Evening star. [volume] (Washington, D.C.) 1854-1972, 1865-06-23
SECOND EDITION.
SIX O'OLOCK r. NJ.
TEE CONSPIRACY TRIALS.
NEW TESTIMONY.
BEV. TUCKER DESTROYS DAMNING
EVIDENCE.
THE CASE OF MUD AND ARNOLD.
ARGUMENT OF MIR. EWING.

THE CASE OF MUD AND ARNOLD.
ARGUMENT OF MIR. EWING.
The Court met at lam, pursuant to adjourn-
ment.
TESTIMONY OF JosKpH b. HUTCHINSON.
(For the Prosecution
Witness Is 8 native OF England. Has been
residing in Canada for seven months. While
there witness saw q. q Clay, Beverly Tucker
and George Sanders Saw Tucker ao ana san Hns
last time witness saw Clay was on the l2tror
18th of February, at Queens Hotel, Toronto.
Saw Dr. Merritt in Toronto on the evening OF
the I'd of June or morning OF the Sd OF June In
conyers alton with Tucker. Overheard Tucker
say in this conversation lin relation to docu-
nents connected with this trial) that he had
burned all the letters for fear some Yankee
SON Of bitch would steal them from his room.
They were talking about this trial. Beverly
Tucker, Gen. Carroll, OF Tennessee, and ex-
Senator W estcott, Of Florida, were present
They were speaking to Merritt as if they had
implicit confidence IN him.
Mr.. Ewing here read his argument in behalf
of Arnold. He proceeded to analyze the evil
dence and said there was no conflict tween
he prisoners own statements and the state.
menls OF the witness for Government. His
statements called out by the prosecution b ad
not been discredited, and must therefore be
accepted as evidence. The utmost scope OF
the evidence against Arnold tablished only
the fact that he was at one time party to q
conspiracy for the capture and abduction of
the President. And II the object of this con-
spiracy had been cons animated and the Presi.
dent had been abducted instead of being as.
sassinated, even then Arnold could not have
been lawfully con yicted, because before its &C.
ccmphshment he had entirely abandoned and
Withdrawn from the enterprise.
Human, like Divine law, mercifully leaves q
place of repentance for all between the concep-
ton and perpetretio n Of crime After Arnold
had terminated his conspiracy for the abduc-
ton of the President he ceased to be RESPONSE
BILE for what his former confederates did,
whether in prosecution OF the original object
or in execution of some new plot to which he
was not party. wharton Am. Grim Law,
262) There g not an atom OF testimony con-
Meeting him In the remotest degree with the
Mr.. Ewing quoted from various authorities
to show that be was not accessory before the
fact.
He was party to conspiracy, but the en-
tire scope of that conspiracy was the abduc-
ton of the President, and the President alone.
| no other act. But tor this conspiracy, such as
it was, he is not ON trial; and it can have or
certainly ought to have no influence whatever
upon the minds OF the court 1t was aban-
doned by him long before the assasslna-
| ton, and with its abandonment his con-
nection and Intercourse with the conspira.
| objects and purposes was never attempt
| ed, and the crime now under invesu-
| cation did not result from it, but was the
| fruit of a new plot, a new conspiracy, to which
| Arnold was not party, and of the existen ee
| OF which it does not appear that he had the
| slightest knowledge or intimation. How then
will 1t be possibl to Justify judgment of con-
| domination against him as accessory before the
| fact to q crime of the intention to commit
| which he was utterly and profoundly ignorant.
and from which we are warranted in believ-
| ing, from the prescriptions of law and what
| the evidence has disclosed OF his character, he
| may. "1o 'As
Upon the conclusion OF Mr.. wings argu.
| ment in bel alf Of Arnold, the Court took a Re-
| n m W han Mr. Erin
| upon his argument in behalf Of Mudd
| He said The first great question is ques.
| tion-Do you, gentlemen constitute a court,
| and have you jurisdiction as a court OF the
| persons accused and Of the crimes with which
| they are charged2 II you have such jurisdlc-
| ton 1t must have been conferred by the Uon.
| shfution or some law consistent with it, and
| carrying out its provisions
| 1. The fifth article OF the Constitution de-
elares, "That the judicial power Of the United
| States shall be vested in one Supreme Court,
an in such Inferior courts as Congress NAV
| from time to time ordain and establish and
| that "the judges OF both supreme and inferior
courts shall hold their offices during good be-
| havior." Under this provision Of the Oonsti.
| tuition none but courts ordained or established
by Congress can exercise judicial power, and
those courts must be composed OF judges who
hold their ofacas during1good behayi Or. They
must be independent Judges, free from the in
huence of Executive power! Congress has
not "ordained and established" You q court,
or authorized you to calfthese parties before
you and sit upon their trial, and you are not
.Judges," who hold your Office during good
behavior. You are, therefore, no court under
the Constitution, and have no jurisdiction in
these cases, unless you obtain 1t from some
other source, which overrules this constitu-
tlonai provision.
The President cannot confer judicial power
upon you, for he has it not. The executive,
not the judicial power of the United States, ls
vested IN MIN HIS mandate, no matter to
and II convicted to sentence to death q citizen
TOT OF the naval or military forces Of the
United States. carries with it no authority,
which could be pleaded in Justification of the
sentence. '-=
I'd The President, under the fifth amend.
ment to the Constitution, may constitute courts
pursuant TO the articles OF war, but he cannot
give them jurisdiction over citizens. This ar
ticle provides that ''no person shall be held to
answer for a capital or otherwise infamous
crime unless on presentation or indictment
of a grand jury, except in cases arising in the
land or naval forces or in the militia when in
actual service IN time OF war or public dan
ger
The presentment or Indictment of Grand
Jury is thing unknown to, and inconsistent
with your Commission. These defendants did
not and do not belong to the 'sland or naval
militia, IN time OF war or public danger, in
actual service"
The 30 section OF the Sd article Is as follows
THE trial OF all crimes except in cases OF i'm
parchment shall be by n.y.
But lest this shall not be enough. in their aux.
ious care to provide against the abuses from
which England had recently escaped and
which were still fresh in the memories of men
as the Star Chamber-:he High Commission
Courts and their attendant eDormtties- the fran.
ers ofthe Constitution further vide In the 9th
amendment that
I'm all criminal prosecutions the accused
shall enjoy the right to speedy and public
trial by an impartial Jury of the State and
District wherein the crime shall have been
committed"
Now whence. and what, is the authority
which overuIes these rdistinct constitutional
Prohibition, and emDOW YOU to hold tn csc
Constitution fornidding you? Congress has
lot attempted to grant you the power-Uon
] eress could not grant it. A law to that effect
/ against the Constitutional prohibition would
| be merely void. Congress has au horned the
snsppnsior of the writ Of T. heas cornns AS the