I

CENSORSHIP OF THE PRESS

(Delivered February 15th, 1868)

HAVE but few words to say in presenting a brief amendment to the Press law now under discussion. This paragraph was suggested to me by the grave circumstances now existing which have a profound influence on private rights.

The principle of the matter now under consideration is this: Private life should be walled in and sacred, but public life has no such right. All public existence created by great public interests and all variations of these interests create a responsibility, and this responsibility is moral as well as material. There is no gainsaying this, and all public functionaries admit they are responsible for their personal actions. But in opposition to them we find a body of men occupying an anomalous position. Immense establishments have been founded, which have attained such exaggerated proportions in their influence on public and private life that the men responsible for their direction are more powerful than even public characters. I speak particularly of the directors of the great corporate companies and financial institutions who are irresponsible, or at least their acts are impersonal and official and free from direct responsibility.

What have we seen and what do we still see? A large number of such establishments are founded; they develop and some crumble. Values or their equivalents have been emitted by these concerns under the direction of men responsible for nothing. They are issued in enormous proportions up to the hundreds of millions, even to the billion mark. What is the character of many of these values created by establishments calling themselves French ? What social, business, and political calamities have resulted? You have seen shares issued at five hundred francs sold for one thousand nine hundred francs and then fall, carrying ruin to the citizens to whom they had been transferred under the faith of the government, since the authorization of the government was necessary to the foundation of such establishments. And have any of them a censor placed near or over them? There should be rigorous censorship over all stock companies. They are freed from all supervision now, and I believe it an error. Well, I ask when private fortune in such colossal proportions is exposed to disaster: Is this not a public danger?

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Is it not for the general interest that the actions of such societies, the commerce of their directors and administrators, should be called to public attention, that every one may know what is occurring ?

If, in reviewing the deeds of these gentlemen, we find that these deeds are criminal in character, and worthy of condemnation, is it well that the publisher of such news to the public should be prosecuted for defamation, because he makes known to his fellow-citizens fraudulent manœuvres and irregular operations, when in so doing he acts from an evident general interest of honesty against men who have in their hands the fate of interests so vast that it is really the cause of administrative justice to make public the lies, falsities, and perils which are evident in much of the certificate values in circulation? The Lord knows how, when one has had the courage to say, "Here are their practices, here are the secret acts, here is what menaces you," shall he be censured and punished for defamation as having brought disgrace to or soiled the dignity of such corporate administrators. I repeat that the proof of facts which interest private fortunes in such degree may be said to be public facts, and their free publication should be authorized. With this view I present the amendment to make such officials subject to the Press censures applicable to political and public functionaries.

JOHN A. BINGHAM

(1815-)

HE trial of the assassins of President Lincoln was, in many respects, the most important State case in the history of

English-speaking peoples since the discovery of America. As often happens where the occasion demands much, its very dignity may excite disappointment with the result, but it would be hard to overestimate the importance of such arguments as those of Bingham, Reverdy Johnson, and others, who handled the law and the evidence before the military commission which tried the conspirators. However great the disadvantage under which the attorneys for the defense were placed their arguments lose nothing in value with the passage of time, while on several points the argument for the prosecution has been outlawed by time. When Guiteau murdered President Garfield no one questioned the genuineness of the indignation of those he insanely claimed to represent, and the murderers of President Lincoln have long ago come to be regarded not as traitors but merely as assassins. The charges and the arguments supporting them as far as they are intended to suggest treason rather than murder are now universally looked upon as the result of a mistake of judgment excusable enough in the excitement of the times, but not justified by any evidence or any argument presented in connection with the evidence.

M1

AGAINST THE ASSASSINS OF PRESIDENT LINCOLN

Ay it please the Court: It only remains for me to sum up the evidence, and present my views of the law arising upon the facts in the case on trial. The questions of fact involved in the issue are:

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 conspiracy, and with the intent alleged, commit either or all of the several acts specified?

If the conspiracy be established, as charged, it results that whatever was said or done by either of the parties thereto, in the furtherance or execution of the common design, is the declaration or act of all the other parties to the conspiracy; and this, whether the other parties, at the time such words were uttered or such acts done by their confederates, were present or absent here, within the entrenched lines of your capital, or crouching behind the entrenched lines of Richmond, or awaiting the results of their murderous plot against their country, its Constitution and laws, across the border, under the shelter of the British flag.

The declared and accepted rule of law in cases of conspiracy is that:

"In prosecutions for conspiracy it is an established rule that 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 the contemplation of law as well as in sound reason, the act of the whole party; and, therefore, the proof of the act will be evidence against any of the others who were engaged in the same general conspiracy, without regard to the question whether the prisoner is proved to have been concerned in the particular transaction." (Phillips on Evidence, p. 210.)

The same rule obtains in cases of treason:

"If several persons agree to levy war, some in one place and some in another, and one party do actually appear in arms, this is a levying of war by all, as well those who were not in arms as those who were, if it were done in pursuance of the original concert, for those who made the attempt were emboldened by the confidence inspired by the general concert, and, therefore, these particular acts are in justice imputable to all the rest." (1 East., Pleas of the Crown, p. 97; Roscoe 84.)

In Ex parte Bollman and Swartwout, 4 Cranch, 126, Marshall, Chief-Justice, rules:

"If war be actually levied—that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose-all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors."

In the United States versus Cole et al., 5 McLean, 601, Mr. Justice McLean says:

"A conspiracy is rarely, if ever, proved by positive testimony. When a crime of high magnitude is about to be perpetrated by a combination of individuals, they do not act openly, but covertly and secretly. The purpose formed is known only to those who enter into it. Unless one of the original conspirators betray his companions and give evidence against them, their guilt can be proved only by circumstantial evidence. It is said by some writers on evidence that such circumstances are stronger than positive proof. A witness swearing positively, it is said, may misapprehend the facts or swear falsely, but that circumstances cannot lie.

"The common design is the essence of the charge; and this may be made to appear when the defendants steadily pursue the same object, whether acting separately or together, by common or different means, all leading to the same unlawful result. And where prima facie evidence has been given of a combination, the acts or confessions of one are evidence against all. It is reasonable that where a body of men assume the attribute of individuality, whether for commercial business or for the commission of a crime, that the association should be bound by the acts of one of its members in carrying out the design."

It is a rule of the law, not to be overlooked in this connection, that the conspiracy or agreement of the parties, or some of them, to act in concert to accomplish the unlawful act charged, may be established either by direct evidence of a meeting or consultation for the illegal purpose charged, or more usually, from the very nature of the case, by circumstantial evidence. (2 Starkie, 232.)

Lord Mansfield ruled that it was not necessary to prove the actual fact of a conspiracy, but that it might be collected from collateral circumstances. (Parson's Case, 1 W. Blackstone, 392.)

"If," says a great authority on the law of evidence, "on a charge of conspiracy, it appear that two persons by their acts are pursuing the same object, and often by the same means, or one performing part of the act, and the other completing it, for the attainment of the same object, the jury may draw the conclusion there is a conspiracy. If a conspiracy be formed, and a person. join in it afterward, he is equally guilty with the original conspirators." (Roscoe, 415.)

"The rule of the admissibility of the acts and declarations of any one of the conspirators, said or done in furtherance of the common