The Lincoln Conspiracy Trial

Gerard N. Magliocca

I am now writing the portion of the Bingham biography that deals with his role as one of the prosecutors in the military trial of John Wilkes Booth's alleged co-conspirators. When I began my research two years ago, I thought that this would be a terrific stand-alone chapter that would not shed much light on Bingham's constitutional views. I was wrong on the latter point.

One of the crucial issues in the Lincoln case was whether the defendants were entitled to a jury trial with the full protections of the Bill of Rights. After all, they were citizens being accused of conspiracy in the District of Columbia. Why, then, was it lawful to use a military commission to try them? Senator Reverdy Johnson argued to the tribunal that the Constitution did not permit the use of military justice on civilians when the courts were functioning. Senator Johnson holds the dubious distinction of being the man who argued and won Dred Scott in the Supreme Court, but consider what he had to say here:

Basic rights "are more peculiarly necessary to the security of personal liberty in war than in peace. All history tells us that war, at times, maddens the people, frenzies government, and makes both regardless of constitutional limitations of power. Individual safety, at such periods, is more in peril than at any other." Otherwise, those rights "which our fathers thought so vital to individual liberty when assailed by government prosecution, is but a dead letter, totally inefficient for its purpose whenever the Government shall deem it proper to try a citizen by a military commission." To say that a court could not be trusted with such a sensitive case was an attack “upon our civil institutions themselves—upon the very institutions on whose integrity and intelligence the safety of our property, liberty and lives, our ancestors thought, could not only be safely rested, but would be safe nowhere else.”

Ironically, John Bingham, the author of the Fourteenth Amendment's Due Process Clause, rejected this logic: "Who will dare to say that in time of civil war ‘no person shall be deprived of life, liberty, and property, without due process of law?’ This is a provision of your Constitution than which there is none more just or sacred in it; it is, however, only the law of peace, not of war. In peace, that wise provision of the Constitution must be, and is, enforced by the civil courts; in war, it must be, and is, to a great extent, inoperative and disregarded." He went on: “If you cannot, and do not, try the armed enemy before you shoot him, or the captured enemy before you imprison him, why should you be held to open the civil courts and try the spy, the conspirator, and the assassin, in the secret service of the public enemy, by jury, before you convict and punish him?”

The most surprising constitutional point that I've learned in my research thus far is that Bingham's view of due process was that in wartime it meant nothing more than "whatever process Congress provides." He said this both as a member of the House and in the Lincoln trial, which throws a different light on the original understanding of that provision.
Posted 2:41 PM by Gerard N. Magliocca [link]