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 followed the standard in the field, or represented its standard in the counsels. That is exactly why it is germane.”
And, thereupon, the Commission immediately overruled the objection. General Ewing told the exact truth, without a particle of rhetorical exaggeration, when, in the closing sentence of his argument against the jurisdiction of the Commission, he exclaimed:
“Indeed, the position taken by the learned Assistant Judge-Advocate * * * goes to this—and even beyond it—namely, that participation in the Rebellion was participation in the assassination, and that the Rebellion itself formed part of the conspiracy for which these men are on trial here.”
Throughout the whole trial, the Commission took the law from the Judge-Advocates with the unquestioning docility usually manifested by a jury on such matters in civil courts. In truth, the main function of a Judge-Advocate appears to be to furnish law to the Court, as in civil courts the main function of the Judge is to furnish law to the jury. Consequently, his exposition of the law on any disputed point—whether relative to modes of procedure, or to the competency of testimony, or even to questions of jurisdiction—instead of standing on the same level with the antagonistic exposition of counsel for the accused as an argument to be weighed by the Court against its opposite in the equal scales of decision, was at all times authoritative, like the opinion of a judge overruling the contention of a lawyer. This, surely, was bad enough for a defendant; but, what was still more fatal to his chances of fair dealing, this habit of domination, acquiesced in by the Court on questions of law, had the effect (as is also seen in civil courts) of giving the same superior force to the expositions of questions of fact by the Judge-Advocate. And as this office combined the functions of a prosecuting officer with the functions of a judge, there could be no restraints of law, custom or personal delicacy, against the enforcement, with all the powers of reasoning and appeal at command, the conclusion of the Judge-Advocate upon the matters of fact.