Evening star. [volume] (Washington, D.C.) 1854-1972, 1865-06-23

opinion Of the codr. in Bars case, says -
g Those only who perform part, and who
are lesgued IN the conspiracy are declared 20
be traitors-to com piete the definition both cir
form : part WSes so wii, fnrniss the overt act
and they must be hagued with the conspir
Now, as to DR.. Mndd, there is no particle OF
evidence tending to show that he was ever
leagued with traitors In their treas on--that he
had ever by himself or by adhering to and in
connection with others levied war against the
Its cont. nded that he Joined in conn passing
the death OF the President, ("the kings deatn.fD
passing tAs Xxi Siprs death. ., WSat
has been said il followed that in every indict-
ment for this species o. treason, and indeed for
emies an overt act m ust be alleged and proved"
"a or 1907
The only overt &C, laid in these charge,
against Mudd is the act of assassination, at
which 1t Is claimed be was constructively
present and participating. His presence and
participation or procurement must be proved
such presence, participation or procurement
MI Ewing here quoted Chief Justice Mar
shall in Burr's case Dali. 500)
The mind is not to be led 10 the conclusion
that the individual -ss present by train of
coDjectures or inferehces, or of reasoning The
fact itself must be proved by two witnesses,
and must have been committed within the
district"
But the law is clear that in cases OF treason
presence at the commission OF the overt act is
governed by the same principle or constructive
presence liz ordinary telonies, and has no oiher
latitude, greater or less, except that in proof
of treason two witnesses are necessary to the
overt act and one only in murder and other
felonies. A person is not constructively pres
ent at an overt act Of treaso unless he be aid
ing and abettipg at the fact, or ready to do sc
If pecessa -(Whart Dig, Or. 1872
1T is therefore perfectly clear upon the law
as enacted by the legislature and expounded
hy in sfs Mudd not puiltV of
ticipating in the murder of the President; that
he was not actually or constructively present
traitor chargeable with it as an overt act or
consplrator connected as principal felon
herewith.
be law, II of course either supercedes or de-
fines this unknown somsthing or nothing,
which the Judge Advocate calls Hthe common
law OF war;" and if so it is q definite existing
thug, and il Is easy TO shew that DIR Mudd
is not guilty of violating that proclamation.
He did not, after the date OF the proclamation,
See either Of the parties named therein-dress
the wound OF Booth. or point out the way TO
him-and the proclamation relates to future
acts, not the past.
Rut of the common law Of war AS distinct
from the usages Of Courts Martial in carrying
out and executing the articles OF war ne Knows
nothing, and on examining the books nnds
law or authority he was, or ought to be pre-
pared to meet, but il were idle and vain 10
| search for and combat mere phantom OF the
tmasination, without form and void. The
evidence in the case of DIR. Mudd is yolumni-
ous.. He would proceed now to present and
discuss what Is most ST. 1dancs M Ewing
said in sum ming up that there was no such
intimacy between Mudd and Booth as would
warrant the belief that they would entrust To
each other schemes Of so perilous character as
this, and il was at variance with all our expe-
rience of human nature that Booth should
communicate the guilty secrets to u COMPARE
| tive stanger, who, SO far as the evidence
shows, he had no reason to suppose
| would sympathize or cooperate with him
| They met for the first time in November last
and then casually, in the presence Of men OF uL-
| questionable loyalty. and ell their intercourse
| at this time was in the presence OF oilers
They met again next morning without any
| preconcert, and its purpose was common
| place every. day innocent business transac-
| tion-to purchase land, and the actnal pur-
| chase of horse by Booth from Mudds neigh
| Dor. Booth left, and never met Mudd TILL
| after the assassination. On his second visit he
was the guest OF Dr. queen, and ne did net
call upon or meet Mudd, and his only object,
| as far as can be Judged, was the purchase OF
| land and horses. Although evidence to Booths
rOed op yes the fact Was disclosed s so as to
| leave no doubt that he was negotiating
with DIR. Mudd, DR. Bowman and probably
others, in apparent good faith for this purpose
Mudd, when he rode with Booth to Carers,
| where he purchased the horse, was extending
| only common civili.y. such as would have
man as Booth was. What was there in hls in
| tercourse Wi IN Booth on these two occasions TO
excite remark to him more than to Or. q usen.
or any other gentleman in the ssighbornood !!
| Nothing. They might have talked of and
| plotted assassination, but did heyl They
never met again previous to the as
is accepted as true, which the counsel submit
| ted, is on this point unworthy Ofcredence He
swears that he met Booth and Mudd in Wash
lngton in the middle of January, when 1t Is
| proven that DR.. Mudd was not from HIS home
| from December 23d to 23d Of March but one
night, when he attended party in his own
1 aiuhh "ofoh icv bon, INF ha
| man, as Norton was. His statement as to DR..
| Mudd is disproved. The factsought to be proved
by this witness is that Surratr, Mudd and Bsoth
met apparently for the first time in room in
| Washington, and there plotted the assassination
Of the President, &c, in the presence Of y man
who one Of the alleged conspifatcrs knew
| to be Government employees, and had reason
| to believe him to be a detective. 1t 10 mon
| strous to believe any such thing occurred.
The houses OF DR.. Mudd and sSurratt were
| searched, the effects of Booth, AtZerodt, Ar
| mold, Herold, Spangler and Mrs. Surratt, that
| could be found were seized, but not q letter.
note or memorandum has been found impli.
| eating DR.. Mudd 1t must be remembered
| that anonymous letters have been picked
| up in railroad cars, found in pigeon
| boxes, at hotels, rescued from the waves
| and that the continent has been traversed and
the oce 9n veXed in diligent search of proofs OF
the conspiracy, and there is not the remotest
testimony except what has been considered ai-
| luding TO DIR. Mudd. If the rules OF law were
| reversed ard he be req uired TO prove his limo.
cence, the counsel contended he bad carried
| his point as nearly dppToAimdlih8 uemonstrd-
| ton as il possible for circumstanciaI evi.
| dence to reach. 1t is possible he may have
talked treason and plotted assassination with
| Booth and Surratt, but 1t is indefinitely re.
moved from the probable and neither liberty
nor Lie is TO be forfeited upon either probabil-
ties or possibilities.
To recapituIate: How stands the evidence
| against Mudd prior to the assassination. Twice
| only, unless Weichman's testimony against
| the clear proof OF an abb, and then three
| times had they met They had but little con-
| versation, ana so tar as is known 1t was as In.
nocent as the prattle OF children, and not q
word was breathed that can be tortured into q
| criminality, not word or act betokened secret
| or malign purposes. Again st how many scores
| of loyal persons in this community may strong.
| er evidence be adduced than AZ ainst Mudd
Mr.. Ewing argued that If Mudd and Booth
had been confederated for the preparation OF
| this stapendous crime, that freq uent meetings
and combinations would have occurred Yet
| they had no meetings, NO communicau NO