On the 30th of May, he was called as a witness and appeared upon the stand to be sworn. As he stood there, in his faded uniform, bearing, doubtless, traces of the six months’ imprisonment from which he had come at the command of the Court, facing the officers of the Army he had so often encountered, and with his back turned upon the woman on whose behalf he had been summoned; General Albion P. Howe deemed it his duty as an impartial judge to make the following attack upon him.
After stating that it was well known that “the person” before the Court had been educated at the National Military Academy, and had since for many years held a commission in the U. S. Army, and had therefore taken the oath of allegiance, this gallant officer and upright judge proceeded:
“In 1861, 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. I understand that he is brought here now as a witness to testify before this Court, and he comes here as a witness with his hands red with the blood of his loyal countrymen, shed by him or by his assistants, in violation of his solemn oath as a man and his faith as an officer. I submit to this Court that he stands in the eye of the law as an incompetent witness, because he is notoriously infamous. To offer as a witness a man who stands with this character, who has openly violated the obligations of his oath, and his faith as an officer, and to administer the oath to him and present his testimony, is but an insult to the Court and an outrage upon the administration of justice. I move that this man, Edward Johnson, be ejected from the Court as an incompetent witness on account of his notorious infamy on the grounds I have stated.”
General Ekin welcomed the opportunity to distinguish himself by seconding the motion and characterizing the appearance of the witness before the Commission, “with such a character” as “the height of impertinence!” In his haste to insult a fallen foe, he seems to have forgotten that the witness had no alternative but to come.
The counsel for the prisoner humbly reminded the Court that the prosecution itself had sworn as its own witnesses men who had borne arms against the Government. The Judge-Advocate saw that the members of the Court had gone too far, and, after calling their attention to the familiar rule that the record of conviction in a judicial proceeding was the only basis of a total rejection of a witness, proceeded to provide a channel for the relief of the Court by suggesting that they could discredit the witness upon the ground stated, although they could not declare him incompetent to testify.
The assertion is confidently made that in the whole annals of English criminal jurisprudence, full as they are of instances of the grossest unfairness to persons on trial, no such outrage upon the administration of justice as the foregoing can be found. To find its parallel you must go to the records of the French Revolutionary Tribunal. What are we to think of the complaint of a Union General, that “a rebel party” fired (first? No! but that when “it became his duty as an officer to fire upon a rebel party” the rebel party fired) back? What in Mars’ name did this warrior expect? Would he have had kinder feelings towards his brave adversary if, in response to his own volley, the Confederate General had tamely laid down his arms, or played the coward and run?
Nowadays, when the blue and the gray meet, charges of infamy are no longer heard, but the more deadly the past warfare, the greater the reciprocal respect.
However, this unprovoked assault upon an unoffending officer, powerless to repel it, although it did not result in his ejection from the Court, effectually disposed of General Johnson as a witness.
In answer to the questions of counsel he calmly gave his testimony, which exploded both Von-Steinacker and his story. Judge Bingham confined his cross-examination to eliciting the facts, that the witness had graduated from West Point, served in the U. S. Army until 1861, resigned, and joined the Confederate Army. The Court paid no attention to his direct testimony because he had fired upon Union men when they had fired upon him.
The foregoing incidents conclusively show (were any such demonstration necessary) that a Board of nine military officers, fresh from service in the field in a bloody civil war, with all the fierce prejudices naturally bred by such a conflict hot within their bosoms, was the most unfit tribunal possible to administer impartial justice to eight persons charged with the murder of the Commander-in-Chief of the Army to which every member of the Court belonged, committed in aid of that Rebellion which during four years of hard fighting they had helped to suppress.
CHAPTER III.
The Conduct of the Trial
The whole conduct of the trial emphasizes this conclusion. The Court, in weighing the evidence, adopted and acted upon the following proposition; that any witness, sworn for any of the prisoners, who had enlisted in the Confederate service, or had at any time expressed secession sentiments, or sympathized in any way with the South, was totally unworthy of credit. The Court went a step farther, and adopted the monstrous rule that participation in the Rebellion was evidence of participation in the assassination! This assertion now seems incredible, but it is fully attested by the record. At one stage of the trial, the Judge-Advocate asked a witness whether or not the prisoner Arnold had been in the military service of the rebels. General Ewing, his counsel, strenuously objected to this question on the ground, that it tended to prove the prisoner guilty of another crime than the one for which he was on trial, and thus to prejudice him in the eyes of the Court.
Judge Holt remarked: “How kindred to each other are the crimes of treason against a nation and assassination of its chief magistrate.
“The murder of the President * * * was preëminently a political assassination.
“When, therefore, we shall show, on the part of the accused, acts of intense disloyalty, bearing arms in the field against the Government, we show with him the presence of an animus towards the Government which relieves this accusation of much, if not all, of its improbability.”
He asserted that such a course of proof was constantly resorted to in criminal courts; and when General Ewing challenged him (as well he might) to produce any authorities for such a position, he called upon the indomitable Bingham to state them.
The Special Judge-Advocate responded, but he courteously, but unmistakably, shied away from his colleague’s position and put the competency of the testimony upon another ground, viz.: that where the intent with which a thing was done is in issue, other acts of the prisoner which tend to prove the intent may be given in evidence. Here he was dealing with a familiar principle, and could cite any number of cases. He then proceeded to apply his good law. How? By claiming that conspiracy to murder having been laid in the charge, “with the intent to aid the Rebellion,” that was the intent in issue here, and therefore to prove that a man was in the Rebellion went to prove that intent.
At the request of General Ewing he read the allegation which ran “in aid of the Rebellion,” and not “with intent to aid,” and the counsel pointed out that that was “an allegation of fact, and not of intent;” but the Judge insisted that it was in effect an allegation of intent – implied if not expressed.
General Ewing then replied to his adversary’s argument by showing that such an allegation was an unnecessary allegation. Conspiracy to murder and attempted murder were crimes done with intent to kill; and it was a matter of no moment in pleading to allege a general intent to aid the Rebellion. Courts had no right to violate the laws of evidence because the prosecution has seen fit to violate the laws of pleading.
Judge Bingham contended (and cited authorities) for his familiar law, and then again in applying it triumphantly asked:
“When he [Arnold] entered it (i. e., the Rebellion) he entered into it to aid it, did he not?”
“Mr. Ewing. He did not enter into that to assassinate the President.”
At this, the Assistant Judge-Advocate rising to the decisive and culminating point of his argument gave utterance to the following proposition:
“Yes: he entered into it to assassinate the President; and everybody else that entered into the Rebellion entered into it to assassinate everybody that represented the Government, that either