociferous assertions of there being no doubt whatever about the-propositions and nothing whatever left to the defence.Î0

Nevertheless, the galleries exploded after his address and cheered wildly. Bingham

was at his best in this trial. Probably never in his great career had he ever reached so high a place in the public estimation. The Senate Chamber and its galler­ ies were crowded to hear him and when he closed, the walls resounded with thunderous applause. This would not cease and it could not be quieted, , , , Bingham had evidently carried conviction to the gallery. But it was not the gallery that was trying the President, The Senate was doing that,^?

And so again, John A, Bingham had stirred the general public with his oratory; but those searching his argument for logic could not find sufficient evidence on which to convict the

President, The uncritical were obviously impressed by Bing­ ham’s speech. They seemed unconcerned with his sophistry,

Bingham had achieved another popular success; the methods he employed apparently bothered him not at allj

What, then, can be said for Bingham's logos? In their book. Speech Criticism, Lester Thonssen and A, Craig

Baird list those questions which the rhetorical critic must

^^David Miller DeWitt, The Impeachment and Trial of Andrew Johnson (New York: 1903), pp. 507-00,

l^Shotwell, op, cit,, p, 2 2 5 , I8l ask “to explore the adequacy and soundness of a speaker's 20 thinking." These questions are of particular interest when viewed in light of the Assistant Judge Advocate's final argument against the conspirators.

(1) Does the speaker deal with an adequate and re­ liably established body of facts? (2) Does he proceed from assumptions and hypotheses which are neither biased nor gratuitous? (3) Does his verbalization of ideas reveal the true significance of his claims clearly, unequivocally? (i].y Does his analysis of the idea reveal unity of intention, internal consistency, and a full recogni­ tion of the important as against the unimportant ele­ ments in the discourse? (^) Does his reasoning meet the tests of validity appropriate to the various forms of argumentative development? (6 ) Does he substitute emotional excitation of the hearers for logical proof?

Of these criteria for the "... adequacy and soundness of the speaker's thinking," Bingham meets the test in none.

In view of the facts of the case, his arguments were not only lacking in validity, but in truth.

In his letter to William Pittenger, Bingham main­ tained that the speaker's virtue could only be ascertained by finding out if he spoke the truth, and "that he speaks what he knows and believes, plainly and directly from the heart to the heart," By his own measurement for effective­ ness, Bingham's address failed totally.

20 Lester Thonssen and A. Craig Baird, Speech Criticism: The Development of Standards for Rhetorical Appraisal (Hew York: l^if.fcl), p. 349. Zllbid. 182

Pathos and The Prosecutor

Throughout his speech, Bingham relied heavily on

emotional proof or pathos. This in itself is of some inter­

est, If he were true to his duties as a Special Judge

Advocate, he would have presented a summation to the nine

judges primarily in the objective, judicial manner required

of courts-martial. If, however, he spoke to the frenzied

general public, outraged at the vicious crime of John Wilkes

Booth and his "accomplices," he would have presented a much more passionate plea. His tactics clearly illustrated which

course he chose,

Bingham's language was largely connotative and had an emotional tone--so much so that DeWitt called this speech

"an impassioned appeal for the condemnation of every pris­

oner at the bar."23 Examine, for instance, Bingham's

language in the following passage:

His [Jefferson Davis]] words of intense hate, and rage, and disappointment are not to be overlooked— that the assassins had not done their work well; that they had not succeeded in robbing the people altogether of the constitutional Executive and his advisers , • . Neither can he conceal his chagrin and disappointment that the War Minister of the republic, whose energy, incorrupt­ ible integrity, sleepless vigilance, and executive

22certainly, in forensic speaking as in any other form of public address, the orator usually makes use of emotional appeals. It is not surprising that Bingham did. What is sui^rising, however, is that he en^loyed this form of persuasion often to the exclusion of all others, 23 DeWitt, Assassination, p. 127, 183

ability had organized day by day, month by month, and year by year, victory for our arms, had escaped the knife of the assassin.^

Note the pejorative words used to describe the Confederate

President and the sublime connotations of those used when referring to Secretary of War Stanton.

In speaking of the South generally and the Confeder­ ate leaders specifically, Bingham maintained:

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 confed­ erates to achieve by assassination, if possible, what they have in vain attempted by wager of war . . . ^

Moreover, Bingham* s use of pathos, at times, even altered meaning. For instance, Marcus P. Norton had testified on June 3 that a person he identified later as

Samuel Mudd had entered his room and "appeared somewhat ex­ cited, made an apology, and said that he had made a mis­ take. . . Mudd, according to Norton, had stated that he wanted to see Booth. Norton advised him that Booth's room was on the floor above and then followed him part of the way down the hall where Mudd glanced at him and descended the stairs.

When cross-examined, Norton declared, "When Dr. Mudd entered my room he seemed somewhat excited, or perhaps in a hurry

^Bingham, op. cit., p. 70.

Z^Ibid., pp. i|.-5» p A Pitman, op. cit., p. 177. iQk r a t h e r . "27 Bingham's version of the same incident was:

He [Dr. Mudd] was carried away by the awful purpose whiwi possessed him, rushed into the room of Mr. Norton at the National Hotel in search of Booth, exclaiming excitedly: "I'm mistaken; I thought this was Mr. Booth's room," He is told that Mr. Booth is above on the next floor. He is followed by Mr. Norton because of his rude and excited behaviour, and being followed, conscious of his guilty errand, he turns away, afraid of himself and afraid to be found in concert with his fellow confederate.

Note Bingham's coloration of the incident with words such as: "awful purpose," "guilty errand," and "afraid*" Indeed, he ignored the fact that Mudd had offered an apology and maintained that he had been "rude." Throughout the trial

Bingham thus distorted statements by adding emotional over­ tones to testimony.

Furthermore, the Assistant Judge Advocate made con­ stant appeals to patriotism, emulation, contempt, anger, indignation, confidence, and enmity. For ex8nq)le :

{Lincoli^ . . . seated in the chair which had been prepared"^by the conspirators as the altar for sacri­ fice, looking calmly and quietly down upon the glad and grateful people whom by his fidelity he had saved from the peril which had threatened the destruction of their government, and all they held dear this side of the grave, and whom he had come upon invitation to greet with his presence, with the words still lingering on his lips ..." with malice toward none--with charity for all." . . . In a moment more . . . this hired assas­ sin [Booth] moves stealthily through the door, the fastenings of which had been removed to facilitate his entrance, fires upon his victim and the martyr spirit of Abraham Lincoln ascends to heaven,

27lbid. Emphasis added by present writer, ^Bingham, op. cit., p. 83.

2^Bingham, op. cit.. pp. 110-11. 185

Bingham’s Use of Language

Bingham’s ”effectiveness” in the trial of the assas­ sins rested in large measure upon these emotional appeals; and his fame as an orator, generally, may be attributed in part to his use of language* Consequently, it is necessary to examine this language as it appeared in his summation.

Classical tradition accepts four qualities necessary for effective style: (1) correctness, (2) clearness, (3) appro­ priateness, and (I).) ornateness. These qualities as applied to Bingham's style prove interesting.

First, his grammar was generally correct. However, he did split infinitives with ease— ”to faithfully per- form,”30 ”to duly try,”3^ ”to secretly deposit.”3^ This is significant because it was considered much more iconoclastic to split an infinitive a century ago than it is today.

His words were correctly eitÇ)loyed. If one would apply Campbell’s three-fold test to Bingham's words, he would find that they were (1) reputable, (2) in national use, and (3) in present u s e . 33 Yet, the address lacked real variety; for the Special Judge Advocate spoke with cer­ tain stock expressions. The phrase ”in light of” appears

^^Bingham, op. cit., p. 109.

31lbid.. p. 7. 32lbid.. p. 31.

33George Campbell, Philosophy of Rhetoric (New York: 1851 ), pp. 161f ff. 186 frequently,as does the introductory clause, ”I may be pardoned for saying ,0 askin^.”^^

However, the most curious repetition involves the word "doubt” : "No one can doubt . . . "This letter leaves no doubt . . . "Is there any room to doubt . .

. "3® "It is proved beyond a shadow of doubt . . . "^9

"Who can doubt . . . "There cannot be any doubt . .

. "It was doubtless . • . "Does anyone doubt . •

» "It is difficult to see how they can have doubt ...

"The testimony of all these witnesses leaves no doubt . .

. "Which none can for a moment doubt . . .

^^ingham, op. cit.. pp. 2Ij., Ip., 6 1 , 7 8 .

35ima., pp. 6 , 8 , 29, 33, 50.

36ibid., p. 5 6 .

3?Ibid., p. 5 8 .

3Qlbid., p. 59.

39%bid.. p. 61.

^Qlbid., pp. 61, 8 5 .

^ I b i d .. p. 6 7 .

^ I b i d .. pp. 69, 8 3 .

^3ibid.. twice on p. 8 7 .

^Ibid.. p. 9 6 .

^^Ibid.. p. 9 8 . 187

"Doubtless for the reason • . • "This was doubtless .

. . "^7 ''Looking down doubtless to see . . • "No ra­ tional doubt • . . "Can anyone doubt . . , "Who doubts . . . This awe-inspiring compilation indicates that Bingham held firm to the adage that repetition creates belief. This use of restatement is one of the most charac­ teristic elements in Bingham's style.

Second, Bingham's language too often lacked clarity.

Although his sentences were a variety of simple, compound, and complex structure, they were generally long and compli­ cated. This, of course, is always a barrier to perspicuity*

The following is an illustration:

By the same authority the Congress may extend the juris­ diction of military commissions over all military of­ fences or crimes committed in time of rebellion or war in aid of the public enemy; and it certainly stands with right reason, that if it were just to subject to death, by the sentence of a military commission, all persons who should be guilty merely of lurking as spies in the interest of the public enemy in time of rebel­ lion, though they obtained no information, though they inflicted no personal injury, but were simply over­ taken and detected in the endeavor to obtain intelli­ gence for the enemy, those who enter into conspiracy

^^Ibid.,p* 1 0 3 *

47ibid.,p. 1 0 9 . 4#ibid..p* 110. ^^Ibid..p. 116*

^Olbid..p. 39. ^^Ibid., twice on p 188

with the enemy, not only to lurk as spies in your camp, but to lurk there as murderers and assassins, and who, in pursuance of that conspiracy, commit assassination and murder upon the Commander-in-Chief of your army within your camp and in aid of rebellion, should be subject in like manner to trial by military commis­ sion.”

This sentence must certainly have demanded the full power of his listenersi Even reading it is difficult.

Third, it has been said that appropriateness ” . . • is, indeed, the most functional aspect of the whole problem of style; through it we are best able to study language as a tool of adaptive behavior used by the orator to adjust him­ self to the audience situation."^3 Bingham's language, if nothing else, was appropriate to his audience. His peaks of emotion not only moved the judges on the bench, but also the general public. General Harris ”eulogized”^^ the speech and placed it in the appendix of his book on the trial.

However, if his language was appropriate to his auditors, it was grossly unfair to his supposed purpose.

His role as Assistant Judge Advocate demanded that he be im­ partial in attempting to arrive at the truth.Yet, Bing­ ham* s language was far from impartial, and his speech was filled with such propagandistes devices as name-calling and

^^Ibid., p.. 10.

^^Thonssen and Baird, op. cit., pp. ij.l4-l5.

^^DeWitt, Assassination, p. 282.

^^Benet, op. cit., p. 195. 189 glittering generalities: "Payne, a very demon in human form , , * . One of their co-conspirators, known

as yet only to the guilty parties to this damnable plot and

to the Infinite, who will unmask and avenge all blood-guilti- ness, comes to bear witness, unwillingly, against them. "^7

Fourth, ornateness is determined by the use of figurative language. It would be expected that Bingham’s

style was ornamented with many tropes and figures;, but a

close look at the text is startling, and a search for image­ ry is frustrating,

Bingham’s use of metaphor is ^oradic, unsustained,

and rather unimaginative. He was particularly fond of the following: "The president is clothed with full power . , ,

, "A secretary of state who is alone clothed with

authority , , , "^9 He also spoke of the murder which " . , , 60 clothed this land in mourning,"

He was also fond of royal allusions: "Why not crown

the absurdity of the proposition , , , "To crown this horrid catalogue of crime— this sum of all human atrocities .

^^Bingham, op, cit.. p. 111,

27ibid,. p, 86,

5Glbid,. p. 39,

2^Ibid,, p, 121.

^^Ibld,. p. 2 3 ,

6llbid.. p. 8. 190

, ^ " The unlikely combination of metaphors (crown-- catalogue— sum) Is apparent* Here Is a similar Instance:

, • , It Is only because the conspirators were deterred by the vigilance and fidelity of the executive offi­ cers, whose lives were mercifully protected on that night of murder by the care of that infinite being who has thus far saved the republic and crowned its arms with victory,

Only on one or two occasions did Bingham sustain his images to achieve some depth: ’’'When the foundations of the republic are rocking beneath the earthquake tread of

armed rebellion, , . * Yet, even here the word "tread"

introduces a foreign element. It is both superfluous and

distracting. A stranger mixture of figures appeal earlier

in the argument: "... swell the cry of the armed legions

of sedition and rebellion that but yesterday shook the heav­

ens with their infernal enginery and filled the habitations

of the people with death,

Bingham's use of simile is much more successful and

is, indeed, quite powerful. For example, " . , , the dema­

gogue cry of an omnipotent Congress and executive invested

with royal prerogatives vanishes like the baseless fabric of

a vision, " I f not one word had been said, the mere act

62ibid., p, 3 1 .

62ibid.. p, 121.

^^Ibid,, p, 26, 65, Ibid,, p, 12,

66ibid,, p, 32, Emphasis added by the present writer. 191 of Payne In flying to her house for shelter would have borne witness against her as strong as proofs from Holy Writ."^^

. The chair which had been prepared by the conspira­ tors as the altar for sacrifice. . As universal as the material structure of man>**^^

Hyperbole does not appear often in the speech, Bing* ham* 8 declaration, ”I confess that I am too dull to compre­ hend the logic, the reason, the sense of such a conclu­ sion,”^^ is obviously an intentional understatement of his mental capacities; but his insistence on the humble posture of the courtroom lawyer of the day probably accounts for the frequent appearance of such clauses as ”I may be pardoned for saying. . . » ” Certainly, these do not represent an effort at figurative language.

The occasional personifications in the trial speech are common ones; but, nevertheless, they retain their force.

Indeed, the following is Bingham* s most apparent effort at the high style:

Youngest born of nationsi is she not immortal by all the dread memories of the past— by that sublime sacri­ fice of the present, in which the bravest and noblest

^^Ibida, p. 103. Emphasis added by present writer,

^^Ibid., p. 110.. En^jhasis added by present writer.

^^Ibid.. p. 30, Emphasis added by present writer,

70lbid.. p, 26. 19Z

of her sons have laid down their lives that she might live, giving their serene brows to the dust of the grave and lifting their hands for the last time amidst the consuming fires of battle.

Other examples fall short of this: ” a crime the atrocity of which has sent a shudder through the civilized world."72: «Washington, the peerless, the stainless, and the

just, with whom God walked through the night of that great trial . . . "73 «When treason fired its first gun on

Sumter . . ."74

He often employed the trope prolepsis (posing an objection and then answering it). For example, ” ... why

should Booth determine that his flight should be through

Charles County? The answer must be obvious . . . to every m a n , "75 «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

7]^Ibld. s p. 13» This appears to be an early example of the marked tendency to glorify the Civil War. What could be more incongruous than describing dying soldiers with "serene brows"?

72ibid.. 3.

73ibid.. p. 29.

74ibid.. P* 39.

75ibid.. P., ??. 1 9 3 government- which they assailed had done no act injurious to them.

However, Bingham seldom used synecdoche, although he once referred to the President as the Executive Department,

Nor did he take advantage of the trope metonymy which is usually common. In one place he spoke of Washington as the

Father of his Country,

If the Special Judge Advocate enç)loyed comparatively few of the common tropes and figures, he compensated for this by using parallel constructions. Perhaps, this is quite fitting; for the parallel construction is certainly more suitable for a weighty courtroom summary than the more poetic tropes and figures discussed above#

Moreover, Bingham's juxtapositions are highly ef­ fective: "I recognize it as the reserved power of the people which creates and dissolves armies, which creates and dis­ solves legislative assemblies, and which enacts and repeals fundamental personal security by the due administration of justice,”77 Note that not only the subordinate clauses be­ ginning with "which” are parallel, but also the verbs of those clauses are parallel. In the cases where they are identical, they are illustrations of the trope epanaphora,

" , . , Just to them. Just to you, just to my country, and

76lbld.. p, ij.,

77lbid,. p, Ij.9, 1 % just to ray own convictions.”*^® Again, the constructions are examples of epanaphora. ”... To protect the right of the humblest, to redress every wrong, to vindicate the majesty of law, and to maintain inviolate the constitu­ tion.”7^

In fact, in many places Bingham combined parallel patterns:

Can it be that this Constitution of ours so divine in its spirit, so beneficent in its results, so full of wisdom and goodness and truth • . • has » . . denied to this people the power to crush armed rebellion by war and to arrest and punish, during the existence of such rebellion, according to the laws of war and usages of nations, secret conspirators who aid and abet the enemy?

First, the juxtaposition of the adjectives "divine,” "bene­ ficent," and "full” appearsJ then the prepositional phrases

"in its spirit" and "in it results" are paralleled; and near the end of the passage are the infinitives "to crush" and

"to arrest,"

In all of Bingham’s speeches, moreover, he made ex­ tensive use of the rhetorical question^ and this address is no exception. Indeed, in many places he paralleled his questions. In one paragraph he asked four questions which began "Is he not corroborated. . . . In one place, he

7®lbid.. p. 3.

79ihid.. p. 1 2 2 . fto Ibid.. p. 30.

Gllbid., p. 1 0 1 . 195 82 repeated ”how comes it ” three times. In another

instance, the parallel questions began with "Who doubts* ► .

Furthermore, it is interesting to note that the

first section of the speech which was concerned with the

jurisdiction of the military commission contained many more

tropes and figures than the second section which summarized

the evidence against the accused. This is particularly

unexpected since the former dealt with precedent and the

latter dealt with circumstance.

Indeed, the argument against the accused is a

narrative account in which Bingham supplied the most minute descriptive details of the actions of the prisoners.

Whether or not style can ever serve as a true reflector of the man is not precisely the question. But that the state of a man's faith in his cause, and of his devo­ tion to it, may be revealed through his presentation is no doubt true. Such revelation of the speaker's character derives not necessarily from the deliberate use of art in composition; rather, it may result from the unstudied, thepspontaneous, outpouring of his per­ sonal convictions,

Ethical Appeals and The Advocate's Character

There can be little doubt that Bingham's language

Illustrated clearly thé zeal with which he sought the con­ viction of every prisoner at the bar,

^^ b i d .. p. 1 1 5 ,

GSlbid,. p., 5 4 .

^^Thonssen and Baird, op. cit., pp. ^25-26, 196

Finally, an examination of ethical proof is neces­ sary* First, Bingham made several attempts to show himself as just, fairmlnded, and in all ways faithful to his pur­ pose. His introductory remarks were obviously an effort to accomplish this:

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

Hence, from the outset of the speech, Bingham tried to build ethos for himself. Notice also the objectivity which he asked of the court in his conclusion:

I am not conscious that in this argument I have made any erroneous statement of the evidence, or drawn any erroneous conclusions; yet I pray the court, out of tender regard and jealous care for the rights of the accused, to see that no error of mine, if any there be, shall work them harm.

Furthermore, during the cross-examination, Bingham pictured himself to the court as a humble and honest lawyer,

"Holding myself as the humblest man here, I beg leave to

say, in vindication of m j conduct, , , , "^7 refused to give sanction to any unfavorable impressions of himself or of the Court; claimed virtue for the prosecution and dis­ honor for his opponents; and created "the impression of

®^Bingham, op, cit,, p. 3.

G^Ibid.. p. 122.

G7pitman, op. cit.. p. 2 1 5 . 197 being completely sincere in his undertaking.”®® All of this added strength to his argument insofar as his im­ mediate audience was concerned. The general public also felt confidence in the honesty of the Court, in large mea­ sure, because of the "sincerity and probity” of Bingham's final address. On the day of the execution of Mrs. Surratt,

Herold, Payne, and Atzerodt, the New York Times - argued that if any intelligent man would study the trial and its pro­ ceedings, he would see its absolute fairness and would come to the same conclusions as did the military commission.®*^

Bingham, then, made use of ethical proof. As per­ tinent to this study, however, as the ethical appeals which he employed is an examination of his ethics. There can be little doubt, after studying both the testimony presented during the trial and Bingham’s summation, that the Assistant

Judge Advocate frequently withheld important evidence, misstated issues, and used testimony which he knew to be unreliable.

One particular aspect of Bingham’s character was recurrent throughout his long career. He generally became submissive when confronted with a stronger personality.

During the trial, Bingham was closely aligned with Edwin M,

Stanton, The strength of his reliance on Stanton becomes

88 Thonssen and Baird, op, cit.. p. 387,

® % e w York Times. July 7, 1862. 198 evident when one examines an Incident which occurred long, after the conspirators had been sentenced.

When the military commission was considering the judgments to be passed on the accused, five of the nine judges were opposed to hanging Mrs. Surratt, However, after

some insistence on the part of Judge Advocate Holt and the

"hearty concurrence"^® of Stanton, the commission reached a compromise. They convicted Mrs. Surratt and sentenced her to be hanged. However, they instructed John A, Bingham to draw up a clemency petition in her behalf which read in part,

* , , if he [President Johnsonl can, upon all the facts in the case, find it consistent with his sense of duty to the country, to commute the sentence of death, which the Court have been constrained to pronounce, to imprisonment in the penitentiary for life,°^

This plea for the life of Mrs, Surratt was attached to the papers taken to the President by Judge Advocate Holt, Presi­ dent Johnson maintained that he never saw such a petition; and to his dying day. Holt insisted that he did. Because he was held responsible for not pointing out the clemency plea to the President, Holt was attacked mercilessly; and he attempted to vindicate himself. In 1872, he wrote to Bing­ ham requesting information on the matter, Bingham replied

9%)e¥itt, Assassination, p, 233»

*^^oore, op. cit., pp. 106-0 7 * 199 that, after hearing the rumor that Johnson had not seen the clemency plea, he

called upon Secretaries Stanton and Seward and asked if the petition had been presented to the President before the death sentence was by him approved', and was answered by each of those gentlemen that the petition was presented tç the President, and was duly considered by him and his advisers before the death sentence . . . was approved, and that the President and the cabinet, upon such consideration were a unit in denying the prayer of the petition: Mr, Stanton and Mr. Seward stating they were present.9%

This evidence, seemingly conclusive in ascertaining the truth of the situation, was withheld by Bingham for nearly eight years as Holt's character was being maligned.

His reason for such prolonged silence is interesting,

"Having ascertained the fact as stated, I then desired to make the same public, and so expressed myself to Mr, Stan­ ton, who advised me not to do so., but rely upon the final judgment of the peop l e ,"^3 it would seem that the Assistant

Judge Advocate was still under the influence of Stanton even after the Secretary's death, Lincoln's War Minister had died in December, 1869; and Bingham's letter was not written until several years later.

Throughout this period. Holt was being attacked for not having shown the document to the President, and the reputation of the Judge Advocate was irreparably damaged,

^^eWitt, Assassination, p, 23k* Letter from Bingham to Holt, 93lbld, 200

That Bingham was guilty of such deliberate cruelty and after so many years' insensibility to his friend's sufferings should rush so, eagerly to his relief, is hardly. credible even on his own confession. But the explanation he gives passes the bounds of belief. Why should a statesman— occupying so independent a position --to the condign injury of his professional brother "scrupulously observe" the advice of Stanton?^^

In the Bingham manuscripts at Cadiz, Ohio can be found

Holt's reply to the Assistant Judge Advocate. It is as polite as any letter of damnation could have been.

Dear Sir; I am in receipt of your reply to ray letter of the 11th . , for your full and detailed answer to my enquiry, I beg to return you my sincere thanks. It would have been fortunate for me indeed could I have had this testimony in ray possession years ago, Mr, S______advice to you was under the circumstances of the case most extraordinary. It was neither more nor less than urging a suppression of the truth, at the very time when . , , the interests of public justice, the honor of the military administration, the reputa­ tion of one of its officers--who was also his personal friend— required that truth to be made public. The asking you to await the final judgment of the people and at the same time withholding from them the proof on which that judgment--to be just must be formed--was a sad sad mockery, I wish I could have been spared this revelation; but because it is bitter, I do not thsuik you the less for having made it-- Very respectfully Your_obt. servant Holt??

To this day there is still doubt whether or not

President Johnson ever saw the plea for clemency. What remains, however, is that John A. Bingham, for eight years, failed to break a silence which could directly have affected

94ibid.. p, 292.

?^Bingham Papers, Cadiz, Ohio, 201 finding the truth in this matter— sinç)ly because Edwin M.

Stanton had requested that he do so. Another possibility is that the entire affair as related by Bingham was a fabrica­ tion. In either event it is evident that Bingham succumbed to pressure.

Furthermore, this was not the only time he blindly followed a stronger man,*^^ For instance, Bingham had been chosen a member of the all important joint committee on re­ construction. This committee was dominated by the powerful

Thaddeus Stevens. For a while, Bingham displayed, much to his credit, an independence which infuriated "Old Thad"; and the radical leader said of Bingham, "In all this con­ test over reconstruction I do not propose either to take his counsel, recognize his authority or believe a word he t»97 says." Moreover, Stevens' venom shot straight on other occasions. During the legislative debates on reconstruction, the target of his vigorous tirade against the "proposed steps toward universal amnesty and universal Andy-Johnsonism" was unmistakeably Bingham. Not famous for understatement, however, Stevens unnecessarily continued, "If this congress so decides, it will give me great pleasure to join in the

^^In a letter dated May 11, 1963» Maynard Brlchford, a biographer of Bingham, wrote the following to the present writer: "Hot until he (_Bingha^ reached Japan at the age of 58 was he in a position to "^all the shots."

^^Miller, on. cit.. p, 231+. 202 triumph of the gentleman from Ohio in leading the House, possibly by forbidden paths into the sheepfold--or goat­ fold— of the President,"98

The culmination of this animosity came during the early debates concerning the impeachment of President

Johnson, Bingham still vacillated; and Stevens lashed out scathingly at the temerity of certain unwhipped radicals:

Such men as Schenck, Bingham and others have no bone in their backs or blood in their veins. After trying every , ,. expedient to cripple or defeat the military bill, they voted for it, and we shall find them doing the same again. In the same way, they will twist and squirm and shirk on a direct resolution of impeach­ ment. 99

Bingham was certainly more moderate in his views on reconstruction than was Stevens, "Of the other Republicans," on the House committee for reconstruction, "all were to prove dependable Radicals, even John A. Bingham of Ohio who after exhibiting a degree of independence, would buckle under Stevens* taunts and wheel into line."^^^ Bingham’s reversal was complete, moreover; for he was soon afterwards to lead the crippled and dying Thaddeus Stevens by the arm through the early impeachment proceedings and finally into the Senate chamber when Stevens announced that the House had voted to impeach the President,

98jbid,. p, 312.

99ibid., p. 328.

^®®Lomask, op. cit., p, 1 2 7. 203 Once again Bingham had put aside whatever personal convictions he might have held and followed. This, more than any other aspect of his personality, would lead him to the platform to deliver his most important speeches. Men such as Stanton and Stevens knew that when called upon in an emergency, Bingham would faithfully follow expedient political policy* "In his speeches he used all his oratori­ cal powers to convince his hearers that he was supporting the laws of the United States, but on close examination his speeches reveal the philosophy of his p a r t y . "^01 was, as George Milton called it, "The Age of Hate." Truth, when confronted with such overwhelming power politics and screams for vengeance, was lost.

In Perspective

Bingham’s fame rested chiefly on his ability to de­ liver a speech with seeming conviction. His use of voice and gestures was excellent. Reports of the time referred to him as a "fiery" orator, and that he was. He was capable of speaking for several days with but few notes; and, in most of his addresses, he used none. He did, in the last analysis, present his speeches as effectively as any Congressman of his day* But if in actio or presentation he was excellent, his invention was dismal.

^^^Blair Brasel, The Political Philosophy of John a. Bingham, Unpublished Master's thesis (Ohio State University; 1 9 3 7 p. 61. Brasel’s conclusions are often strikingly similar to those of E. G. Shotwell, 204

There are many lessons to be learned from studying the speaking career of John A. Bingham. "The adage that the competent persuasive speaker is a ’good man skilled in speaking' ia socially desirable but not always true. Many less than moral men have been highly influential in deter­

mining the behavior of others through s p e e c h . "^^2 Bingham is a prime example of this. He achieved results in his

speech against the Lincoln conspirators (although his speech was certainly not the only force working against them)» By no other rhetorical measures of effectiveness, however, could Bingham be declared a success. He flaunted truth; he lacked sincerity; and only in part did he follow the rules of the art of public speaking.

Two factors only keep him from falling completely into the slough of history. First, he was selected by

President Grant to be Envoy Extraordinary and Minister

Plenipotentiary to Japan, He went to Japan in the capacity of Minister of the United States and served for twelve years. From I873 until I885 he did service for his country.

He was effective in this office; and, withdrawn from the political wars of Washington and from the forces of stronger politicians, he proved himself an able administrator.

Second, and of much greater significance, is the fact that he authored the most inç>ortant portion of the

Fourteenth Amendment to the Constitution:

^^^Inston Lament Brembeck and William Smiley Howell, A Means of Social Control (New York: 1952), 205

No State shall make or enforce any law, which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due pro­ cess of law; nor deny to any person within its juris­ diction the equal protection of the laws.-*-^-^

It was a contribution to the organic law of this counts^ which was to have repercussions for generations to come*

Schooled in rhetorical theory, trained on the stump, a leader in Congressional debates, John A. Bingham rose to a share of glory in his day on the basis of his skill in delivering speeches. He used this skill to climb the political ladder, but in the final accounting it was to ruin any of his more serious aspirations. A noted histor­ ian's comments on Bingham's address to impeach President

Johnson may be taken as an effective summary of Bingham's speaking:

Bingham was a lawyer of experience in many causes. He could address a jury with vehemence. He could de­ bate a legislative question fearlessly. As a stump speaker his temper had been tried; his voice had been heard in many a party emergency. Now by his oratorical powers he in some final declarations was to bring about the conviction of the President. Statement and denial, invective and vituperation, dogmatic assurance and grand solemnity developed as he proceeded from brief written notes, and carried him to a peroration on the third day of his forensic effort which one must believe would have condemned to the gallows any murderer in the sight of any twelve men in any courthouse in Ohio. But his law was partisanship, his logic unbridled political passion and his history from the grammar school.

^ o r an excellent account of Bingham's role in the adoption of the Fourteenth Amendment, see Horace E. Flack, The Adoption of the Fourteenth Amendment (Baltimore: 1908)#

10%). p.: Oberholtzer, A History of the. United States Since the Civil War, II (New York: 19l7)t l20. CHAPTER VII

CONCLUSIONS

(1) John A. Bingham was schooled in classical rhetoric and had great experience speaking in the court­ room, from the stump, and in Congress, His contemporaries considered him a great orator.

(2) He argued that "men must speak wisely, truly, and naturally," if they wish to"attain to that great power which rules the minds of men, and moves their passions,"

(3) Bingham took an active part in the preliminary investigations in the trial of those accused of conspiring against Abraham Lincoln,

(i^) As Special Judge Advocate in that trial, Bingham deliberately withheld important evidence, used testimony which he knew to be unreliable, and, most important, failed to abide by those rules which should have governed his conduct_

(5) During the presentation of evidence and the

cross-examination of witnesses, he indulged in the unfair practices of evasiveness, vulgar emotional appeals, and badgering of the defense counsel.

(6 ) He demonstrated that the truth was important to

206 207 him only when it furthered his own cause. Nevertheless, he proved himself agile in running debate,

(7) The judges and spectators at the Court and the public in general were biased in their opinions of the prisoners, and, upon the murder of Lincoln, the nation was

in a state of frenzy and apprehension. Bingham's summation was aimed at this audience and, therefore, was not impartial,

(8 ) In his discussion of the jurisdiction of the

Court, Bingham showed an amazing knowledge of the law.

However, in his endeavors to belittle the defense counsel

and to iitq)lioate the Confederacy in the conspiracy, he lost

sight of his goal. ^

(9) Bingham’s argument against the accused took the form of a chronologically arranged narrative, but his organ­

ization lacked clarity»

(10) Had he omitted all of the extraneous material, his summation would have been more effective.

(11) Although he handled several of the cases against

the accused well, Bingham’s arguments against the prisoners I . were "decidedly non-judicial.'*

(12) He used all of the forms of Sham Enthymemes,

and violated nearly every rule of sound reasoning. Yet, this was not atypical for him: he resorted to the same type of

logic in his argument for the impeachment of Andrew Johnson.

(13) Furthermore, Bingham often relied on emotional proofs to the exclusion of all others. 208

(li|.) He attempted to build ethos for himself

throughout the speech, but the truth is that he distorted

facts and misstated issues»

(15) His tendency was to follow a stronger person-

ality--as in the cases of Stanton and Stevens--and to com­

promise his own principles for expedient political policy*

However, during his twelve year diplomatic mission to Japan

when he was away from party influences, he proved himself

an able administrator.

(16) Moreover, his contribution to the adoption

of the Fourteenth Amendment is praiseworthy.

(17) His language was generally correct, but often

lacked perspicuity because of his long and complicated

thought patterns. His style does not have the ornamentation

which might be expected,

(18 ) His reputation as a great speaker was based pri­

marily on his delivery; his voice, gestures, and powers

of memory were undoubtedly fine attributes.

(19) In all, he achieved results through his

speaking. His utter disregard for truth, however, over­

shadows his immediate success. BIBLIOGRAPHY

Manuscripts

Bingham, John A* Papers in the possession of Mr. Milton Ronsheim, Cadiz, Ohio,

Bingham, John A, Papers in the Ohio State Archaeological and Historical Society Library,

Giddings, Joshua,R, Papers in the Ohio State Archaeological and Historical Society Library.

Public Documents

U.S. Bio^aphical Directory of the American Congress: 177U- 19^/« 'United States Government Printing OfjTice, 3325,

U.S. Congressional Globe, l85ij.-l873,

U.S. House Documents. I85i|--l873»

U.S. House Reports. l85ii.-l873-

U.S. House of Representatives, House Report Ho, 10^., (July, 1866),

U.S. House of Representatives, House Report Ho, 7. I868,

Newspapers

The American Union. 18^0-1865.

The Ashtabula Sentinel, 1820-186$.

The Cadiz Organ, l81j.O,

The Cadiz Republican, 18^0-1873,

The Dally Ohio State Journal, 1850-186^*

The National Era, i850~l860.

The Washington National Intelligencer, 18^0-1862*

The New York World, April-July, 1865.

209 210

The New York Dally Tribune. April-July, 1Ô65*

The New York Svenlnp; Post. April-July, 1865.

The New York Times, I85O-I67O.

The New York Herald. April-July, 1865.

The Washington Constitutional Union. April-July, 1865*

The Washington Daily Chronicle. April-July, 1865.

Articles

Arnold, Samuel A. "The Lincoln Plot," Baltimore American (1902). "

Burnett, H. L. "Controversy Between President Johnson and Judge Holt." Paper read at à meeting of the Coramandery, State of New York Loyal Legion (April 3, 1889).

Clampitt, John W. "Trial of Mrs. Surratt," North American Review, CKKXI (September, I8 8 0 ), 223-l;0.

Ford, J. T. "Behind the Curtain of a Conspiracy," North American Review, GXLVIII (April, I0 8 9 ), 484-93»

Gleason, D. H. L. "Conspiracy Against Lincoln," Magazine of History. XIII (February, 1911), 59-65.

Gray, John A., (ed,). "Fate of the Lincoln Conspirators," McClure's Magazine, LXXXII (October, 1911), 626-36.

Hall, A. 0, "The Surratt Cause Célèbre," Green Bag, VIII (May, 1 8 9 6 ), 195-291:

Holt, Joseph. "New Facts about Mrs. Surratt," North American Review. CXLVII (July, I8 8 8 ), 8J:%".

_ . "Refutation," Washington Daily Morning Chronicle, (December 1, 1873)»

_ . "Vindication." Washington Daily Morning Chronicle. . (September 3, 1866).

Johnson, Andrew. Letter to the editor answering Holt's, "Vindication," Washington Daily Morning Chronicle, (November 12, 1873). -- — ---

"Payne the Assassin," Harper's Weekly,IX (May 27, 1865), 32 1 . 211

Pitman, Benn* ”Benn Pitman on the Trial of Lincoln’s Assas­ sins,” Tyler’s Quarterly Historical and Genealogical Magazine, XXII ( July, 19hO), 1-22. "" ’■

Townsend, G. A. ’’Th e Widow Surratt,” . Unidentified news­ paper clipping.

Watts, R; A. ’’The Trial and Execution of the Lincoln Con­ spirators,” Michigan History Magazine, V (1922), 81-110.

Periodicals

Harper’s Weekly. 1865*

The Nation. 1865-1867.

Unpublished Materials

Brasel, Blair. ’’Th e Political Philosophy of John A, Bingham.” Unpublished Master’s thesis. Department of History, The Ohio State University, 1937*

Brichford, Maynard, ’’Th e Life of John A. Bingham.” Unpub­ lished Master of Science dissertation. Department of History, University of Wisconsin, 1951*

Gray, Philip Alan. ”A Rhetorical Study of the Public Speaking of Joseph Benson Poraker.” Unpublished Master’s thesis. Department of Speech, The Ohio State University, 1961.

Riggs, C. Russell. "The Ante-Bellum Career of John A. Bingham: A Gase-Study in the Coming of the Civil War.” Unpublished doctoral dissertation. Department of History, New York University, 1959.

Pamphlets

Bingham, John A. An Address, Delivered Before the Literary Societies of Franklin College, At New Athens, Ohio, On the É3d September, 1851. Pittsburgh, 1851.

Poraker, Joseph B. John A. Bingham: Address of Hon. J. B. Former on the Occasion of the Unveiling of Monument in Honor of Hon. A. Bingham, at Cadiz. Ohio, .Octa'ber 5, l96l. Columbus: The Ohio State Archaeolog­ ical and Historical Society, 1902.

Wiley, Earl W, State History and Rhetorical Research. Columbus:' The Ohio State University Press! 212

Books

Aristotle. The Rhetoric of Aristotle. Translated with notes by Lane Cooper. New York: Appletoh-Century-Crofts, 1932. Arnold, Samuel Bland» Defence of a Lincoln Conspirator. Hattiesburg, Mississippi: The Book ï^'arm, l9i|-3«

Baker, Lafayette C, History of the United States Secret Service. Philadelphia: Privately published, .

Bates, Edward. Diary. Vol. IV. Annual Report of the American Historical Society, 1930.

Benet, Captain S.V. Military Law and Courts-Martial. New York: D. Van Nostrand, Itibij..

Bingham, John A. Argument of John A. Bingham, Special Judge Advocate, in Reply to the Arguments of the Several -Counsel for Mary B. Surratt, David E. Herold, Lewis Payne, George A. Atzerodt, Michael O'Laughlin, Samuel A. Mudd, Edward Spa^ler, and Samuel Arnold, Charged with Consplracy and the Murder of Abraham" Lincoln, Late President of the United States. Washington: Government Printing Office, 1565.

Bishop, Jim. The Day Lincoln Was Shot. New York: Harper and Brothers, 19$5.

Blaine, James G. Twenty Years of Congress, from Lincoln to Garfield with a Review of the Events which led to the Political Revolution of 155ÔI Norwich, ConnectT- cut: Hill Publishing Company, I88I4..

Bowers, Claude G. The Tragic Era. Cambridge: Houghton- Mifflin Company, 1929.

Brembeck, Winston Lamont, and Howell, William Smiley. Persuasion: A Means of Social Control. New York: Prentice-Hall, Inc., 1952. “

Bryan, George S. The Great American Myth. New York: Carrick and Evan a, Inc. , 1914-0.

Busch, Francis X. Enemies of the State: An Account of the Trials of the Mary Eugenia Surratt Case, the Teapot ^ Dome Cases, the Alphonse Capone Case, the Rosenberg Case. London: Arco Publications Limited, 1957.

Campbell, George. Philosophy of Rhetoric. New York: 18^1. 213

Campbell, Helen Jones. The Case for Mrs. Surratt» New York: G. Putnam and Sons, 19^3.

Chittenden, Lucius E. Recollections of President Lincoln and his Administration. New York: Harper and Brothers, 19Ô1.

Coleman, Edna M. Seventy-five Years of White House Gossip. New York: 1^25.

DeWitt, David M. The Assassination of Abraham Lincoln and Its Expiation. New York: The MacMillan Company, l^O*^'.

___ • The Judicial Murder of Mary E. Surratt. Balti- more: J. Murphy and Company, 18 9 5 .

______. The Impeachment and Trial of Andrew Johnson. New York: 1903.

Douglas; Henry Kyd. I Rode WitH Stonewall: Being Chiefly the war experTences oi^ the youngest member of Jackson's Staff from the Joto Brown Raid to the hang­ ing of Mrs. Surratt. Chapel Hill: University of' North Carolina, 19^0•

Eisenshiml, Otto. In the Shadow of Lincoln's Death. New York: Wilfred Punk, l^hO.. ^

• Why Was Lincoln Murdered? Boston: Little, Brown, and Company, 193f. ' •

Parjeon, Eleanor^ (ed.). The Unlocked Door, A memoir of John Wilkes Booth by His Sister Asia Booth Clarke. New York: G. Putnam and Sons, 1938.

Flack, Horace E. The Adoption of the Fourteenth Amendment. Balt imore : The Johns Hopkins Press, 190ti, "

Forrester, Izola. This One Mad Act. Boston: Hale. Cushman and Flint, 19377

Franklin College Bulletin. New Athens, Ohio: Franklin College, 1638.

Harris, General T, M, Assassination of Lincoln: A History of the Great Conspiracy. Boston: American Citizen Company, 1Ü92.

Henry, Robert Selph. The Story of Reconstruction. New York: Peter Smith, 195TI 2 1 k Julian, G. ¥. Political Recollections. Chicago: Jansen, McClurg and Company, 1ÜÜ9.

Kelly, Alfred H, and Harbison, Winfred A. The American Constitution: Its Origins and Development. New York: W. W« Norton and Company, Inc., 19^5»

Kimmel, Stanley. The Mad Booths of Maryland. New York: Bobb3-Merrill Company,

Laughlin, Clara E. The Death of Lincoln. New York: Doubleday, Page, and Company, 1909.

Leech, Margaret. Reveille in Washington. New York: Harper and Brothers, I9I4.I.

Lewis, Lloyd. Myths After Lincoln. New York: Harcourt, Brace, and Company, 1929.

Lomask, Milton. Andrew Johnson: President on Trial. New York: Parrar, Straus, and Cu&aky, I960.

Miller, Alphonse B. Thaddeus Stevens. New York: Harper and Brothers, 1 9 ^ ‘5.

Miller, Marion, (ed.). Great Debates in American History. 13 vols. New York: The Current Literature Publishing Company, 1913.

Milton, George Port. The Age of Hate; Andrew Johnson and the Radicals. New York: Cowajcd-McCann, Inc., I93O.

Moore, Guy W. The Case of Mrs. Surratt: Her Controversial Trial and Execution for Conspiracy in the Lincoln Assassination. Norman, Oklahoma: University of Oklahoma Press, 195k»

Mudd, Nettie. Life of Dr. Ssmiuel A. Mudd. New York: Neal Publishing Company, Ï90&.

McCarthy, Burke. Suppressed Truth about the Assassination of Abraham Lincoln. Privately Printed, 19È2.

McKee, Irving, "Ben-Eur" Wallace: The Life of General Lew Wallace. Berkeley: University of California Press, H j7T ~ Nichols, Marie Hochmuth. Rhetoric and Criticism. Baton Rouge: Louisiana State University Press, Ï9é3. 215 Oberholtzer, E. P. A History of the United States Since the Civil W ar, 5 vols. New York: The MacMillan Company, 1917.

Pitman, Benn, (comp,). The Assassination of President Lincoln and the Trial of the Conspirators, cineinnati: Moore, Wilstach, and Baldwin, l865.

Pittenger, William, Oratory Sacred and Secular; or. The Extemporaneous Speaker with Sketches of the Most*” Eminent Speakers. New York: Samuel R. Wells, l868,

Poore, Ben, Conspiracy Trial for the Murder of the Presi- dent, 3 'vols, Boston: J. E, Tilton and Company, T 8%- 1866,

Rhodes, J, P, History of the United States, ? vols. New York: The MacMillan Company, l506.

Hoscoe, Theodore, The Web of Conspiracy; The Complete Story of thT Men Who Murdered Abraham Lincoln, Englewood Ôliffs, New Jersey: Prentice-Hall, Inc., 1959.

Sherman, John, Recollections of Forty Years in the House, Senate and Cabinet, An Autobiography, 2 vols, Chicago: 1895.

Shotwell, Walter Gaston, Driftwood: Being Papers on Old- Time American Towns ^ d Some Old People, New York: tongmans. Green and dompany, 1927,

Stern, Philip Van Doren, The Man Who Killed Lincoln, New York: Literary Guild of America, 1939. ”

______. The Assassination of President Lincoln and the Trial of the Conspirators by Benn Pitman. Facsimile Edi'-fcion, Siew York: Funk and Wagnails, 1954.

Townsend, G, A, Life, Crime, and Capture of John Wilkes Booth, New York: Dick and Fitzgerald, 1565»

Trial of Andrew Johnson, President of the United States, Before the Senate of the United States, on Impeach­ ment by the House of Representatives for High Crimes and Misdemeanors, 2 vois, Washington: Government Printing Office, 1868.

Trial of John A. Surratt in the Ordinal Court for the District of dolumblal Z"vols. Washington: Govern­ ment Printing Office, 1867. 216

Wallace, Lew, Lew Wallace. 2 vols. New York: Harper and Brothers, 1906.

Welles, Gideon. Diary. 3 vols. Boston: Houghton Mifflin Company, 1911.

Winston, Robert W. Andrew Johnson. New York: 1928.

Other Sources

Brichford, Maynard. Letter to A. B. Bogarad (May 11, I9 6 3 ). AUTOBIOGRAPHY

I, Allen Boyd Bogarad, was born In Steubenville,

Ohio on February 7, 1935. I attended elementary school in

Weirton, West Virginia and graduated in 1953 from Pollansbee

High School in Pollansbee, West Virginia, I received the

Bachelor of Arts degree from The Ohio State University in

1956 and was granted the Master of Arts degree from the same institution in 1957. During the academic year 1957-1958, I studied at the University of Florida where I was a graduate assistant in the Department of Speech, In 1959, Ï was appointed graduate assistant in the Department of Speech of

The Ohio State University, where I have completed require­ ments for the Doctor of Philosophy degree.

In September, I 9 6 0 I became Instructor of Speech at Wittenberg University in Springfield, Ohio; and I have accepted a position as Director of Porensicsat Hunter

College in New York City for the academic year beginning

September, 1963.

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