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diff --git a/.gitattributes b/.gitattributes new file mode 100644 index 0000000..6833f05 --- /dev/null +++ b/.gitattributes @@ -0,0 +1,3 @@ +* text=auto +*.txt text +*.md text diff --git a/36188-8.txt b/36188-8.txt new file mode 100644 index 0000000..df522e6 --- /dev/null +++ b/36188-8.txt @@ -0,0 +1,6835 @@ +The Project Gutenberg EBook of The Judicial Murder of Mary E. Surratt, by +David Miller DeWitt + +This eBook is for the use of anyone anywhere at no cost and with +almost no restrictions whatsoever. You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + +Title: The Judicial Murder of Mary E. Surratt + +Author: David Miller DeWitt + +Release Date: May 22, 2011 [EBook #36188] + +Language: English + +Character set encoding: ISO-8859-1 + +*** START OF THIS PROJECT GUTENBERG EBOOK THE JUDICIAL MURDER OF MARY *** + + + + +Produced by Carla Foust and the Online Distributed +Proofreading Team at http://www.pgdp.net (This book was +produced from scanned images of public domain material +from the Google Print project.) + + + + + + + + + + THE JUDICIAL MURDER + + --OF-- + + MARY E. SURRATT. + + + DAVID MILLER DEWITT. + + + Baltimore: + JOHN MURPHY & CO. + 1895. + + + + +COPYRIGHT, 1894, BY DAVID MILLER DEWITT. + + + + +"_Oceans of horse-hair, continents of parchment, and learned-sergeant +eloquence, were it continued till the learned tongue wore itself small in +the indefatigable learned mouth, cannot make the unjust just. The grand +question still remains, Was the judgment just? If unjust, it will not and +cannot get harbour for itself, or continue to have footing in this +Universe, which was made by other than One Unjust. Enforce it by never +such statuting, three readings, royal assents; blow it to the four winds +with all manner of quilted trumpeters and pursuivants, in the rear of them +never so many gibbets and hangmen, it will not stand, it cannot stand. +From all souls of men, from all ends of Nature, from the Throne of God +above, there are voices bidding it: Away! Away!_" + +PAST AND PRESENT. + + + + +CONTENTS. + + + PAGE. + + PRELIMINARY + + CHAPTER I. The Reign of Terror, 1 + + CHAPTER II. The Bureau of Military (In)Justice, 15 + + + PART I. THE MURDER. + + CHAPTER I. The Opening of the Court. Was She Ironed? 23 + + CHAPTER II. Animus of the Judges. Insults to Reverdy Johnson + and General Edward Johnson, 41 + + CHAPTER III. Conduct of the Trial, 56 + + CHAPTER IV. Arguments of the Defense, 70 + + CHAPTER V. Charge of Judge Bingham, 82 + + CHAPTER VI. Verdict, Sentence and Petition, 91 + + CHAPTER VII. The Death Warrant and Execution, 112 + + CHAPTER VIII. Was it not Murder? The Milligan Case, 126 + + + PART II. THE VINDICATION. + + CHAPTER I. Setting Aside the Verdict. Discharge of Jefferson + Davis, 145 + + CHAPTER II. Reversal on the Merits. Trial of John H. Surratt, 165 + + CHAPTER III. The Recommendation to Mercy, 182 + + CHAPTER IV. Trial of Joseph Holt, 207 + + CHAPTER V. Andrew Johnson Signs another Death Warrant, 236 + + CHAPTER VI. Conclusion, 249 + + + + +PRELIMINARY. + + + + +CHAPTER I. + +THE REIGN OF TERROR. + + +The assassination of Abraham Lincoln burst upon the City of Washington +like a black thunder-bolt out of a cloudless sky. On Monday, the 3d of +April, 1865, Richmond was taken. On the succeeding Sunday (the ninth), +General Lee with the main Army of the South surrendered. The rebellion of +nearly one-half the nation lay in its death-throes. The desperate struggle +for the unity of the Republic was ending in a perfect triumph; and the +loyal people gave full rein to their joy. Every night the streets of the +city were illuminated. The chief officers of the government, one after +another, were serenaded. On the evening of Tuesday, the eleventh, the +President addressed his congratulations to an enthusiastic multitude from +a window of the White House. On the night of Thursday (the thirteenth) +Edwin M. Stanton, the Secretary of War, and Ulysses S. Grant, the +victorious General of the Army of the North, were tumultuously greeted +with banners and music and cannon at the residence of the Secretary. The +next day, Friday the 14th, was the fourth anniversary of the surrender of +Fort Sumter to the South, and that national humiliation was to be avenged +by the restoration of the flag of the United States to its proper place +above the fort by the hand of the same gallant officer who had been +compelled to pull it down. In the evening, a torch-light procession +perambulated the streets of the Federal Capital. Enthusiastic throngs +filled the theatres, where the presence of great officials had been +advertised by huge placards, and whose walls were everywhere festooned +with the American flag. After four years of agonizing but unabating +strain, all patriots felt justified in yielding to the full enjoyment of +the glorious relaxation. + +Suddenly, at its very zenith, the snap of a pistol dislimns and scatters +this great jubilee, as though it were, indeed, the insubstantial fabric of +a vision. At half past ten that night, from the box of the theatre where +the President is seated, a shot is heard; a wild figure, hatless and +clutching a gleaming knife, emerges through the smoke; it leaps from the +box to the stage, falls upon one knee, recovers itself, utters one shout +and waves aloft its bloody weapon; then turns, limps across in front of +the audience and disappears like a phantom behind the scenes. +Simultaneously, there breaks upon the startled air the shriek of a woman, +followed close by confused cries of "Water! Water!" and "The President is +shot!" + +For the first few moments both audience and actors are paralyzed. One man +alone jumps from the auditorium to the stage and pursues the flying +apparition. But, as soon as the hopeless condition of the President and +the escape of the assassin begin to transpire, angry murmurs of "Burn the +Theatre!" are heard in the house, and soon swell into a roar in the street +where a huge crowd has already assembled. + +The intermingling throng surges into the building from every quarter, and +mounts guard at every exit. Not one of the company of actors is allowed to +go out. The people seem to pause for a moment, as if awaiting from Heaven +a retribution as sudden and awful as the crime. + +All their joy is turned to grief in the twinkling of an eye. The rebellion +they had too easily believed to be dead could still strike, it seemed, a +fatal blow against the very life of the Republic. A panic seizes the +multitude in and around the theatre, and from the theatre spreads, "like +the Night," over the whole city. And when the frightened citizens hear, as +they immediately do, the story of the bloody massacre in the house of the +Secretary of State, occurring at the same hour with the murder of the +President, the panic swells into a reign of terror. The wildest stories +find the quickest and most eager credence. Every member of the Cabinet and +the General of the Army have been, or are about to be, killed; the +government itself is at a standstill; and the lately discomfited rebels +are soon to be in possession of the Capital. Patriotic people, delivering +themselves over to a fear of they know not what, cry hoarsely for +vengeance on they know not whom. The citizen upon whose past loyalty the +slightest suspicion can be cast cowers for safety close to his +hearth-stone. The terror-stricken multitude want but a leader cool and +unscrupulous enough, to plunge into a promiscuous slaughter, such as +stained the new-born revolution in France. A leader, indeed, they soon +find, but he is not a Danton. He is a leader only in the sense that he has +caught the same madness of terror and suspicion which has seized the +people, that he holds high place, and that he has the power and is in a +fit humor to pander to the panic. + +Edwin M. Stanton was forced by the tremendous crisis up to the very top of +affairs. Vice-President Johnson, in the harrowing novelty of his position, +was for the time being awed into passive docility. The Secretary of State +was doubly disabled, if not killed. The General of the Army was absent. +The Secretary of War without hesitation grasped the helm thus thrust into +his hand, but, alas! he immediately lost his head. His exasperation at the +irony of fate, which could so ruthlessly and in a moment wither the +triumph of a great cause by so unexpected and overwhelming a calamity, was +so profound and intense, his desire for immediate and commensurate +vengeance was so uncontrollable and unreasoning, as to distort his +perception, unsettle his judgment, and thus cause him to form an estimate +of the nature and extent of the impending danger as false and exaggerated +as that of the most panic-stricken wretch in the streets. Personally, +besides, he was unfitted in many respects for such an emergency. Though an +able and, it may be, a great War-Minister, he exerted no control over his +temper; he habitually identified a conciliatory and charitable disposition +with active disloyalty; and, being unpopular with the people of Washington +by reason of the gruffness of his ways and the inconsistencies of his past +political career, he had reached the unalterable conviction that the +Capital was a nest of sympathizers with the South, and that he was +surrounded by enemies of himself and his country. + +When, therefore, upon the crushing news that the President was slain, +followed hard the announcement that another assassin had made a +slaughter-house of the residence of the Minister's own colleague, +self-possession--the one supreme quality which was indispensable to a +leader at such an awful juncture--forsook him and fled. + +Before the breath was out of the body of the President, the Secretary had +rushed to the conclusion, unsupported as yet by a shadow of testimony, +that the acts of Booth and of the assailant of Seward (at the moment +supposed to be John H. Surratt) were the outcome of a widespread, numerous +and powerful conspiracy to kill, not only the President and the Secretary +of State, but all the other heads of the Departments, the Vice-President +and the General of the Army as well, and thus bring the government to an +end; and that the primary moving power of the conspiracy was the defunct +rebellion as represented by its titular President and his Cabinet, and its +agents in Canada. This belief, embraced with so much precipitation, +immediately became more than a belief; it became a fixed idea in his mind. +He saw, heard, felt and cherished every thing that favored it. He would +see nothing, would hear nothing, and hated every thing, that in the +slightest degree militated against it. Upon this theory he began, and upon +this theory he prosecuted to the end, every effort for the discovery, +arrest, trial and punishment of the murderers. + +He was seconded by a lieutenant well-fitted for such a purpose--General +Lafayette C. Baker, Chief of the Detective Force. In one of the two +minority reports presented to the House of Representatives by the +Judiciary Committee, on the Impeachment Investigation of 1867, this man +and his methods are thus delineated: + + "The first witness examined was General Lafayette C. Baker, late chief + of the detective police, and although examined on oath, time and + again, and on various occasions, it is doubtful whether he has in any + one thing told the truth, even by accident. In every important + statement he is contradicted by witnesses of unquestioned credibility. + And there can be no doubt that to his many previous outrages, + entitling him to an unenviable immortality, he has added that of + wilful and deliberate perjury; and we are glad to know that no one + member of the committee deems any statement made by him as worthy of + the slightest credit. What a blush of shame will tinge the cheek of + the American student in future ages, when he reads that this miserable + wretch for years held, as it were, in the hollow of his hand, the + liberties of the American people. That, clothed with power by a + reckless administration, and with his hordes of unprincipled tools and + spies permeating the land everywhere, with uncounted thousands of the + people's money placed in his hands for his vile purposes, this + creature not only had power to arrest without crime or writ, and + imprison without limit, any citizen of the republic, but that he + actually did so arrest thousands, all over the land, and filled the + prisons of the country with the victims of his malice, or that of his + masters." + +In this man's hands Secretary Stanton placed all the resources of the War +Department, in soldiers, detectives, material and money, and commanded him +to push ahead and apprehend all persons suspected of complicity in the +assumed conspiracy, and to conduct an investigation as to the origin and +progress of the crime, upon the theory he had adopted and which, as much +as any other, Baker was perfectly willing to accept and then, by his +peculiar methods, establish. Forthwith was ushered in the grand carnival +of detectives. Far and wide they sped. They had orders from Baker to do +two things: + +I.--To arrest all the "Suspect." II.--By promises, rewards, threats, +deceit, force, or any other effectual means, to extort confessions and +procure testimony to establish the conspiracy whose existence had been +postulated. + +At two o'clock in the morning of Saturday, the fifteenth, they burst into +the house of Mrs. Surratt and displaying the bloody collar of the coat of +the dying Lincoln, demanded the whereabouts of Booth and Surratt. It being +presently discovered that Booth had escaped on horseback across the Navy +Yard Bridge with David Herold ten minutes in his rear, a dash was made +upon the livery-stables of Washington, their proprietors taken into +custody, and then the whole of lower Maryland was invaded, the soldiers +declaring martial law as they progressed. Ford's theatre was taken and +held by an armed force, and the proprietor and employees were all swept +into prison, including Edward Spangler, a scene-shifter, who had been a +menial attendant of Booth's. The superstitious notion prevailed that the +inanimate edifice whose walls had suffered such a desecration was in some +vague sense an accomplice; the Secretary swore that no dramatic +performance should ever take place there again; and the suspicion was +sedulously kept alive that the manager and the whole force of the company +must have aided their favorite actor, or the crime could not have been so +easily perpetrated and the assassin escaped. + +On the night of the fifteenth (Saturday) a locked room in the Kirkwood +House, where Vice President Johnson was stopping, which had been engaged +by George A. Atzerodt on the morning of the fourteenth, was broken open, +and in the bed were found a bowie-knife and a revolver, and on the wall a +coat (subsequently identified as Herold's), in which was found, among +other articles, a bank book of Booth's. The room had not been otherwise +occupied--Atzerodt, after taking possession of it, having mysteriously +disappeared. + +On the morning of the seventeenth (Monday), at Baltimore, Michael +O'Laughlin was arrested as a friend of Booth's, and it was soon thought +that he "_resembled extremely_" a certain suspicious stranger who, it was +remembered, had been seen prowling about Secretary Stanton's residence on +the night of the 13th, when the serenade took place, and there doing such +an unusual act as inquiring for, and looking at, General Grant. + +On the same day at Fort Monroe, Samuel Arnold was arrested, whose letter +signed "Sam" had been found on Saturday night among the effects of Booth. + +On the night of the seventeenth, also, the house of Mrs. Surratt with all +its contents was taken possession of by the soldiers, and Mrs. Surratt, +her daughter, and all the other inmates were taken into custody. While the +ladies were making preparations for their departure to prison, a man +disguised as a laborer, with a sleeve of his knit undershirt drawn over +his head, a pick-axe on his shoulder, and covered with mud, came to the +door with the story that he was to dig a drain for Mrs. Surratt in the +morning; and that lady asseverating that she had never seen the man +before, he was swept with the rest to headquarters, and there, to the +astonishment of everybody, turned out to be the desperate assailant of +the Sewards. + +During these few days Washington was like a city of the dead. The streets +were hung with crape. The obsequies, which started on its march across the +continent the colossal funeral procession in which the whole people were +mourners, were being celebrated with the most solemn pomp. No business was +done except at Military Headquarters. Men hardly dared talk of the +calamity of the nation. Everywhere soldiers and police were on the alert +to seize any supposed or denounced sympathizer with the South. Mysterious +and prophetic papers turned up at the White House and the War Department. +Women whispered terrible stories of what they knew about the "Great +Crime." To be able to give evidence was to be envied as a hero. + +And still the arch-devil of the plot could not be found! + +The lower parts of Maryland seethed like a boiling pot, and the prisons of +Washington were choking with the "suspect" from that quarter. Lloyd--the +drunken landlord of the tavern at Surrattsville, ten miles from +Washington, at which Booth and Herold had stopped at midnight of the fatal +Friday for carbines and whisky--after two days of stubborn denial was at +last frightened into confession; and Doctor Mudd, who had set Booth's leg +Saturday morning thirty miles from Washington, was in close confinement. +All the intimate friends of the actor in Washington, in Baltimore, in +Philadelphia, in New York and even in Montreal were in the clutches of the +government. Surratt himself--the pursuit of whom, guided by Weichman, his +former college-chum, his room-mate, and the favorite guest of his mother, +had been instant and thorough--it was ascertained, had left Canada on the +12th of April and was back again on the 18th. + +But where was Booth? where Herold? where Atzerodt? + +On the 20th, the Secretary of War applied the proper stimulus by issuing a +proclamation to the following effect: + + "$50,000 reward will be paid by this department for the apprehension + of the murderer of our late beloved President. + + "$25,000 reward for the apprehension of John H. Surratt, one of + Booth's accomplices. + + "$25,000 reward for the apprehension of Herold, another of Booth's + accomplices. + + "Liberal rewards will be paid for any information that shall conduce + to the arrest of either of the above-named criminals or their + accomplices. + + "All persons harboring or secreting the said persons, or either of + them, or aiding or assisting in their concealment or escape, will be + treated as accomplices in the murder of the President and the + attempted assassination of the Secretary of State, and shall be + subject to trial before a military commission and the punishment of + death." + +What is noteworthy about this document is that Stanton had already made up +his mind as to the guilt of the persons named as accomplices of Booth; +that he needed only their arrest, being assured of their consequent +conviction; and that he had already determined that their trial and the +trial of all persons connected with the great crime, however remotely, +should be had before a military tribunal, and that the punishment to +follow conviction should be death. + +At four o'clock in the morning of the very day this proclamation was +issued, Atzerodt was apprehended at the house of his cousin in Montgomery +County, Md., about twenty-two miles northward of Washington, by a detail +of soldiers, to whom, by the way, notwithstanding the arrest preceded the +proclamation, $25,000 reward was subsequently paid. With Atzerodt his +cousin, Richter, was taken also. O'Laughlin, Payne, Arnold, Atzerodt and +Richter, as they were severally arrested, were put into the custody of the +Navy Department and confined on board the Monitor _Saugus_, which on the +morning of Saturday, when the President died, had been ordered to swing +out into the middle of the river opposite the Navy Yard, prepared to +receive at any hour, day or night, dead or alive, the arch-assassin. Each +of these prisoners was loaded with double irons and kept under a strong +guard. On the 23d, Atzerodt, by order of the Secretary of War, was +transferred to the Monitor _Montauk_, to separate him from his cousin, and +Payne, in addition to his double irons, had a ball and chain fastened to +each ankle by the direction of the same officer. On the next day Spangler, +who had hitherto been confined in the Old Capitol Prison, was transferred +to one of the Monitors and presumably subjected to the same treatment. On +the same day the following order was issued: + + "The Secretary of War requests that the prisoners on board iron-clads + belonging to this department for better security against conversation + shall have a canvass bag put over the head of each and tied around the + neck, with a hole for proper breathing and eating, but not seeing, and + that Payne be secured to prevent self-destruction." + +All of which was accordingly done. + +And still no Booth! It seems as though the Secretary were mad enough to +imagine that he could wring from Providence the arrest of the principal +assassin by heaping tortures on his supposed accomplices. + +At length, in the afternoon of the 26th--Wednesday, the second week after +the assassination--Col. Conger arrived with the news of the death of Booth +and the capture of Herold on the early morning of that day; bringing with +him the diary and other articles found on the person of Booth, which were +delivered to Secretary Stanton at his private residence. In the dead of +the ensuing night, the body of Booth, sewed up in an old army blanket, +arrived, attended by the dog-like Herold; and the living and the dead were +immediately transferred to the _Montauk_. Herold was double ironed, balled +and chained and hooded. The body of Booth was identified; an autopsy held; +the shattered bone of his neck taken out for preservation as a relic (it +now hangs from the ceiling of the Medical Museum into which Ford's Theatre +was converted, or did before the collapse); and then, with the utmost +secrecy and with all the mystery which could be fabricated, under the +direction of Col. Baker, the corpse was hurriedly taken from the vessel +into a small boat, rowed to the Arsenal grounds, and buried in a grave dug +in a large cellar-like apartment on the ground floor of the Old +Penitentiary; the door was locked, the key removed and delivered into the +hands of Secretary Stanton. No effort was spared to conceal the time, +place and circumstances of the burial. False stories were set afloat by +Baker in furtherance of such purpose. Stanton seemed to fear an escape or +rescue of the dead man's body; and vowed that no rebel or no rebel +sympathizer should have a chance to glory over the corpse, or a fragment +of the corpse, of the murderer of Lincoln. + + + + +CHAPTER II. + +THE BUREAU OF MILITARY (IN)JUSTICE. + + +Mingling with the varied emotions evoked by the capture and death of the +chief criminal was a feeling of deepest exasperation that the foul +assassin should after all have eluded the ignominious penalty of his +crime. Thence arose a savage disposition on the part of the governing +powers to wreak this baffled vengeance first, on his inanimate body; +secondly, on the lives of his associates held so securely in such close +custody; and thirdly, on all those in high places who might be presumed to +sympathize with his deeds. It was too horrible to imagine that the ghost +of the martyred Lincoln should walk unavenged. So stupendous a calamity +must of necessity be the outcome of as stupendous a conspiracy, and must +in the very justice of things be followed by as stupendous a retribution. +A sacrifice must be offered and the victims must be forthcoming. To employ +the parallel subsequently drawn by General Ewing on the trial of the +conspirators: On the funeral pyre of Patroclus must be immolated the +twelve Trojan captives. They were sure of Payne and of Herold. They held +Arnold and O'Laughlin and Atzerodt and Spangler and Doctor Mudd--all the +supposed satellites of Booth, save one. John H. Surratt could not be +found. Officers in company with Weichman and Holahan, boarders at his +mother's house, who in the terror of the moment had given themselves up on +the morning of the fifteenth, traced him to Canada, as has already been +noticed, but had there lost track of him. They had returned disappointed; +and now Weichman and Holahan were in solitary confinement. Notwithstanding +the large rewards out for his capture, as to him alone the all-powerful +government seemed to be baffled. One consolation there was, however--if +they could not find the son, they held the mother as a hostage for him, +and they clung to the cruel expectation that by putting her to the torture +of a trial and a sentence, they might force the son from his hiding place. + +In the meanwhile the Bureau of Military Justice, presided over by +Judge-Advocate-General Holt, had been unceasingly at work. General Baker +with his posse of soldiers and detectives scoured the country far and wide +for suspected persons and witnesses, hauled them to Washington and shut +them up in the prisons. Then the Bureau of Military Justice took them in +hand, and, when necessary, by promises, hopes of reward and threats of +punishment, squeezed out of them the testimony they wanted. Colonel Henry +L. Burnett, who had become an expert in such proceedings from having +recently conducted the trial of Milligan before a military tribunal at +Indianapolis, was brought on to help Judge Holt in the great and good +work. In the words of General Ewing in his plea for Dr. Mudd: + + "The very frenzy of madness ruled the hour. Reason was swallowed up in + patriotic passion, and a feverish and intense excitement prevailed + most unfavorable to a calm, correct hearing and faithful repetition of + what was said, especially by the suspected. Again, and again, and + again the accused was catechised by detectives, each of whom was + vieing with the other as to which should make the most important + discoveries, and each making the examination with a preconceived + opinion of guilt, and with an eager desire, if not determination, to + find in what might be said the proofs of guilt. Again, the witnesses + testified under the strong stimulus of a promised reward for + information leading to arrest and followed by convictions." + +The Bureau conducted the investigation on the preconceived theory, +adopted, as we have seen, by the Secretary of War, that the Confederate +Government was the source of the conspiracy; and, by lavishing promises +and rewards, it had no difficulty in finding witnesses who professed +themselves to have been spies on the rebel agents in Canada and who were +ready to implicate them and through them the President of the defunct +Confederacy in the assassination. Richard Montgomery and Sanford Conover, +who had been in personal communication with these agents during the past +year, were eagerly taken into the employ of the Bureau, and made frequent +trips to Canada, to return every time laden with fresh proofs of the +complicity of the rebels. + +To illustrate how the Bureau of Military Justice dealt with witnesses who +happened to have been connected more or less closely with Booth, and who +were either reluctant or unable to make satisfactory disclosures, here are +two extracts from the evidence given on the trial of John H. Surratt in +1867. + +The first is from the testimony of Lloyd, the besotted keeper of the +Surratt tavern: + + "I was first examined at Bryantown by Colonel Wells. I was next + examined by two different persons at the Carroll prison. I did not + know either of their names. One was a military officer. I think some + of the prisoners described him as Colonel Foster. I saw a man at the + conspiracy trial as one of the Judges who looked very much like him. * + * * I told him I had made a fuller statement to Colonel Wells than I + could possibly do to him under the circumstances, while things were + fresh in my memory. His reply was that it was not full enough, and + then commenced questioning me whether I had ever heard any person say + that something wonderful or something terrible was going to take + place. I told him I had never heard anyone say so. Said he I have seen + it in the newspapers. + + "He jumps up very quick off his seat, as if very mad, and asked me if + I knew what I was guilty of. I told him, under the circumstances I did + not. He said you are guilty as an accessory to a crime the punishment + of which is death. With that I went up stairs to my room." + +The next is from the testimony of Lewis J. Carland, to whom Weichman +confessed his remorse after the execution of Mrs. Surratt: + + "He [Weichman] said it would have been very different with Mrs. + Surratt if he had been let alone; that a statement had been prepared + for him, that it was written out for him, and that he was threatened + with prosecution as one of the conspirators if he did not swear to it. + He said that a detective had been put into Carroll prison with him, + and that this man had written out a statement which he said he had + made in his sleep, and that he had to swear to that statement." + +Let us add another; it is so short and yet so suggestive. It is from the +testimony of James J. Gifford, who was a witness for the prosecution on +both trials. + + "Q.--Do you know Mr. Weichman? + + "A.--I have seen him. + + "Q.--Were you in Carroll prison with him? + + "A.--Yes, sir. + + "Q.--Did he say in your presence that an officer of the government had + told him that unless he testified to more than he had already stated + they would hang him too? + + "A.--I heard the officer tell him so." + +After a fortnight of such wholesale processes of arrest, imprisonment, +inquisition, reward and intimidation, the Bureau of Military Justice +announced itself ready to prove the charges it had formulated. Thereupon +two proclamations were issued by President Johnson. One, dated May the +first, after stating that the Attorney General had given his opinion "that +all persons implicated in the murder of the late President, Abraham +Lincoln, and the attempted assassination of the Hon. William H. Seward, +Secretary of State, and in an alleged conspiracy to assassinate other +officers of the Federal Government at Washington City, and their aiders +and abettors, are subject to the jurisdiction of and legally triable +before a Military Commission," ordered 1st, "that the Assistant +Adjutant-General (W. A. Nichols) detail nine competent military officers +to serve as a Commission for the trial of said parties, and that the +Judge-Advocate-General proceed to prefer charges against said parties for +their alleged offences, and bring them to trial before said Military +Commission." 2d, "that Brevet Major-General Hartranft be assigned to duty +as Special Provost-Marshal-General for the purpose of said trial and +attendance upon said Commission, and the execution of its mandates." + +The other proclamation, dated May 2nd, after reciting that "it appears +from evidence in the Bureau of Military Justice, that the atrocious murder +of the late President, Abraham Lincoln, and the attempted assassination of +the Hon. William H. Seward, Secretary of State, were incited, concerted, +and procured by and between Jefferson Davis, late of Richmond, Va., and +Jacob Thompson, Clement C. Clay, Beverly Tucker, George N. Sanders, +William C. Cleary, and other rebels and traitors against the Government of +the United States, harbored in Canada," offered the following rewards: + + "$100,000 for the arrest of Jefferson Davis. + + "$25,000 for the arrest of Clement C. Clay. + + "$25,000 for the arrest of Jacob Thompson, late of Mississippi. + + "$25,000 for the arrest of Geo. N. Saunders. + + "$25,000 for the arrest of Beverly Tucker. + + "$10,000 for the arrest of Wm. C. Cleary, late clerk of Clement C. + Clay. + + "The Provost-Marshal-General of the United States is directed to cause + a description of said persons, with notice of the above rewards, to be + published." + +At this date the President of the defunct Confederacy was a fugitive, +without an army; and bands of U. S. Cavalry were already on the scout to +intercept his flight. Military Justice, however, was too impatient to +await the arrest of the prime object of its sword; and in obedience to the +first proclamation proceeded without delay to organize a court to try the +prisoners selected from the multitude undergoing confinement as the +fittest victims to appease the shade of the murdered President. Over some +of the "suspect" the Judge-Advocates for a time vacillated, whether to +include them in the indictment or to use them as witnesses; but, after a +season of rigid examinations, renewed and revised, they at last concluded +that such persons would be more available in the latter capacity. + +On the third day of May the funeral car, which, leaving Washington on the +twenty-first of April, had borne the body of the lamented Lincoln through +State after State, arrived at last at Springfield; and on the following +day the cherished remains were there consigned to the tomb. On the sixth, +by special order of the Adjutant-General, a Military Commission was +appointed to meet at Washington on Monday, the eighth day of May, or as +soon thereafter as practicable, "for the trial of David E. Herold, +George A. Atzerodt, Lewis Payne, Michael O'Laughlin, Edward Spangler, +Samuel Arnold, Mary E. Surratt, Samuel A. Mudd and such other prisoners as +may be brought before it, implicated in the murder of the late President +and in the attempted assassination of the Secretary of State and in an +alleged conspiracy to assassinate other officers of the Federal Government +at Washington City, and their aiders and abettors. By order of the +President of the United States." And so, all things being in readiness, +let the curtain rise. + + + + +PART I. + +THE MURDER. + + + + +CHAPTER I. + +THE OPENING OF THE COURT. + + +On the ninth day of May the Commission met but only to adjourn that the +prisoners might employ counsel. On the same day, two of its members, +General Cyrus B. Comstock and Colonel Horace Porter--names to be noted for +what may have been a heroic refusal--were relieved from the duty of +sitting upon the Commission, and two other officers substituted in their +stead. + +So that Tuesday, May 10th, 1865--twenty-six days after the assassination, +a period much too short for the intense excitement and wild desire for +vengeance to subside--may properly be designated as the first session of +the Court. On the early morning of that day--before daylight--Jefferson +Davis had been captured, and was immediately conducted, not to Washington +to stand trial for his alleged complicity in the assassination, but to +Fort Monroe. On the next day Clement C. Clay, also, surrendered himself to +the United States authorities, and was sent, not to Washington to meet the +awful charge formulated against him, but to the same military fortress. + +The room in which the Commission met was in the northeast corner of the +third story of the Old Penitentiary; a building standing in the U. S. +Arsenal Grounds at the junction of the Potomac with the Eastern Branch, in +a room on the ground floor of which the body of Booth had been secretly +buried. Its windows were guarded by iron gratings, and it communicated +with that part of the prison where the accused were now confined, by a +door in the western wall. The male prisoners had been removed some days +before from the Monitors to the Penitentiary, where Mrs. Surratt was +already incarcerated, and each of them, including the lady, was now +immured in a solitary cell under the surveillance of a special guard. + +Around a table near the eastern side of this room sat, resplendent in full +uniform, the members of the Court. At the head as President was +Major-General David Hunter--a stern, white-headed soldier, sixty-three +years old; a fierce radical; the first officer to organize the slaves into +battalions of war; the warm personal friend of Lincoln, at the head of +whose corpse he had grimly sat as it rested from place to place on the +triumphal progress to its burial, and from whose open grave he had +hurried, in no very judicial humor to say the least, to take his seat +among the Judges of the accused assassins. On his right sat Major-General +Lew Wallace, a lawyer by profession; afterwards the President of the +Court-Martial which tried and hung Henry Wirz; but now, by a sardonic +freak of destiny, known to all the world as the tender teller of "Ben Hur, +a Tale of the Christ." To the right of General Wallace sat Brevet +Brigadier-General James A. Ekin and Brevet Colonel Charles A. Tompkins; +about whom the only thing remarkable is that they had stepped into the +places of the two relieved officers, Colonel Tompkins being the only +regular army officer on the Board. On the left of General Hunter sat, +first, Brevet Major-General August V. Kautz, a native of Germany; next, +Brigadier-General Robert S. Foster, who may or may not have been the +"Colonel Foster" alluded to in the testimony of Lloyd quoted above, as +threatening the witness and as afterwards being seen by him on the +Commission--the presence of an officer, previously engaged by the +Government in collecting testimony against the accused, as one of the +judges to try him not being considered a violation of Military Justice. +Next sat Brigadier-General Thomas Mealey Harris, a West Virginian, and the +author of a book entitled "Calvinism Vindicated;" next, Brigadier-General +Albion P. Howe, and last, Lieutenant-Colonel David R. Clendenin. + +Not one of these nine men could have withstood the challenge which the +common law mercifully puts into the hands of the most abandoned culprit. +They had come together with one determined and unchangeable purpose--to +avenge the foul murder of their beloved Commander-in-Chief. They dreamt +not of acquittal. They were, necessarily, from the very nature of their +task, _organized to convict_. + +The accused were asked, it is true, whether they had any objections to any +member of the Court. But this was the emptiest of forms, as bias is no +cause of challenge in military procedure, and peremptory challenges are +unknown. + +Moreover, it was nothing but a cruel mockery to offer to that trembling +group of prisoners an opportunity, which, if any one of them had the +temerity to embrace, could only have resulted in barbing with the sting of +personal insult the hostile predisposition of the judges. + +At the foot of the table around which the Court sat--the table standing +parallel with the north side of the room--there was another, around which +were gathered the three prosecuting officers, who, according to military +procedure, were also members of the Commission. + +First, was Brigadier-General Joseph Holt, the Judge-Advocate of the U. S. +Army, and the Recorder of the Commission. During his past military career +he had distinguished himself on many a bloody court-martial. + +Second, designated by General Holt as First Assistant or Special +Judge-Advocate, was Hon. John A. Bingham, of Ohio--long a Representative +in Congress, then for a short interval a Military Judge-Advocate, now a +Representative in Congress again, and to become in the strange +vicissitudes of the near future, one of the managers of the impeachment of +President Johnson, whom he now cannot praise too highly. He was one of +those fierce and fiery western criminal lawyers, gifted with that sort of +vociferous oratory which tells upon jurors and on the stump, by nature and +training able to see but one side to a case and consequently merciless to +his victims. His special function was to cross-examine and brow-beat the +witnesses for the defense, a branch of his profession in which he was +proudly proficient, and, above all, by pathetic appeals to their +patriotism and loyalty, and by measureless denunciations of the murder of +their Commander-in-Chief and of the Rebellion, to keep up at a white heat +the already burning passions of the officers composing the tribunal. Next +to him came Colonel Henry L. Burnett; brought from Indiana where he had +won recent laurels in conducting the trial of Milligan for treason before +a Military Commission--laurels, alas! soon to be blasted by the decision +of the U. S. Supreme Court pronouncing that and all other Military +Commissions for the trial of citizens in places where the civil courts are +open illegal, and setting free the man this zealous public servant had +been instrumental in condemning to death. + +In the centre of the room was a witness-stand facing the Court. To the +left of the witness-stand a table for the official reporters. Along the +western side and directly opposite the Court was a platform about a foot +high and four feet broad, with a strong railing in front of it. This was +the prisoners' dock. The platform was divided near the left hand or +southern corner by the doorway which led to the cells. In front of the +southern end of the dock and behind the witness-stand was the table of the +prisoners' counsel. + +At the appointed hour the door in the western side opens and an impressive +and mournful procession appears. Six soldiers armed to the teeth are +interspersed among seven male prisoners and one woman. + +First walks Samuel Arnold, the young Baltimorean, who is to sit at the +extreme right (_i. e._, of the spectators), followed close by his armed +guard; next, Dr. Samuel T. Mudd and a soldier; next, Edward Spangler and a +soldier; next, Michael O'Laughlin, another Baltimorean, and his soldier; +next, George B. Atzerodt and a soldier; next, Lewis Payne, a tall +gladiator, though only twenty years old, and his soldier; and then David +E. Herold, looking like an insignificant boy, who is to sit next the door. +As they enter, their fetters clanking at every step, they turn to their +left and take seats on the platform in the order named, the six soldiers +being sandwiched here and there between two of the men. + +Each of these prisoners, during the entire trial, was loaded down with +irons made as massive and uncomfortable as possible. Their wrists were +bound with the heaviest hand-cuffs, connected by bars of iron ten inches +long (with the exception of Dr. Mudd, whose hand-cuffs were connected by a +chain), so that they could not join their hands. Their legs were weighed +down by shackles joined by chains made short enough to hamper their walk. +In addition to these fetters, common to all, Payne and Atzerodt had, +attached by chains to their legs, huge iron balls, which their guards had +to lift and carry after them whenever they entered or left the Court room. + +Last, there emerges from the dungeon-like darkness of the doorway the +single female prisoner, Mary E. Surratt. She, alone, turns to her right +and, consequently, when she is seated has the left hand corner of the +platform to herself. But she is separated from her companions in misery by +more than the narrow passage-way that divides the dock; for she is a lady +of fair social position, of unblemished character and of exemplary piety, +and, besides, she is a mother, a widow, and, in that room amongst all +those soldiers, lawyers, guards, judges and prisoners, the sole +representative of her sex. Her womanhood is her peculiar weakness, yet +still her only shield. + +Is she too ironed? + +The unanimous testimony of eye-witnesses published at the time of the +trial is, that, though not hand-cuffed, she was bound with iron "anklets" +on her feet. And this detail, thus universally proclaimed in the Northern +Press and by loyal writers, was mentioned not as conveying the slightest +hint of reprobation, but as constituting, like the case of the male +prisoners, a part of the appropriate treatment by the military of a person +suffering under such a charge. And, moreover, no contemporaneous denial of +this widespread circumstance was anywhere made, either by Provost-Marshal, +Counsel, Judge-Advocate or member of the Court. It passed unchallenged +into history, like many another deed of shame, over which it is a wonder +that any man could glory, but which characterized that period of frenzy. + +Eight years after, during the bitter controversy between Andrew Johnson +and Joseph Holt over the recommendation of mercy to Mrs. Surratt, General +Hartranft, the former Special Provost-Marshal in charge of the prisoners, +first broke silence and, coming to the aid of the sorely-tried +Ex-Judge-Advocate, sent him a vehement categorical denial that Mrs. +Surratt was ever manacled at any time, or that there was ever a thought of +manacling her in any one's mind. Now, what force should be given to such a +denial by so distinguished an officer, so long delayed and in the face of +such universal contemporaneous affirmation? + +No one knows how close and exclusive the charge of the prisoners by the +special Provost-Marshal was, nor how liable to interruption, interference +and supersession by the omnipotent Bureau of Military Justice, or by the +maddened Secretary of War and his obsequious henchmen. + +At the time the naked assertion was made, to heap indignities upon the +head of the only woman in the whole country whom the soldiery took for +granted was the one female fiend who helped to shed the blood of the +martyred President, was so consonant with the angry feeling, in military +circles, that an officer, having only a general superintendence over the +custody and treatment of what was called "a band of fiends," would be very +likely to overlook such a small matter as that the she-assassin was not +exempted, in one detail, from the contumelies and cruelties it was thought +patriotic to pile upon her co-conspirators. The only wonder ought to be +that they relieved her from the hand-cuffs. They appear to have +discriminated in the case of Dr. Mudd also, substituting a chain for an +inflexible bar so that he for one could move his hands. There may have +been some unmentioned physical reasons for both of these alleviations, but +we may rest assured that neither sex, in the one case, nor profession in +the other, was among them. + +General Hartranft (or any other General) never denied, or thought it +necessary to deny, that the seven male prisoners sat through the seven +weeks of the trial, loaded, nay tortured, with irons. And there is no +doubt that this unspeakable outrage, if thought of at all at the trial by +the soldiery--high or low--so far from being thought of as a matter of +reprobation, was a subject of grim merriment or stern congratulation. + +Eight years, however, passed away--eight years, in which a fund of +indignation at such brutality, above all to a woman, had been silently +accumulating, until at length to a soldier, whose beclouding passions of +the moment had in the meantime cooled down, its weight made every +loop-hole of escape an entrance for the very breath of life. + +The entire atmosphere had changed, and denials became the order of the +day. Memory is a most convenient faculty; and to forget what the lapse of +years has at last stamped with infamy is easy, when the event passed at +the time as a mere matter of course. Leaving these tardy repudiators of an +iniquity, the responsibility for which in the day of its first publication +they tacitly assumed with the utmost complacency, to settle the question +with posterity;--we insist that the preference is open to writers upon the +events of the year 1865 to rely upon the unprejudiced and unchallenged +statements of eye-witnesses; and, therefore, we do here reaffirm that Mary +E. Surratt walked into the court-room, and sat during her trial, with +shackles upon her limbs. + +At this late day it is a most natural supposition that these nine stalwart +military heroes, sitting comfortably around their table, arrayed in their +bright uniforms, with their own arms and their own legs unfettered, must +have felt at least a faint flush of mingled pity, shame and indignation, +as they looked across that room at that ironed row of human beings. + +Culprits arraigned before them, guarded by armed soldiery, without arms +themselves--why, in the name of justice, drag them into Court and force +them to sit through a long trial, bound with iron, hand and foot? Was it +to forestall a last possible effort of reckless and suicidal despair? + +These brave warriors could not have feared the naked arm of Payne, nor +have indulged the childish apprehension that seven unarmed men and one +unarmed woman might overpower six armed soldiers and nine gallant +officers, and effect their escape from the third story of a prison guarded +on all sides with bayonets and watched by detective police! And yet, so +far as appears, no single member of the Court, to whom such a desecration +of our common humanity was a daily sight for weeks, thought it deserving +of notice, much less of protest. + +There is but one explanation of this moral insensibility, and that applies +with the same force to the case of the woman as to those of the men. It +is, that the accused were _already doomed_. For them no humiliation could +be thought too deep, no indignity too vile, no hardship too severe, +because their guilt was predetermined to be clear. And the members of the +Military Commission, as they looked across the room at that sorry sight, +saw nothing incongruous with justice, or even with the most chivalrous +decorum, that the traitorous murderers of their beloved Commander-in-Chief +should wear the shackles which were the proper precursors of the death of +ignominy, they were resolved the outlaws should not escape. + +We, civilians, must ever humbly bear in mind that the rule of the common +law, that every person accused of crime is presumed to be innocent until +his guilt is established beyond a reasonable doubt--a rule the benignity +of which is often sneered at by soldiers as giving occasion for lawyers' +tricks and quibbles, and as an impediment to swift justice, is reversed in +military courts, where every person accused of crime is presumed to be +_guilty_ until he himself prove his innocence. + +After the prisoners had been seated, and the members of the Commission, +the Judge-Advocates and the official reporters sworn in, the accused were +severally arraigned. There was but one Charge against the whole eight. +Carefully formulated by the three Judge-Advocates upon the lines of the +theory adopted by the Secretary of War, and which Gen. Baker and the +Bureau of Military Justice had been moving heaven and earth to establish, +it was so contrived as to allege a crime of such unprecedented, +far-reaching and profound heinousness as to be an adequate cause of such +an unprecedented and profound calamity. + +The eight prisoners were jointly and severally charged with nothing less +than having, in aid of the Rebellion, "_traitorously_" conspired, +"together with one John H. Surratt, John Wilkes Booth, Jefferson Davis, +George N. Sanders, Beverley Tucker, Jacob Thompson, William C. Cleary, +Clement C. Clay, George Harper, George Young and others unknown, to kill +and murder" "Abraham Lincoln, late President of the United States and +Commander-in-Chief of the Army and Navy thereof, Andrew Johnson, then +Vice-President, Wm. H. Seward, Secretary of State, and Ulysses S. Grant, +Lieutenant-General;" and of having, in pursuance of such "traitorous +conspiracy," "together with John Wilkes Booth and John H. Surratt" +"traitorously" murdered Abraham Lincoln, "traitorously" assaulted with +intent to kill, William H. Seward, and lain in wait "traitorously" to +murder Andrew Johnson and Ulysses S. Grant. + +On this elastic comprehensive Charge, in which treason and murder are +vaguely commingled, every one of the men, and Mary E. Surratt, were +arraigned, plead not guilty, and were put upon trial. There is no doubt, +by the way, that the Secretary of War would have been included as one of +the contemplated victims, had not Edwin M. Stanton borne so prominent a +part in the prosecution; and it was for this reason, and not because of +any change in the evidence, that General Grant stood alone, as the mark +of O'Laughlin. + +To this single Charge there was, also, but a single Specification. This +document alleged that the design of all these traitorous conspirators was, +to deprive the Army and Navy of their Commander-in-Chief and the armies of +their Commander; to prevent a lawful election of President and +Vice-President; and by such means to aid and comfort the Rebellion and +overthrow the Constitution and laws. + +It then alleged the killing of Abraham Lincoln by Booth in the prosecution +of the conspiracy, and charged the murder to be the act of the prisoners, +as well as of Booth and John H. Surratt. It then alleged that Spangler, in +furtherance of the conspiracy, aided Booth in obtaining entrance to the +box of the theatre, in barring the door of the theatre box, and in +effecting his escape. Then, that Herold, in furtherance of the conspiracy, +aided and abetted Booth in the murder, and in effecting his escape. Then, +that Payne, in like furtherance, made the murderous assault on Seward and +also on his two sons and two attendants. Then, that Atzerodt, in like +furtherance, at the same hour of the night, lay in wait for Andrew Johnson +with intent to kill him. Then, that Michael O'Laughlin, in like +furtherance, on the nights of the 13th and 14th of April, lay in wait for +General Grant with like intent. Then, that Samuel Arnold, in prosecution +of the conspiracy, "did, on or before the 6th day of March, 1865, and on +divers other days and times between that day and the 15th day of April, +1865, combine, conspire with and counsel, abet, comfort and support" +Booth, Payne, Atzerodt, O'Laughlin and their confederates. Then, "that, in +prosecution of the conspiracy, Mary E. Surratt, on or before the 6th of +March, 1865, and on divers other days and times between that day and the +20th of April, 1865, received, entertained, harbored and concealed, aided +and assisted" Booth, Herold, Payne, John H. Surratt, O'Laughlin, Atzerodt, +Arnold and their confederates, "with the knowledge of the murderous and +traitorous conspiracy aforesaid, and with intent to aid, abet and assist +them in the execution thereof, and in escaping from justice." And, lastly, +that in prosecution of the conspiracy Samuel A. Mudd did from on or before +the 6th day of March, to the 20th of April "advise, encourage, receive, +entertain, harbor and conceal, aid and assist" Booth, Herold, Payne, John +H. Surratt, O'Laughlin, Atzerodt, Mary E. Surratt, Arnold and their +confederates, in its execution and their escape. + +After the prisoners, who as yet had no counsel, had pleaded not guilty to +the Charge and Specification, the Court adopted rules of proceeding--one +of which was that the sessions of the Court should be secret, and no one +but the sworn officers and the counsel for the prisoners, also sworn to +secrecy, should be admitted, except by permit of the President of the +Commission; and that only such portions of the testimony as the +Judge-Advocate should designate should be made public. + +On the next day (Thursday, May 11th), Mr. Thomas Ewing, Jr. and Mr. +Frederick Stone appeared as counsel for Dr. Mudd, and Mr. Frederick A. +Aiken and Mr. John W. Clampitt for Mrs. Surratt; and on the succeeding day +(12th), Mr. Frederick Stone appeared for Herold "at the earnest request of +his widowed mother and estimable sisters;" General Ewing for Arnold (and +on Monday, the 15th, for Spangler); Mr. Walter S. Cox for O'Laughlin, and +Mr. William E. Doster for Payne and Atzerodt. + +By the rules of the Commission no counsel could appear for the prisoners +unless he took the "iron-clad oath" or filed evidence of having taken it. +So supersensitive was the loyalty of the Court that it could not brook the +presence of a "sympathizer with the South," even in such a confidential +relation as counsel for accused conspirators in aid of the Rebellion. + +The demeanor of the Court towards the counsel for the defense, reflecting +as in a mirror the humor of the Judge-Advocates, was highly +characteristic. Sometimes they were treated with haughty indifference, +sometimes with ironical condescension, often with contumely, generally +with contempt. Their objections were invariably overruled, unless acceded +to by the Judge-Advocate. The Commission could not conceal its secret +opinion that they were engaged in a disreputable and disloyal employment. + +This statement must be somewhat qualified, however, so far as it relates +to General Ewing. He was, or had been recently, of equal rank in the army +of the Union with the members of the Court. He was a brother-in-law of +General Sherman, and he had acquired a high reputation for gallantry and +skill, as well as loyalty, during the war. That such a distinguished +fellow-soldier should appear to defend the fiendish murderers of their +beloved Commander-in-Chief--outlaws they were detailed as a Court to +hang--evidently perplexed and disconcerted these military Judges and +tended in some degree to curb the over-bearing insolence of the Special +Judge-Advocate. Thus, this able lawyer and gallant officer and noble man +was enabled to be "the leading spirit of the defense;" and, as we shall +see, he wrought the miracle of plucking from the deadly clutches of the +Judge-Advocates the lives of every one of the men he defended. But this +instance was a most notable exception. As a rule, even the silent presence +of the counsel for the accused jarred upon the feelings of the Court, and +their vocal interference provoked, at intervals, its outspoken +animadversion. A trifling incident will serve to illustrate. + +The witnesses, while giving their testimony, were required to face the +Court, so that they necessarily turned their backs on the counsel for the +prisoners who were placed some distance behind the witness-stand. These +counsel were also forced to cross-examine the witnesses for the +prosecution, and interrogate their own, without seeing their faces; and as +often as a witness in instinctive obedience to the dictates of good +manners would turn round to answer a question, the President of the Court +would check him by a "sharp reprimand" and the stern admonition: "Face the +Court!" The confusion of a witness, especially for the defense, when +thundered at in this way by General Hunter, and the reiterated humiliation +of counsel implied in the order, seem to have only called forth the wonder +that witnesses "would persist in turning towards the prisoners' counsel!" + +Clearly these lawyers were an unmeaning, an impeding, an offensive, though +unavoidable, superfluity. + + + + +CHAPTER II. + +ANIMUS OF THE JUDGES. + + +On Saturday, the 13th of May, an incident occurred which throws much light +upon the judicial temper of the Court at the very beginning of the trial. +On that day Reverdy Johnson appeared as counsel for Mrs. Surratt. Admitted +to the bar in 1815, Senator of the United States as far back as 1845, +Attorney-General of the United States as long ago as 1849, and holding the +position of Senator of the United States again at that very moment; having +taken the constitutional oath in all the Courts including the Supreme +Court of the United States at whose bar he was one of the most eminent +advocates; three years after this time to be Minister Plenipotentiary to +England; as he stood there, venerable both in years and in honors, +appearing at great personal and professional sacrifice, gratuitously, for +a woman in peril of her life, one would have thought him secure at least +from insult. Yet no sooner did he announce his intention, if the Court +would permit him at any time to attend to his imperative duties elsewhere, +to act as counsel, than the President of the Commission read aloud a note +he had received from one of his colleagues objecting "to the admission of +Reverdy Johnson as a counsel before this Court on the ground that he does +not recognize the moral obligation of an oath that is designed as a test +of loyalty;" and, in support of the objection, referring to Mr. Johnson's +letter to the people of Maryland pending the adoption of the new +constitution of 1864. + +The following colloquy then took place: + + "Mr. Johnson.--May I ask who the member of the Court is that makes + that objection? + + "The President.--Yes, sir, it is General Harris, and, if he had not + made it, I should have made it myself. + + "Mr. Johnson.--I do not object to it at all. The Court will decide if + I am to be tried. + + "The President.--The Court will be cleared. + + "Mr. Johnson.--I hope I shall be heard. + + "General Ekin.--I think it can be decided without clearing the Court. + + "General Wallace.--I move that Mr. Johnson be heard. + + "The President and others.--Certainly. + + "Mr. Johnson.--Is the opinion here to which the objection refers? + + "The President.--I think it is not." + +It was discovered, farther on, that General Harris by his own admissions +had not even seen the opinion since he had read it a year ago, and that +his objection, involving so grave an attack upon the moral character of so +distinguished a man, was based upon a mere recollection of its contents +after that lapse of time. + +Naturally, the gray-haired statesman and lawyer was indignant at this +premeditated insult. In his address to the Court he repudiated with scorn +the interpretation put upon his letter by his accuser. He explained the +circumstances under which the opinion was delivered; that the Maryland +Convention had prescribed an oath to the voter which they had no right to +exact; "and all that the opinion said, or was intended to say, was, that +to take the oath voluntarily was not a craven submission to usurped +authority, but was necessary in order to enable the citizen to protect his +rights under the then constitution; and that there was no moral harm in +taking an oath which the Convention had no authority to impose." + +Among other things he said: + + "There is no member of this Court, including the President, and the + member that objects, who recognizes the obligation of an oath more + absolutely than I do; and there is nothing in my life, from its + commencement to the present time, which would induce me for a moment + to avoid a comparison in all moral respects between myself and any + member of this Court. + + "If such an objection was made in the Senate of the United States, + where I am known, I forbear to say how it would be treated. + + "I have lived too long, gone through too many trials, rendered the + country such services as my abilities enabled me, and the confidence + of the people in whose midst I am has given me the opportunity, to + tolerate for a moment--come from whom it may--such an aspersion upon + my moral character. I am glad it is made now, when I have arrived at + that period of life when it would be unfit to notice it in any other + way. + + "I am here at the instance of that lady (pointing to Mrs. Surratt) + whom I never saw until yesterday, and never heard of, she being a + Maryland lady; and thinking that I could be of service to her, and + protesting as she has done her innocence to me--of the facts I know + nothing--because I deemed it right, I deemed it due to the character + of the profession to which I belong, and which is not inferior to the + noble profession of which you are members, that she should not go + undefended. I knew I was to do it voluntarily, without compensation; + the law prohibits me from receiving compensation; but if it did not, + understanding her condition, I should never have dreamed of refusing + upon the ground of her inability to make compensation." + +General Harris, in reply, insisted that the remarks of Mr. Johnson, +explanatory of the letter, corroborated his construction. "I understand +him to say that the doctrine which he taught the people of his state was, +that because the Convention had framed an oath, which was unconstitutional +and illegal in his opinion, therefore it had no moral binding force, and +that people might take it and then go and vote without any regard to the +subject matter, of the oath." + +Mr. Johnson, interrupting, denied having said any such thing. General +Hunter, thereupon, to help his colleague out, had the remarks read from +the record. Mr. Johnson assenting to the correctness of the report, +General Harris continued: "If that language does not justify my +conclusion, I confess I am unable to understand the English language;" and +then repeated his construction of the letter. + +After he had concluded, Mr. Johnson endeavored to show the author of +"Calvinism Vindicated" that he did not understand the English language, by +pointing out the distinction between stating "there was no harm in taking +an oath, and telling the people of Maryland that there would be no harm in +breaking it after it was taken." Again repelling the misconstruction +attempted to be put upon his words, he proceeded to open a new line as +follows: + +"But, as a legal question, it is something new to me that the objection, +if it was well founded in fact is well founded in law. Who gives to the +Court the jurisdiction to decide upon the moral character of the counsel +who may appear before them? Who makes them the arbiters of the public +morality and professional morality? What authority have they, under their +commission, to rule me out, or to rule any other counsel out, upon the +ground, above all, that he does not recognize the validity of an oath, +even if they believed it?" + +General Harris, in rejoinder, stated that under the rules adopted by the +Commission gentlemen appearing as counsel for the accused must either +produce a certificate of having taken the oath of loyalty or take it +before the Court, and that therefore the Court had a right to inquire +whether counsel held such opinions as to be incompetent to take the oath. +He then expressed his gladness "to give the gentleman the benefit of his +disclaimer. It is satisfactory to me, but it is, I must insist, a tacit +admission that there was some ground for the view upon which my objection +was founded." + +Mr. Johnson closed this irritating discussion by saying: + + "The order under which you are assembled gives you no authority to + refuse me admission because you have no authority to administer the + oath to me. I have taken the oath in the Senate of the United + States--the very oath that you are administering; I have taken it in + the Circuit Court of the United States; I have taken it in the Supreme + Court of the United States; and I am a practitioner in all the Courts + of the United States in nearly all the States; and it would be a + little singular if one who has a right to appear before the supreme + judicial tribunal of the land, and who has a right to appear before + one of the Legislative departments of the Government whose law creates + armies, and creates judges and courts-martial, should not have a right + to appear before a court-martial. I have said all that I proposed to + say." + +The President of the Court, who had already made himself a party to this +gross insult to a distinguished counsel--as if disappointed that the +affair was about to end so smoothly--here burst out: + + "Mr. Johnson has made an intimation in regard to holding members of + this Court personally responsible for their action. + + "Mr. Johnson.--I made no such intimation; did not intend it. + + "The President.--Then I shall say nothing more, sir. + + "Mr. Johnson.--I had no idea of it. I said I was too old to feel such + things, if I even would. + + "The President.--I was going to say that I hoped the day had passed + when freemen from the North were to be bullied and insulted by the + humbug chivalry; and that, for my own part, I hold myself personally + responsible for everything I do here. The Court will be cleared." + +On reopening, the Judge-Advocate read a paper from General Harris +withdrawing his objection because of Mr. Johnson's disclaimer. General +Wallace remarked that it must be known to every member of the Commission +that Mr. Senator Johnson had taken the oath in the Senate of the United +States. He therefore suggested that the requirement of his taking the oath +be dispensed with. + + "The suggestion was acquiesced in, _nem. con._ + + "Mr. Johnson.--I appear, then, as counsel for Mrs. Surratt." + +In reviewing, at this distance of time, the foregoing scene, it is +scarcely possible to realize the state of mind of a member of a tribunal +claiming at least to be a court of justice, that could prompt such an +onslaught--so shocking to the universal expectation of dignity and +decorum, not to say absolute impartiality, in a judge. + +The interpretation put upon the letter of Reverdy Johnson to his +constituents by Generals Harris and Hunter was the ordinary, +ill-considered, second-hand version circulated by blind party hostility. +This is clearly shown by the fact that the objection of General Harris was +not founded upon a recent perusal of the letter, but upon his own +recollection of the impression it made in his own party circles the year +before. + +When, on the next Wednesday, General Harris, having in the meantime looked +it up, presented a copy of the incriminated opinion, prefacing a request +that it be made a part of the record by the sneering remark that "the +Honorable gentleman ought to be very thankful to me for having made an +occasion for him to disclaim before the country any obliquity of intention +in writing that letter;" and, on the suggestion of General Hunter, the +letter was read; every fair minded man ought to have been convinced that +it was open to such a malign misconstruction only by an unscrupulous +political enemy. + +But suppose for a moment that their own hasty and uncharitable +construction was correct, what right--what color of justification--did +that give these two military Judges to make that letter of the year before +the pretext for a sudden attack in open court upon such a man as Reverdy +Johnson, and on the consecrated occasion of his appearing as counsel for a +lady on trial for her life? + +As to General Harris' argument that the requirement of an oath gave the +Commission a right to inquire whether the written opinions of a counsel +chosen for a defendant, previously delivered as a party leader, were of +such a character as to render him incompetent to take an oath which the +Supreme Court of the United States and the Senate of the United States had +recognized his competency to take; why, it is charitable to suppose--and +his subsequent claim would have been scouted as preposterous in any +law-court in the world. + +With regard to General Hunter, his ferocious personal defiance, hurled +from the very Bench, demonstrated in a flash his preëminent unfitness for +any function that is judicial even in a military sense. It is manifest +that this whole attack, whether concerted or not, was not made from any +conscientious regard for the sanctity of an oath, nor from any sensitive +fear that Reverdy Johnson, as an oath-breaker, might contaminate the +tribunal; but it was either a mere empty ebullition of party spleen, or of +party hatred towards a distinguished democrat, or it was made with a +deliberate design to rob a poor woman of any probable advantage such +eminent counsel might procure for her. + +And whether the latter terrible suspicion be well founded or not, true it +is that this cruel result, notwithstanding the withdrawal of the +objection, did not fail of full accomplishment. + +Reverdy Johnson, though suffered to appear as counsel, was virtually out +of the case. He was present only at rare intervals during the trial, and +sent in his final argument to be read by one of his juniors. The Court had +put its brand upon him, and to any subsequent effort of his it turned an +indifferent countenance and a deaf ear. He, forsooth, had "sympathized" +with the Rebellion and that was enough! His appearance worked only harm to +his client, if harm could be done to one whom the Court believed to have +been also a sympathizer with rebellion, and who was already doomed to +suffer in the place of her uncaptured son. + +Another incident, occurring after the testimony on behalf of the prisoners +had begun, will illustrate still more clearly, if possible, the mental +attitude of the Court. + +Among the witnesses sworn on the first day of the trial in secret session +was one Von Steinacker, who, according to his own statement, had been in +the Confederate Army, on the staff of Major-General Edward Johnson. He +told the usual cock-and-bull story about seeing Booth in Virginia, in +1863, consorting with the rebel officers and concocting the assassination +of Lincoln. At the time of his examination he was a prisoner of war, but +after he had given his testimony he was discharged. The counsel for the +defense knowing nothing of the witness did not cross-examine him at all. +But, subsequently, they discovered that, after having once been convicted +of an attempt to desert, he had at last succeeded in deserting the Union +Army, and had entered the service of the Confederates; that he had been +convicted of theft by a court-martial; and that his whole story was a +fiction. Thereupon, as soon as possible, the counsel for Mrs. Surratt +applied for the recall of the witness for cross-examination, so as to lay +the basis for his contradiction and impeachment; and they embodied the +facts they were ready to prove in a paper which was signed by Reverdy +Johnson and the other counsel for Mrs. Surratt. This application seems to +have strangely disturbed the Judge-Advocates and aroused the ire of the +Court. The prosecuting officers professed to have no knowledge of the +whereabouts of the witness; and General Wallace, moved from his wonted +propriety, delivered himself as follows: + + "I, for my part, object to the appearance of any such paper on the + record, and wish to say now that I understand distinctly and hold in + supreme contempt, such practices as this. It is very discreditable to + the parties concerned, to the attorneys, and, if permitted, in my + judgment will be discreditable to the Court." + +Mr. Clampitt, with the most obsequious deference to the Court, deprecated +any such reflection upon the conduct of counsel and alluded to their duty +to their unfortunate clients. But this humble apology was declared not +satisfactory to the General or to the Court; and the application was not +only refused but the paper was not allowed to go upon the record. However, +this summary method of keeping facts out of sight availed nothing. Mrs. +Surratt's counsel had caused to be summoned as a witness, to contradict +and impeach Von Steinacker, Edward Johnson, the very Major-General on +whose staff the witness had sworn he had been. + +General Johnson, a distinguished officer in the Confederate Army, was +taken prisoner in 1864 and had been in confinement since, as such, at Fort +Warren. From thence he had been brought to attend before the Commission +in obedience to a subpoena issued by the Court. + +On the 30th of May, he was called as a witness and appeared upon the stand +to be sworn. As he stood there, in his faded uniform, bearing, doubtless, +traces of the six months' imprisonment from which he had come at the +command of the Court, facing the officers of the Army he had so often +encountered, and with his back turned upon the woman on whose behalf he +had been summoned; General Albion P. Howe deemed it his duty as an +impartial judge to make the following attack upon him. + +After stating that it was well known that "the person" before the Court +had been educated at the National Military Academy, and had since for many +years held a commission in the U. S. Army, and had therefore taken the +oath of allegiance, this gallant officer and upright judge proceeded: + + "In 1861, it became my duty as an officer to fire upon a rebel party, + of which this man was a member, and that party fired upon, struck + down, and killed loyal men that were in the service of the Government. + I understand that he is brought here now as a witness to testify + before this Court, and he comes here as a witness with his hands red + with the blood of his loyal countrymen, shed by him or by his + assistants, in violation of his solemn oath as a man and his faith as + an officer. I submit to this Court that he stands in the eye of the + law as an incompetent witness, because he is notoriously infamous. To + offer as a witness a man who stands with this character, who has + openly violated the obligations of his oath, and his faith as an + officer, and to administer the oath to him and present his testimony, + is but an insult to the Court and an outrage upon the administration + of justice. I move that this man, Edward Johnson, be ejected from the + Court as an incompetent witness on account of his notorious infamy on + the grounds I have stated." + +General Ekin welcomed the opportunity to distinguish himself by seconding +the motion and characterizing the appearance of the witness before the +Commission, "with such a character" as "the height of impertinence!" In +his haste to insult a fallen foe, he seems to have forgotten that the +witness had no alternative but to come. + +The counsel for the prisoner humbly reminded the Court that the +prosecution itself had sworn as its own witnesses men who had borne arms +against the Government. The Judge-Advocate saw that the members of the +Court had gone too far, and, after calling their attention to the familiar +rule that the record of conviction in a judicial proceeding was the only +basis of a total rejection of a witness, proceeded to provide a channel +for the relief of the Court by suggesting that they could discredit the +witness upon the ground stated, although they could not declare him +incompetent to testify. + +The assertion is confidently made that in the whole annals of English +criminal jurisprudence, full as they are of instances of the grossest +unfairness to persons on trial, no such outrage upon the administration of +justice as the foregoing can be found. To find its parallel you must go to +the records of the French Revolutionary Tribunal. What are we to think of +the complaint of a Union General, that "a rebel party" fired (first? No! +but that when "it became his duty as an officer to fire upon a rebel +party" the rebel party fired) back? What in Mars' name did this warrior +expect? Would he have had kinder feelings towards his brave adversary if, +in response to his own volley, the Confederate General had tamely laid +down his arms, or played the coward and run? + +Nowadays, when the blue and the gray meet, charges of infamy are no longer +heard, but the more deadly the past warfare, the greater the reciprocal +respect. + +However, this unprovoked assault upon an unoffending officer, powerless to +repel it, although it did not result in his ejection from the Court, +effectually disposed of General Johnson as a witness. + +In answer to the questions of counsel he calmly gave his testimony, which +exploded both Von-Steinacker and his story. Judge Bingham confined his +cross-examination to eliciting the facts, that the witness had graduated +from West Point, served in the U. S. Army until 1861, resigned, and joined +the Confederate Army. The Court paid no attention to his direct testimony +because he had fired upon Union men when they had fired upon him. + +The foregoing incidents conclusively show (were any such demonstration +necessary) that a Board of nine military officers, fresh from service in +the field in a bloody civil war, with all the fierce prejudices naturally +bred by such a conflict hot within their bosoms, was the most unfit +tribunal possible to administer impartial justice to eight persons charged +with the murder of the Commander-in-Chief of the Army to which every +member of the Court belonged, committed in aid of that Rebellion which +during four years of hard fighting they had helped to suppress. + + + + +CHAPTER III. + +THE CONDUCT OF THE TRIAL. + + +The whole conduct of the trial emphasizes this conclusion. The Court, in +weighing the evidence, adopted and acted upon the following proposition; +that any witness, sworn for any of the prisoners, who had enlisted in the +Confederate service, or had at any time expressed secession sentiments, or +sympathized in any way with the South, was totally unworthy of credit. The +Court went a step farther, and adopted the monstrous rule that +participation in the Rebellion was evidence of participation in the +assassination! This assertion now seems incredible, but it is fully +attested by the record. At one stage of the trial, the Judge-Advocate +asked a witness whether or not the prisoner Arnold had been in the +military service of the rebels. General Ewing, his counsel, strenuously +objected to this question on the ground, that it tended to prove the +prisoner guilty of another crime than the one for which he was on trial, +and thus to prejudice him in the eyes of the Court. + +Judge Holt remarked: "How kindred to each other are the crimes of treason +against a nation and assassination of its chief magistrate. + +"The murder of the President * * * was preëminently a political +assassination. + +"When, therefore, we shall show, on the part of the accused, acts of +intense disloyalty, bearing arms in the field against the Government, we +show with him the presence of an animus towards the Government which +relieves this accusation of much, if not all, of its improbability." + +He asserted that such a course of proof was constantly resorted to in +criminal courts; and when General Ewing challenged him (as well he might) +to produce any authorities for such a position, he called upon the +indomitable Bingham to state them. + +The Special Judge-Advocate responded, but he courteously, but +unmistakably, shied away from his colleague's position and put the +competency of the testimony upon another ground, viz.: that where the +intent with which a thing was done is in issue, other acts of the prisoner +which tend to prove the intent may be given in evidence. Here he was +dealing with a familiar principle, and could cite any number of cases. He +then proceeded to apply his good law. How? By claiming that conspiracy to +murder having been laid in the charge, "_with the intent to aid the +Rebellion_," that was the intent in issue here, and therefore to prove +that a man was in the Rebellion went to prove that intent. + +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. + +In a word, the judgment of the prosecuting officer--the retained counsel +for the Government, the plaintiff in the action--ruled with absolute sway, +both on the law and on the facts, the judgment of the Commission; the +members of which, for that matter, were also in the pay of the Government. + +It may, therefore, be readily anticipated with how little impartiality the +trial was conducted. + +Mrs. Surratt (as did the rest of the accused) plead to the jurisdiction of +the Commission on the grounds (1) that she was not and had not been in the +military service of the United States, and (2) that when the crimes +charged were committed the civil courts were open in Washington; both of +which allegations were admitted and were notoriously true. Whatever might +be the indifference with which the rights of the men to a constitutional +trial may have been viewed, it was so utterly incongruous with the spirit +of military jurisprudence and so unprecedented in practice to try a woman +by court-martial, that had Mrs. Surratt been alone before that Commission +we venture to say those nine soldiers could not have brought themselves, +or allowed the Judge-Advocate to bring them, to the overruling of her +plea. As it was, however, the court-room was cleared of all save the +members of the Commission and the three Judge-Advocates; and after a +season of what is called "deliberation" (which meant the further +enforcement of the opinion of the prosecuting officers upon the point +under discussion, where necessary), the court reopened and "the +Judge-Advocate announced that the pleas * * * had been overruled by the +Commission." + +Mrs. Surratt (as did the other prisoners) then asked for a separate trial; +a right guaranteed to her in all the civil courts of the vicinage. It was +denied to her, without discussion, as a matter of course. + +And yet no one now can fail to recognize the grievous disadvantage under +which this one woman labored, coupled in a single trial with such culprits +as Payne who confessed his guilt, and Herold who was captured with Booth. + +In fact, the scheme of trial contrived by the Judge-Advocates on a scale +comprehensive enough to embrace the prisoners, the Canadian exiles and the +Confederate Cabinet, would not work on a trial of Mrs. Surratt alone. Of +this pet plan they were highly proud and greatly enamoured. To it, +everything--the rights of woman as well as man; considerations of equity +and of common fairness--must be made to give way. + +To the maintenance of this scheme in its integrity, they had marshalled +the witnesses, and they guided the Commission with a firm hand so that not +a jot or tittle of its symmetry should be marred. + +This determined purpose is indicated by the starting-point they chose for +the testimony. + +On Friday, the twelfth, the first witness was sworn, and his name was +Richard Montgomery. His testimony, as well as that of the other witnesses +sworn that day, was taken in secret session, and no portion of it was +allowed to reach the public until long after the trial. It was all +directed to establish the complicity of the rebel agents in Canada and +through them the complicity of Jefferson Davis and other officers of the +"Confederacy" in the assassination. In other words, this testimony was +given to prove the guilt, not of the men much less of the woman on trial, +but of the men included in the charge but not on trial; and whom, as it +now appears, the United States never intended to try. + +To connect the defunct Confederacy in the person of its captive Chief with +the murder of the President would throw a halo of romantic wickedness +about the crime, and chime in with the prevalent hatred towards every +human being in any way connected with the Rebellion. + +This class of testimony continued to be introduced every now and then +during the trial--whenever most convenient to the prosecution--and as +often as it was given the court-room was cleared of spectators and the +session secret; the isolated counsel for Mrs. Surratt, utterly at a loss +to imagine the connection of such testimony, given under such solemn +precautions, with their own client, and knowing nothing whatever of the +witnesses themselves, must have looked on in bewildered amazement, and had +no motive for cross-examination. + +The chief witnesses who gave this carefully suppressed evidence were spies +upon the rebel agents in Canada paid by the United States, and, at the +same time, spies upon the United States paid by the rebel agents. + +They were, of course, ready to swear to as many conversations with these +agents, both before and after the assassination, in which those agents +implicated themselves and the heads of government at Richmond in the most +reckless manner, as the Judge-Advocates thought necessary or advisable. + +The head, parent and tutor of this band of witnesses was a man called +Sanford Conover. After giving his testimony before the Commission, he went +to Canada and again resumed his simulated intimacy with the Confederates +there, passing under the name of James W. Wallace. An unauthorized version +of his testimony having leaked out and appearing in the newspapers, he was +called to account for it by his Canadian friends. He then made and +published an affidavit that the person who had given testimony before the +Commission was not himself but an imposter, and at the same time also +published an offer of $500 reward for the arrest of "the infamous and +perjured scoundrel who secretly personated me under name of Sanford +Conover, and deposed to a tissue of falsehood before the military +Commission at Washington." + +Being reclaimed by the government from his Canadian perils, he appeared +again before the Court after the testimony had been closed and the summing +up of all the prisoners' counsel had been completed (June 27th); when he +testified that his affidavit had been extorted from him by the +Confederates in Canada by threats of death at the point of a pistol. This +man Conover was subsequently (in 1867) tried and convicted of perjury and +sent to the penitentiary; and with him the whole structure of perjured +testimony, fabricated for reward by him and Montgomery and their co-spies, +fell to the ground. Secretary Seward testified before the Judiciary +Committee of the House of Representatives, in 1867, that, "the testimony +of these witnesses was discredited and destroyed by transactions in which +Sanford Conover appeared and the evidence of the alleged complicity of +Jefferson Davis thereupon failed." + +But, at the period of the trial, when the passionate desire for vengeance +was at its height, any plausible scoundrel, whose livelihood depended on +the rewards for wholesale perjury, and who was sure to be attracted to +Washington by the scent of his favorite game, was thrice welcome to the +Bureau of Military Justice. Any story, no matter how absurd or incredible, +provided it brought Jefferson Davis within conjectural fore-knowledge of +the assassination, was greedily swallowed, and, moreover, was rewarded +with money and employment. These harpies flocked, like buzzards, around +the doors of the old Penitentiary, and all--black and white, from +Richmond, from Washington and from Montreal--were eager, for a +consideration, to swear that Davis and Benjamin were the instigators of +Booth and Surratt. And such testimony as it was! For the most part the +sheerest hearsay! The private impressions of the witness! In one instance, +his recollection of the contents of a letter the witness had heard read or +talked about, the signature of which, although he did not see it himself, +he heard was the signature of Jefferson Davis!! Testimony wholly +inadmissible under the most elementary rules of evidence, but swept before +the Commission in the absence of counsel for the parties implicated and +under the immunity of a secret session. + +For example: a blind man, who had been, at an undated period during the +war, a hanger-on around the camp at Richmond, being asked whether he had +heard any conversations among the rebel officers in regard to the +contemplated assassination, answered: + + "In a general way, I have heard sums offered, to be paid with a + Confederate sum, for any person or persons to go North and assassinate + the President." + +Being pressed to name the amount and by what officers, he answered: + + "At this moment, I cannot tell you the particular names of + shoulder-straps, &c. + + "Q.--Do you remember any occasion--some dinner occasion? + + "A.--I can tell you this: I heard a citizen make the remark once, that + he would give from his private purse $10,000, in addition to the + Confederate amount, to have the President assassinated; to bring him + to Richmond dead or alive, for proof. + + "Q.--I understood you to say that it was a subject of general + conversation among the rebel officers? + + "A.--It was. The rebel officers, as they would be sitting around their + tent doors, would be conversing on such a subject a great deal. They + would be saying they would like to see his head brought there, dead or + alive, and they should think it could be done; and I have heard such + things stated as that they had certain persons undertaking it." + +In the introduction of evidence against Mrs. Surratt, as well as the +others on trial, the Judge-Advocates allowed themselves the most unlimited +range. + +Narrations of all sorts of events connected with the progress of the +War--historical, problematical or fabulous--having no relevancy to the +particular charge against her, or them, but deadly in their tendency to +steel the minds of the Court against her, were admitted without scruple or +hesitation. + +Seven soldiers who had been prisoners of war at Libby Prison, Belle Island +or Andersonville were called and testified, in all its ghastly details, to +the terrible treatment they and their fellow-prisoners had undergone. +Three witnesses were sworn to prove that the rebel government buried a +torpedo under the centre of Libby Prison, to be fired if the U. S. troops +entered Richmond. Letters found in the Richmond Archives were read, +offering to rid the world of the Confederacy's deadliest enemies, and +projecting wholesale destruction to property in the North. Testimony was +allowed to be given of the burning of U. S. transports and bridges by men +in the Confederate service; of the raids from Canada into the United +States; of the alleged plot in all its horrible features to introduce the +yellow-fever into Northern cities by infected clothing, testified to by +the villain who swore he did it for money. It is scarcely to be credited, +yet it is a fact, that the confession of Robert Kennedy, hung in March +previous for attempting to burn the City of New York, was read in +evidence; as was also a letter from a Confederate soldier, detailing the +blowing up of vessels by a torpedo and the killing of Union men at City +Point, indorsed by a recommendation of the operator to favor. + +On June 27th, after the testimony had been closed and the summing up of +counsel for the defense ended, the case was reopened and there was +introduced an advertisement clipped from the "Selma Dispatch" of December +1st, 1864, wherein some anonymous lunatic offered, if furnished +$1,000,000, to cause the lives of Lincoln, Seward and Johnson to be taken +before the first of March. + +The prosecution closed its direct testimony on May 25th, reserving the +right (of which we have seen they availed themselves from time to time) +thereafter to call further witnesses on the character of the Rebellion and +the complicity of its leaders in the assassination. + +Out of about one hundred and fifty witnesses sixty-six gave testimony of +that kind. Of the remaining eighty-four about fifty testified to the +circumstances attending the assassination, the pursuit and capture of +Booth and Herold, and the terrific assault of Payne on William H. Seward +and his household. Of the remaining thirty-four there were nine whose +testimony was directed to the incrimination of Mrs. Surratt. + +The important witnesses against her were three soldiers testifying under +the eye of their superior officers as to her non-recognition of Payne, and +two informers who had turned state's evidence to save their own necks, who +connected her with Booth. + +The witnesses for the defense, for the most part, were treated by the +Special Judge-Advocate as virtual accomplices of the accused; and, as soon +as, by a searching cross-examination, he had extorted from them a +reluctant admission of the slightest sympathy with the South (as in almost +every case he was able to do), he swept them aside as impeached, and their +testimony as unworthy of a moment's consideration. A former slave, who +announced himself or herself as ready to give evidence against his or her +former master, was a delicious morsel for the Bureau of Military Justice; +and several such were sworn for the prosecution. While, on the other hand, +nothing so exasperated the loyal Bingham or so astonished the Court as the +apparition of an old slave-woman, summoned by the defense, eagerly +endeavoring to exculpate her former master. + +Several priests testified as to the good character of Mrs. Surratt as a +lady and a christian, but the effect of their testimony was immediately +demolished in the eyes of the Court, when, on cross-examination, although +they refused to substantiate what the Judge-Advocate called "her notorious +intense disloyalty," they could not remember that they had ever heard her +"utter one loyal sentiment." + + + + +Chapter IV. + +ARGUMENTS FOR THE DEFENSE. + + +The testimony for the several defenses of the eight accused closed on the +7th of June, and the testimony in rebuttal ended on the 14th, with the +evidence of the physicians on the sanity of Payne. + +Thereupon, General Ewing endeavored to extract from the Judge-Advocate an +answer to the two following questions: First.--Whether his clients were on +trial for but one crime, viz.: Conspiracy, or four crimes, viz.: +Conspiracy, Murder, Attempt at murder, Lying in wait? and + +Second.--By what statute or code of laws the crimes of "traitorously" +murdering, or "traitorously" assaulting with intent to kill, or +"traitorously" lying in wait, were defined, and what was the punishment +affixed? + +The Judge-Advocate's reply to the first question was, in substance, that +all the accused were charged with conspiring to assassinate the President +and the other members of the Government named, and further, with having +executed that conspiracy so far as the assassination of the President and +the assault on the Secretary of State were concerned, and "to have +attempted its execution so far as concerns the lying in wait and other +matters." + +Assistant Judge-Advocate Bingham added: + + "The act of any one of the parties to a conspiracy in its execution is + the act of every party to that conspiracy; and therefore the charge + and specification that the President was murdered in pursuance of it + by the hand of Booth, is a direct and unequivocal charge that he was + murdered by every one of the parties to this conspiracy, naming the + defendants by name. + + "Mr. Ewing.--I understand * * * but I renew my inquiry, whether these + persons are charged with the crime of conspiracy alone, and that these + acts of murdering, assaulting, and lying in wait, were merely acts + done in execution of that conspiracy. + + "Mr. Bingham (interrupting).--And not crimes? + + "Mr. Ewing.--Or whether they are charged with four distinct crimes in + this one charge? + + "Mr. Bingham.--'Where parties are indicted for a conspiracy, and the + execution thereof, it is but one crime at the common law. And that as + many * * * overt acts in the execution of the conspiracy as they are + guilty of, may be laid in the same count.' + + "Mr. Ewing.--It is then, I understand, one crime with which they are + charged. + + "Mr. Bingham.--One crime all round, with various parts performed. + + "Mr. Ewing.--The crime of conspiracy. + + "Mr. Bingham.--It is the crime of murder as well. It is not simply + conspiring but executing the conspiracy treasonably and in aid of the + Rebellion. + + "Mr. Ewing.--I should like an answer to my question, if it is to be + given: How many crimes are my clients charged with and being tried + for? I cannot tell. + + "Mr. Bingham.--We have told you, it is all one transaction." + +General Ewing, not being able to get an answer intelligible to himself to +the first question, then respectfully asked an answer to the second: By +what code or statute the crime was defined and the punishment provided? + + "The Judge-Advocate.--I think the common law of war will reach that + case. This is a crime which has been committed in the midst of a great + civil war, in the capital of the country, in the camp of the + Commander-in-Chief of our armies, and if the common law of war cannot + be enforced against criminals of that character, then I think such a + code is in vain in the world. + + "Mr. Ewing.--Do you base it, then, only on the law of nations? + + "The Judge-Advocate.--The common law of war. + + "Mr. Ewing.--Is that all the answer to the question? + + "The Judge-Advocate.--It is the one I regard as perfectly appropriate + to give. + + "Mr. Ewing.--I am as much in the dark now as to that as I was in + reference to the other inquiry." + +It is significant that the ready Special Judge-Advocate rendered no aid to +his colleague on the latter branch of the inquiry. + +According to the theory of the prosecution, then, Mary E. Surratt was +tried, as a co-conspirator of Jefferson Davis and seven of his agents, of +the seven men tried with her, and of Booth and her own son, for the crime +of "traitorous conspiracy" to murder the President, Vice-President, +Secretary of State and Lieutenant-General, of the United States; and for +the following crimes committed in pursuance thereof: + +1. Assassination of the President, with Booth. + +2. Attempt to murder the Secretary of State, his two sons and two +attendants (five crimes instead of one), with Payne. + +7. Lying in wait to kill the Vice-President, with Atzerodt. + +8. Lying in wait to kill the Lieutenant-General, with O'Laughlin. + +Eight separate species of crimes, beside the generic one of "traitorous +conspiracy." And she, a citizen, a non-combatant, a woman, was tried on +this nine-fold, omnibus charge, jointly with seven men, under "the common +law of war"! + + * * * * * + +On the 16th of June (Friday), Mr. Clampitt read the argument of Reverdy +Johnson against the jurisdiction of the Commission--one of the most cogent +and convincing ever delivered in a court of justice. + +The Supreme Court of the United States, subsequently (December, 1866), in +deciding the Milligan case, did but little more than reiterate the +propositions maintained by this great lawyer. + +He opened his address by reminding the Court that the question of their +jurisdiction to try and sentence the accused was for the Court alone to +decide, and that no mandate of the President, if in fact and in law the +Constitution did not tolerate such tribunals in such cases, could protect +any member of the Commission from the consequences of his illegal acts. He +then advanced and proved the following propositions: that none but +military offenses are subject to the jurisdiction of military courts, and +that the offenders when they commit such offenses must be subject to +military jurisdiction--in other words, must belong to the army or navy; +that the President himself had no right to constitute military courts of +his own motion, but that such power must first be exercised by Congress +under the constitutional grant to that body to make rules for the +government and regulation of the land and naval forces; that, by the fifth +and sixth amendments of the constitution, every person, except those +belonging to the land or naval forces or to the militia in active service +in time of war, and, being such, committing a military or naval crime, is +guaranteed an investigation by a grand jury as a preliminary to trial, and +a speedy and public trial by an impartial jury. He then took up and +examined the grounds on which the jurisdiction of the Commission was +sought to be maintained. Calling the Court's attention to the +constitutional provision that, if the institution of such Commission was +an incident to the war power, that power was lodged exclusively in +Congress and not at all in the President, and, therefore, Congress only +could authorize such tribunals, he showed that, neither by the articles of +war nor by the two acts, relied on, passed during the Rebellion, had +Congress ever authorized any such tribunal; and that a military commission +like the present and under present circumstances "is not to be found +sanctioned, or the most remotely recognized, or even alluded to, by any +writer on military law in England or the United States, or in any +legislation of either country." + +And, in this connection, he pronounced the suggestion that the civil +courts and juries of the District of Columbia could not safely be relied +upon for the trial of these cases, "an unjust reflection upon the judges, +upon the people, upon the marshal, an appointee of the President, by whom +the juries were summoned, and upon our civil institutions themselves;" and +he closed his remarks upon this branch of his subject by saying that the +foregoing suggestion, + + "upon another ground, is equally without force. It rests on the idea + that the guilty only are ever brought to trial; that the only object + of the Constitution and laws in this regard is to afford the means to + establish alleged guilt; that accusation, however made, is to be + esteemed _prima facie_ evidence of guilt, and that the Executive + should be armed, without other restriction than his own discretion, + with all the appliances deemed by him necessary to make the + presumption from such evidence conclusive. Never was there a more + dangerous theory. The peril to the citizen from a prosecution so + conducted, as illustrated in all history, is so great that the very + elementary principles of constitutional liberty, the spirit and letter + of the Constitution itself repudiated it." + +After depicting the peril to the rights of the citizen of confiding to the +option of the Executive the power of substituting a secret for a public +tribunal for the trial of offenses, he established the following +propositions: That the creation of a Court is an exclusively legislative +function; that constitutional guarantees are designed for times of war as +well as times of peace; that the power to suspend the writ of Habeas +Corpus carries with it only the temporary suspension of the right to +inquire into the cause of the arrest, and does not extend in any way over +the other rights of the accused. The distinguished advocate then further +maintained that, conceding the articles of war provide for a military +court like this, yet the offense charged in the present case being nothing +less than treason could not under the provision of the constitution, +regulating the trial of treason, be tried by a military commission; and, +also, that under the articles of war persons who were not and never had +been in the army were not subject to military law. And, in order to +illustrate this branch of his argument as forcibly as possible, passing in +review the guaranteed and historic rights of accused persons on trials +before civil courts, he arrayed the open and flagrant violations of these +rights which had been permitted by the Commission on the present trial: +First, in the character of the pleadings, which for indefiniteness and +duplicity would not have been tolerated by any civil tribunal. Second, as +to the rules of evidence, which, according to the Judge-Advocate, allowed +proof of separate and distinct offenses alleged to have been committed, +not only by the parties on trial, but by other persons, and which the +accused, however innocent, could not be supposed able to meet. Third, he +quoted Lord Holt to show that in a civil court "these parties could not +have been legally fettered during their trial." Referring to the row of +miserable beings weighed down with shackles as they had entered the +court-room, as they confronted their epauletted judges, and as they +departed to their solitary cells, day by day, for more than a month, he +repeated the words of the great jurist, then 200 years old: + + "Hearing the clanking of chains, though no complaint was made to him, + he said, 'I should like to know why the prisoner is brought in ironed. + Let them be instantly knocked off. When prisoners are tried they + should stand at their ease.'" + +Then, characterizing the claim, that martial law prevailing in the +District of Columbia therefore warranted the Commission, as alike +indefensible and dangerous, and at the same time irrelevant because +martial law had never been proclaimed and the civil courts were in the +full and undisturbed exercise of all their functions, the counsel drove +this point home as follows: + + "We learn, and the fact is doubtless true, that one of the parties, + the very chief of the alleged conspiracy, has been indicted, and is + about to be tried before one of those courts. If he, the alleged head + and front of the conspiracy, is to be and can be so tried, upon what + ground of right, of fairness or of policy, can the parties who are + charged to have been his mere instruments be deprived of the same mode + of trial?" + +At the close of his speech he recurs to the warning that the President's +command can furnish no justification to the members of the tribunal. If +their function were only to act as aides to the President to enable him to +discharge his prerogative of punishment, and is to that extent legal, then +it is only so because the President might have dispensed with the Court +altogether, and ordered the punishment of the culprits without any formal +trial. + +No, he warned them, in the most courtly and courteous manner, they could +not shield themselves behind the President. + + "Responsibility to personal danger can never alarm soldiers who have + faced * * * death on the battle-field. But there is a responsibility + that every gentleman, be he soldier or citizen, will constantly hold + before him and make him ponder--responsibility to the constitution and + laws of his country and an intelligent public opinion--and prevent his + doing anything knowingly that can justly subject him to the censure of + either. I have said that your responsibility is great. If the + Commission under which you act is void and confers no authority, + whatever you may do may involve the most serious personal liability." + +He then cited the case of Governor Wall, hung in London in 1802 for +murder--a soldier, under his government in the island of Goree, having +been whipped to death by sentence of a regimental court-martial, twenty +years before. + + "In that instance want of jurisdiction in the court-martial was held + to be fatal to its judgment as a defense for the death that ensued + under it. In this, if the Commission has no jurisdiction, its judgment + for the same reason will be of no avail, either to Judges, Secretary + of War, or President, if either shall be called to a responsibility + for what may be done under it." + +The learned counsel then added: + + "The opinion I have endeavored to maintain is believed to be the + almost unanimous opinion of the profession and certainly is of every + judge or court who has expressed any." + +And he cited the then recent charge of Judge Bond to the grand jury at +Baltimore, in which the Judge declared in reference to such military +commissions as the present, that, + + "Such persons exercising such unlawful jurisdiction are liable to + indictment by you as well as responsible in civil actions to the + parties." + +And he quoted to the Court that portion of the charge of Judge Rufus W. +Peckham to a grand jury in New York City, delivered during the progress of +this very trial, wherein the right of a military commission to try was +denied: + + "A great crime has lately been committed that has shocked the + civilized world. Every right-minded man desires the punishment of the + criminals, but he desires that punishment to be administered according + to law, and through the judicial tribunals of the country. No + star-chamber court, no secret inquisition, in this nineteenth century, + can ever be made acceptable to the American mind. + + * * * * * + + "Grave doubts, to say the least, exist in the minds of intelligent + men, as to the constitutional right of the Military Commission at + Washington to sit in judgment upon the prisoners now on trial for + their lives before that tribunal. Thoughtful men feel aggrieved that + such a commission should be established in this free country, when the + war is over, and when the common law courts are open and accessible to + administer justice according to law, without fear or favor. * * * + + "The unanimity with which the leading press of our land has condemned + this mode of trial ought to be gratifying to every patriot." + +On the twenty-third, General Ewing, too, assailed the jurisdiction of the +Court in a short but powerful speech from which are taken the following +extracts: + + "The jurisdiction of the Commission has to be sought _dehors_ the + Constitution, and against its express prohibition. It is, therefore, + at least of doubtful validity. If that jurisdiction do not exist; if + the doubt be resolved against it by our judicial tribunals, when the + law shall again speak, the form of trial by this unauthorized + Commission cannot be pleaded in justification of the seizure of + property or the arrest of persons, much less the infliction of the + death penalty. In that event, however fully the recorded evidence may + sustain your findings, however moderate may seem your sentences, + however favorable to the accused your rulings on the evidence, your + sentence will be held in law no better than the rulings of Judge + Lynch's courts in the administration of lynch law. + + "Our judicial tribunals, at some future day * * * will be again in the + full exercise of their constitutional powers, and may think, as a + large proportion of the legal profession think now, that your + jurisdiction in these cases is an unwarranted assumption; and they may + treat the judgment which you pronounce and the sentence you cause to + be executed, as your own unauthorized acts. + + "Conviction may be easier and more certain in this Military + Commission, than in our constitutional courts. Inexperienced as most + of you are in judicial investigation, you can admit evidence which the + courts would reject, and reject what they would admit, and you may + convict and sentence on evidence which those courts would hold to be + wholly insufficient. Means, too, may be resorted to by detectives, + acting under promise or hope of reward, and operating on the fears or + the cupidity of witnesses, to obtain and introduce evidence, which + cannot be detected and exposed in this military trial, but could be + readily in the free, but guarded, course of investigation before our + regular judicial tribunals. The Judge-Advocate, with whom chiefly + rests the fate of these citizens, is learned in the law, but from his + position he can not be an impartial judge, unless he be more than a + man. He is the prosecutor in the most extended sense of the word. As + in duty bound, before this court was called, he received the reports + of detectives, pre-examined the witnesses, prepared and officially + signed the charges, and, as principal counsel for the Government, + controlled on the trial the presentation, admission and rejection of + evidence. In our courts of law, a lawyer who has heard his client's + story, if transferred from the bar to the bench, may not sit in the + trial of the cause, lest the ermine be sullied through the partiality + of counsel. This is no mere theoretical objection--for the union of + prosecutor and judge works practical injustice to the accused. The + Judge-Advocate controls the admission and rejection of evidence--knows + what will aid and what will injure the case of the prosecution, and + inclines favorably to the one and unfavorably to the other. The + defense is met with a bias of feeling and opinion on the part of the + judge who controls the proceedings of the Court, and on whom, in great + measure, the fate of the accused depends, which morals and law alike + reject." + +Whatsoever else may be pleaded in excuse or palliation of the acts of the +Commission, it can never be said that its members were driven on by an +overpowering sense of their duty as soldiers, in blind ignorance of the +Constitution and the law. Each and every officer was made fully aware of +his awful responsibility and apprised of the precarious footing of his +authority. + + + + +CHAPTER V. + +CHARGE OF JUDGE BINGHAM. + + +From the sixteenth to the twenty-seventh of June the time was consumed by +the summing up of the several counsel for the prisoners on the facts +disclosed by the evidence; and on the last mentioned day and the +succeeding one, Special Judge-Advocate Bingham delivered his address in +answer to all the foregoing pleas, both as to the jurisdiction of the +Court and also as to the merits of the case. + +This long, carefully prepared and yet impassioned speech may be fairly +considered as embodying the very proof-charge of the prosecution. Indeed, +under the rules of military procedure, it occupies the place and performs +the functions of the judge's charge in the common-law courts. As such, it +deserves a closer analysis and a more extended examination than can be +given to it here. The briefest and most cursory review, however, will +suffice to show its tone and temper. + +After a solemn asseveration of his desire to be just to the accused, and a +warning to the Court that "a wrongful and illegal conviction or a wrongful +and illegal acquittal * * * would impair somewhat the security of every +man's life and shake the stability of the Republic," the learned advocate +specifically declares, that the charge "is not simply the crime of +murdering a human being" but a "combination of atrocities," committed as +charged upon the record, "in pursuance of a treasonable conspiracy entered +into by the accused with one John Wilkes Booth, and John H. Surratt, upon +the instigation of Jefferson Davis, Jacob Thompson, George N. Sanders and +others, with intent thereby to aid the existing rebellion and subvert the +constitution and laws of the United States." + +A denunciation of the Rebellion as "itself simply a criminal conspiracy +and a gigantic assassination"; the following glowing period--"Now that +their battalions of treason are broken and flying before the victorious +legions of the republic, the chief traitors in this great crime against +your government secretly conspire with their hired confederates to achieve +by assassination what they in vain attempt by wager of battle";--and the +unequivocal announcement that "it is for this secret conspiracy in the +interest of the rebellion, formed at the instigation of the chief in that +rebellion, and in pursuance of which the acts charged and specified are +alleged to have been done, and with the intent laid, that the accused are +upon trial": finish the exordium. + +The speaker then tackles the question of jurisdiction, which, he remarks +by the way, "as the Court has already overruled the plea," he would pass +over in silence, "but for the fact that a grave and elaborate argument +has been made by the counsel for the accused, not only to show want of +jurisdiction, but to arraign the President of the United States before the +country and the world as a usurper of power over the lives and the +liberties of the prisoners." + +He dexterously evades the force of the argument that the civil courts of +the District were open when the crime was committed, by asserting that +"they were only open * * * and are only open at this hour by force of the +bayonet;" and he claims that the President acting by a military force had +as much right to try the co-conspirators of Booth, as to pursue, capture +and kill the chief criminal himself; which, if true, leads us into the +maintenance of the monstrous doctrine that the President by a summary +order might have strung up the culprits without the interposition of any +court. He then enters upon an argument to show that the Commission, from +the very nature of its organization, cannot decide that it is no Court, +and he ridicules the idea that these nine subordinate military officers +could question the authority of their Commander-in-Chief. + +In this connection, he gently rebukes Mr. Ewing for his bold statement to +the Commission: "You, gentlemen, are no court under the Constitution!" +reminding him that "not many months since he was a general in the service +of the country and as such in his department in the West proclaimed and +enforced martial law;" and asks him whether he is "quite sure he will not +have to answer for more of these alleged violations of the rights of +citizens than any of the members of the Court?" + +He professes his high regard for General Ewing as a military commander who +has made a "liberal exercise of this power," and facetiously wishes "to +know whether he proposes, by his proclamation of the personal +responsibility awaiting all such usurptions," that he himself shall be +"drawn and quartered." + +After disposing of General Ewing in this gingerly manner, he compensates +himself for the slight restraint by pouring the vials of his unstinted +wrath upon Reverdy Johnson; representing him as "denouncing the murdered +President and his successor," as making "a political harangue, a partisan +speech against his government and country, thereby swelling the cry of the +armed legions of sedition and rebellion that but yesterday shook the +heavens." He characterizes one of the most temperate and dignified of +arguments as "a plea in behalf of an expiring and shattered rebellion," +and "a fit subject for public condemnation." + +He calls upon the people to note, + + "That while the learned gentleman [Mr. Johnson], as a volunteer, + without pay, thus condemns as a usurpation the means employed so + effectually to suppress this gigantic insurrection, the New York News, + whose proprietor, Benjamin Wood, is shown by the testimony upon your + record to have received from the agents of the rebellion $25,000, + rushes into the lists to champion the cause of the rebellion, its + aiders and abettors, by following to the letter his colleague [Mr. + Johnson], and with greater plainness of speech, and a fervor + intensified doubtless by the $25,000 received, and the hope of more, + denounces the Court as a usurpation and threatens the members with the + consequences." + +And he interrupts his tirade against one of the greatest men this country +has produced to burst forth into the following grandiloquent apostrophe: + + "Youngest born of the Nations! Is she not immortal by all the dread + memories of the past--by that sublime and voluntary sacrifice of the + present, in which the bravest and noblest of her sons have laid down + their lives that she might live, giving their serene brows to the dust + of the grave, and lifting their hands for the last time amidst the + consuming fires of battle!" + +After a brief defense of the secret sessions of the Commission, the +learned advocate enters upon his circumstantial reply to the argument of +Mr. Johnson, into which it is not worth while to follow him, as the main +points of his contention have been rendered obsolete by the Supreme Court +of the United States. + +Suffice it to say, he holds that the President of the United States has +the power, of his own motion, to declare martial law in time of war, over +the whole United States, whether the States are within the theatre of the +war or not; and that President Lincoln exercised this power by his +proclamation of September, 1862, by virtue of which martial law prevailed +over the whole North, including, of course, the District of Columbia, on +the day of the assassination; and, farther, that certain subsequent acts +of Congress, though not in express terms yet by fair implication, had +ratified the proclamation. + +He contends, in consequence, that "nothing can be clearer than that +citizen and soldier alike, in time of civil or foreign war, are triable by +military tribunals for all offences of which they may be guilty, in the +interest of, or in concert with the enemy;" and that "these provisions, +therefore, of your Constitution for indictment and trial by jury in civil +courts of _all crimes_ are * * * silent and inoperative in time of war +when the public safety requires it." + +Listen to this judicial expounder of constitutional law! + + "Here is a conspiracy organized and prosecuted by armed traitors and + hired assassins, receiving the moral support of thousands in every + State and district, who pronounced the war for the Union a failure, + and your now murdered but immortal Commander-in-Chief a tyrant. + + "It is in evidence that Davis, Thompson, and others * * * agreed and + conspired with others to poison the fountains of water which supply + your commercial metropolis, and thereby murder its inhabitants; to + secretly deposit in the habitation of the people and in the ships in + your harbor inflammable materials, and thereby destroy them by fire; + to murder by the slow and consuming torture of famine your soldiers, + captives in their hands; to import pestilence in infected clothes to + be distributed in your capital and camps, and thereby murder the + surviving heroes and defenders of the Republic. + + "I claim that the Constitution itself * * * by express terms, has + declared whatever is necessary to make the prosecution of the war + successful, may be done, and ought to be done, and is therefore + constitutionally lawful. + + "Who will dare to say that in the 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 and sacred in it; it is, however, only the law of peace, not + of war. + + "In time of war the civil tribunals of justice are wholly or partially + silent, as the public safety may require; * * * the limitations and + provisions of the Constitution in favor of life, liberty and property + are therefore wholly or partially suspended." + +He makes allusion to the recent re-election of President Lincoln, as +ratifying any doubtful exercise of power by him: + + "The voice of the people, thus solemnly proclaimed, by the omnipotence + of the ballot * * * ought to be accepted, and will be accepted, I + trust, by all just men, as the voice of God." + +He concludes his plea in favor of the jurisdiction of the Commission, by +declaring that for what he had uttered in its favor "he will neither ask +pardon nor offer apology," and by quoting Lord Brougham's speech in +defence of a bill before the House of Lords empowering the Viceroy of +Ireland to apprehend and detain all Irishmen _suspect_ of conspiracy. + +The Special Judge-Advocate then proceeds to sum up the evidence, in doing +which he leaves nothing to the free agency of the Court. He, first, by a +review of the testimony of the Montgomeries and Conovers, proves to his +own and, presumably, to the Court's satisfaction, that "Davis, Thompson, +Cleary, Tucker, Clay, Young, Harper, Booth and John H. Surratt did combine +and conspire together in Canada to kill and murder Abraham Lincoln, +Andrew Johnson, Wm. H. Seward and Ulysses S. Grant." + + "Surely no word further need be spoken to show that John Wilkes Booth + was in this conspiracy; that John H. Surratt was in this conspiracy; + and that Jefferson Davis, and his several agents named, in Canada, + were in this conspiracy. + + "Whatever may be the conviction of others, my own conviction is that + Jefferson Davis is as clearly proven guilty of this conspiracy as is + John Wilkes Booth, by whose hand Jefferson Davis inflicted the mortal + wound upon Abraham Lincoln." + +After such utterances as these, it is hardly necessary to state that this +impartial Judge declares every single person on trial, as well as John H. +Surratt, guilty beyond the shadow of a doubt. + + "That John H. Surratt, George A. Atzerodt, Mary E. Surratt, David E. + Herold, and Louis Payne entered into this conspiracy with Booth, is so + very clear upon the testimony, that little time need be occupied in + bringing again before the Court the evidence which establishes it. + + "It is almost imposing upon the patience of the Court to consume time + in demonstrating the fact, which none conversant with the testimony of + this case can for a moment doubt, that John H. Surratt and Mary E. + Surratt were as surely in the conspiracy to murder the President as + was John Wilkes Booth himself." + +He lets out the secret that the mother is on trial as a substitute for her +son, whom the Secretary of War and the Bureau of Military Justice had +failed to capture, by saying: + + "Nothing but his conscious coward guilt could possibly induce him to + absent himself from his mother, as he does, upon her trial." + +After having reiterated over and over again, with all the authority of his +office, what he had for hours endeavoured to enforce by all the resources +of his intellect, that the guilt "of all these parties, both present and +absent" is proved "beyond any doubt whatever," and "is no longer an open +question;" he closes by formally, and with a very cheap show of +magnanimity, leaving "the decision of this dread issue" to the Court. + + + + +CHAPTER VI. + +THE VERDICT, SENTENCE AND PETITION. + + +With the loud and repeated denunciations of this elaborate and vindictive +harangue, full as it was of rhetorical appeals to the members of the +Commission to avenge the murder of "their beloved Commander-in-Chief," and +of repeated and most emphatic assurances of the undoubted guilt of each +and every one of the prisoners, as well as of all their alleged +accomplices, still ringing in the ear of the Court; the room is for the +last time cleared of spectators, counsel for the prisoners and reporters; +the mournful procession of the accused marches for the last time from the +dock to their solitary cells, their fetters clanking as they go; and the +Commission meets to deliberate upon its verdict. But who remains in the +room, meets with the Court and participates in its secret and solemn +deliberations? Who but Colonel Burnett, the officer who had so zealously +conducted the preliminary examinations of the witnesses and marshalled the +evidence for the prosecution? Who but Recorder Joseph Holt, the head of +the Bureau of Military Justice, the left hand of Stanton as Baker was his +right? Who but John A. Bingham, the Special Judge-Advocate, who had so +mercilessly conducted the trial, assailing counsel, browbeating witnesses +for the defense, declaring that all participants in the rebellion were +virtually guilty of the assassination, and who had just closed his long +speech, in which he had done his utmost to stir up the Commission to the +highest pitch of loyalty, unreasoning passion and insatiable desire for +vengeance? + +Where can we look in the history of the world for a parallel to such a +spectacle? A woman of refinement and education, thrown together in one +mass with seven men, to be tried by nine soldiers, for the crime of +conspiring with Jefferson Davis, the arch-enemy of every member of the +tribunal, to kill, and killing, the beloved Commander-in-Chief of every +member of the tribunal; three experienced criminal lawyers eagerly +engaging in the task of proving her guilty; pursuing it for days and weeks +with the unrelenting vigor of sleuth-hounds; winding up by reiterating in +the most solemn manner their overwhelming conviction of her guilt; and +then all three being closeted with the Court to take part in making up the +doom of death! + +And here let us pause to consider one feature of the trial and of the +summing up of Judge Bingham, which has not yet been noticed because it +deserves special and prominent remark. + +It appeared from the testimony on the part of the prosecution, +unmistakably, that, during the fall of 1864 and the winter of 1864-5, +Booth was brooding over a wild plot for the capture of the President +(either on one of his drives, or in the theatre, where the lights were to +be turned off), then hurrying off the captive to lower Maryland, thence +across the Potomac, and thence to Richmond; thereby to force an exchange +of prisoners, if not, possibly, a cessation of the war. It was a plot of +the kind to emanate from the disordered brain of a young, spoiled, +dissipated and disappointed actor. During this period, Booth made some +trifling and miserably inadequate preparations, and endeavored to enlist +some of his associates in its execution; and, by his personal ascendency +over them, he did in fact entangle, in a more or less vague adhesion to +the plot, Arnold, O'Laughlin, Atzerodt, Payne, Herold, John H. Surratt, +Lloyd, and, possibly, Dr. Mudd and Weichman. + +On the fall of Richmond, and the surrender of Lee, this any-how +impracticable scheme was necessarily abandoned. Indeed, the proof showed +that Arnold and O'Laughlin had deserted their leader some time before. + +It further appeared in the testimony that it was not until after the +forced abandonment of this plot and the desertion of most of his +adherents, that Booth, plunged as he was into the depths of chagrin and +despair because of the collapse of the rebellion, suddenly, as a mere +after-thought, the offspring of a spirit of impotent revenge, seized upon +the idea of murder, which was not in fact brought to the birth until the +afternoon of the fourteenth, when he was first informed of the promised +attendance of President Lincoln and General Grant at the theatre. Now, the +existence of the plot to capture, although it looked forth from the +evidence steadily into their faces, the Judge-Advocates bound themselves +not to recognize. In the first place, such a concession would forever +demolish the preconceived theory of the Secretary of War, Colonel Baker +and the Bureau of Military Justice, that the conspiracy to murder emanated +from the Confederate Government through its Canadian agents, by pointing +directly to another plot than the one to kill as that in which these +agents had been interested. The horrid monster of a widespread, +treasonable conspiracy to overthrow the government, which had been +conjured up in the imagination of the Secretary of War and then cherished +in the secret recesses of the Bureau of Military Justice, would have +immediately shrunk into the comparatively simple case of an assassination +of the President and an attempted assassination of the Secretary of State, +by two worthless villains suddenly seizing opportunity by the forelock to +accomplish their murderous purpose. And, in the next place, the concession +of such a plot as a fact would go far to establish the innocence of Mrs. +Surratt, Arnold, O'Laughlin and Mudd, as well as that of John H. Surratt, +by explaining such suspicious circumstances as the frequent rendezvous of +Booth, Payne and others at Mrs. Surratt's house, which practice, as it +was proved, ceased altogether on the fall of Richmond and the immediate +departure of the son to Canada. To the Judge-Advocates, if not to the +Court, any evidence looking towards innocence was most distasteful and +unwelcome. They were in no mood to reconcile what they considered the +damning proofs of a conspiracy to kill their "beloved Commander-in-Chief" +with the innocence of the fettered culprits before them, by admitting a +plot to capture, into which nevertheless those same proofs fitted with +surprising consistency. Besides, in the eyes of Bingham and Holt, +complicity in a plot to capture, although unexecuted, was proof of +complicity in the plot to murder, and also of itself deserved death. In +this direction, therefore, the Judge-Advocates were mole-eyed. On the +contrary, they hailed the slightest indication of guilt with a glow of +triumph. In the direction of guilt, they were lynx-eyed. + +Consequently, they bent every energy to identify the plot to capture with +the plot to kill. They introduced anonymous letters, dropped letters; a +letter mailed nearly a month after the assassination directed to J. W. B.; +a letter in cipher, purporting to be dated the day after the +assassination, addressed to John W. Wise, signed "No Five," found floating +in the water at Morehead City, North Carolina, as late as the first of +May; this last, the most flagrant violation and cynical disregard of the +law of evidence on record. + +They did more. They labored to keep out all reference to the plot to +capture. And it was for this reason, that the Judge-Advocates deliberately +suppressed the diary found on the body of Booth. Its contents demonstrated +the existence of the plot to capture. + +Instead of allowing the officer who testified to the articles taken from +the dead body of Booth to make a detailed statement in response to one +general question as to what they were, the examining counsel shows him +first the knife, then the pistols, then the belt and holster, then a file +with a cork at one end, then a spur, then the carbine, then the bills of +exchange, then the pocket-compass; following the exhibition of every +article with the interrogatory, "Did you take this from the corpse of the +actor?" But no diary was exhibited or even spoken of, although, as has +been mentioned, it was carried by this same officer and Colonel Baker to +Secretary Stanton on the night following the capture. That these +Judge-Advocates had carefully searched through the diary for items they +could use against the prisoners, is shown by their calling one of the +proprietors of the "National Intelligencer," as a witness, to contradict +the statement that Booth had left a written article, setting forth the +reasons for his crime, for publication in that paper--a statement found +only in the diary whose very existence they kept secret. + +Therefore, when Judge Bingham came to review the evidence, he utterly +refused to recognize in the testimony any such thing as a plot to +capture; he shut his eyes to it and obstinately ignored it; he scornfully +swept it aside as an absurdity it would be waste of time to combat; and he +twisted every circumstance which looked to a connection, however remote, +with an abandoned plot to kidnap, into a proof, solid and substantial, of +complicity in the plot to murder. + +And, therefore, when this same thorough-going advocate, with his two +emulous associates, proceeded in secret conclave with the members of the +Commission to go over the testimony for the purpose of making up their +verdict and sentence, he summarily stifled any hint as to the possibility +of a plot to capture; he banished from the minds of the Court, if they +ever entertained such a purpose, any attempt to reconcile the +circumstantial evidence with the existence of such a plot; and, besides, +he held it up to the condemnation of those military men as equally heinous +and as deserving the same punishment as the actual assassination. + +Thus, the presence of these prosecutors during the deliberations of the +Court must have exerted a deadly influence (if any influence were +necessary) against the prisoners, and benumbed any impartiality and +freedom of judgment which might otherwise have lodged in the members of +the Commission. + +The Commission, with its three attending prosecuting officers, held two +secret sessions--Thursday and Friday, the 29th and 30th of June; on the +first day from 10 o'clock in the morning until 6 o'clock in the evening, +on the second day, probably, during the morning only. The record of the +proceedings is meagre, but contains enough to show the lines of the +discussion which, in such an unexpected manner through one whole day, +prolonged the deliberations of a tribunal organized solely to obey the +predetermination of a higher power, and even made necessary an adjournment +over night. + +There was no difficulty with the verdicts, except in the case of Spangler, +over the degree of whose guilt a majority of the Commission presumed for +the first time to differ with the Judge-Advocates. They would unite in a +conviction of the crime of assisting Booth to escape from the theatre with +knowledge of the assassination, but they would go no farther. They would +not find him a participant in the "traitorous conspiracy." This poor +fellow, as we can see _now_, was clearly innocent of the main charge; but +that was no reason, _then_, why the Commission should find him so. There +was more testimony pointing to his complicity with Booth on the fatal +night than there was against Arnold or O'Laughlin or even Mrs. Surratt; +and Judge Bingham, the guardian and guide of the Court, had pronounced it +"Conclusive and brief." The testimony of the defense, however, appears +overwhelmingly convincing, and, moreover, his case was admirably managed +by General Ewing. + +For all the rest there was no mercy in the verdict. Every one was found +guilty of the charge as formulated (eliminating Spangler); that is, in the +judgment of the Commission, they had, each and all, been engaged in a +treasonable conspiracy with Jefferson Davis, John H. Surratt, John Wilkes +Booth and the others named, to kill Abraham Lincoln, President, Andrew +Johnson, Vice-President, Wm. H. Seward, Secretary of State, U. S. Grant, +Lieutenant-General; and that in pursuance of such conspiracy they (the +prisoners) together with John H. Surratt and J. Wilkes Booth, had murdered +Abraham Lincoln, assaulted with intent to kill W. H. Seward, and lain in +wait with intent to kill Andrew Johnson and U. S. Grant. + +This was the deliberate judgment of the Commission as guided by +Judge-Advocates Holt, Burnett and Bingham. With the same breath with which +they pronounced the guilt of Mrs. Surratt, they pronounced also the guilt +of her son, of Jefferson Davis, of Clement C. Clay, of George H. Sanders, +of Beverly Tucker. And there can be no doubt that if these men had also +been upon trial, they all would have been visited with the same +condemnation and would have met the same doom. + +The Commission, further, found Herold, Atzerodt, Payne and Arnold guilty +of the Specification as formulated (eliminating Spangler); Mrs. Surratt +guilty, except that she had not harbored and concealed Arnold or +O'Laughlin; Dr. Mudd guilty, except that he had not harbored or concealed +Payne, John H. Surratt, O'Laughlin, Atzerodt or Mrs. Surratt; and, +strangest of all, they found O'Laughlin guilty of the Specification, +_except that he had not lain in wait for General Grant with intent to kill +him_, which was the very part in the conspiracy he was charged in the +Specification with having undertaken. It should be recollected that, in +the first moments of the panic succeeding the assassination, Stanton and +his subordinates had included among the objects of the conspiracy, as if +to complete its symmetry, the murder of the Secretary of War, himself. +Afterwards, probably because of the attitude of Stanton relative to the +prosecution, Grant was substituted as the victim of O'Laughlin and not of +Booth; Stanton's son having discovered a resemblance of the captured +O'Laughlin to the mysterious visitor at his father's house during the +serenade on the night of the 13th of April, when General Grant was also +present. This pretty romance, the testimony on behalf of O'Laughlin +effectually dissipated on the trial, but the indomitable Bingham still +insisted on holding the prisoner to a general complicity with the plot. In +this instance, as well as in that of Spangler, there may have been some +dissension between a majority of the officers and the Judge-Advocates, +but, taken altogether, the eight verdicts could not have cost the +Commission much time. It was organized to convict, and it did convict. + +So that it was not until the Court, having made up its verdicts, proceeded +to affix its sentences, that the three advocates, still assisting at the +work of death, encountered the unforeseen difficulties which compelled a +prolongation of the session. The crime or crimes of which the prisoners +were all pronounced guilty (with the possible exception of Spangler's) +were capital, and the Secretary of War, on the eve of the assembling of +the Commission, had already denounced against such offenses (not excepting +Spangler's) the punishment of death. + +The sentence, however, under the rules governing military commissions, was +wholly within the power of the Court, which, no matter what the nature of +the verdict, could affix any punishment it saw fit, from a short +imprisonment up to the gallows. Its two-fold function was, like a jury to +find a verdict, not only, but, like the judge in a common-law court, to +pronounce sentence; and, unlike such a judge, in pronouncing sentence, the +Commission was confined within certain limits by no statute. Although the +whole proceedings of the Court must be subjected to the final approval of +the President, yet its members were clothed alike with the full +prerogative of justice and the full prerogative of clemency. There was one +limit, however. While a majority could find the verdict and prescribe +every other punishment, it required two-thirds of the Commission to +inflict the penalty of death. Four officers, therefore, could block the +way to the scaffold, and five could mitigate any sentence, to any degree, +and for any, or for no reason. + +The Commission must have taken up the cases for sentence in the order +adopted in the formal Charge. As to the first three--Herold, Atzerodt and +Payne--there could have been no dissent or hesitation. The Commission, +with hardly a moment's deliberation, must have ratified the judgment of +the Judge-Advocates and condemned the prisoners to be hung by the neck +until dead. The sentences of death formally declare in every instance that +two-thirds of the Commission concur therein, but, as to these three, we +can scarcely be in error in stating the Court was unanimous. It was not +until the cases of the next three--O'Laughlin, Spangler and Arnold--were +reached, that symptoms of dissatisfaction with the sweeping doom of death, +so confidently pronounced by Judge Bingham in his charge, first began to +show themselves amongst the members of the Court. It seems that now, after +having joined with the counsel in pronouncing capital punishment upon the +three most prominent culprits, the majority could no longer whet their +appetite for blood so as to keep it up to the same fierce edge as that of +the Judge-Advocates. + +The deviations from the Charge and Specification, the Court had finally +prescribed in the verdicts against O'Laughlin and Spangler, were not +thought by the prosecutors to be of such importance as to warrant a +softening of the sentence. But here the loyalty of some members of the +Commission began to falter, and refuse to bear the strain. They had found +O'Laughlin guilty of the "traitorous conspiracy," and Spangler guilty of +aiding Booth to escape, and Arnold guilty in the same degree as Herold, +Atzerodt and Payne, but in none of these cases could the attending +advocates extort a two-thirds vote for death. In the case of Spangler, +owing, it is said, to the impression made by General Ewing and the +influence of General Wallace, they were compelled to allow a sentence of +but six years imprisonment. And in the case of the two others--convicted +co-conspirators with Booth and Davis though they were--these prosecuting +officers had to rest satisfied with but life-long imprisonment. + +It was too evident that five members of the Commission had slipped the +bloody rein. Three lives had they taken. Henceforth they would stop just +this side the grave. + +At this point--when the Commission had sentenced to death three men and +had just declined to sentence to death two more whom it had pronounced +guilty of the same crime--at this point it was, that the sentence of Mary +E. Surratt came up for determination. + +Now, the crimes of which Arnold had been found guilty were both in law and +in fact the same of which she had been found guilty. Even the particular +allegation in the Specification is the same in both cases, except some +immaterial variance in the verbiage and in the names of co-conspirators. + +Of course, it will be presumed that the Commission had found the woman +guilty without being pressed. But, equally of course, it will not be +doubted that, in determining the sentence which should follow the verdict, +the question of exercising the same mercy as the Commission had just +exercised in the case of a man convicted of the same crime, must have +arisen in the case of the woman. And, the question once having arisen, the +first impulse of the majority, if inclined still to mercy, must have been +to exert their own unquestioned function, and, as in the other cases, +mitigate the sentence themselves. They would have, originally, no motive +to thrust upon the President, who was to know comparatively nothing of the +evidence, the responsibility of doing that thing, which they themselves +who had heard the whole case thought ought to be done, and which in a +parallel case they had just done. Even if they believed the woman's crime +had a deeper tinge of iniquity than either Arnold's or Mudd's (of which +the respective verdicts, however, give no hint), but that nevertheless her +age and sex ought to save her from the scaffold, they need not have turned +to the President for mercy on such a ground. The woman clothed upon by her +age and sex had sat for weeks bodily before them. This very mitigation was +what a majority of the Court had power to administer. The reason of the +mitigation was a matter of no moment. The Court could commute for "age +and sex" as well as the President, and, for that matter, could state the +reason for the milder penalty in the sentence itself. + +Therefore, it may be taken for granted that here the Judge-Advocates again +found that two-thirds of the Court would not concur in the infliction of +the death penalty. Nay, that even a majority could not be obtained. Five +out of the nine officers announced themselves in favor of imprisonment for +life. + +Here, indeed, was a coil! The prosecutors were at their wits' ends. And +lo! when they passed on to consider the last case, that of Dr. Mudd, the +same incomprehensible reluctance to shed more blood did but add to their +discomfiture. The verdict indeed had been easily obtainable, but the +coveted death-sentence would not follow. The whole day had been spent in +these debatings. The expedient of adjourning over to the next day, +perhaps, was now tried; and the dismayed Judge-Advocates, with but three +out of the eight heads they had made so sure of, and their "female fiend" +likely to slip the halter, hurry away to consult with their Chief. + +Edwin M. Stanton, as he had presided over the whole preparatory process, +so too had kept watch over the daily progress of the trial from afar. +Every evening his zealous aide-de-camps made report for the day and took +their orders for the morrow. + +After the death of Booth and the escape of John H. Surratt, the +condemnation to death of the mother of the fugitive had become his one +supreme aim. + +The condemnation of the other prisoners was to him either a matter of no +doubt or was a minor affair. Three heads of the band of assassins stood +out in bloody prominence--Booth, John H. Surratt and Payne. The first had +been snatched from his clutches by a death too easy. Payne, with +hand-cuffs and fetters and chains and ball and hood, he might be +confident, could not evade his proper doom. Surratt, by the aid of some +inscrutable, malignant power, had contrived to baffle all the efforts of +his widespread and mighty machinery of military and detective police. But +he had the mother, the friend of Booth and the entertainer of Payne; and +she, the relentless Secretary with his accordant lackeys had sworn, should +not fail to suffer in default of the self-surrender of her son. She, +moreover, was to be made an example and a warning to the women of the +South, who, in the judgment of these three patterns of heroism, had +"unsexed" themselves by cherishing and cheering fathers, brothers, +husbands and sons on the tented field. + +In the conclave which Stanton and his two co-adjutors held, either during +the recesses of the prolonged session of the first day, or most likely +during the night of the adjournment, it was resolved, that if the manly +reluctance of five soldiers to doom a woman to the scaffold could be +overcome in no other way, to employ as a last resort the "_suggestion_," +that the Court formally condemn her to death, and then, as a compromise, +the soft-hearted five petition the President to commute--the three +plotters trusting to the chances of the future, with the petition in their +custody and the President under their dominion, to render ineffectual this +forced concession to what they scorned as a weak sentimentalism. This +suggestion of what was in truth a most extraordinary device--a petition to +the President to do what the Court could do itself--could not have +emanated from the merciful majority of the Court, which subsequently did +sign the fatal document. _They_, at least, were sincere, and, if let +alone, would have proceeded immediately to embody their own clemency in a +formal sentence, as they had done with O'Laughlin and Arnold, and as they +were about to do with Mudd. Had there been but one, or two, or three +dissentients, so that they were powerless in the face of two-thirds of the +Commission; or even had there been four--a number sufficient to block a +death-sentence but not sufficient to dictate the action of the Court, +then, indeed, recourse to the clemency of the Executive might have been a +natural proceeding. But a clear majority had no need to look elsewhere for +a power of commutation which they themselves possessed in full vigor, and +which, in all probability, after the first three death-penalties, they had +determined to apply in every one of the other cases. Neither could the +suggestion have been made by one of the minority, because none of them +signed the petition to the last. The four must have been steadfast and +uncompromising for blood. The whole scheme proceeded from a quarter +outside the Court--a quarter which, on the one hand, was possessed by an +overmastering revengeful passion, such as was required to point the five +officers to a seeming source of mercy to which they might appeal and thus +avoid the exercise of their own prerogative in antagonism to their four +brethren, and, on the other hand, harbored some secret knowledge or malign +intent that the petition would or should be, in fact, an empty form; from +a quarter, in short, where the desire for the condemnation to death of +Mrs. Surratt was all-controlling and where the condition of the President +was well known. They, who suggested the death-sentence and the petition as +a substitute for the milder penalty, were surely all on the side of death, +and hoped, if they did not believe, that the prayer of the petition would +be of no avail; else they would not have adopted such a circuitous method +to do what the five officers could immediately have accomplished +themselves. In one word, the contrivers of the device of petition were not +those who desired to save the bare life of the convicted she-conspirator, +but were those who would be satisfied with nothing less than her death on +the scaffold. The suggestion was wholly sinister and malevolent. On the +other hand, the majority of the Court did really desire that her +punishment should not exceed that of Arnold, O'Laughlin and Mudd, and +they certainly would never have had recourse to a petition to the +President, had they not been cheated into believing that that method of +proceeding was likely to effectuate what they had full power to do. Never +would these five soldiers, or any two of them, have given their voices for +the death of this woman, had they dreamed for a moment that their signing +of the petition was, and was meant to be, but a farce. They would not have +played such a ghastly trick under the shadow of the gibbet. + +Accordingly, when the Commission reassembled, either after recess or +adjournment, the reinvigorated counsellors immediately unfolded their +plan. We can almost hear their voices, in that upper room of the Old +Penitentiary, as they alternately urge on the Court. Holt, making a merit +of yielding in the cases of Spangler, of O'Laughlin, of Arnold and of +Mudd, denounces the universal disloyalty of the women of the South, and +pleads the necessity of an example. + +Bingham, holding up both mother and son as equally deep-dyed in blood with +Booth and Payne, both insinuates and threatens at the same time, that, if +"_tenderness_," forsooth, is to be shown because of the age and sex of +such a she-assassin, then, for the sake of the blood of their murdered +Commander-in-Chief, do not his own soldiers show it, but let his successor +take the fearful responsibility. + +One of the five gives way, and now there is a majority for death. One more +appeal! The life of the woman trembles in the balance. Once more to the +breach! The supreme reserve is at last brought forward--an argument much +in use with Judge-Advocates in cases of refractory courts-martial, as a +last resort--that the President will not allow a hair of her head to be +harmed, but that _terror_, TERROR, is necessary; in this instance, to +force the son to quit his hiding place, the life of the mother must be the +bait held out to catch the unsurrendering son. We will hang him and then +free the woman's neck. + +Another vote comes over. Two-thirds at last concur, and her doom is +sealed. They sentence "Mary E. Surratt to be hanged by the neck until she +be dead." Judge Bingham sits down and embodies the memorable "suggestion" +in writing as follows: + + [It is without address.] + + "The undersigned, members of the Military Commission detailed to try + Mary E. Surratt and others for the conspiracy and the murder of + Abraham Lincoln, late President of the United States, &c., + respectfully pray the President, in consideration of the sex and age + of the said Mary E. Surratt, if he can, upon all the facts in the + case, find it consistent with his sense of duty to the country, to + commute the sentence of death, which the Court have been constrained + to pronounce, to imprisonment in the penitentiary for life. + + Respectfully submitted." + +General Ekin copies it on a half-sheet of legal-cap paper, and the five +officers, viz.: Generals Hunter, Kautz, Foster and Ekin, and Colonel +Tompkins, sign the copy; General Ekin keeping the draft of Bingham as a +memento of so gentle an executioner. + +The Commission then proceeds to the next and last case, and, again +exercising its prerogative of clemency, sentences Dr. Mudd to imprisonment +for life. It is now Friday noon. The result of the two-days' secret +session, consisting of a succinct statement of the verdict and sentence in +every case, in the foregoing order, is redacted into a record. The +presiding officer signs, and the Recorder countersigns it. It is placed in +the hands of the Judge-Advocate, together with the petition to the +President. There is an adjournment without day. The members disperse, and +the work of the Military Commission is over. + + + + +CHAPTER VII. + +THE DEATH WARRANT AND THE EXECUTION. + + +From Friday afternoon, the thirtieth of June, through Saturday, Sunday, +Monday and Tuesday, the first four days of July, the record of the +findings and sentences remained under the seal of sworn secrecy in the +custody of the Judge-Advocate-General. To consummate the work of the +Commission, the signature of the President to a warrant approving its +action and directing the execution of its judgment was necessary. But, +during this interval, as it was given out from the White House, President +Johnson was too ill to attend to public business. In the meantime, the +city, and even the whole country to its very borders, were agitated by the +question: What is to be the fate of Mrs. Surratt? The doom of the male +culprits was for the moment forgotten in the intense anxiety over hers. + +Despite the seven-fold seal of secrecy which covered the proceedings of +the secret sessions, whispers of a recommendation of mercy filled the air. +In the War Department, the main source of anxiety, at the same time, must +have been this superfluous paper--the distressing outcome of an +unsuspected sentimental weakness in five of our chosen men. After the +final adjournment of the Commission, the unobtrusive, unaddressed +half-sheet had been fastened to the record of the sentences by the same +narrow yellow silk ribbon which held its own sheets together, and to which +it now dangled as a last leaf, or back. A safety-valve to the misplaced +chivalry of the Court--it had served its purpose, and was henceforth +useless. That it should now turn itself into an implement of evil, +minister to the cause of rebellion and assassination, cause "Our Own Andy" +to flinch at last and thus the she-fiend of the Bureau escape her doom! It +would be treason to suffer it. Upon that resolve, the Triumvirate of +Stanton, Holt and Bingham had once for all determined. Indestructible, +inconcealable, omnipotent, indeed, must that paper be, which could thwart +their united purpose. + +At length, on the morning of Wednesday, the fifth, Preston King, who, in +those days, was a favored guest at the White House, announced in the +Judge-Advocate's office that the President was so much better as to be +able to sit up; and at a later hour in the day, General Holt, in pursuance +of an appointment, started on his solemn errand. The volumes of testimony +taken before the Commission by official stenographers, daily reports of +which had been furnished, he, of course, did not carry with him. In the +interview that was to come, there would be no time and no inclination to +read over bulky rolls of examinations and cross-examinations of witnesses. +From aught that appears, the President was not expected to read over the +evidence, nor was it customary in such cases. It may have been the duty of +the Secretary of War or the Attorney-General to scrutinize the testimony, +either from day to day or at the close of the trial. But all that the +President was supposed to know about the merits of the case appears to +have been derived from what any of his Cabinet saw fit to inform him, from +what he himself casually and unofficially read, but, especially and +principally, from what the Judge-Advocate was now coming to tell him. As +to the guilt of the accused, and especially of Mrs. Surratt, his mind had +long ago been made up for him by his imperious War Minister, from whose +despotic sway he had not as yet recovered energy enough to free himself. +He was still in that brief introductory period of his Presidency which may +be called his Stanton Apprenticeship; still eager "to make treason +odious;" full of threatenings to hang Davis and other Southern leaders. He +had not yet awakened from the state of semi-stupefaction into which his +sudden and awful elevation seems to have thrown him; and, in this state, +he must have been extremely averse to dwelling on any of the circumstances +of the assassination to which he owed his high place. The idea of clemency +to any one of the band of assassins, male or female, which his +War-Secretary's court might convict, would have been intolerable to his +imagination and sickening to his sense of security. What Andrew Johnson, +at this moment, wanted was to push away from his mind all thoughts of the +tragic end of his predecessor, and to allow retributive vengeance to take +the most summary course with the least possible knowledge and trouble to +himself. And this mood of the presidential mind was well known to the +Judge-Advocate-General, as he entered the President's room. He brought +with him so much of the record of the proceedings of the Commission as was +necessary to the accomplishment of his errand--viz.: the record of the +findings and sentences, which the President was to endorse. This document +consisted of a few sheets of legal-cap paper fastened together at the top, +written on both sides in the fashion of legal papers, _i. e._, beginning +at the top of the first page and, on reaching the bottom, turning up the +paper and writing on the back from the bottom to top. It was a document +complete in itself, the written record ending on the first page of the +last half-sheet--thus leaving blank the remainder of that page and the +whole of the obverse side; ample room for the death-warrant. To this +record, but forming no part of it, the Petition, as we have said, had been +affixed, but in such a manner as to be easily separable without +mutilation. He must also have brought with him his official report of the +trial--styled "The formal brief review of the case," which was +subsequently appended to the regular Report of the Judge-Advocate-General +to the Secretary of War and transmitted to the Congress in December +following--because it is addressed "To the President," is dated "_July 5, +1865_," and is signed "J. Holt." It recites the verdicts and sentences; +justifies its brevity by referring to "the full and exhaustive" argument +of Judge Bingham; certifies to the regularity and fairness of the +proceedings; and recommends the execution of the sentences; _but it makes +no mention of the Petition, or any "suggestion" of mercy_. + +The Judge-Advocate could have anticipated no difficulty in obtaining the +approval of the President, conscious as he was that the grounds of such +approval were to be furnished to the President by himself. The approval +being had, the fixing of the day of execution could cause no disagreement. +His only possible source of embarrassment was the petition for +commutation. But it would be strange, indeed, if a few apt words could not +further emasculate the mild, hypothetical language in which his colleague, +Bingham, had seen fit to clothe that paper. + +He found the President "alone," and (as he himself says) "waiting for" +him, "very pale, as if just recovered from a severe illness." + +"Without delay" he "proceeded to discharge the duty which brought" him +"into his presence." What took place at this "confidential interview" (as +Holt calls it) can never be precisely known; the distinguished +interlocutors having subsequently risen into unappeasable quarrel over +the presence or absence of the petition, and given contradictory versions. +Whatever the truth may be, it is evident that everything went smoothly at +the moment. The Judge-Advocate was not disappointed. No difficulty was +encountered. What was done was done quickly and at once. The record may +have been read over; but this was hardly necessary, as the bare mention of +the several sentences would convey a correct summary of its contents. He +may have read the "brief review of the case" he had prepared. As Judge +Holt relates, he said to the President, "frankly, as it was his official +duty to do," that in his judgment "the proceedings of the Court were +regular, and its findings and sentences justified by the evidence, and +that the sentences should be enforced." And this was what he had written +in his "Brief Review." What more could the successor of the murdered +Lincoln want? His approval must have been spontaneous and immediate. As +Holt says, "at that time Mr. Johnson needed no urging." Mention may have +been made of the curious weakness infecting some members of "our Court" +towards the wicked woman, who, as Johnson seems then to have thought, "had +kept the nest that hatched the egg;" but only to be scouted by both +Judge-Advocate and President as most reprehensible and actually +_disloyal_. + +Their unanimity over the salutary effect of the hanging of this one woman +on the female rebels was more than fraternal. And it is probable that no +more explicit mention of an actual petition was made by Judge Holt in his +conversation with the President than was made in his written report to the +President, dated the same day, and which he had with him at the time. + +The day of execution was fixed upon with the same alacrity. "Make it as +soon as possible, so that the disagreeable business may be over; say the +day after to-morrow--Friday, the seventh." And, thereupon, everything +being agreed upon, Judge Holt turns over the papers to the last page of +the record and spreads it upon the table. Beginning, a few lines below the +signature of "D. Hunter, President" which closes the record, with the +date, + + "Executive Mansion, July 5th, 1865," + +"with his own hand" he writes out the death warrant. As this includes the +approval of the sentences, the appointment of the day and hour of +execution, and the designation of the place of confinement of those +condemned to imprisonment, the bottom of the page is reached before he +completes his task. If he had turned up the page and continued his writing +on the obverse side from the bottom down, as all the foregoing had been +written, then the petition of mercy, unaddressed as it was, would have +been, if still attached, directly beneath the eye of the President as he +signed the death-warrant. But, as now appears from the record itself, the +careful Judge-Advocate did not turn up the page from the bottom. On the +contrary, reverting to the layman's way of writing papers, he whisks the +whole record over, and continues the writing of the death-warrant on the +back of the last half-sheet of the record _from the top to the bottom_--by +this change of method, either throwing the petition under the leaves of +the record, or, if disengaged, leaving it _upside down_. + +When he has thus finished his draft he shoves it over to the President. +The President signs it with tremulous hand. The "confidential interview" +is at an end; and the Judge-Advocate, taking up the papers, hurries out +and over to the Department of War. + +At this moment the petition disappears from view. We hear no more of it. +Thrust as a convenient succedaneum into the hands of the majority of the +Commission, ignored, suppressed or slurred over when before the President, +it had served its pitiful purpose. Neither the Adjutant-General nor any of +his clerks, appear to have noticed it, although the record must have been +copied more than once in his office. It seems to have sunk suddenly into +oblivion; its very existence became the subject of dispute. It was omitted +from the authorized published proceedings of the Commission. It was +omitted from the annual report of the Judge-Advocate. The disloyal paper +must have been laid alongside the suppressed "Diary," there to repose +unseen until the Impeachment of Johnson and the Trial of Surratt summoned +them together into the light of day. + + * * * * * + +On the morning of Thursday, the sixth day of July, the six days ominous +silence of the War-Department is broken. An order issues from the +Adjutant-General's office which, bearing date the day before and reciting +the findings and death-sentences of the Commission and the death-warrant +of the President, commands Major-General Hancock to see execution done, on +the seventh, between the hours of ten and two. + +This order was read to Mrs. Surratt at noon. She had all along been +encouraged to hope. She, herself, had never been able to realize the +possibility of a capital condemnation in her own case. And, here, +suddenly, was Death, with violence and shame, within twenty-four hours. +She sank down under the blow. In faltering accents she protested that she +had no hand in the murder of the President, and pleaded for a few days +more time to prepare for death. During the remainder of the day and +throughout the night, she was so prostrated by physical weakness and +mental derangement as to necessitate medical aid to keep her alive and +sane. The cries of her daughter could be heard in the still darkness +outside the prison. At five o'clock in the morning, the mother (with the +three condemned men), was removed to a solitary cell on the first floor, +preparatory to the execution. + +In the meantime, when it first became known that, by the sentence of the +Commission and the direction of the President, Mrs. Surratt was to die by +the rope on the same scaffold with Payne, Herold and Atzerodt within +twenty-four hours, a chill of despairing terror froze the blood of her +relatives and friends, a thrill of consternation swept over the body of +the citizens, and dark misgivings disturbed even the most loyal breasts. A +stream of supplicants at once set in towards the Executive Mansion--not +only friends and acquaintances of the condemned woman, but strangers, +high-placed men, and women too, who were haunted by doubts of her guilt +and could in some degree realize her agony. + +But even this expiring effort of sympathy, the powers behind the President +had anticipated. Apprehensive that Andrew Johnson, at the last moment, +might yield to distressing importunities for more time, they had already +taken measures that their sick man's wish to hear nothing till all was +over should be scrupulously respected. Preston King and General James Lane +undertook to keep the door and bar all access to the President during the +dreadful interval between the promulgation of the sentence and its +execution. It was rumored that they, with a congenial crew, held high +revelry around their passive Chief in his private apartments. Be this as +it may, no supplicant--friend, acquaintance or stranger--was allowed to +gain access to the President. + +The priests, who had attested upon her trial the good character, the piety +and the general worth of their parishioner, instinctively turned their +steps to the White House to beg for clemency, or, at least, a respite. +They were repulsed from its door. In ghastly mockery, they were told to go +to ---- Judge Holt. + +At last, the daughter of the victim made her way to the very threshold of +the President's room. Frenzied with grief she assailed the portal with her +cries for admission to plead for her dying mother. She was denied +admittance. In the extremity of her despair she lay down upon the steps, +and, in the name of God, appealed to the President and to the wardens, +only to listen to her prayer. The grim guardians of the door held it shut +in her face. + +Denied, thus, even an appeal to Executive clemency, the friends of the +poor woman, as a last most desperate resort, invoked the Constitution of +their and her country through the historic writ of Habeas Corpus. On the +morning of the day of the execution, they found a judge (Judge Wylie; all +honor to his memory!) who had the independence and courage to grant the +writ. At half-past eleven, General Hancock appeared before the Judge and +made return that by order of the President the Habeas Corpus was suspended +and therefore he did not produce the body. The order of the President +dated ten o'clock, same morning, was annexed to the return and directed +the General to proceed with the execution. + +No sooner had the guarantees of the Constitution been, thus, finally set +at naught, than the cell-doors were thrown open and the prisoners summoned +to their doom. As the enfeebled widow raised her trembling limbs from off +the coarse mattress which alone separated her body from the stone floor of +her dungeon, she strove, in broken words, to assure the soldiers, who had +come to bind her arms behind her back and tie cords around her skirts +above and below the knee, of her utter, yet helpless innocence. Her +confessor, who stood by her until the last, gently pointed out to her the +uselessness of such appeals, at such a moment, and directed her hopes +towards Heaven. + +Amid the tolling of the bells, sending a shudder through the silent +population of the city, and heralded by the tramp of armed men, the +death-march of the doomed woman and the doomed men begins. The still +breathing men and still breathing woman are clothed already in their +shrouds. As she totters first along the corridor, accompanied by her +priest and requiring two soldiers to hold her erect, the very extremity of +her helplessness and woe bears witness in her favor. Even the bloody +Payne, who walks next behind her, has broken through that stolid +indifference to his own fate, so remarkable as to indicate insanity, to +clear her from all complicity with the assassination. Herold and Atzerodt, +who follow, though themselves speechless with terror, seem to wave her +mute acquittal, as they stumble along into the swift-coming Darkness. +They reach the prison-yard. They mount the high scaffold. They are seated +in four chairs facing the four dangling nooses, while the death-warrant is +once more read. Their graves, already dug, are in full sight close by. +Their coffins stand by the side of the open graves. They are raised up and +pushed forward upon the two drops, Herold and Atzerodt on one, Mrs. +Surratt and Payne on the other; the half-conscious woman still supported +by the two guards. The ropes are adjusted. The hoods drawn over the face. +The signal is given. The two drops fall. Surrounded by the unpitying +soldiery, headed by the unpitying Hartranft, the woman and the men hang +writhing in the agonies of an ignominious death. When pronounced dead, the +bodies are cut down. They are laid out on the top of the coffins. A +hurried post-mortem examination is made. And, then, at four o'clock in the +afternoon, they are inclosed in the coffins and buried side by side. The +soldiers depart with flourish of trumpet and beat of drum. Silence +descends on the grounds of the old Arsenal; broken only by the pace of the +sentinel set to guard the four corpses. + +The daughter may beg the stern Secretary to yield up the body of her +murdered mother, that she may place it in consecrated ground. But she will +beg in vain. + +And so ended the fell tragedy. And so did brave soldiers avenge the murder +of their "beloved Commander-in-Chief." Methinks their beloved +Commander-in-Chief, could his freed spirit have found a mortal voice, +would have spurned, with indignant horror, the savage sacrifice of a +defenseless woman to appease his gentle shade. + + + + +CHAPTER VIII. + +WAS IT NOT MURDER? + + +And now what shall be said as to this taking of human life? + +Maintaining the most rigorous allegiance to the simple unadulterated +truth, what can be said? Arraigned at the bar of the common law as +expounded by the precedents of centuries, and confronted by plain +provisions of the Constitution of the United States, which need no +exposition and yet have been luminously expounded; but one thing can be +said. + +Had Mary E. Surratt the right guaranteed by the Constitution to a trial +singly and alone, in a regularly constituted civil court, and by a jury of +the vicinage, the individuals of which she might select by challenge, both +for cause, in all cases, and without cause to a certain number, before she +could be legally convicted of any crime whatever, or be lawfully punished +by the most trivial loss of property or the minutest injury to limb, to +say nothing of the brutal crushing out of her life? That's the unevadable +question which the ages put and will continue to put. And upon its +precisely truthful answer, depend the character and color of the acts of +every person who had lot or part in the execution of this woman. + + * * * * * + +On the 21st day of October, 1864--while the war was still raging--Lambdin +P. Milligan, a citizen of the United States and a resident of Indiana, was +arraigned before a Military Commission convened by the commanding General +of that Military District, at Indianapolis, on the following charges +preferred against him by Henry L. Burnett, Judge-Advocate of the +Department of the West: + +1. Conspiracy against the Government of the United States. + +2. Affording aid and comfort to the rebels. + +3. Inciting insurrection. + +4. Disloyal practices. + +5. Violation of the laws of war. + +There were also specifications, the substance of which was that Milligan +had joined and aided a secret society, known as the Order of American +Knights or Sons of Liberty, for the purpose of overthrowing the Government +and authorities of the United States; had communicated with the enemy; +conspired to seize munitions of war in the arsenals, and to liberate +prisoners; resisted and encouraged resistance to the draft: at or near +Indianapolis, in Indiana, "a State within the military lines of the Army +of the United States, and the theatre of military operations, and which +had been and was constantly threatened to be invaded by the enemy." + +On these charges and specifications, Milligan was subjected to a lengthy +trial by this Military Commission which finally found him guilty on all +the charges and sentenced him to be hanged. The record was approved by the +Commanding General, and then transmitted to President Lincoln, who held it +long under advisement, and was so holding it when he was killed. His +successor, at about the same time that he summoned the Commission to try +Mrs. Surratt, at length approved the findings and ordered the sentence to +be executed on Friday, the 19th day of May, 1865. + +But this object-lesson to the Commission sitting at that date in the old +Penitentiary was intercepted. On the 10th of May, Milligan brought the +record before the United States Circuit Court by a petition for his +discharge, and, the two judges differing upon the main question of the +jurisdiction of the Commission, the cause was certified under the statute +to the Supreme Court of the United States; in deference to which action +the President suspended the execution. The argument before that high +tribunal coming on in the winter of 1865-66, a great array of counsel +appeared upon both sides; David D. Field, James A. Garfield and Jeremiah +S. Black for the prisoner, and Attorney-General Speed and Benjamin F. +Butler for the United States. The counsel for the Government followed the +same line as did Judge Bingham in his argument on the "Conspiracy Trial;" +the counsel for the prisoner on their side, only enlarging, emphasizing +and enforcing the argument of Reverdy Johnson. At the close of the term +the Court unanimously decided that the Military Commission had no +jurisdiction to try Milligan; that its verdict and sentence were void; and +ordered the defendant discharged. + +At the next term, the Court handed down two opinions--one the opinion of +the Court, read by Judge Davis, in which four of his colleagues concurred, +and one by Chief-Justice Chase, in which three of his colleagues +concurred. The two opinions agreed that, as matter of law, the President +could not of his own motion authorize such a Commission, and that, as +matter of fact, the Congress had not authorized such a Commission; and +therefore they were at one in their conclusion. But they differed in this; +that, whereas the majority of the Court held that not even the Congress +could authorize such a Court, the minority, while agreeing that the +Congress had not exercised such a power, were of opinion that such a power +was lodged in that branch of the Government. + +The attempt has often been made to distinguish the case of Mrs. Surratt +from that of Milligan by alleging that Washington at the time of the +assassination was within the theatre of military operations, and actually +under martial law, whereas Indiana at the time of the Commission of +Milligan's alleged offenses was not. + +Now, it must be admitted that at the time of the murder of President +Lincoln the war had swept far away from the vicinity of the Capital. +There had been no Confederate troops near it since Early's raid in the +summer of 1864, and no enemy even in the Shenandoah Valley since October. +It must also be admitted, and was, in fact, proved on the trial, that the +civil courts were open and in full and unobstructed discharge of their +functions. As for the reiterated affirmation of Judge Bingham that the +courts were only kept open by the protection of the bayonet; that is +precisely what was affirmed by General Butler, in his argument before the +Supreme Court, to have been the fact in Indiana. + +None of the counsel in the Milligan case claimed that a Military +Commission could possibly have jurisdiction to try a simple citizen in a +State where there was no war or rumors of war. + + "We do fully agree, that if at the time of these occurrences there + were no military operations in Indiana, if there was no army there, if + there was no necessity of armed forces there, * * * then this + Commission had no jurisdiction to deal with the relator, and the + question proposed may as well at once be answered in the negative." + +They contended, as the very basis of their case, that the acts of Milligan +"took place in the theatre of military operations, within the lines of the +army, in a State which had been, and then was constantly threatened with +invasion." + +And, in fact, the record in so many words so stated, and the statement was +uncontroverted by the relator. + +General Butler with great earnestness put the question: + + "If the Court takes judicial notice that the courts are open, must it + not also take judicial notice how, and by whose protection, and by + whose permission they were so open? that they were open because the + strong arm of the military upheld them; because by that power these + Sons of Liberty and Knights of the American Circle, who would have + driven them away, were arrested, tried and punished. + + "If the soldiery of the United States, by their arms, had not held the + State from intestine domestic foes within, and the attacks of traitors + without; had not kept the ten thousand rebel prisoners of war confined + in the neighborhood from being released by these Knights and men of + the Order of the Sons of Liberty; there would have been no courts in + Indiana, no place in which the Circuit Judge of the United States + could sit in peace to administer the laws." + +Moreover, the opinion of the minority Judges bases their contention that +Congress had the power, if it had chosen to exercise it, to authorize such +a Military Commission, upon this very fact. + + "In Indiana, for example, at the time of the arrest of Milligan and + his co conspirators, it is established by the papers in the record, + that the State was a military district; was the theatre of military + operations, had been actually invaded, and was constantly threatened + with invasion. It appears, also, that a powerful secret association, + composed of citizens and others, existed within the State, under + military organization, conspiring against the draft, and plotting + insurrection, the liberation of the prisoners of war at various + depots, the seizure of the State and national arsenals, armed + co-operation with the enemy, and war against the national government." + +Not one of which circumstances (except that it was a military district) +can be truthfully predicated of the District of Columbia at the time of +the assassination. + +As for actual martial law, there was no declaration of martial law claimed +for the City of Washington, other than the proclamation of the President +which applied as well to Indiana, and, indeed, to the whole North. + +We are justified, therefore, in saying, that the Supreme Court of the +United States, in this case of Milligan, pronounced the final condemnation +of the whole proceedings of the Military Commission which tried and +condemned Mary E. Surratt; declaring, with all the solemn force of a +determination of the highest judicial tribunal known to this nation, that +every one of its acts, from its creation by the President to its +transmission of its record of doom to the President, was in direct +contravention of the Constitution of the United States and absolutely null +and void. + +That illustrious Court, speaking by Judge David Davis, thus enunciates the +law: + + "The Constitution of the United States is a law for rulers and people, + equally in war and in peace, and covers with the shield of its + protection all classes of men, at all times, and under all + circumstances. No doctrine, involving more pernicious consequences, + was ever invented by the wit of man than that any of its provisions + can be suspended during any of the great exigencies of government. + Such a doctrine leads directly to anarchy or despotism." + + "From what source did the Military Commission * * derive their + authority?" + + "It is not pretended that the commission was a court ordained or + established by Congress." + + "They cannot justify on the mandate of the President; because he is + controlled by law and has his appropriate sphere of duty, which is to + execute not to make the law; and there is no unwritten criminal code + to which resort may be had as a source of jurisdiction." + + "The laws and usages of war can never be applied to citizens in states + which have upheld the authority of the government and where the courts + are open and their processes unobstructed. And no usage of war could + sanction a military trial there for any offence whatever of a citizen + in civil life, in nowise connected with the military service. Congress + could grant no such power; and to the honor of our national + legislature be it said it has never been provoked by the state of the + country even to attempt its exercise." + + "All other persons," (_i. e._, all other than those in the military + and naval service) "citizens of states where the courts are open, if + charged with crime, are guaranteed the inestimable privilege of trial + by jury. This privilege is a vital principle, underlying the whole + administration of criminal justice; it is not held by sufferance, and + cannot be frittered away on any plea of state or political necessity." + + "It is claimed that martial law covers with its broad mantle the + proceedings of this Military Commission." + + "Martial law cannot arise from a threatened invasion. The necessity + must be actual and present; the invasion real, such as effectually + closes the courts and deposes the civil administration." + + "Martial law can never exist where the courts are open, and in the + proper and unmolested exercise of their jurisdiction. It is also + confined to the locality of actual war." + +Had the swift process by which this unfortunate woman was hurried to the +scaffold been interrupted by a stay to allow a review by the same high +tribunal which rescued Milligan from the jaws of death, it cannot be +doubted that in her case, as in his, the same conclusions would have been +reached, viz.: + + 1st. "One of the plainest constitutional provisions was, therefore, + infringed when" (Mary E. Surratt) "was tried by a court not ordained + and established by Congress, and not composed of judges appointed + during good behavior." + + 2nd. "Another guarantee of freedom was broken when" (Mary E. Surratt) + "was denied a trial by jury;" + +that, in her case, as in his, the Court would have set the prisoner free; +there would have been no hanging, no felon's grave, and not even an +ulterior attempt at a constitutional trial. + +For it is remarkable that although the Military tribunal which tried +Milligan pronounced him guilty of crimes deserving a traitor's death; the +seeming strength of the evidence must have melted away, strangely enough, +when subjected to the prospective investigation of constitutional courts, +as there was not even a subsequent effort on the part of the Government to +call him to account. + +Let us add, as a final corollary to this exposition of the Constitution by +the Supreme Court, the following remark: that the ground and argument +employed by Attorney General Speed in his opinion upon the right of the +President to order the trial of the alleged assassins by Military +Commission, and by Judge-Advocate Bingham in his address to that +Commission, involve a _reductio ad absurdum_, or, rather, a _reductio ad +monstrosum_, that is, a _Reductio ad absurdum quia monstrosum_. + +For, that ground and that argument, invoked to uphold and sanction the +trial of civilians by military commissions, necessarily and inevitably go +farther, and proclaim the right of President Johnson, alone, of his own +motion and without the interposition of a formal court, whether military +commission or drum-head court-martial, to have commanded the immediate +execution of every person whom he might believe to be guilty of +participation in the assassination of his predecessor or in the presumed +attempt upon himself. + +The conclusion forced upon us, therefore,--the one only thing to be +said--is, that the hanging of Mary E. Surratt was nothing less than the +crime of murder. + +Murder, not only in the case of the private soldiers who dragged her to +the scaffold and put the rope about her neck; they, at least can plead the +almost irresistible force of military discipline. + +But murder, also, in the case of the Major-General whose sword gave the +signal for the drop to fall. General and soldiers are in the precise +position, before the law, of a mob of Lynchers carrying out the judgment +of a Lynch court. + +Murder, not only in the case of the one military officer who superintended +the details of the execution. He, too, though with much less force, can +plead that he was the mere bailiff of what he believed to be a competent +Court. + +But murder, also, on the part of the nine military officers and the three +advocates who tried and sentenced this woman to death. These men, in the +forum of the law, stand in the precise position of any nine policemen +steered by any three police attorneys in the city of New York, who should +dare to try, convict and sentence to death a citizen of that city. + +Murder, not only on the part of the Commission and its lawyers; they too +might, possibly, plead--though with still diminishing force--that, +although they were warned and took the awful responsibility, still they +believed in their competency. + +But murder, also, in the President of the United States, who appointed the +court, approved its findings, and commanded the execution of its sentence. +He stands before the law in the same position as though, sweeping aside +all empty forms, he had seized a sword and with his own hand cut off the +head of the woman, without the mockery of a trial. In our frame of +government, there is surely no room for such a twi-formed +barbarian-despot, as a President having the power to pick out from the +army, of which he is the commander-in-chief, the members of a court to try +and punish with death, at his option, any one of the citizens, for an +abortive attempt on his own life. + +And it was murder, not only in the case of the President; he, too, but +with scarcely audible voice, might plead the coercion of his +situation--sitting as he did in the seat of the murdered Lincoln. + +But it was murder, also, in the Secretary of War, who initiated the +iniquitous process, pushed on the relentless prosecution, shut his own +ears and the ears of the President to all pleas for mercy, presided like a +Moloch over the scaffold, and kept the key of the charnel-house, where, +beside the unpitied carcasses of the reputed ruffians forced upon her in +her ordeal of torture and in the hour of death, the slaughtered lady lay +mouldering in her shroud. Here, at least, the plea of mitigation exhales +in a cry like that of Payne, "I was mad!" + +Weigh the extenuating circumstances in whatever scale you may; extend as +much mercy as possible to those who showed no mercy in their day of +power--still, the offense of every one and all, who had hand, part or lot +in this work of death, contains every element which, under the most +rigorous definition of the law, makes up the Crime of Murder. The killing +was there. The unlawful killing was there. The premeditated design to +effect death was there. The belief of the perpetrators, that they had a +right to kill, or that they were commanded to kill by an overruling power, +before a court of law avails not a whit. Ignorance of the constitution as +well as the law excuses no man, be he civilian or soldier, President or +assassin, War-Minister or Payne. + +Murder it essentially was, and as such it should be denounced to the +present and future generations. + +Garrett Davis told no more than the exact truth when he declared in his +place in the Senate of the United States: + + "There is no power in the United States, in time of war or peace, that + can legitimately and constitutionally try a civilian who is not in the + naval or military service of the United States, or in the militia of a + State in the actual service of the United States, by a court-martial + or by a military commission. It is a usurpation, and a flagitious + usurpation of power for any military court to try a civilian, and if + any military court tries a civilian and sentences him to death and he + is executed under the sentence, the whole court are nothing but + murderers, and they may be indicted in the State courts where such + military murders are perpetrated; and if the laws were enforced firmly + and impartially every member of such a court would be convicted, + sentenced and punished as a murderer." + +Although the actual guilt of any of the victims constitutes no legal +defense to this fearful charge, yet as the unquestioning obedience which +the soldier yields, as a matter of course, to the commands of his superior +officer must alleviate, if it do not wipe away, the guilt of the members +of the Commission, in the forum of morals; so the ascertainment that the +sufferers on the scaffold and in prison, in fact, deserved their doom, +cannot but blunt the edge of our condemnation of the iniquity of the +trial, as well as weaken our pity for the condemned and our sense of shame +over the tyrannous acts of the government. + +A word or two, therefore, will be appropriate in respect to the +sufficiency of the testimony to establish the guilt of the accused. + +I. As to Arnold and O'Laughlin, it may be said in one emphatic word, that +there was no evidence at all against them of complicity in the plot to +kill. The letter of Arnold to Booth shows, when fairly construed, that, if +the writer had conspired with the actor, he conspired to abduct; and, +also, for the time being, even that conspiracy he had abandoned. He was at +Fort Monroe for the two weeks prior to the assassination. His confession, +used on the trial against himself not only but also against O'Laughlin +because he was mentioned in it as present at a meeting of the +conspirators, was a confession only of a conspiracy to abduct which had +been given up. The condemnation of these two men was brought about by the +conduct of Judge Bingham, to which we have drawn attention, in +systematically shutting his eyes to the existence of any conspiracy to +capture, and employing the letter and confession as proof that both these +men were guilty of conspiracy to murder. + +II. As to Dr. Mudd, the evidence leaves it doubtful whether or not he +recognized Booth under his disguise on the night he set his broken leg, +and therefore whether he may have been an accessory after the fact or not; +but the testimony of the informer Weichman, by which chiefly if not solely +the prosecution sought to implicate the doctor in the conspiracy to +murder, was greatly damaged, if not completely broken down, by the proof +on the part of the defense that Dr. Mudd had not been in Washington from +November or December, 1864, until after the assassination. + +III. As to Payne, his guilt of the assault on Seward in complicity with +Booth was clear, and confessed by himself. He was but twenty years of age, +of weak mind, entirely dominated by the superior intellect and will of +Booth. He claimed he acted under the command of his captain. He was so +stolidly indifferent during the trial as to raise suspicion of his sanity, +and he repeatedly expressed his wish for the termination of the trial so +that he might cease to live. + +IV. As to the boy Herold, it was manifest that, as the mere tool and +puppet of Booth, he was acquainted beforehand with the design of his +master to kill the President, but there is no evidence that he aided or +abetted Booth in the actual assassination in any way except to participate +in his flight after he had got out of Washington. + +V. As to Atzerodt, for whom there appears to have been no pity or sign of +relenting, it is nevertheless a fact, that the testimony to his lying in +wait for Andrew Johnson is so feeble as to be almost farcical. The poor +German was a coward and never went near Johnson. There is no circumstance +in the evidence inconsistent with his own confession, that he was in the +plot to capture, knew nothing of the design to murder until 8 o'clock on +the evening of the 14th, and then refused to enact the part assigned him +by Booth. + +Indeed, it would appear as if the Commission, by a sort of proleptic +vision of the future course of the President in his desperate struggle +with the Congress, in grim irony actually hung Atzerodt because he did +_not_ kill Andrew Johnson. + +VI. And as to Mrs. Surratt, the only witnesses of importance against her +are Weichman and Lloyd. Without their testimony the case for the +prosecution could not stand for a moment. Weichman, a boarder and intimate +in her house, the college chum of her son, and, equally with him, the +associate of Payne, Atzerodt, Herold and Booth, who, frightened almost to +death at the outlook, was swearing, under a desperate strain, to clear his +own skirts from the conspiracy and thus save his threatened +neck:--Weichman's testimony before the Commission, even at such a pass, is +for some reason quite vague and indefinite, and only becomes deadly when +supplemented by Lloyd's. This man Lloyd it was who, in fact, furnished the +only bit of evidence directly connecting Mrs. Surratt with the crime. He +testifies to two conversations he had with her--one on the 11th and the +other on the 14th of April--when she alluded to the weapons left weeks +before at the hotel at Surrattsville owned by her and kept by Lloyd--on +the 11th, that the "shooting-irons" would be wanted soon; on the 14th, +that they would be called for that night. Lloyd, himself, however, admits, +and it is otherwise clearly shown, that on the 14th he was so drunk as +hardly to be able to stand up. Lloyd, also, was deeply implicated in the +conspiracy to capture if not to assassinate. He had aided the fugitive +assassins to escape, had kept their weapons hidden in his house, and he +had, for two days after his arrest, denied all knowledge of Booth and +Herold's stopping at his hotel at midnight after the murder. He had been +placed in solitary confinement and threatened with death. His nervous +system, undermined by debauchery, gave way; his terrors were startling to +witness and drove him well-nigh mad, and, at last, in a moment of +distraction, he turned against Mrs. Surratt and her son. Like Weichman's, +his, also, was the frenzied effort of a terror-stricken wretch to avoid +impending death by pushing someone forward to take his place. Reverdy +Johnson, at the close of his plea to the jurisdiction of the court, let +fall the following words, no less weighty for their truth than their +force: + + "This conclusion in regard to these witnesses must be, in the minds of + the Court, and is certainly strongly impressed upon my own, that, if + the facts which they themselves state as to their connection and + intimacy with Booth and Payne are true, their knowledge of the purpose + to commit the crimes and their participation in them, is much more + satisfactorily established than the alleged knowledge and + participation of Mrs. Surratt." + +Moreover, the testimony of both these witnesses, suborned as they were +alike by their terrors and their hopes, is perfectly reconcilable with the +alternative hypothesis, either that the woman in what she did was an +innocent dupe of the fascinating actor, or that she was unaware of the +sudden transformation of the long-pending plot to capture, of which she +might have been a tacit well-wisher, into an extemporaneous plot to kill. + +Much stress was laid by Mr. Bingham on her solemn denial of any prior +acquaintance with Payne when confronted with him on the night of her +arrest. But it is more than probable that the non-recognition was +unsimulated, because of the disguise and pitiable plight of the desperado, +who had been hidden in the mud of the suburbs three days and three nights, +and, also, because the non-recognition was shared with her by the other +ladies of the house. Besides, that a woman, caught in the toils in which +Booth and her own son had unwittingly involved her, under the terror of +recent arrest and imminent imprisonment, should have shrunk from any +acknowledgment of this midnight intruder, even to the extent of falsehood, +certainly is in no wise incompatible with innocence. + +These are the only circumstances by which Mrs. Surratt is brought nearer +than conjectural connection with the assassination, and the force of these +is greatly weakened by the testimony in her defense. + +It is neither necessary, nor relevant to this exposition, to enter into a +lengthy discussion upon the _pros_ and _cons_ of her case. Her innocence +has been demonstrated in a more decisive manner by subsequent events, and +stands tacitly admitted by the acts of the officers of the government. Few +impartial hearers would have said then, and no impartial readers will say +now, that the testimony against her is so strong as to render her +innocence a mere fanciful or even an improbable hypothesis. No one can say +that a jury, to a trial by which she was entitled under the Constitution, +would have pronounced her guilty, and every one will admit that had her +sentence been commuted to imprisonment for life, as five of her judges +recommended, she would have been pardoned with Arnold, Spangler and Mudd, +and might have been living with her daughter to-day. The circumstances of +the whole tragedy warrant the assertion that, had John H. Surratt been +caught as were the other prisoners, he, and not she, would have been put +upon trial; he, and not she, would have been condemned to death; he, and +not she, would have died by the rope. If he was innocent, then much more +was she. Mary E. Surratt, I repeat, suffered the death of shame, not for +any guilt of her own, but as a vicarious sacrifice for the presumed guilt +of her fugitive son. + + + + +PART II. + +THE VINDICATION. + + + + +CHAPTER I. + +SETTING ASIDE THE VERDICT. + + +When the President of the United States, the Secretary of War, the +Military Commission, the Judge-Advocates, and the Executioner-General had +buried the woman against whose life the whole military power of the +Government, fresh from its triumph over a gigantic rebellion, had been +levelled;--buried her broken body deep beneath the soil of the +prison-yard, in close contact with the bodies of confessed felons; +flattened the earth over her grave, replaced the pavement of stone, locked +the door of entrance to the charnel-house and placed the key in the +keeping of the stern Secretary;--they may have imagined that the iniquity +of the whole proceeding was hidden forever. + +But, _horribile dictu!_ the ghost of Mary E. Surratt would not down. It +troubled the breast of the witness Weichman. It haunted the precincts of +the Bureau of Military Justice. It pursued Bingham into the House of +Representatives. It blanched the laurels of the great War Minister. +Politics, history and the very vicissitudes of human events seemed +subservient to the vindication of this humble victim. + +Hardly had the delivery of the prisons of Washington, which followed the +close of the trial, taken place, before the man who, as he himself swore, +always had been treated as a son by the woman he betrayed, began to make +advances to her sorrowing friends. He pretended to make confession of his +perjury. He told a friend that his testimony would have been very much +more favorable had it not been dictated to him by the officers who had him +in charge; that the meeting of Lloyd and Mrs. Surratt was accidental, as +she and he (Weichman) had already started for home before Lloyd returned, +and only turned back because the buggy was discovered to be broken. The +traitor soon discovered that he made no headway by such disclosures, but +only met with a sterner repulse and a deeper loathing. His troubled soul +then turned to another quarter. It has been stated that his testimony on +the trial was somewhat indefinite and inconclusive. Complaints had been +uttered by the officers conducting the prosecution. It was proved upon a +subsequent occasion that one of these officers had actually threatened the +witness that he would hang as an accomplice in the assassination did he +not make his evidence more satisfactory. It appeared, also, that the +Secretary of War had promised to protect and take care of him. Driven back +by Mrs. Surratt's friends from his attempt at propitiation, Weichman +resolved that he would yet earn his reward by retouching his former +testimony so as to make it more definite and telling. He saw, at last, +that to save himself from everlasting ignominy he must, as far as in him +lay, make sure of the guilt of his victim. Actuated by these or similar +motives, he, on the 11th day of August, 1865, wrote out, and swore to, a +statement in which he, by a suspicious exercise of memory, detailed +conversations with Mrs. Surratt and significant incidents, all pointing to +complicity with Booth, no mention of which had been made on the trial, and +which this candid witness stated "_had come to my_ (his) _recollection +since the rendition of my_ (his) _testimony_." + +This affidavit, containing (if true) more evidence of the guilt of Mrs. +Surratt than his whole testimony on the trial, but, on the other hand, +drawn up to suit himself without fear of cross-examination--he transmitted +to Colonel Burnett, who, as though he, too, distrusted the sufficiency of +the evidence against the dead woman as it had been actually given on the +trial, was careful to append the _ex parte_ statement to the published +report. + +Weichman, at length, gets his reward in the shape of a clerkship in the +Custom House at Philadelphia. + +But the final breaking down of the fabric of testimony against the leaders +of the rebellion, as instigators of the assassination, threw consternation +into the Bureau of Military Justice and the Cabinet. Jefferson Davis was +still confined in Fort Monroe, and two companies of United States +soldiers, who had fought and shed each other's blood in their eagerness to +be the first to seize the fugitive, were already quarreling over the +$100,000 reward for his arrest as an accomplice of Booth. Clement C. Clay, +for whose arrest $25,000 reward had been offered, as another accomplice, +was also still in the hands of the authorities. Jacob Thompson, George N. +Sanders and Beverly Tucker, for the arrest of each of whom $25,000 had +been offered, were still at large. Every one of these men, it should be +borne in mind, had been pronounced guilty by the military board which had +condemned Mrs. Surratt. John H. Surratt, her son, for whose capture an +enormous reward had been offered both by the Government and by the City of +Washington, and whom the Military Commission had condemned as the +go-between of the President of the Confederacy and his agents in Canada in +the instigation of the murderous conspiracy, and also as the active aider +and abettor of both Booth and Payne in the perpetration of their bloody +crimes; he, too, had so far eluded all efforts to find even his +whereabouts. It is only fair to presume that the astute lawyers connected +with the Bureau of Military Justice must have had serious misgivings from +the first, concerning the testimony of the spies, Montgomery, Conover and +others, going to implicate Davis and the Canadian Rebels in the +assassination. Such testimony was hearsay or secondary evidence at best; +and they could have cherished no hope that such loose talk and the +fragmentary repetition of letters heard read would ever be allowed to pass +muster by an impartial judge in a civil court. And they had reason to +believe that public opinion would not tolerate the experiment of another +military commission. As early as July, 1865, an attempt was made to buy +the papers of Jacob Thompson, among which it was supposed were the +criminatory letters of Davis; and Attorney-General Speed was dispatched +with $10,000 government money to effect the purchase. William C. Cleary, +for whom $10,000 reward had been offered as one of the conspirators, and +who had just been found guilty by the Military Commission, was to deliver +the letters and receive the money. Speed met Cleary at the Clifton House, +but the latter, in the meanwhile, had seen in a newspaper a portion of the +testimony before the Military Commission implicating him, and he utterly +refused to give up the papers, as he had to rely upon them, as he said, to +vindicate himself. The shadows thus began to darken over the credibility +of the corps of spies that the Bureau had employed. Indictments for +perjury against Montgomery, Conover and other paid witnesses began to be +talked of. Friends, and enemies as well, of the imprisoned ex-President +began to clamor for his trial or release. Even the implicated agents in +Canada showed a bold front, and professed a willingness to meet the +terrible charge if guaranteed a trial by jury. A jury! A jury of twelve +men! Trial by jury! If there was anything that could shake the souls of +the members of the Bureau of Military Justice, it was to hear of trial by +jury. It was a damnable institution. It impeded justice. It screened the +guilty. It was beyond control. It could not be relied on to convict. And +yet it was to this tribunal they foresaw they must come. + +In September, 1865, embarrassing news arrived at the Department of State. +The consul at Liverpool informed the American Minister at London that John +H. Surratt was in England and could be extradited at any time. Here was +the villain who was, with Booth, the prime mover of the conspiracy and the +active accomplice of Booth and Payne in their work of blood. At least, so +the Military Commission found, who hung his mother in his stead. And yet +the United States Government informed Mr. Adams, and Mr. Adams so informed +the consul, that the Government did not intend to prosecute. On the 24th +of November ensuing, the War Department, by general order, revoked the +"rewards offered for the arrest of Jacob Thompson, Beverly Tucker, George +N. Sanders, William S. Cleary and John H. Surratt." Where now was the +redoubtable Bingham who, over and over again, had assured the Commission +he guided of the unmistakable guilt of all these persons? The whole theory +of the Secretary of War, which he had preconceived in the midst of the +panic following the assassination, that the murder of the President was +the outcome of a deep-laid and widespread conspiracy, of which Jefferson +Davis was the head and Booth and Payne the bloody hands--this theory, +which the Bureau of Military Justice, aided by Baker and his detectives, +had so sedulously labored to establish, and which Judge Bingham had so +persistently pressed upon the nine military men who composed the Court, to +the exclusion of any such hypothesis as a plot to capture--this +preconceived theory all at once fell to the ground. The perjured spies, +who had been the willing and paid tools to build it up, were about to be +unmasked and their poisoned fangs drawn. After no great interval, Conover +was, in fact, convicted of perjury in another case, and sentenced to +imprisonment in the Albany penitentiary. The whole prosecution of the +so-called conspirators, from its inception to its tragic close, turned out +to have been founded on an enormous blunder. The findings of the +Commission were falsified. Whatever the guilt of the doomed victims, they +were not guilty of the crime of which they were convicted. The terrible +conspiracy, stretching from Richmond to Canada, and from Canada back to +Washington, involving statesmen and generals, and crowning the wickedness +of rebellion with the Medusa-head of assassination, shrank into the +comparatively common-place and isolated offense of the murder of Lincoln +and the assault upon Seward, suddenly concocted by Booth, on the afternoon +of the 14th of April, in wild despair over the collapse of the rebellion. +In such a predicament, the hanging of Mrs. Surratt could not have been a +pleasing reminiscence to the Secretary of War, to Judge-Advocate Holt, or +to the hangers-on of the Bureau of Military Justice. At such a moment they +certainly had no use for her son John. + +On the 12th of November, Preston King, who held one side of the door of +the White House while the daughter of Mrs. Surratt pleaded for admission, +walked off a ferry-boat into the Hudson River, with two bags of shot in +the pockets of his overcoat, and was seen no more. This event might have +passed as a startling coincidence, to be interpreted according to the +feelings of the hearer, had it not been followed by the suicide of Senator +James S. Lane, who held the other side of the door, and who, on the 11th +day of July, 1866, blew his brains out on the plains of Kansas. That these +two men had together stood between the President and the filial suppliant +for mercy, in a case of life and death, and that, then, within a year, +both had perished by their own hands, aroused whispers in the air, caused +a holding of the breath and a listening, as if to catch the faint but +increasing cry of innocent blood, coming up from the ground. + +When the Congress met in December, 1865, the leaders of the dominant party +were in a fierce and bitter humor. The Rebellion had been suppressed, the +South subjugated and its chiefs captured, yet no one--not even the +arch-traitor Davis--had been hung. And, more deeply exasperating still, +the man they had elected Vice-President, and who had thus succeeded the +martyred Lincoln, upon whom their hopes had been fixed to make treason +odious, to hang the leaders higher than Haman, and to set aside the humane +policy of reconstruction his predecessor had already outlined and +substitute a more radical and retributive method--this man, whose precious +life had been providentially spared from the pistol of the assassin to be +the Moses of the colored people, and for harboring any such blasphemous +purpose as lying in wait for him, a Court, appointed by himself and whose +sentence he himself had approved, had hung a bewildered German--why this +man had already shown himself a renegade, was bent on a general amnesty, +appeared to have forgotten the assassination, was already hobnobbing with +southern traitors, and was attempting to carry out a policy of +reconstruction in the South, the result of which could be nothing less +than the dethronement of the party who had brought the war for the Union +to a triumphant end. These men resolved that such treachery should be +balked at whatever cost. Ignorant as yet of the tainted character and of +the break-down of the evidence adduced to show Confederate complicity in +the assassination, the House of Representatives passed resolutions calling +for the trial of Jefferson Davis for treason and for the other crimes with +which he was charged; the ill-starred Bingham, once again in the House, +insisting that the Confederate Chief should be put upon trial before a +military tribunal for the same offense of which his former court had found +him guilty in his absence. The House appointed a committee to investigate +the complicity of Davis and others in the assassination, and in July, +1866, through its chairman, Mr. Boutwell, made a report, followed by a +resolution, "that it is the duty of the executive department of the +Government to proceed with the investigation of the facts connected with +the assassination of the late President without unnecessary delay, that +Jefferson Davis and others named in the proclamation of President Johnson +of May 2d, 1865, may be put upon trial," which was adopted _nem. con._ In +this action, little as they reeked, these radical politicians were the +unconscious tools of that Nemesis which stalks after lawlessness and +triumphant crime. This resolution, and the news that John H. Surratt had +been betrayed by one of his comrades in the Papal Zouaves into the hands +of the Roman authorities, who had detained him to await the order of the +American Government, and that the prisoner had escaped from his guard and +fled to Malta, forced the Department of War to revoke the order of +November, 1865, withdrawing the reward for the arrest of the fugitive. + +Meanwhile the great contest over the reconstruction of the South waxed +fiercer and fiercer. Congress, during this session, became farther and +farther alienated from the President, so that when that body met in +December, 1866, the reckless majority in both Houses united in the resolve +to get rid of Andrew Johnson, not indeed by the bloody method employed by +Booth, but by the no less efficient, though more insidious and less bold, +expedient of impeachment by the House and conviction by the Senate. No +sooner had Congress convened than Mr. Boutwell made an attack upon the +Executive for its dilatory action in the arrest of John H. Surratt, +stating that he had reason to believe that the Government knew where the +assassin was the May before. A committee appointed to investigate the +matter made a report just at the close of the session obliquely censuring +the Executive Department for its lack of diligence in effecting the +arrest. On January 7th, 1867, the famous Ashley introduced his resolutions +impeaching Andrew Johnson. The Judiciary Committee, to which they were +referred, took testimony during the winter and made a report at the close +of the session that it was unable to complete the investigation, and +handed it over to the Fortieth Congress. That Congress met immediately at +the close of the Thirty-ninth, and the testimony already taken was +referred to the Judiciary Committee of its House, which proceeded with the +matter during the spring and summer, and in November, 1867, after the +recess; with the final result of a failure to pass the resolution of +impeachment reported by a bare majority of the committee. + +In process of this investigation all sorts of accusations and charges were +made against the President. His enemies now employed the very same weapons +against him which had been employed to convict the alleged assassins of +his predecessor and the alleged conspirators against his own life. General +Baker and his detectives, Conover and his allies, appear once more upon +the scene. They actually invaded the privileged quarters of the White +House and stationed spies in the very private apartments of the President. +This time, however, they are ready to swear, and in fact do swear, not to +having seen letters from Jefferson Davis to his agents in Canada advising +assassination, but letters from Andrew Johnson to Davis squinting in that +direction. They actually charged the President with being an accomplice in +the assassination of Abraham Lincoln. Forgetting that a human being had +been hung for lying in wait to kill Andrew Johnson as a part of a general +conspiracy to murder the heads of the Government, these desperate men +propose to impeach the President for being an accomplice in his own +attempted murder. Ashley openly denounced him, in the House of +Representatives on the 7th of March, 1867, as "the man who came into the +Presidency through the door of assassination," and alluded to the "dark +suspicion which crept over the minds of men as to his complicity in the +assassination plot," and "the mysterious connection between death and +treachery which this case presents." Ashley had private interviews in the +jail with Conover and Cleaver, who were confined there for their crimes, +and they assured him of the guilt of Andrew Johnson. They furnished him +with memoranda and letters purporting to show that Andrew Johnson and +Booth were in communication with each other before the murder of Lincoln, +and that Booth had said before his death that if Andrew Johnson dared go +back on him he would have him hung higher than Haman. To such preposterous +stuff, from professional perjurers, did the zealous Ashley seriously +incline. + +It was during this investigation that the evidence given by Secretaries +Seward and Stanton and by Attorney-Generals Speed and Stansbery, +demonstrated the utter futility of an attempt to establish complicity in +the assassination on the part of Davis, Thompson and the rest, by +witnesses who had been shown, in other cases, to be unworthy of a +moment's belief. + +While the impeachers were in the very act of pursuing the President as an +accomplice in the murder of Abraham Lincoln, while the mighty Bingham, who +had so eloquently defended President Johnson before the Military +Commission against the charge of usurpation of power, and so bitterly +denounced Jefferson Davis for alluding to Johnson as "The Beast," now, +with a complete change of tune, was clamoring for the impeachment of "his +beloved Commander-in-Chief;"--Jefferson Davis, himself, is brought, by +direction of the Secretary of War, in obedience to a writ of habeas +corpus, before the United States Court at Richmond; there, without a word +of remonstrance, transferred to the custody of the civil authority; and +forthwith discharged on bail, Horace Greeley, who had never seen him +before, becoming one of his bondsmen. Since that day in May, 1867, no +attempt has ever been made to call the ex-President of the Southern +Confederacy to account as one of the conspirators in the murder of +Lincoln. Clay had been let go on parole as long before as April 19th, +1866; his property was restored to him in February, 1867; and proceedings +under an indictment found against him for treason and conspiracy, +indefinitely suspended on the 26th of March of the same year. Thompson and +Sanders and Tucker returned to their country and appeared unmolested +amongst us. Jefferson Davis died recently full of years and honors. At +the death of Thompson, the flags of the Interior Department were lowered +half-mast. Tucker was appointed to office not long ago by President +Harrison. And all this, notwithstanding the Judge-Advocate had assured the +Military Commission that the guilt of these men was as clear as the guilt +of Booth or of Surratt, notwithstanding the Military Commission under his +guidance so found, and, had these men been present before that tribunal, +would doubtless have hung them on the same scaffold with Mrs. Surratt. + +It was during this same investigation, that the diary of Booth, which had +been so carefully concealed by the War Department and the Bureau of +Military Justice from the Military Commission, was unearthed. Its +publication produced a profound sensation, as it made clear the reality of +a plan to capture the President; a plan, which had been blasted by the +collapse of the Rebellion and, only at the last moment and without +consultation, arbitrarily superseded by a hurried resolution to kill. When +produced by Judge Holt before the committee, its mutilated condition gave +rise to a terrible suspicion. Holt, himself, and Stanton were confident +the book was in the same condition as when they first saw it. Colonel +Conger, also, though not positive, thought it was unchanged since he took +it from the dead body of Booth. But, to the great wonder of everybody, the +distinguished detective, General Baker, testified, and stuck to it with +emphasis when recalled, that, when he first examined the diary before it +was lodged with the Secretary of War, there were no leaves missing and no +stubs, although the diary, as exhibited to the committee, showed by means +of the stubs remaining that sixteen or twenty leaves had been cut or torn +out. The disclosures made by the production of the diary, together with +the fact of its suppression, stirred the soul of General Butler; and, in +this way, it came about that the ghost of Mrs. Surratt stalked one day +into the House of Representatives. Judge Bingham, in his rollicking way, +was upbraiding General Butler for having voted for Jefferson Davis fifty +times as his candidate for President, and slurring his war record by +calling him "the hero of Fort Fisher;" when, suddenly, at the petrific +retort of his adversary that "the only victim of the gentleman's prowess +was an innocent woman hung upon the scaffold!" the spectre stood before +him, forcing, as from "white lips and chattering teeth," the exclamation +of Macbeth: "Thou canst not say I did it!" + +"Look to the true and brave and honorable men who found the facts upon +their oaths and pronounced the judgment!" he retorted, clutching at the +self-soothing sophistry of the murderer of Banquo, ignoring the fact that +he himself was a part of the tribunal and virtually dictated the +judgment. + +Another discovery was made by the Judiciary Committee in the "Article" +which, as recorded in his diary, Booth had left behind him for publication +in the National Intelligencer. John Matthews, a fellow actor and an +intimate friend of the assassin, testified that on the afternoon of the +14th of April Booth had met him in the street and left with him a letter +directed to that newspaper, to be delivered in the morning. The witness +was on the stage of the theatre that night at the time the fatal shot was +fired, and, in the confusion that followed, he called to mind the +communication. Hurrying to his lodgings he opened the envelope, read the +letter, and, fearing to be compromised by the possession of such a +document, burnt it up. The substance of the letter, as near as Matthews +could recollect, was that for a long time he (Booth) had devoted his +money, time and energies to the accomplishment of an end, but had been +baffled. "The moment has at length arrived when my plans must be changed. +The world may censure me for what I do; but I am sure that posterity will +justify me." And the communication was signed (all the names being in the +hand-writing of Booth): "Men who love their country better than gold or +life. J. W. Booth, ---- Payne, ---- Atzerodt, ---- Herold." + +The significance of this piece of testimony was negative. The name of +Surratt was not there. + +One suggestive circumstance was called out in the testimony of Secretary +Seward and General Eckert. It appeared that Payne before his trial had +talked with General Eckert about his motives and movements in the assault +upon the disabled Secretary of State, the particulars of which +conversation Eckert had related to Seward, after the recovery of the +latter from his wound, and had promised to reduce to writing. Among other +things, Payne had said that he and Booth were in the grounds in front of +the White House on the night of Tuesday, the 11th of April, when Abraham +Lincoln made his speech of congratulation on the fall of Richmond and the +surrender of Lee; and that on that occasion Booth tried to persuade him to +shoot the President as he stood in the window, but that he would take no +such risk; and that Booth, turning away, remarked: "That is the last +speech he will ever make." + +Such an incident is consistent only with the theory that the assassination +plot was concocted at the last moment as a forlorn hope, and that, if +there had been any conspiracy, it was a conspiracy to capture. It is easy +to see why the Bureau of Military Justice suppressed this testimony also, +because, although it bears hard upon Payne himself, and Herold, and +possibly John Surratt, it renders it highly improbable that Mrs. Surratt +was aware of any design to kill. + +Even such a fragmentary review, as the foregoing, of the public history of +the two years succeeding the execution--which any reader may complete, as +well as test, for himself by referring to the Congressional Globe of that +period, to the printed reports of the Committee, and to the leading +newspapers of the day--is sufficient to indicate how the general tendency +of events, and every event in its place, appear to have conspired to the +accomplishment of one result,--the setting aside, in the public mind, of +the verdict of the Military Commission in the case of Mrs. Surratt. + +This was not done by a direct assault upon that tribunal, or upon its mode +of procedure; not even upon the character of the witnesses against the +particular culprit, nor upon the weakness of the case made against her. +These points of attack were all passed by, and the verdict was taken on +the flank. + +The condemnation of the woman was subverted by the _wind_, so to speak, of +passing events. + +The irrepressible conflict between the President and the Congress; the +consequent schism in the very ranks of the triumphant conquerors; the +insane charge against Andrew Johnson of complicity in a conspiracy against +his own life, supported by the incredible statements of the very witnesses +who were responsible for the charge of complicity against Jefferson Davis +and others; the final and complete exposure of the fiction of a conspiracy +to assassinate, either by the Confederate authorities, or anybody else; +and the true, historical character of the Assassination of Abraham +Lincoln;--all combined to shake the edifice of guilt, which the Bureau of +Military Justice had so carefully built up around their helpless victim, +upon such an aerial foundation. Whilst the gradual abatement of that +furious uncharitableness, which in the hey-day of the war could find +nothing not damnable in the Southern people, and no secessionist who was +not morally capable either of murder or of perjury in its defense or +concealment, was, surely but imperceptibly, clearing up the general +atmosphere of public opinion, and thus preparing for the cordial reception +of such a measure of retributive justice, as Time, with his sure revenges, +was daily disclosing to be more and more inevitable. + +The Milligan decision dissipated the technical jurisdiction of the +Commission. But lawyers could still distinguish, and the hyperloyal could +still maintain the essential rightfulness of the verdict. + +But the explosion of the great assassination conspiracy; the nol-pros. of +the awful charge against Jefferson Davis, Clement C. Clay, Jacob Thompson, +and their followers--a crime, which, if capable of proof, no government on +earth would have dared to condone--discredited forever the judgment of the +Military Commission, reopened wide all questions of testimony, of +character, of guilt or innocence, and summoned the silent and dishonored +dead to a new and benignant trial. + + + + +CHAPTER II. + +REVERSAL UPON THE MERITS. + + +The new trial was in fact at hand. In the summer of the year 1867, the +interest excited by the investigation of the Judiciary Committee of the +House of Representatives, referred to in the last chapter, suddenly became +merged into the intenser and more widespread interest excited by the trial +of John H. Surratt in the Criminal Court of the District of Columbia. + +Surratt, after escaping from his captors in Italy by leaping down a +precipice, fled to Malta and thence to Alexandria, where, on the 21st of +December, 1866, he was recaptured and taken on board the United States +vessel "Swatara." In this vessel, bound hand and foot, the prisoner +arrived at Washington on the 21st of February following. Thus the radicals +in Congress, impelled by their growing enmity to the President over the +reconstruction contest, by scattering abroad sinister intimations that the +cause of his remissness in bringing to punishment the accomplices of the +convicted assassins was fear for himself of a full investigation of the +assassination, succeeded at last in forcing the Executive Department, +apprehensive, as it had good reason to be, of the shadows which any future +trial in the civil courts was likely to reflect back upon the Military +Commission, and aware of the breaking down of the case against the +Canadian confederates and Jefferson Davis, face to face with the necessity +of ratifying the conviction of the mother by securing the conviction of +the son. On the one hand, the radicals, in blind ignorance of the true +inwardness of affairs, clamored for the trial, in the hope that the guilt +of the prisoner's supposed accomplices, Davis and Company, and possibly of +the President himself, might be detected. On the other hand, the +administration, now that the man had been forced upon its hands, knowing +the futility of the hope of its enemies, pushed on the trial in the hope +that, with its powerful appliances, a result could be obtained which would +vindicate the verdict of the Military Commission. No one on either side, +however, so much as dreamed of renewing the iniquity of a trial by +court-martial. Amid the silence of the Holts and the Binghams and the +Stantons, Surratt was duly indicted by a grand jury for the murder of "one +Abraham Lincoln," and for conspiring with Booth, Payne, Atzerodt, Herold +and Mary E. Surratt to murder "one Abraham Lincoln," which conspiracy was +executed by Booth. There was no averment about the traitorous conspiracy +to murder the heads of Government, in aid of the rebellion; nor were the +names of Dr. Mudd, O'Laughlin, Arnold or Spangler, then undergoing +punishment on the Dry Tortugas, inserted as parties to the conspiracy; nor +was any mention made of Seward or Johnson or Grant, as among the +contemplated victims. All was precise and perspicacious, as is required in +pleadings in the civil courts. The loose, vague, indefinite and impalpable +charges permissible, seemingly, on military trials, gave place to plain +and simple allegations, such as an accused person might reasonably be +expected to be able to meet. On Monday, June 10, 1867, while the +investigation before the Judiciary Committee of the House was still going +on, while the sensation produced by the sight of Booth's diary and by +Matthews' disclosures was still fresh, while the echoes of the encounter +of Bingham and Butler still lingered in the air, the momentous trial came +on. Great and unprecedented preparations had been made by the prosecution. +Again the country was ransacked for witnesses, as in the palmy days of +Baker and his men. Again the Montgomeries and other Canada spies haunted +the precincts of the District Attorney's office, willing as ever to swear +to anything necessary to make out the case for the prosecution. Even the +voice of Conover was heard, _de profundis clamavi_, from his dungeon cell. +The Bureau of Military Justice started into active life, and Holt and his +satellites bestirred themselves as though fully conscious of the impending +crisis. Indeed, every one of these officials, from the President and the +Secretary of War down to the meanest informer and hired hangman, who had +had anything to do with the trial and execution of Mary E. Surratt, felt +as if he, too, was to be put on trial in the trial of her son. A Court +recognized in, and drawing its life and jurisdiction from, the +Constitution was to act as a court of appeal to review the process and +judgment of that extra-constitutional tribunal, which had, summarily and +without legal warrant, put a free American woman to a felon's death. A +Daniel in the shape of a jury--a common law jury--a jury of +civilians--unadorned by sword, epaulette or plume--a jury guaranteed by +the Bill of Rights--a Daniel had come to judgment! The Shylocks of the +days of arbitrary power dropped their sharpened knives and ejaculated, "Is +that the law?" + +Great, assuredly, must have been the flurry of the once omnipotent Bureau, +when it was ascertained that the tribunal before which it must come could +not be "organized to convict;" that there could be no soldiery around the +Court, no shackles on the prisoners or the witnesses for the defense, no +prosecuting officers in the jury room. Everything must be done decently +and in order, with the same calm dignity, unruffled composure, the same +presumption of the innocence of the accused, as though the murdered man +had been the humblest citizen of the land. One great advantage, however, +the prosecution managed to secure. A Judge was selected to preside whom +they could rely on, as "organized to convict." But this was the sole +reminiscence of the unbridled reign of the military only two years before. +A jury of twelve intelligent men, some of them the best citizens of the +District, was speedily obtained to the evident satisfaction of both the +people and the prisoner,--and the succeeding Monday, the 17th, the +struggle began. + +As we have given the names of the members of the Court which tried the +mother, we may be pardoned for giving the names of the jurors who tried +the son. Although there were no major-generals among them, they are +entitled to the honor of being within, and not without, the ægis of the +Constitution. + +The jurors were W. B. Todd, Robert Ball, J. Russell Barr, Thomas Berry, +George A. Bohrer, C. G. Schneider, James Y. Davis, Columbus Alexander, +William McLean, Benjamin Morsell, B. E. Gittings, W. W. Birth. + +They were thus spoken of by the District Attorney: + +"It is a matter of mutual congratulation that a jury has been selected +agreeable to both parties; the representatives of the wealth, the +intelligence, and the commercial and business character of this community; +gentlemen against whose character there cannot be a whisper of suspicion. +I would trust you with my life and my honor; and I will trust you with the +honor of my country." + +The scene which the court-room presented, when the Assistant District +Attorney arose to open the case for the United States, afforded a speaking +contrast to the scene presented at the opening of the Military Commission. +The Court was not held in a prison, and there was an entire absence of the +insignia of war. The doors of the court-room were wide open to the +entrance of the public, not locked up in sullen suspicion, and the keys in +the hands of the prosecuting officer. The counsel for the prisoner +confronted the jury and the witness-stand upon an equal line with the +counsel for the United States; and there was neither heard, seen, nor +surmised, in the words or bearing of Edwards Pierrepont, the leading +counsel for the prosecution, any of the insolence and supercilious +condescension shown in the words and bearing of John A. Bingham. + +As the prisoner entered the court and advanced to the bar, no clank of +fetters jarred upon the ear; and, as he sat at his ease by the side of his +counsel, like a man presumed to be innocent, the recollection of that wan +group of culprits, loaded down with iron, as they crouched before their +imperious doomsmen, must have aroused a righteous wrath over the barbarous +procedure of the military, in comparison with the benign rules of the +civil, tribunals. The atmosphere surrounding the court and the trial +seemed, also, to be free from passion and prejudice, when contrasted with +the tremendous excitement and the thirst for blood, which permeated the +surroundings of the Military Commission. Although the Bureau of Military +Justice had busied itself in the prosecution, and thrust its aid on the +office of the District Attorney; although the whole weight of the federal +administration was thrown in the same direction to vindicate, if possible, +the signature of the President to the death warrant of the victims of his +military court; and notwithstanding the presence upon the bench of a judge +"organized to convict:" still, so repellant to partial passion were the +precincts of what might fitly be styled a temple of justice, a neutral +spectator might feel reliance that in that chamber innocence was safe. + +But there was one sentiment hovering over the trial and dwelling in all +bosoms, which clothed the proceedings with a peculiar awfulness. All felt +that the dead mother was on trial with the living son. She had been +executed two years before for the same crime with which he was now +charged. And, as he stood in the flesh, with upraised hand, looking at the +jury which held his life in its hands, it required no great effort of +fancy to body forth the image of his mother, standing beside him, +murmuring from shadowy lips the plea of not guilty, amid the feeble +repetitions of which, to her priest, she had died upon the scaffold. To +convict her son, now, by the unanimous verdict of twelve men, and punish +him according to law, would go far to condone the unconstitutional trial +and illegal execution of the mother. Whereas, on the other hand, the +acquittal of her son of the same crime, by the constitutional tribunals +of the country, would forever brand the acts of the Military Commission as +murder under the forms of military rule. This dread alternative met the +prosecution at the threshold of the trial, oppressed them with its +increasing weight during its progress, and tarried with them even at its +close. It appeared in the indictment, where the name of the mother, as one +of the conspirators, was associated with the name of her son. It appeared +in the examination of the jurors, when Judge Pierrepont endeavored to +extract from them whether they had formed or expressed an opinion as to +the guilt or the innocence of the prisoner, not only, but also as to the +guilt or the innocence of his mother. It appeared during the taking of +testimony, where evidence bearing upon the guilt of Mrs. Surratt alone was +admitted at all times as evidence against her son. It appeared in the +argument of the District Attorney, when he compares the mother of the +prisoner to Herodias and Lucrezia Borgia, and "traces her connection with +the crime" and "leaves it to the jury to say whether she was guilty;" +where he pleads, like Antony, in behalf of the members of the Military +Commission that they were "all honorable men," and were not to be blamed +for obeying the orders of the President. It appeared in the arguments of +the counsel for the prisoner, when Mr. Merrick taunted the Government that +they were pressing for a verdict to "vindicate the fearful action they +had committed;" when he appealed to the jury to "deal fairly by this young +man," "even if the reputation of Joseph Holt should not have the +vindication of innocent blood;" when he invoked the spirit of Mrs. Surratt +as a witness for her son, and rebuked the prosecution for objecting to the +admission of her dying declaration when they were putting her again on +trial though dead; when Mr. Bradley charged that for four weeks and more +they had been trying Mrs. Surratt and not her son, and denounced Weichman +and Lloyd, avowing that "the proof against her was not sufficient to have +hung a dog" and was "rotten to the core." It appeared in the speech of +Judge Pierrepont, when he flourished the record of the Military Commission +before the jury, and asserted that the recommendation of Mrs. Surratt to +mercy was attached to it; in his avowal of his belief in her guilt; in his +extolling the jury as a tribunal far more fit for the trial of such crimes +than any military court; and in his covert threat that the people would +punish the City of Washington by the removal of the Capitol, if the jury, +by their verdict, did not come up to the high standard erected for them. +And, lastly, it appeared in the charge of the Judge, which is a model of +what a one-sided charge ought to be. It opens with the words of the Old +Testament: "Whoso sheddeth man's blood, by man shall his blood be shed." +Then follows a sneer at the "sentimental philosophers," who were opposed +to capital punishment. Then the Court inveighs against some imaginary +advocates, who argued that to kill a king was a greater crime than to kill +a president; and then casts an imputation upon the integrity of the +decision in the Milligan Case, as "predicated upon a misapprehension of +historic truth," and that therefore "we could not perhaps have looked for +a more rightful deduction," "all loyal hearts" being "unprepared for such +an announcement." The Judge, then, holds that the Court will take judicial +cognizance that the crime charged was the murder of the President of the +United States, and a more heinous offense than the murder of a simple +individual. He, then, complacently sets aside the rule of Sir Matthew +Hale, implicitly followed since, as he himself admits, by "writers and +judges seeming contented with his reasons or indisposed to depart from his +principles," as "not very satisfactory to my (the Judge's) mind;" and +accordingly he declares that, in felonies of such high grade, as in cases +of treason, there can be no accessories before the fact, but all are +principals; and, to support this conclusion, he then cites and details at +length two cases, apparently overruling Sir Matthew beforehand; (as he +says) "reported in that book of highest authority known among Christian +nations, decided by a judge from whose decision there can be no appeal and +before whose solemn tribunal all judges and jurors will in the great day +have their verdict and judgments passed in review." One, the case "of +Naboth and Ahab, contained in the 21st chapter of the First Book of +Kings," the other, "that of David and Uriah, recorded in the 11th chapter +of Second Samuel;" at the end of the statement of which case the Judge +remarks, "this judgment of the Lord was not that David was accessory +before the fact of this murder, but was guilty as the principal, because +he procured the murder to be done. It was a judgment to the effect that he +who does an act by another does it himself, whether it be a civil or a +criminal act." This extraordinary deliverance closes with an echo of Judge +Pierrepont's warning to the jury, to uphold by their verdict the District +of Columbia, as a place for "the public servants, commissioned by the +people of the nation, to do their work safe and sacred from the presence +of unpunished assassins within its borders." + +It would be foreign to our purpose, as well as tedious to the reader, to +examine in detail the testimony given on this trial. One conclusion--and +that is the important thing--is certain. It is true, beyond the shadow of +a doubt, that the prosecution made an incomparably stronger case against +Surratt than was made against his mother. They had but one culprit at whom +to direct their aim, and they made a far more desperate and thorough-going +effort to convict, because of the known unreliability of a jury to do what +the prosecution might tell them to do without the aid of proof. Before a +Military Commission, tossed about by the passions of its members and +steered by Judge-Advocates, the accusers could afford to be careless of +gaps in their scheme of proof, missing links in the chain of +circumstantial evidence. Not so now and here. Vehement affirmation without +evidence availed nothing. Curses against treason, traitors, disloyalty, +apostrophes to the imperiled Union, tears over the beloved +Commander-in-Chief, could fill no void in the testimony. Of course, there +was no such outrage against not only the elementary rules of evidence, but +against ordinary decent fairness, as an attempt to introduce testimony of +the horrors of Libby Prison and Andersonville; but the door looking in +that direction was opened as wide as possible by the eager Judge. All the +material testimony given upon the "Conspiracy Trial" against Mrs. Surratt, +not only, but also against Payne, Herold, Atzerodt, Arnold and O'Laughlin, +was reproduced here. The direct testimony on the part of the United States +occupied from June 17th to July 5th, and in that period eighty-five +witnesses were examined. On the Conspiracy Trial, the direct case consumed +the time from May 12th to May 25th, and about one hundred and thirty +witnesses were examined against the eight accused persons, not only, but +also against the eight accessories, headed by Jefferson Davis, included in +the charge, the testimony ranging over the whole rebellion and including +Libby, Andersonville, Canada, St. Albans, and projected raids on New York, +Washington and other cities. Every witness, whose testimony on the former +trial had the remotest bearing upon the question of the guilt or innocence +of Mrs. Surratt, once more showed his face and retold his story. + +Lloyd was there, compelled, despite his superstitious reluctance to speak +against a woman now she was dead, to rehearse the tale which his terrors +had evolved out of his drunken imagination. This time, however, his +sottish memory or failure of memory, his fright at the time of his arrest, +his repeated denials of the visit of Booth and Herold, his temptations and +bribes to accuse his landlady, were, under the keen cross-examination of +the counsel for the prisoner, fully exposed. + +Weichman "came also:" this time with his story carefully elaborated, +touched and retouched here and there, and written down beforehand. He had +been engaged for three or four months in aiding the prosecution, had +prepared a carefully detailed statement for the use of the Assistant +District Attorney, and now openly acknowledged that "his character was at +stake" in this trial, and that he "intended to do all he could to help the +prosecution." He had conned over and over again the report of his evidence +on the Conspiracy Trial, had corrected it to meet objections subsequently +made and to eliminate discrepancies and contradictions, and had thus +brought its several disjointed parts into some logical sequence; he then +had added to it the incidents and conversations disclosed for the first +time in the affidavit sent to Colonel Burnett, which was appended to the +published report of the trial, to which allusion has been made; and, now, +in the final delivery of his deadly charge, coolly averring that his +memory was much more distinct now than at the time of the former trial two +years ago, he, with a superadded concentrated venom, flavored his +narrative with a few damning incidents never heard of before--one, the +most poisonous of all, that on the evening of the fatal 14th, while Booth +was about his murderous work, Mrs. Surratt was pacing her parlor floor +begging her pious boarder "to pray for her intentions." This time, +however, the witness did not escape unscathed. When he emerged from the +skillful hands of Mr. Bradley, his malicious and sordid _animus_ laid +bare,--his self-contradictions, his studied revisions, his purposeful +additions to his testimony, exposed--his intimacy with the conspirators, +his terrified repentance, his abject self-surrender and his cowardly +eagerness to shift his peril upon the head of his protectress,--and then +his simulated remorse and his later recantation--all made clear--he was an +object of loathing to gentlemen; a stumbling block to the philanthropist; +to the indifferent, an enigma; and to the common man, a perpetual +provocation to a breach of the peace. + +Twelve witnesses testified that they saw John H. Surratt in Washington on +the 14th of April, only one of whom had testified to that effect on the +other trial. It is curious now to discern how the memory of the +witnesses, it may be unconsciously, swerved under pressure toward the mark +of identification. The witnesses for the defense established that the +prisoner was in Elmira on the afternoon of the 13th, made it more than +probable he was there on the 14th, and almost certain he was there on the +15th. The prosecution, under the force of this proof, suddenly conceded +his presence in Elmira on the 13th, and then, by the accident of a special +train and the testimony of a ferryman whom the notorious Montgomery +unearthed in the very crisis of the emergency, contrived with much +straining to land him in Washington at 10 o'clock on the morning of the +fatal day. Any calm observer, reading the account of the trial now, can +see plainly that the truth is, the prisoner had not been in Washington +since the 3rd of April. + +The production of Booth's diary by the prosecuting officers was forced +upon them by the popular indignation over its suppression before the +Military Commission; otherwise, it is clear they would not have been +guilty of such a mistake in tactics as its introduction as a part of the +case for the United States. Its opening sentences--"Until to-day nothing +was ever thought of sacrificing to our country's wrongs. For six months we +had worked to capture. But our cause being almost lost something decisive +and great must be done"--settled the question of a plot to kidnap suddenly +given up; and the testimony of Weichman indicated the hour of +abandonment. + +That every conceivable effort to obtain the conviction of the prisoner was +made, and that a most formidable array of circumstances was marshalled +against him, compared to which the two disconnected pieces of evidence +which were so magnified against his mother seem weak indeed, will be +controverted by no sane person. From June 10th to August 7th--nearly two +months--the contest went on. On the last-mentioned day, which was +Wednesday, Judge Fisher delivered his remarkable charge, and a little +before noon the jury retired. At one o'clock in the afternoon of Saturday, +the 10th, after a session of three days and three nights, a communication +was received from the jury to the effect that they stood as at first, +nearly equally divided, that they could not possibly agree, and the health +of several of their numbers was becoming seriously impaired. The Court, +notwithstanding the protest of the prisoner, discharged the jury, and the +prisoner was remanded to jail. + +There he did not long remain, however. Every one recognized the futility +of another trial. The strength of the proof of the prisoner's presence in +Elmira on the day of the assassination wrought a reaction of public +opinion in his favor. The administration was glad to escape with less than +an unequivocal condemnation. The Bureau of Military Justice was silent. +John H. Surratt was quietly let go. + +This obscure occurrence, the discharge of John H. Surratt, which caused +not a ripple on the surface of human affairs, nevertheless constituted a +cardinal event; for it worked a national estoppel. When that young man +stepped forth from the threshold of the prison, to which the United States +had brought him in irons from Egypt across the Mediterranean and the +Atlantic, not to follow his mother to the scaffold and a felon's grave, +but to walk the earth a living, free man,--the innocence of the mother was +finally and forever established by the universal acknowledgment of all +fair men. No condemnation of the Military Commission could be so heavy, +and at the same time so indubitably final, as the simultaneous conviction +arrived at by all men, that if the son had been tried by such a tribunal +he would assuredly have been put to death, and that if the mother had been +reserved to calmer times and the tribunal guaranteed by the Constitution +to every man and woman, she would now have been living with her daughter, +instead of lying, strangled to death, beneath the pavement of a prison. + + + + +CHAPTER III. + +THE RECOMMENDATION TO MERCY. + + +The worst was still behind. + +It was left to Time to disclose the astounding fact, that all the military +machinery of the War Department, its Bureaus, its Court, its +Judge-Advocates, its unconstitutional, anti-constitutional and +extra-constitutional processes, would not have compassed the death of this +helpless woman, had not the prosecutors, in the last extremity, called in +the help of Fraud. + +It has been narrated in the chronological order of events, how five +members of the Military Commission were, in all probability, beguiled into +the abdication of their own power of commutation and did, as matter of +fact, sign a paper "praying" the President, "if he could find it +consistent with his sense of duty to the country," to commute the death +sentence of Mrs. Surratt; how that the paper may have been carried to the +President by Judge Holt and have been present at the confidential +interview when the death warrant was composed; and how that Judge Holt, in +drafting the death warrant, went out of his way to so write it out, as in +fact, if not by design, to withdraw from the eye of the President, as he +signed it, this paper praying him to withhold his signature. + +But it should be borne in mind that all this was shrouded in the deepest +secrecy. That there had been any hesitation among the members of the +Commission in fixing the sentence of Mrs. Surratt--any more than in the +cases of Herold, Atzerodt and Payne--much more that it had been found +necessary to resort to a petition to the President, was entirely unknown +to the public at large. As to what had taken place in the sessions of the +Court when the sentences were made up, every member thereof and the three +Judge-Advocates were sworn to secrecy; and, outside these officers, the +knowledge of the petition was confined to the Secretary of War (possibly +the Attorney-General) and one or two subordinates in the War Department. +The record of the findings and sentences, to which the petition was +attached, was kept from the official reporters, and not a soul outside a +close coterie in the War Department was allowed to set eyes on it. + +In the recital of the death sentences in the order of the Adjutant-General +directing their execution, the sentence of the woman differed in no +respect from the three sentences of the men which preceded it. So far as +the public eye could discover, there was not a gleam of mercy for the +woman in the bosom of the Commission. + +It is true, that even before the execution there were rumors that the +Court had united in a recommendation to mercy, and it was stated in the +newspapers of the 6th and 7th of July that five members of the Commission +had signed such a recommendation and the whole Court concurred in it. It +is also certain, that almost immediately after the execution the story +sprang up that the President had never been allowed to see the +recommendation which the Court had addressed to him. + +But all these statements remained without corroboration from any authentic +source, and could not stand before the indubitable facts of the sentence, +its approval by the President, and its summary execution. The single +indication that in all these reports the paper is miscalled "a +recommendation to mercy" shows of itself that the real nature of the +secret was well kept. + +In November, 1865, there appeared a volume compiled by Benn Pitman styled +"The Recorder to the Commission," claiming to be "An authentic record of +the trial of the assassins of the late President," to which was prefixed a +certificate "to its faithfulness and accuracy" by Colonel Burnett, who had +been assigned by Judge Holt to superintend the compilation and "made +responsible for its strict accuracy." This work, so authenticated, was on +its face intended by its compiler to be a complete history "for future use +and reference" of the proceedings of the Commission, from the order of +the President convening it to the approval of the President of its +findings and sentences. It had for frontispiece portraits of the +conspirators and a map of portions of Maryland and Virginia showing the +route of Booth, and for afterpiece a diagram of the stage of Ford's +theatre and a diagram of the streets in its vicinity. Beside matter +strictly of record, such as the testimony and the findings and sentences, +it included the arguments of all the counsel, the approval of the +President, the order changing the place of imprisonment from Albany to the +Dry Tortugas, the proceedings under the writ of habeas corpus in the case +of Mrs. Surratt; and (in the appendix) the opinion of Attorney-General +Speed; army instructions in ten sections; a proclamation of President +Lincoln; a poisonous affidavit of Weichman, inclosed in a letter to +Colonel Burnett; and an affidavit of Captain Dutton, who took Dr. Mudd to +the Dry Tortugas, giving the confessions the Captain swears the Doctor +made on the way, sent to General Holt in obedience to his request for such +information. Nevertheless, amid all this wealth of illustration, there is +not the faintest allusion to any such thing as a recommendation to mercy, +in the volume. On the one hand, Pittman may not have seen the paper. His +findings and sentences are obviously taken from the order of the +Adjutant-General, and not from the original record, as he puts them in the +same order, which is not the order of the record. But, if he never saw the +paper, it must have been purposely kept from his knowledge, and thus from +the knowledge of the public, by some person interested in its suppression. +And Colonel Burnett, who had himself attached the paper "at the end" of +the record, instead of certifying to the "faithfulness and accuracy" of a +compilation omitting it, ought rather to have insisted that so important +and interesting a document, about the existence of which so much talk had +arisen, be at last given to the world. + +On the other hand, if Pitman knew of the paper, he certainly would not +have voluntarily left it out of his book for the reason, he himself felt +constrained afterwards to assign, that "it formed no part of the +proceedings, was not mentioned in open session;" since he had given room +to so much matter, not of record, solely for the purpose of adding +interest and completeness to his work, and this critical document could +add so much to the one and its absence detract so much from the other. + +Moreover, in December, the report of the Judge-Advocate-General to the +Secretary of War appeared, in which the trial was reviewed, and to which +the report to the President, dated July 5th, 1865, was appended. But in +both the existence of the petition was ignored. + +Whatever may have been the true inwardness of these significant omissions, +their inevitable effect was to convince the mass of the people of the +non-existence of a recommendation to mercy; and the petition of the five +officers might have reposed in silence in the secret archives of the War +Department, had it not been for the alienation of the President from the +party which had elected him, his gradual gravitation towards his own +section, and finally his revolt from the sway of Stanton. During this +period, the rumors that the Court had recommended Mrs. Surratt to the +clemency of the Executive and that the paper had never reached the +Executive, coupled with stories that from the close of the trial to the +hour of the execution the President had been kept under confinement and in +a state of semi-stupefaction by a band of reckless partisans who were +bound there should be no clemency, grew louder and louder. But they were +never traceable to any reliable source. In fact, the coolness which had +been for a long time growing between Andrew Johnson and Edwin M. Stanton +did not break out into an open rupture until as late as the month of +March, 1867. The other members of the Cabinet, which Johnson had inherited +from Lincoln, who disagreed with Johnson on the question of +Reconstruction, Harlan, Dennison and Speed, resigned, on account of that +disagreement, in the summer of 1866; but Stanton stayed on. When the +Tenure of Office bill was passed by the Congress in February, 1867, the +Secretary of War was still so much in accord with the President as to +unite with the other members of the reconstructed Cabinet in an emphatic +condemnation of the bill as unconstitutional, and to be asked by the +President to draft his veto message. + +But, on the passage of that Act over the veto, Stanton, thinking his +tenure of office secure, at last threw off the double-faced mask he seems +to have worn in every Cabinet to which he ever had the honor to belong. +From that time he stood alone in the Cabinet, irreconcilable in his +hostility to every move of his Chief, in open league with his Chief's +active enemies, and determined to remain where he was not wanted and could +only act as a hindrance and a spy. In this perilous state of affairs, a +secret like that of the petition of the five officers burned towards +disclosure. Yet, so far as is at present ascertainable, no authoritative +affirmation of the existence of such a paper, on the one hand, and no +authoritative denial that it had been presented to the President, on the +other, had yet been made. + +Upon such an arrangement of combustible material, the trial of John H. +Surratt acted like a spark of fire. + +On the second day (June 11th, 1867), during the impanelling of the jury, +Mr. Pierrepont, the leading counsel for the United States, alluding to the +rumors then flying about, took occasion to predict that the Government on +that trial would set all these false stories at rest. + +Among other things he said: + + "It has likewise been circulated through all the public journals that + after the former convictions, when an effort was made to go to the + President for pardon, men active here at the seat of government + prevented any attempt being made or the President being even reached + for the purpose of seeing whether he would not exercise clemency; + whereas the truth, and the truth of the record which will be presented + in this court, is that all this matter was brought before the + President and presented to a full Cabinet meeting, where it was + thoroughly discussed; and after such discussion, condemnation and + execution received not only the sanction of the President but that of + every member of his Cabinet." + +The testimony in the case closed, however, and the summing up began, and +there had been no attempt at a fulfillment of this prediction. + +On Thursday afternoon, August 1st, Mr. Merrick, the junior counsel for the +prisoner, then nearing the close of his address, twitted the prosecution +with this breach of its promise in these words: + + "Where is your record? Why didn't you bring it in? Did you find at the + end of the record a recommendation to mercy in the case of Mrs. + Surratt that the President never saw? You had the record here in + Court. + + "Mr. Bradley: And offered it once and withdrew it? + + "Mr. Merrick: Yes, sir; offered it and then withdrew it. + + "Did you find anything at the close of it that you did not like? Why + didn't you put that record in evidence, and let us have it here?" + +Stung by the necessity of making some answer to this defiant challenge, +Mr. Pierrepont on the moment sent for the record. And in response to the +summons, Judge-Advocate Holt, who naturally must have followed the +prosecution and trial with the most absorbing anxiety, on that very +afternoon brought the record "with his own hand," "with his own voice" +told its history, in the presence of "three gentlemen," to Mr. Pierrepont, +and then left the papers with him. + +On the succeeding day, August 2nd, Mr. Bradley, the senior counsel of the +prisoner, renewed the attack: + + "It was boastfully said in the opening of this case that they would + vindicate the conduct of the law officers of the Government engaged in + the conspiracy trials. They would produce Booth's diary; they would + show that the judgment of the court was submitted to the Cabinet and + fully approved; that no recommendation for mercy for Mrs. + Surratt--that no petition for pardon to the Government--had been + withheld from the President. Is it so?" + +The next morning, Saturday, August 3d, Mr. Pierrepont began his address to +the jury. Having kept possession of the record since Thursday afternoon, +and having been made acquainted with its history by Judge-Advocate Holt in +such an impressive manner, he, thus, in his exordium, at last, redeemed +the promise of the prosecution: + + "The counsel certainly knew when they were talking about that + tribunal" (_i. e._ the Military Commission), "and when they were thus + denouncing it, that President Johnson * * * ordered it with his own + hand, that President Johnson * * * signed the warrant that directed + the execution, that President Johnson * * * when that record was + presented to him, laid it before his Cabinet, and that every single + member voted to confirm the sentence, and that the President with his + own hand wrote his confirmation of it, and with his own hand signed + the warrant. I hold in my hand the original record, and no other man + as it appears from that paper ordered it. No other one touched this + paper, and when it was suggested by some of the members of the + Commission that in consequence of the age and the sex of Mrs. Surratt, + it might possibly be well to change her sentence to imprisonment for + life, he signed the warrant for her death with the paper right before + his eyes--and there it is (handing the paper to Mr. Merrick). My + friend can read it for himself." + +This is the first appearance in public of the precious record. On +Wednesday, July 5th, 1865, Andrew Johnson put his name to the +death-warrant written on its back by Judge Holt. And, now, two years +after, emerging from its hiding-place, it is flung upon a table in a +court-room by the counsel for the United States. + +Even now it seems to be destined to a most unsatisfactory publication. For +the counsel of the prisoner decline to look at it, because (as Mr. Merrick +subsequently explained), "he mistrusted whatever came from the +Judge-Advocate-General's office;" because it "had been carefully withheld +until all opportunity had passed for taking evidence in relation to it;" +and because the official report of the trial contained no recommendation +of mercy. The mysterious roll of paper, consequently, lies there unopened, +until Judge Holt comes to reclaim it that same afternoon; and that officer +is careful, when receiving it back, to repeat over again, before other +witnesses, the same history of the document, he had told before to the +counsel for the prosecution, and which that counsel had just retold to the +jury. + +But that had been said and done which must blow away the atmosphere of +unwholesome secrecy which had so long enveloped this addendum to the +record. The explicit declaration of the counsel for the United States, +made in a crowded court-room on so celebrated a trial, with the "identical +paper" in his hand, that the President had laid the record before his +Cabinet and "every single member voted to confirm the sentence," and that +the President had signed the death-warrant with the "suggestion" of +commutation "right before his eyes," was immediately published far and +wide, and must have been read on Sunday, the 4th, or at latest on Monday, +the 5th, by the President himself. And the President was certainly +astounded. By a most singular providence, Judge Holt himself, in a letter +written to himself, at his request, by his chief clerk, and published by +him in 1873 for another purpose, has furnished independent proof that the +President was now for the first time startled into sending for the record. + +Here is what Chief Clerk Wright says: + + "On the 5th day of August, 1867, Mr. Stanton, the Secretary of War, + sent for me, and in the presence of General Grant asked me who was in + charge of the Bureau in your absence. I informed him Colonel Winthrop. + He requested I should send him over to him, which I did. The Colonel + returned and asked me for the findings and sentence of the conspiracy + trial, telling me he had to take it to the President. On taking the + portion of the record referred to from the bundle, I found, from the + frequent handling of it, several of the last leaves had torn loose + from the ribbon fastening, and to secure them I put the eyelet in one + corner of it." + +The Judge-Advocate-General, though in court on Saturday getting back the +record and retelling its history, was absent, it would appear, from his +office on Monday, or was considered absent by Stanton, who it also appears +was still Secretary of War and in communication with Johnson. It was +thought best to employ a deputy to carry the papers to the President. +Holt, probably, had no stomach for another "confidential interview," with +the identical record in his hand. + +Let Andrew Johnson himself tell what followed. The statement is from his +published reply to Holt in 1873, and was made with no reference to, and +apparently with no recollection of, the foregoing incidents of the John H. +Surratt trial: + + "Having heard that the petition had been attached to the record, I + sent for the papers on the 5th day of August, 1867, with a view of + examining, for the first time, the recommendation in the case of Mrs. + Surratt. + + "A careful scrutiny convinced me that it was not with the record when + submitted for my approval, and that I had neither before seen nor read + it." + +It may have been only a coincidence, but on this very day, Monday, August +5th, 1867, and necessarily after the sending for the record, because that +was done through the Secretary of War, the following interesting missive +was dispatched by the President to that member of his Cabinet: + + "Sir: Public considerations of a high character constrain me to say + that your resignation as Secretary of War will be accepted." + +Stanton immediately replied: + + "Public considerations of a high character constrain me not to resign + before the next meeting of Congress." + +And, on the 12th, he was suspended from office. + +But Andrew Johnson was not the only interested personage who read the +explicit declaration of Mr. Pierrepont. The statement that every member of +the Cabinet voted to confirm the sentence of Mrs. Surratt, with the +record, including, of course, the recommendation, before them, must have +been read also by William H. Seward, Edwin M. Stanton, Hugh McCulloch, and +Gideon Welles, the members of that "full Cabinet" who still remained in +office. They surely knew the truth of the statement, if it was true, or +its falsity, if it was false. If it was true, is it not perfectly +inconceivable that the President, conscious that these four of his +confidential advisers had seen the record and voted to deny the petition, +would have dared to enact the comedy of sending for the record, and then +brazenly assert that the petition had not been attached to it when before +him, and that he had neither seen nor read it? + +And if he had been guilty of so foolhardy a course of action, now was the +time for the Judge-Advocate to fortify the declaration which he had +inspired Mr. Pierrepont to make, by appealing to these members of the +Cabinet to confront their shameless chief with their united testimony, and +forever silence the "atrocious accusation." + +From his course of proceeding at a later day, it is not probable that he +made any such attempt. At all events, he got no help from Seward, from +McCulloch or from Welles. Nay, he got no help to sustain his history of +the record, even from Stanton. If help came from that quarter at all, it +was to shield him from the awakened wrath of the hood-winked Executive, by +drawing the fire upon the head of his department. + +But what the Judge-Advocate-General did do, in view of the crisis, is +sufficiently apparent. He took immediate measures to retract all that +portion of Mr. Pierrepont's declaration of Saturday, which expressed or +implied any knowledge on the part of the Cabinet of the disputed paper. + +The counsel for the United States had continued his speech to the jury all +day Monday, apparently unconscious of the tempestuous effect of his +statement of Saturday, and of the predicament in which it had involved his +informant. In the evening, he must have had a "confidential interview" +with Judge Holt. For, on rising to resume his speech on Tuesday morning, +the 6th of August, from no apparent logical cause arising from the course +of his argument, he saw fit to recur to the now absent record, and to +interpolate the following perfectly insulated and seemingly superfluous +piece of information: + + "You will recollect, gentlemen, when a call was made several days ago + by Mr. Merrick * * asking that we should produce the record of the + Conspiracy Trial, that I brought the original record here and handed + it to counsel. I then stated that as a part of that record was a + suggestion made by a part of the Court that tried the conspirators, + that, if the President thought it consistent with his public duty, + they would suggest, in consideration of the sex and age of one of + those condemned, that a change might be made in her sentence to + imprisonment for life. I stated that I had been informed that when + that record was before the President, and when he signed the warrant + of execution, that recommendation was then before him. I want no + misunderstanding about that, and I do not intend there shall be any. + That is a part of the original record which I here produced in Court. + It is in the hand-writing of one of the members of that Court, to wit, + General Ekin. The original of that is now in his possession and in the + hand-writing of Hon. John A. Bingham. When the counsel called for that + record, I sent the afternoon of that day to the + Judge-Advocate-General, in whose possession these records are. He + brought it to me with his own hand, and told me with his own voice, in + the presence of three other gentlemen, that that identical paper, then + a part of the record, was before the President when he signed the + warrant of execution, and that he had a conversation with the + President at that time on the subject. That is my authority. + Subsequently to this, having presented it here, the + Judge-Advocate-General called to receive it back, and reiterated in + the presence of other gentlemen the same thing. That is my knowledge + and that is my authority." + +Here we have, then, the final statement of his side of the case, made by +Judge Holt, through the mouth of counsel, revised and corrected under the +stress of the occurrences at the White House and the negatory attitude of +the members of the Cabinet present on the spot. Stripped of the allegation +that the record was laid before the Cabinet and voted upon by every +member of the Cabinet, its affirmations, carefully confined to "the +confidential interview" between the President and the Judge-Advocate, go +no farther than that "the identical paper" was "before the President," +when he signed the death warrant, and they had a conversation "on the +subject." + +"He wants no misunderstanding" and does "not intend there shall be any." +The counsel in great detail relates how he came by his facts. "That is my +knowledge and that is my authority." Of course it is open to everybody to +believe, if he choose, that the talk of the Cabinet meeting and of the +unanimous vote of its members against the petition, was a mere rhetorical +exaggeration of a simple narrative of Holt relating the incidents of an +interview between the President and himself, struck off by Judge +Pierrepont in the full fervor of his eloquence; but, nevertheless, it +remains true that the Judge-Advocate, until the catastrophe befell, was +satisfied it should stand, rhetoric and all; because he "reiterated the +same thing" on Saturday, _after_ the counsel had concluded his statement, +and on Monday the counsel continued his address all day without being +advised of the necessity for any retraction. + +Be this as it may, there is now, at the last, no appeal by the +Judge-Advocate to the members of the Cabinet, all of whom were living, as +witnesses to the President's knowledge of the petition of mercy. He +abandons hope of corroboration from members of the Cabinet, and he takes +his stand upon the single categorical affirmation, that the "identical +paper" formed part of the record when the record was before the President +in 1865. + +And, singular as it may appear, this is the very thing that the President +does not categorically deny; he only infers the contrary from the +appearance of the record in 1867. + +The single categorical negation of the President is that he neither saw +nor read the recommendation. And, singular as it may appear, this the +Judge-Advocate does not categorically affirm; he leaves it to be inferred +from his averment of the presence of the paper and a conversation on the +subject. + +In short, the statements of the two disputants are not contradictory. Both +may be true. And, when we recollect the feeble state of health of the +President at the time of the "confidential interview" and his mood of mind +towards the distasteful task forced upon him in a season of nervous +debility; when we recollect the mode and manner the Judge-Advocate adopted +of writing out the death warrant; it will seem extremely probable that +both statements _are_ true. The President made no "careful scrutiny" of +the record in 1865, or he would not have needed to do so in 1867. The +Judge-Advocate, inspired by his master, would not be too officious in +pointing out to the listless and uninquiring Executive the superfluous +little paper. He might do his whole duty, by conversing on the subject of +the commutation of the sentence of the one woman condemned, and, then, by +so placing the roll of papers for the President's signature to the death +warrant as to bring the modest "suggestion" of the five officers "_right +before his eyes_," though upside down. If the sick President did not +carefully scrutinize the papers, was that the Judge-Advocate's fault? Nay, +in writing out the death warrant in the inspired way he did, this zealous +patriot may have felt even a pious glow, in thus lending himself as an +instrument to ward off a frustration of Divine justice. Alas! one may +easily lose one's self in endeavoring to trace out the abnormal vagaries +of the "truly loyal" mind, at that period of hysterical patriotism. + + * * * * * + +After these incidents on the Surratt trial, and at the White House, there +could be no more mystery about the recommendation to mercy. It was +historically certain that such a document, or rather a "suggestion," did +in fact emanate from the Commission, and was at some time affixed to the +record. Left out of Pitman's official compilation, nevertheless it was +there. The only question about it which could any longer agitate the +people was, had it been suppressed? And this, unfortunately, was now +narrowed down to a mere question of veracity between the President and his +subordinate officer, as to what occurred at the Confidential Interview; +and which, moreover, threatened to resolve itself into a maze of special +pleading about the lack of attention, on the part of the Executive, and +the duty of thorough explanation, on the part of the Judge-Advocate, in +the delicate task of approving the judgment of a Military Commission. + +Whether this unsatisfactory and ticklish state of the issue was the cause +or not, nothing was done in consequence of these revelations of the +Surratt trial. The President, indeed, plunged as he was in the struggle to +get rid of Stanton, which finally led to his impeachment, and remembering +his own remissness in not scrutinizing the papers before he signed the +death-warrant, could have had but little inclination to provoke another +conflict, on such precarious grounds, by attempting the removal of the +incriminated subordinate of his rebellious Secretary. He kept possession +of the record, however, long enough to subject it to a thorough inspection +by himself and his advisers, for (as appears from the letter of the chief +clerk already quoted) it was not returned to the Judge-Advocate-General's +office until December, 1867. + +The Judge-Advocate, on his part, remained likewise passive and displayed +no eagerness for a vindication by a court of inquiry. + +He pleads in 1873, as excuse for his non-action, that "it would have been +the very madness of folly" for him "to expose his reputation to the perils +of a judicial proceeding in which his enemy and slanderer would play the +quadruple role of organizer of the court, accuser, witness and final +judge." Forgetting the "history" he had told Mr. Pierrepont, and then +withdrawn, in 1867, he actually claims that he "was not aware that any +member of Mr. Johnson's Cabinet knew of his having seen and considered the +recommendation," and that he "was kept in profound ignorance of" "this +important information" "_through the instrumentality of Mr. Stanton_"! + +But, were it credible that the Judge-Advocate "supposed," as he says, +"that this information was confined to" the President and himself, (not +even his master, Stanton, knowing anything of the petition), even in that +case the "perils" of an investigation, which he affects to dread, were all +on the side of his adversary. The necessity for the President of the +United States, himself, to come forward as the one sole witness to his own +accusation--especially when the charge involved an admission of his own +delinquency, and was to be met by the loud and defiant denial of his +arraigned subordinate--was enough, of itself, to deter the Chief +Magistrate of a great nation from descending into so humiliating a combat. + +But, to lay no stress upon this consideration, it must be manifest to any +one acquainted with the state of public feeling at the time, that the +single, uncorroborated testimony of the maligned, distrusted Andrew +Johnson, branded as a traitor by the triumphant republican party, on the +eve of impeachment, a hostile army under his nominal command, Stanton +harnessed on his back, unfriendly private secretaries pervading his +apartments, and detectives in his bed-chamber; in support of such a +"disloyal" charge, disclosing, as it was sure to be asserted, a latent +remorse for the righteous fate of the she-assassin; would have been hailed +in all military circles with derision. The popular, the eminently loyal, +the politically sound Judge-Advocate, backed by Stanton, Bingham and +Burnett, by his Bureau and his Court, by General Grant and the Army, had +certainly nothing to fear. + +But, though this hero of so many courts-martial appears to have had no +mind for a dose of his own favorite remedy, he began, in his +characteristic secret way, to collect testimony corroborative of his +version of the confidential interview. He writes no letter to a single +Cabinet officer. But, immediately after the close of the John H. Surratt +trial (August 24, 1867), he writes to General Ekin reminding him of an +interview, soon after the execution, in which he (Holt) mentioned that the +President had seen the petition; and he obtains from that officer the +information he sought. In January, 1868, he quietly procures from two +clerks in his office, letters testifying to the condition of the record +when it arrived from the Commission, when the Judge-Advocate took it to +carry to the President, and when he brought it back. It is needless to say +that, though these clerks state that the page, on which the petition was +written, and the page, on which the latter portion of the death-warrant +was written, are "directly face to face to each other;" they do not notice +that, when the death-warrant was signed, the page, on which the petition +was written, must have been, either under the other pages of the record, +or upside down. + +In this same month, the resolution of the Senate refusing to concur in the +suspension of Stanton was adopted (January 13th, 1868). General Grant, the +Secretary of War _ad interim_, in violation of his promise to the +President, as alleged by the latter, thereupon surrendered the office to +the favorite War-Minister, who thus forced himself back among the +confidential advisers of the President. + +On the 21st of February, the President, with one last desperate stroke, +removed him from office; and on the 24th, Andrew Johnson was impeached for +this "high crime." + +In the midst of his troubles, the President finds time to pardon Dr. Mudd +(Feb. 8th), who soon returns to his family and friends. + +The impeachment trial ends May 26th, the President escaping conviction by +but one vote; and Stanton at last lets go his hold on the War office. + +In December, 1868, the Judge-Advocate is privately seeking testimony from +the Rev. J. George Butler, of Washington, the minister who attended +Atzerodt in his last moments, whose letter of the 15th is most +satisfactory on Johnson's belief in the guilt of Mrs. Surratt, but most +unsatisfactory in regard to the petition of mercy. + +On the 1st of March, 1869, among the last acts of his stormy +administration, the President undid, as far as he could then undo, the +work of the Military Commission by setting Arnold and Spangler free; +O'Laughlin having died from the effects of the climate. Had the five +officers of the Military Commission been permitted to exercise their power +of mitigating the sentence of Mrs. Surratt, as they did in the cases of +these men, or had the Executive granted their prayer for clemency; the +President might have signalized the close of his term by a still more +memorable pardon, and the mother, rescued from death by mercy, would have +joined the son, rescued from death by justice. + +During the four years of the first administration of President Grant, +while Andrew Johnson was fighting his way back to his old place, among the +people of Tennessee, the story of the suppressed recommendation ever and +anon circulated anew with unquenchable vitality. The reappearance of Mudd, +Spangler and Arnold, as free men; the "doubtful" death of Stanton, "with +such maimed rites" of burial, as might "betoken + + The corse, they follow, did with desperate hand + Fordo its own life;" + +every incident connected in any way with the tragedy of the woman's trial +and death, and every prominent event in the career of the men who had +surrounded the illstarred successor of the murdered Lincoln in the awful +hour of his accession, revived the irrepressible question; and the friends +of Mrs. Surratt's memory, and the friends of Johnson, alike, each by their +own separate methods, on every such opportunity, appealed and re-appealed +to the public, asserting again and again the suppression of the plea for +mercy, propagating what General Holt brands as "the atrocious accusation," +or, as he elsewhere characterizes their actions, "for long years wantonly +and wickedly assailing" the ex-Judge-Advocate. And yet, during all these +years, the baited hero is silent. He lies low. As far as appears, he makes +no further efforts to secure testimony. His friend and old associate, +Bingham, is by his side, yet he makes no appeal to him. He keeps close by +him the letters he has already secured to substantiate his own version of +the confidential interview. But he seeks for no Cabinet testimony. His +stern master in the War Department, after the acquittal of the President, +lays down his sceptre, and then, though the deadliest enemy of Johnson, is +allowed to die in silence. Seward lives on and is asked to give no help. +The ex-Judge-Advocate still lies low. + +At length came the appointed time. + +William H. Seward died on the 12th day of October, 1872. + +On the 11th day of February, 1873, Gen. Holt makes his appeal for +testimony from the officers of Johnson's first Cabinet, by letter to John +A. Bingham, requesting him to furnish his recollections of the late +Stanton and the late Seward. On March 30th, 1873, he writes to James +Speed, Ex-Attorney-General, inclosing a copy of Bingham's reply. On May +21st, 1873, he writes to James Harlan, Ex-Secretary of the Interior, +inclosing a copy of Bingham's reply. In July, 1873, he writes to General +Mussey, once Johnson's private secretary; and, in August, armed with the +answers of these correspondents and with the letters he had gathered in +1867 and 1868, and unprovoked by any revivification of the old charge, he +rushes into the columns of the Washington Chronicle with his formidable +"Vindication." + + + + +CHAPTER IV. + +THE TRIAL OF JOSEPH HOLT. + + +On the threshold of his Vindication, Gen. Holt revives the discredited and +apparently forgotten declaration made by Mr. Pierrepont on the trial of +John H. Surratt, and stakes his whole case upon the establishment of the +truth of the allegation that the petition for commutation, attached as it +was to the record of the findings and sentences of the Military +Commission, was the subject of consideration at a meeting of the Cabinet +of President Johnson, and its prayer rejected with the concurrence of the +members present at such meeting. + +So long as the contention is limited to what took place during that +momentous hour between the President and himself, "alone," with the light +thrown upon it by the record including the endorsed death-warrant and the +affixed paper, he exhibits a certain lack of confidence in the strength of +his defense. For, although he prints the "circumstantial evidence," as he +calls it, to sustain his own version of the "confidential interview" +(consisting of the two letters from his former clerk, heretofore alluded +to, and the letter from Gen. Mussey saying that the "acting President" +told him of the recommendation "about that time"), he confesses it was not +until he recently had secured certain testimony that the petition had been +considered by officers of the Cabinet, that he at length felt his case +strong enough to warrant a public challenge of his adversary, and himself +justified in submitting it to the public. + +In short, we have a sort of reversal of the position of six years before. +_Then_, after having at first put forward the assertion that the petition +was considered by the Cabinet, the Judge-Advocate summarily suppresses +that branch of his case, and puts into the foreground the explicit +asseveration of the identical paper being "right before the President's +eyes" when he signed the death-warrant. "He wants no misunderstanding +about that." _Now_, while he keeps in mind, it is true, this version of +the confidential interview, he relegates it to the rear, and constitutes +the Cabinet consideration the very citadel of his cause. + +As to what takes place at a meeting of the Cabinet, its members of course +are the first, if not the only, witnesses. And it is a matter of surprise +that General Holt, so far as is apparent, never, in all these past years, +applied to any one of them to substantiate so essential a part of his +vindication. He states that he has always been satisfied that the matter +must have been considered in the Cabinet, and adds that "from the +confidential character of Cabinet deliberations" he has "thus far been +denied access to this source of information." But he does not say when, +or to whom, he applied for such "access," or how he had been "denied." It +is certain, from what he says elsewhere, that he never applied to Stanton +or to Seward; he admits in a subsequent communication that he never +applied to McCulloch, Welles or Dennison; and, from the tenor of their +letters now in reply to his, it appears he never applied before to Harlan +or to Speed. And these are all the members of the Cabinet of President +Johnson in July, 1865. Moreover, he does not, even now, in 1873, make +application in the first instance to an ex-Cabinet officer. His first +application is made to John A. Bingham, his old colleague in the +prosecution of Mrs. Surratt, for Cabinet information in the shape of +conversations with the two ministers, who, after so many years of +unsolicited silence in life, are now silent, beyond the reach of +solicitation, in death. And it is not until he has secured the desired +information, which he would have us believe was entirely unexpected, that +he is stirred up to the necessity of a public vindication of his +character; and then he selects the two of the surviving ministers of the +Cabinet, known to be hostile to the ex-President, as the objects of +solicitation, sending them, as a spur to their recollections, the letter +containing the reminiscences of his serviceable ally. But, by some +fatality, the industrious inquirer takes nothing by his somewhat +complicated manoeuvre. The letters he produces from Cabinet officers +afford him no assistance. Judge Harlan can recall only an informal +discussion by three or four members of the Cabinet (Seward, Stanton, +himself and probably Speed) of the question of the commutation of the +sentence of Mrs. Surratt because of her sex; which, she being the one +woman under condemnation, would surely arise in a tribunal of gentlemen, +whether there was a recommendation or not, as in fact it did even among +the stern soldiers of the Military Commission. But the writer, who, as +Senator from the State of Iowa, had voted for the conviction of President +Johnson, makes the positive declaration, that "no part of the record of +the trial, the decision of the court, or the recommendation of clemency +was at that time or ever at any time read in my (his) presence." He +remembers, with undoubting distinctness, inquiring at the time whether the +Attorney-General had examined the record, and was told that the whole case +had been carefully examined by the Attorney-General and the Secretary of +War; and he states that the question was never submitted to the Cabinet +for a formal vote. + +This letter is most significant, both for what it says and for what it +refrains from saying. Its positive statement annihilates the story of a +"full Cabinet" when "the vote of every member" was adverse, and indeed of +any Cabinet meeting whatever, where the paper was present and +considered--such a story as Judge Pierrepont first gathered from the +"voice" of Holt; and the absence of all affirmation that the writer had +either seen or heard of the recommendation, while he expressly states that +it was never read in his presence (considering the occasion and object of +the letter and the bias of the ex-Senator), warrants the conclusion that +such a document was not mentioned at the informal Cabinet consultation he +describes. + +In any view, the letter furnishes no support to Holt's contention. The +writer expressly negatives the presence of the record and the paper, and +he does not affirm that such a petition was alluded to, in terms, in the +discussion in the presence of the President; which he surely would have +done, in aid of his sorely tried friend, if such had been the fact. + +The Judge-Advocate fares even worse at the hands of the +Ex-Attorney-General. Here is a man who knew, if any other member of the +Cabinet except Stanton knew, whether the paper in question ever came up +for discussion before the President in his Cabinet. He goes so far as to +say that, after the findings and before the execution, he saw the paper +attached to the record "in the President's office;" a statement which +reminds us of another of the same elusive and evasive character, (that the +paper was "_before the President_"), and, like that, affirms nothing one +way or the other as to the consciousness of the President of its presence. + +And then he proceeds as follows: + +"I do not feel at liberty to speak of what was said at Cabinet meetings. +In this I know I differ from other gentlemen" (presumably an allusion to +the Seward and Stanton of Bingham's letter), "but feel constrained to +follow my own sense of propriety." + +His friend's necessity would have been met by something less than a +repetition of what was _said_ at Cabinet meetings. He had only to tell +whether he saw a certain paper (not in the President's office), but at a +meeting of the President and his advisers, or knew of the recognition +there of its mere existence;--a revelation which would not have violated +the most punctilious sense of official propriety; and he feels constrained +to withhold the least ray of light upon so simple a question. + +The witness "declines to answer." + +Ten years after the present controversy, Judge Holt, feeling acutely this +weak point in his vindication, again appeals to Speed, in the most moving +tones, to break his unaccountable silence and rescue his friend's gray +head from "the atrocious accusation," "known to him to be false in its +every intendment," with which that perfidious monster, dead now eight +years, and, (as Holt significantly quotes), "gone to his own place," +sought "to blacken the reputation of a subordinate officer holding a +confidential interview with him." + +And, strange to say, Speed first neglects even to reply to Holt's repeated +communications for six months, and then just opens his lips to whisper, "I +cannot say more than I have said." He had offered in private (if we may +credit Holt) to write a letter to his aggrieved friend, giving him the +desired information, "but not to be used until after Holt's death;" a +proposition quite naturally discouraged by Holt, who made this sensible +reply: "that a letter thus strangely withheld from the public would not, +when it appeared, be credited." + +But, when repeatedly implored to spread "the desired information" before +the public, he again declines to answer. James Speed would not tell the +truth, when by telling the truth he might relieve his old friend in "the +closing hours of his life" from a most damnable calumny, because, +forsooth, "of his sense of propriety." He could not violate the secrecy of +a Cabinet meeting, held nearly twenty years before; a secrecy which he had +good reason to believe had already been broken, in the professed interest +of truth, by three of his own colleagues, and, in the alleged interest of +a most foul falsehood, by the President himself. + +Before the Judge finally gives up his old associate as hopeless, he +craftily points out to him a way by which the ex-Cabinet officer may give +his testimony without violating the most punctilious sense of propriety, +not only, but without departing one iota from the literal truth. Since his +first letter, General Holt informs him: "I have learned that although you +gained the information while a member of the Cabinet, it was not strictly +in your capacity as such, but that at the moment I laid before the +President the record of the trial, with the recommendation for clemency +on behalf of Mrs. Surratt, you chanced to be so situated as to be assured +by the evidence of your own senses that such petition of recommendation +was by me presented to the President, and was the subject of conversation +between him and myself." Does this mean that Speed was an unseen spectator +of the confidential interview, and witnessed the writing of the +death-warrant? At all events, for some reason, the ex-Attorney-General was +afraid to accept this opportunity to equivocate. + +Holt may well wonder at Speed's obstinate silence. He exclaims: "It is a +mystery to me." It will be a mystery to every one, provided the black +charge was false. But, on the hypothesis that the charge was true, that +the paper was suppressed, either actually or virtually, there is no +mystery. + +Had Speed known that the paper was, not only "_before_" the President, but +considered by him, either in or out of the Cabinet, it is beyond the limit +of human credulity to believe, for a moment, that, with all possible +motives to lead him to succor his friend, and with none to lead him to +shield the character of his dead political foe, he would not have uttered +the one decisive word in the controversy. And he comes as near doing so as +he dares, evidently. He shows, in 1873, a yearning to help his old +friend--a yearning so strong that we may be sure it was not the frivolous +pretext of "official propriety" which constrained him, then, much less in +1883. + +If he, too, as Holt said of Stanton, feared the resentment of the +dethroned Johnson in life, he certainly could not have feared the +resentment of Johnson's ghost after death. + +He must be numbered among those who, + + "With arms encumbered thus, or this head-shake, + Or by pronouncing of some doubtful phrase, + As, _'Well, well, we know;' or 'We could, an' if we would;' or + 'If we list to speak;' or 'There be, an' if they might;'_" + +"ambiguously give out" to know what they are sworn "never to speak of." If +there was any oath-guarding "fellow in the cellarage," rest assured it was +not the pale wraith of the hood-winked Johnson, but the blood-boltered +spectre of his once wide-ruling Minister of War. + + * * * * * + +Amid such a dearth of direct explicit testimony of members of the Cabinet +about a disputed Cabinet incident, it is curious and interesting to watch +the assiduous ex-Judge-Advocate, with the most ingenious and industrious +sophistry, attempt to extract corroboration from the statements of the two +ex-Cabinet officers, whom he has induced to speak, where in truth no +corroboration can be found. + +After all his efforts, he is forced at last to fall back upon the single +testimony of the one man without whose encouraging information he frankly +informs us he would not have dared to come before the people, and upon +whom he brings himself to believe he might safely rest his defense. That +man is John A. Bingham, now, as once before, Special Assistant +Judge-Advocate to Joseph Holt. + +During the eight years which had elapsed since their crowning achievement +of hanging a woman for the murder of Abraham Lincoln, these two men had +lived, for a considerable portion of the time, in the same city. They were +together in the contest over reconstruction and impeachment, standing in +the front rank of the enemies of Johnson. They were both at the Capital +during the trial of John H. Surratt, when the ghastly reminiscences of the +trial of the mother along with seven chained men must have drawn the two +military prosecutors into a most sympathetic union. + +And yet when, in February, 1873, Joseph Holt sits down in Washington to +write his letter of inquiry to John A. Bingham, then in the same city, he +would have us believe that he had never before poured into the bosom of +his old colleague his own sufferings over the frightful calumny so long +poisoning the very air he breathed, never before told him his +embarrassment over the difficulty to elicit evidence from Cabinet +officials, never before besought his friend for his own powerful testimony +on the side of his persecuted fellow-official. + +He writes to his former assistant, as though the information were now +communicated for the first time, that the President and he were alone +when the record was presented and the death-warrant signed; that he had +always been satisfied the petition was considered in a Cabinet meeting, +but has hitherto been unable to obtain any evidence upon that point; and +then, in an artless, ingenuous manner, as if putting the question for the +first time, asks his correspondent whether or not he had had a +conversation with William H. Seward, Secretary of State under President +Johnson, in reference to the petition, and "if so, state as nearly as you +may be able to do all he said on the subject;" with a like request as to +Edwin M. Stanton, Secretary of War. + +With a diviner's skill he selects the two members of the Cabinet who are +then dead; and, not to disappoint him, Bingham, in a letter from +Washington six days later, informs him that he has struck the two-fold +mark. With the same apparent artlessness which characterizes the letter of +inquiry, this useful advocate now, as if for the first time, discloses to +his long-tried colleague, that he did indeed have a conversation with each +of the eminent men he had hit upon, who are now, alas! dead. + +Judge Bingham is a most willing witness. He relates with great +circumstantiality that "after the Military Commission had tried and +sentenced the parties" he "prepared the form of the petition to the +President." He then gives the form thus prepared as he now recollects it +(in which there are two significant mistakes); he states that he wrote it +with his own hands, that General Ekin copied it, and the five signed the +copy; as if all this particularity had any relevance to the question at +issue, as if the point in dispute was the existence of the paper, and not +its suppression at a critical moment after it was written. He affects to +believe it necessary to state to his old colleague, that he "deemed it his +duty to call the attention of Secretary Stanton to the petition, and did +call his attention to it before the final action of the President;"--as if +it were among the possibilities, that the head of the War Department could +in any case have overlooked so important a paper, much less that the +imperious Chief of this very prosecution could have been kept in +ignorance, one hour, of what was done by his tools. + +The Special Assistant, however, at last comes to the point: + + "After the execution, the statement to which you refer was made that + President Johnson had not seen the petition for the commutation of the + death sentence upon Mrs. Surratt. I afterwards called at your office, + and, without notice to you of my purpose, asked for the record in the + case of the assassins. It was opened and shown me, and there was then + attached to it the petition, copied and signed as hereinbefore + stated." + +Oh, what an artless pair of correspondents! The former Special Assistant +tells the former Judge-Advocate how he played the detective on him to his +friend's justification; "_without notice of my purpose_"! + + "Soon thereafter I called upon Secretaries Stanton and Seward, and + asked if this petition had been presented to the President before the + death-sentence was by him approved, and was answered by each of those + gentlemen that the petition was presented to the President, and was + duly considered by him and his advisers, before the death-sentence + upon Mrs. Surratt was approved, and that the President and the Cabinet + upon such consideration were a unit in denying the prayer of the + petition; Mr. Stanton and Mr. Seward stating that they were present." + +In weighing the credibility of this statement, so conclusive if true, two +considerations should be borne in mind. + +1. That we have here, not the testimony of either Seward or Stanton, but +the testimony of a man who, if the paper was in fact suppressed, must have +been a participant in the foul deed. For no one will believe, for a +moment, that Joseph Holt would have dared to perpetrate, if he could, or +could have perpetrated, if he dared, so unspeakable a wickedness, without +the knowledge and coöperation of his fiery leader in the conduct of the +trial. + +2. If this decisive information was in the possession of Judge Bingham at +so early a date as "soon after the execution," why had he not communicated +it to his distressed partner while Stanton and Seward lived? He had taken +pains to obtain it to meet the ugly stories that were even then +circulating against the Judge-Advocate. He knew it at the time of the +struggle at close quarters over the petition during the Surratt trial, and +he must have been cognizant of the fact, that for the lack of it, that +officer had been forced to withdraw the allegation of a full Cabinet +consideration of the petition, which he had at first prompted the counsel +of the United States boldly and publicly to make. + +After the trial the reports grew louder and louder, until it was +everywhere said that Andrew Johnson habitually declared that he had never +seen the paper. Holt ran hither and thither collecting testimony from all +available quarters. Hear Holt himself: "Every time the buzz of this +slanderous rumor reached him (Bingham) during the last eight years--which +was doubtless often--his awakened memory must have reminded him that he +held in his keeping proof that this rumor was false." Why did not his +former assistant even relieve his tremendous anxiety by telling him that +he had evidence which would blow the calumny into the air? General Holt, +in a letter in reply to Bingham's, dated at Washington the next day, which +he also prints in his Vindication, says: + +"It would have been fortunate indeed, could I have had this testimony in +my possession years ago." + +He calls its concealment "a sad, sad mockery." Yes; and why was Judge +Bingham willing to perpetrate such a "mockery," and continue the "mockery" +until Stanton's death, and then until Seward's death, which occurred only +a few months before he at last enlightens his colleague? Can the most +credulous of men believe that, during all these years, he was guilty of +such cruelty as not even to whisper such welcome intelligence into the +ears of his sorely distressed brother officer? + +And what shall we say of William H. Seward? + +If that great man told Judge Bingham in 1865 what the Judge, after Seward +was dead, first says he did, why had William H. Seward kept silent so many +years, and at last died and made no sign? He must have heard the charge, +so infamous if false, and, if Judge Bingham be believed, he must have +known it to be false. + +He must have heard the statement of Judge Pierrepont in open court in +1867. He must have known of the President's sending for the record and of +the explosion thereupon in the Department of War. Why did he not at that +crisis come forward with the proof of which the Judge-Advocate was so +dreadfully in need? + +The Secretary of State could not have intrenched himself behind the +inviolability of proceedings of Cabinet meetings, as did the +over-scrupulous Attorney-General, because, according to Judge Bingham, he +himself had betrayed the secret long before. + +And why did not Judge Bingham force him to speak, or else make public his +interview with him, while Seward was alive and could either affirm or +contradict it? + +No, these two eminent lawyers, yoked together as the common mark of what +they call a "most atrocious slander," originating with a President of the +United States, bruited about everywhere both in official and private +circles, wait eight long years, and until after the death of the head of +that President's Cabinet, from whose lips one of them at least had heard +at its very inception a solemn refutation of the black lie, before they +venture to proclaim it to the world. + +Mr. Bingham admits in his letter that, in 1865, "he desired to make" the +facts he had ascertained "public." Why did he not "make public" what +Seward had told him, while Seward was living? + +He furnishes no answer to this question, and until he does, his testimony +on the matter is tainted with a most reasonable suspicion. + +And, besides, what we know of the situation of the Secretary of State at +the time of the execution of Mrs. Surratt, of his subsequent career, and +of his lofty character as a man, is sufficient to stamp the account of +Judge Bingham as incredible. + +William H. Seward, one of the most distinguished statesmen of the era of +the civil war, one of the most illustrious founders of the republican +party, and one of the most trusted advisers of Abraham Lincoln, remained +in the Cabinet of Andrew Johnson until the close of his administration. He +united in the pardon of Mudd, Spangler and Arnold. He stood by the +President fearlessly in the dark days of the impeachment, and when the +President had become the target of the daily curses of thousands of +Seward's former political friends. Had he known that the accusation +against General Holt was false, and at the same time heard the daily +reiteration of its truth from the lips of his Chief, he would not have +remained an hour in the Cabinet of such a monumental slanderer. So far +from allowing the ceremonial restraints of Cabinet rules to make him a +silent accomplice in a foul falsehood, he would have proclaimed the truth, +if necessary, even from the steps of the Capitol. + +Mr. Seward, at the time of the execution of Mrs. Surratt, could have but +barely recovered from the broken jaw and broken arm from which he was +suffering, when he bore the savage assault of Payne, and from the grievous +wounds which that mad ruffian inflicted. One of his sons was still +incapacitated because of injuries from the same hand, and his wife died +June 21st, 1865. It is not at all probable that, in such dolorous +circumstances, he would be required to give close attention to a subject +entirely outside of the duties of his department, and in which his +personal feelings as a sufferer were so deeply involved. He said himself +under oath to a Congressional Committee: "Having been myself a sufferer in +that business, the subject would be a delicate one for me to pursue +without seeming to be over-zealous or demonstrative." + +In spite of the eight-years-embalmed testimony of a hundred Binghams, we +would not believe that the uncomplaining victim of Payne voted to deny the +Petition of Mercy. + +While no attempt is made to explain the silence of Seward during his +lifetime, or the silence of Judge Bingham himself regarding the +information he got from Seward, this willing witness does give a most +singular and perplexing explanation of his long silence regarding the +information he got from Stanton. + +He says: (in the same letter) "Having ascertained the fact as stated, I +then desired to make the same public, and so expressed myself to Mr. +Stanton, who advised me not to do so, but to rely upon the final judgment +of the people." + +General Holt, in a subsequent article, states that Stanton "enjoined upon +the Judge silence in reference to the communication." + +We are called upon to believe that the Secretary of War, at the very first +interview with Judge Bingham, when, upon the theory of the truth of the +information, there could have been no conceivable motive for its +concealment, advised his inquiring friend to suppress a fact essential to +the refutation of a despicable slander, blotting the fair name of a +brother officer. Not only this; but that the Secretary continued the +injunction of silence during all the years the terrible charge was being +bandied about on the lips of men to the daily torment of the poor man so +cruelly assailed. As General Holt says: "It was a deliberate and merciless +sacrifice of me, so far as he could accomplish it." + +And he "enforced" the "silence" up to the day of his death. + +But we ask what reason had the "Great War Minister" "to perpetrate so +pitiless an outrage?" Why, in the days of the trial of John H. Surratt, +why, in the days of his stern enmity towards the President, when his +removal furnished the main ground of impeachment, did he not once speak +out for his slandered servant, or even unlock the sealed lips of the +obedient Bingham and suffer him to tell the truth? + +General Holt, in 1883, on affirming in the text of his article that +"Messrs. Seward and Stanton declared the truth to Judge Bingham," adds the +following explanatory note: + +"This praise was certainly due to Mr. Seward, but not, in strictness, to +Mr. Stanton, since on making the communication to Judge Bingham, he +endeavored and successfully, to prevent him from giving it publicity. + +"The fear of Andrew Johnson's resentment, added to a determination on his +part to leave my reputation--then under fire from his silence--to its +fate, sufficiently explain his otherwise inexplicable conduct." + +But does it? Is this in truth a sufficient explanation? + +Stanton, the stern War Minister, fear the resentment of Andrew Johnson! +When was he taken with it? When he bearded the President in his Cabinet? +When he defied him in the War Department, and scattered his missive of +removal to the winds? Or did he wait to begin to fear him until the +President retired to private life, just escaping conviction by +impeachment, and shorn of all popularity North or South? The preposterous +nature of the cause assigned casts suspicion upon the assignor himself. +As to the second cause, we are at a loss to conceive why Mr. Stanton +should harbor such motiveless malignity against the reputation of his +former colleague, then his pliant subordinate, and always his friend. We +need, in this regard, an explanation of the explanation. If it be true, it +settles the character of Stanton for all time. + +But, it appears, in the words of General Holt, that "while he (Stanton) +lived, this enforced silence was scrupulously obeyed." Again we ask why? + +Why should Bingham have obeyed the "advice," even if given by Stanton so +long before? Why should the associate of Holt, in the prosecution and +execution of Mrs. Surratt, have ministered to the malignity of Stanton, +scrupulously obeyed his base injunction, and never even told his beloved +fellow-laborer on the field of courts-martial, that he possessed such +secret sacred testimonials in his favor? + +The General gives us no explanation of this "inexplicable conduct." + +Surely, the undaunted Bingham--who, as manager on the impeachment trial, +so clawed the character of the arraigned President, could have had no +"fear of the resentment of Andrew Johnson." And, unless the masterful +Stanton held some secret back to feather his "advice," or lend weight to +his injunction of silence, we see no reason why the fear of Stanton should +have closed the lips of the voluble Special Judge-Advocate. He surely +could not have joined in the fine irony of the Secretary, that it would +be better for their mutual friend, although "under fire," "to rely on the +judgment of the people." + +But another, and a final, explanation is necessary. The Great War Minister +died in December, 1869. Holt more than hints that "Providence" shortened +his life so that he should no longer "perpetrate so pitiless an outrage" +as keeping Bingham's mouth shut. + +Why, then, do we hear nothing from Judge Bingham for three years more? In +the words of Holt, "after the Secretary had, amid the world's funeral +pomp, gone down into his sepulchre, the truth came up out of the grave to +which he had consigned it," and was "resurrected and openly announced by +Judge Bingham." But why was the resurrection delayed until February, 1873? +He does not tell us. Why should "the buzz of this slanderous rumor" (to +use Holt's own words), "sadly recall to him that, though holding that +proof, he was not yet privileged to divulge it?" There is no answer to +this; none. The "scrupulosity" of Bingham did not end with the +providential taking off of Stanton, but prolonged its reverential +obedience to the advice of the dead, until his great colleague also was +summoned from the scene. + +Such resurrected truth, like the suggested letter of Speed to be used only +after poor Holt's death, seems doubly obnoxious to the latter's own +common sense remark: "thus strangely withheld from the public, it would +not, when it appeared, be credited." + + * * * * * + +On the whole, it is exceedingly doubtful whether Judge Bingham's testimony +does not do more harm than good to General Holt's case. It is the +testimony of an accomplice, if the charge it is meant to refute is true. +Its subject-matter is hearsay, withheld, so long as the direct evidence +was attainable, for no good reason, or for a reason assigned which will +not stand a moment's examination. + +This interchange of letters between two associates in infamy, if infamy +there were, the one applying for, and the other disclosing ostensibly for +the first time, at so late a day, decisive information, which, in the +ordinary course of things, the one must have asked for or the other +revealed, and both talked over from the beginning, wears upon the face all +the features of a collusive correspondence. + +No one acquainted with the facts can be induced to credit what both these +men state upon the threshold of their correspondence, and upon the truth +of which their credibility is staked for all time, that, if two such +conversations with Judge Bingham actually took place, this co-victim of a +common charge would ever have withheld all knowledge of such important +testimony from his brother in affliction for eight years, and until the +lips of his two eminent interlocutors, whose confirmation would have at +once and for ever crushed the calumny, were closed in death. + +And, with this incontrovertible assertion, we dismiss John A. Bingham to +keep company with Richard Montgomery and Sanford Conover, two witnesses +who were once the subjects of his own fervid eulogy. + +Another aspect of the case must for a moment detain us. + +Under the admitted fact that the President approved the death-sentence on +Wednesday, July 5th, it is by no means clear how we are to find room for +this supposed Cabinet meeting. + +The natural construction of Bingham's letter would lead us to believe that +the Cabinet meeting, which the two Secretaries are said to have described, +was a regular consultation between "the President and his advisers," held +_before_ the "confidential interview" at which the President "approved the +death-sentence;" and that the entire Cabinet voted on the question raised +by the petition, because it was "a unit in denying the prayer." This is +but another version of the "full Cabinet" of Judge Pierrepont's first +statement, and forcibly suggests that the two have an identical origin--at +first withdrawn under compulsion while Seward lived, at last brought +forward again after his death. + +And every one, on such construction, would expect to hear the voices of +McCulloch, Welles and Dennison, still living in 1873, and accessible to +the ex-Judge-Advocate. + +He states in his "Refutation," that he "had satisfactory reasons for +believing that they were not there;" but he could not have gathered those +reasons from Judge Bingham or his letter, which really is only consistent +with the presence of some, if not all, of the three; and it is naturally +to be inferred he got them from the ex-members themselves in letters +repudiating all knowledge of the petition;--letters he takes care not to +publish. + +Again: the Cabinet meeting described in Judge Bingham's letter cannot be +made to square with the meeting described in the letter of Judge Harlan. +The former was a regular Cabinet meeting, the latter was an informal +discussion by a few members of the Cabinet. At the one, the petition was +"duly considered," at the other, neither record nor petition was present. +At the one, "a formal vote" was taken upon the "question as to Mrs. +Surratt's case;" at the latter, her case "was never submitted to a formal +vote." + +But--not to dwell further on dispensable points--it is enough to say that +_any_ Cabinet meeting whatever, for the consideration of the petition, +held _before_ the President's approval of the death-sentence, is, on the +admitted facts of the case, an impossibility. + +Indeed Holt himself, when driven to the question, does not claim that +there was. The record was in the custody of the Judge-Advocate from the +30th of June until that officer carried it to the President on the 5th of +July, and during that interval the President was sick-a-bed. It was +General Holt, as he himself states, who first "drew his attention to the +recommendation," and "the President then and there read it in my (his) +presence." And this was at the confidential interview on Wednesday, July +5th. There could have been no meeting of the President and his Cabinet at +which the record and petition were present and discussed, "before the +approval of the death-sentence;" which confessedly was done at the +confidential interview. + +When this impossibility was pointed out by Andrew Johnson, General Holt, +in his "refutation," with great show of indignation, denounces such an +argument as "intensely disingenuous." While conceding at once that from +the adjournment of the Commission to the 5th of July, the President "had +been sick in bed, and had, of course, had no opportunity of conferring +with any members of his Cabinet;" he proceeds to show what his idea of +intense ingenuousness is, by claiming that what "Messrs. Seward and +Stanton" (of Bingham's letter) "clearly meant was, that before the +President had _finally_ and _definitely_ approved the sentences in +question," the recommendation to mercy "had been considered by him and his +advisers in Cabinet meeting;" and therefore such a meeting might have been +held _after_ the signature to the death-warrant, say on Wednesday +afternoon (5th), or on Thursday, the 6th. And he, now, once again, as in +the days of the Surratt trial, abandons all idea of a "full" or regular +Cabinet meeting, and endeavors, with the most transparent sophistry, to +identify the informal discussion of Judge Harlan's letter with the Cabinet +Council of Judge Bingham. But alas! for the ingenuous General! +Circumstances are too strong for him. For there is no more room for a +Cabinet meeting, formal or informal, to do what Judge Bingham's informants +are said to relate--_i. e._ consider, and then vote upon the +petition--_after_ the confidential interview than _before_. + +It is agreed on all hands that the President approved of the +death-sentence on Wednesday, at the confidential interview between Holt +and himself, and, at that very time, and by the same warrant, appointed +Friday the 7th, for the executions. The whole matter was begun and ended +in an hour. + +There was neither opportunity, nor, if there had been, use, to hold a +Cabinet consultation upon the question of commutation after that. + +The President had reviewed the record, and, without consultation with any +human being but Holt, put his name to the death-warrant. Why consult his +confidential advisers after he had decided the whole matter? Holt himself +says that, at this private interview, it was not he, but Andrew Johnson, +who had fully made up his mind that Mrs. Surratt must be put to death; +that the President needed no urging or advice on that subject; that he +inveighed against the women of the South with a ferocity which reminds us +of the loyal Bingham himself. Holt says that the President himself, +without a suggestion from him, was "prompt and decided" "as to _when_ the +execution should take place," "and in the same spirit too, in which he +subsequently suspended the writ of Habeas Corpus, he fixed the Friday +following." Why call in his "advisers" after he had, with the approval of +his judgment and his conscience, put his hand to the work of blood! +Besides, if he needed such a supererogatory endorsement of his "advisers," +there was no time to get it. + +The record with the death-warrant went direct to the Adjutant-General's +office that very Wednesday. Holt cannot remember whether he took it or +not, nor can the Adjutant-General remember when or how he received it. But +this is of no consequence. The order for the execution was drawn on that +day, the necessary copies made that day; it was promulgated on the morning +of Thursday the 6th, and on that day at _noon_, the warrant for her death, +within twenty-four hours, was read to the fainting woman in her cell. All +day long, on the 6th, the White House was besieged by her friends, her +priests and her daughter, to obtain a reprieve. The guardians of the +President had no time to hold Cabinet consultations over foregone dooms of +death. They were too busy intercepting verbal prayers for mercy, holding +shut the doors of the President's private room, sending away all +petitioners, for a few more hours' life, to the merciful Judge-Advocate, +making sure that there should be four pine coffins and four newly dug +graves, and that the Habeas Corpus should not leave one empty. Hold a +Cabinet meeting after the President had signed the bloody warrant, and +Stanton had once clutched it! Reopen the perilous question to hear Welles +and Dennison, and McCulloch and Seward, to say nothing of Harlan and Speed +And Stanton, discuss a petition addressed to the President who had already +denied it! "Five members of our court have been suborned by their feelings +to swerve from their duty. We run no more risks of soft-hearted gallantry +this time amid the members of the Cabinet. Let the funeral games begin." + +The ex-Judge-Advocate insists that the signature to the death-warrant was +a matter of very little moment. The President could withdraw it at any +time. But would he have us believe that, after the President had +dispatched such a fatal missive to the officer whose sole duty, with +regard to it, consisted in the promulgation of an order for its execution +within twenty-four hours, such action was simply provisional and, +according to usage, still subject to rescission by a Cabinet vote? + +Desperate, indeed, must be the necessities of a defence, which drive the +defendant on the forlorn hope of identifying a Cabinet meeting, voting as +a unit to deny a petition for clemency, "_before the death-warrant was +approved_," with a Cabinet discussion of the petition, _after_ the +death-warrant, fixing the execution on the next day but one, had been +signed by the President, (who is represented as urgent and eager at the +moment of his signature to exact in the shortest time the extremest +penalty); on the ground that the latter was held _before_ the theoretical +_animus revocandi_ of the Executive had become technically inoperative +with the last sigh of the condemned. + + * * * * * + +It has been suggested by one of his subordinate officers that the +Secretary of War having seen the petition as soon as the record came to +his department, it is inconceivable that, at some moment between the 30th +and the 7th, the matter should not have been discussed by him with the +President. + +Of course, there can be no doubt that Stanton knew all about the +recommendation. But, (and this obvious answer seems to have altogether +escaped the attention of his friend), if the paper was in fact suppressed, +it was suppressed with Stanton's own knowledge. Indeed, his must have been +the master-hand. He it was who kept the late Vice-President up to the mark +of severity as long as the bloody humor lasted. + +He was the sovereign, and Bingham and Holt but his vassals. Everybody will +give them the credit of not having dared to dream of suppression without +the electrifying nod of their imperious lord. + +And, from the long silence of one, if not both, of his slaves, it would +appear, that he not only directed the suppression of the paper, but was +too proud to deny, or suffer his minions to deny, it to his dying day. + + + + +CHAPTER V. + +ANDREW JOHNSON SIGNS ANOTHER DEATH-WARRANT. + + +Let us turn from the case made by General Holt, which on a cursory +inspection seems so strong, but the seeming strength of which, on a closer +scrutiny, dissipates itself among such perplexing questions, and lands us +at last in the "enjoined silence" of Stanton, to the first public, +authoritative charge made by the ex-President. + +It appeared, November 12th, 1873, in the same newspaper which had +published General Holt's Vindication, to which it was a reply. For it must +be remembered that it was Joseph Holt, for eight years the accused, and +not Andrew Johnson, for eight years the accuser, at the bar of rumor, who +first threw down his gage in the public arena, defying his secret +antagonist to come forth. + +The gallant knight chose his own good time; and, at last, surrounded with +sponsors, both clerical and martial, with banners flying and a most +sonorous peal of trumpets, he burst into the lists, as though he would +fain hope by noise and show to over-awe his dreaded adversary into +submissive silence. + +His thunders availed nothing. His glove had no sooner reached the ground +than it was taken up. + +Let us hear the plain, straightforward statement of Andrew Johnson. There +are no mysteries to unravel, no explanations to explain. + + "The findings and sentences of the court were submitted on the 5th of + July (he and I being alone), were then and there approved by the + Executive, and taken by the Judge-Advocate-General to the War + Department, where on the same afternoon the order to carry them into + effect was issued. Mr. Speed, doubtless, saw the record, but it must + have been in the Department of War, and not in the Executive office." + +After thus quietly disposing of Mr. Speed's evidence, he proceeds:-- + + "The record of the court was submitted to me by Judge Holt in the + afternoon of the 5th day of July, 1865. Instead of entering the + Executive Mansion in the usual way, he gained admission by the private + or family entrance to the Executive office. The examination of the + papers took place in the library, and he and I alone were present. The + sentences of the court in the cases of Herold, Atzerodt and Payne, + were considered in the order named, and then the sentence in the case + of Mrs. Surratt. In acting upon her case no recommendation for a + commutation of her punishment was mentioned or submitted to me." + +He then states that the question of sex was discussed alone; Holt +insisting upon carrying out the sentence without discriminating as to sex; +that a woman unsexed was worse than a man; that too many females had +abetted traitors during the war, and that there was a necessity an example +should be made. + + "He was not only in favor of the approval of the sentence but its + execution on the earliest practicable day. + + "Upon the termination of our consultation, Judge Holt wrote the order + approving the sentences of the Court. I affixed my name to it, and, + rolling up the papers, he took his leave, carrying the record with + him, and departing as he had come through the family or private + entrance." + +And there we must leave him. + +True, he rejoined, in December, in another very long article, contributed +to the same newspaper, in which he endeavored to break the force of +several points made in Johnson's answer, and dwelt with much insistence on +the abstention of the President from making any open charge against him, +and on his adversary's present silence with regard to General Mussey's +letter. But there is nothing new in the way of testimony, except two +sympathizing letters from Generals Ekin and Hunter, respectively; the +former of which might be construed by the uncharitable as evidence that +General Holt, at the time of the execution, was already forestalling +anticipated accusation by defending himself in private to his friends; the +latter is a tribute from the grim President of the Military Commission to +the Judge-Advocate's _tenderness_ to the prisoners before that body, of +which the printed record of the trial affords such striking illustrations. + +This lengthy "Refutation," as it was entitled, upon the whole added +little, if any, strength to the "Vindication." His accuser, on his side, +resting content with his one single explicit public utterance, paid no +attention to it. + +And when, at the present hour, we calmly survey the relative standing, the +position, the character and career of the two combatants, the +circumstances surrounding the momentous confidential interview, the silent +testimony of the record with the significant twist of the death-warrant, +the nature of the accusation, the mysteries enveloping the belated +defense, the probable motives actuating each, the thirst for blood which +for a time maddened the leading spirits of the War Department, the +passivity of Johnson for the few weeks after his sudden and sombre +inauguration, and for the same period the wild and reckless predominance +of Stanton;--what valid reason exists why we should discredit, or even +suspect for a moment, the veracity of the ex-President? Andrew Johnson +looms up in history a very different figure from the one discerned by his +enemies, both North and South, amid the passions of his epoch. He was no +inebriate, as he was stigmatized because of the unfortunate incident at +his inauguration as Vice-President. He was no weak, frightened tool, as he +appeared to be at the bloody crisis of his accession to the Presidency. He +was no apostate from his section, as he was cursed by the South for being +at the breaking out of the war. He was no traitor to the North, as he was +denounced by the impeachers for the mere endeavor to carry out the +reconstruction policy of his lamented predecessor. He was not the +garrulous fool, he was called in ridicule when he "swung around the +circle." He is now recognized, when his career is reviewed as a whole, as +a man temperate in his habits, firm, self-willed and honest; as a +statesman, intelligent though uncultured, sometimes profound and always +sincere; and as a union-loving, non-sectional, earnest patriot. His +impeachment is looked back upon by the whole country with shame. His +impeachers are already, themselves, both impeached and convicted at the +bar of history. + +In sober truth, so unique and perfect a triumph never capped and completed +the career of Roman warrior or modern ruler of men, as when, but little +more than a year after his reply to General Holt, the ex-President--once +again the chosen representative of that State whose rebellious people he +had coerced with an iron hand as military governor during the Civil +War--took his seat in that body, before which he had been arraigned on the +impeachment of the House of Representatives and had escaped conviction by +but a single vote. + +With the words of Holt's denunciation still fresh in their remembrance, +the citizens of Washington loaded the desk of the retributive Senator with +flowers; and, when he advanced, amidst so many colleagues who had +condemned him as judges, to take the oath of office, and again when, a few +days later, his voice, which had before been heard pleading for the +imperiled Union, was from the same place once more heard pleading for the +imperiled Constitution, the crowded galleries and corridors gave him a +conquering hero's welcome. + +When in the following summer he died, his body was followed to its grave +in the mountains by what it is hardly an exaggeration to call the whole +people of his State. When Congress reassembled, the Senate and the House +clothed themselves with crape. One of his former judges, who had voted him +guilty of high crimes and misdemeanors (Morton, of Indiana), thus spoke of +him in the Senate: + +"In every position in life he showed himself to be a man of ability and +courage, and I believe it proper to say of Andrew Johnson that his honesty +has never been suspected; that the smell of corruption was never upon his +garments." + +The same Senator related that when Johnson, as the newly appointed +Military Governor, arrived at Nashville "he was threatened with +assassination on the streets and in the public assemblies, but he went on +the streets; he defied those dangers; he went into public assemblies, and +on one occasion went into a public meeting, drew his pistol, laid it on +the desk before him, and said: 'I have been told that I should be +assassinated if I came here. If that is to be done then it is the first +business in order, and let that be attended to.' No attempt having been +made he said: 'I conclude the danger has passed by;' and then proceeded to +make his speech." + +Again the Senator said: "After I had voted for his impeachment, and met +him accidentally, he wore the same kindly smile as before, and offered me +his hand. I thought that showed nobility of soul. There were not many men +who could have done that." + +The man, of whom two such incidents could be truthfully related, could +never have invented so foul a charge against an innocent subordinate. + +A Senator from a neighboring State, (McCreery), on the same mournful +occasion said of him: + + "When he went to Greeneville he was a stranger, and a tailor's "kit," + his thimbles and his needles, were probably the sum-total of his + earthly possessions; at his death, the hills and the valleys and the + mountains and the rivers, sent forth their thousands to testify to the + general grief at the irreparable loss. + + "I honor him for that manly courage which sustained him on every + occasion, and which never quailed in presence of opposition, no matter + how imposing. I honor him for that independence of soul which had no + scorn for the lowly, and no cringing adulation for the exalted. I + honor him for that sterling integrity which was beyond the reach of + temptation, and which, at the close of his public service, left no + blot, no stain upon his escutcheon. I honor him for that magnanimity + which after the war cloud had passed, and the elements had settled, + would have brought every citizen under the radiant arch of the bow of + peace and pardon." + +Another Senator (Paddock, of Nebraska) gave utterance to the following +unchallenged statement: + + "I believe, sir, notwithstanding the fact that a painful chapter + relating to the official acts of Andrew Johnson was made in this very + chamber, that no Senator here present will refuse to-day to join me + in the declaration that he was essentially an honest man; aye, sir, a + patriot in the fullest sense of the term." + +Yet another (Bogy, of Missouri), said: + + "His last election to a seat on this floor as Senator was the work of + his own hands, brought about by his own indomitable will and pluck, + the reward of a long and terrible contest, continuing for seven years, + unsuccessful for a time, and appearing to all the world besides + himself as utterly hopeless; nevertheless, finally he was triumphant. + From what I have learned from those who are familiar with this, his + last contest, he exhibited more openly his true and peculiar nature, + than at any other period of his life--which was to fight with all his + might and all his ability, asking no quarter and granting none; and + although like bloody Richard now and then unhorsed, still to fight and + never surrender, until victory perched upon his banner." + +Senator Bayard said: "Friend or foe alike must admit his steady, unshaken +love of country; his constant industry; his simple integrity and honesty; +his courage of conviction, that never faltered." + + * * * * * + +Truly, the solemn word of a man, of whom such things can be said, is no +light thing,--to be thrust aside by windy abuse or vociferous denial. + +Now, what conceivable motive had such a man, seated in the chair of the +Chief Magistracy of this republic, surrounded by Cabinet officers who had +been the advisers of his predecessor, to invent, in the first place, so +horrible a story as that a friendly subordinate officer had deliberately, +in a case of life and death, suppressed so vital a document? For it is +contradictory of historical fact, that he never openly made the charge +until the year 1873. + +This may be true of the period from about the time of the execution up to +the disclosures of the John H. Surratt trial in 1867. But our review of +the incidents of that trial, which General Holt in his refutation seemed +to have totally forgotten, proves, beyond the possibility of controversy, +that the President then first thought himself driven to inspect the record +to ascertain the existence of such a paper, and then first, after the +discovery that there was in fact a recommendation, at once, and at all +times afterwards, openly asserted that he had not seen it or read it. +Every one around him knew that he so said. Stanton, his great enemy, +Seward, his great friend, knew it. Bingham, at the very beginning when +Stanton forbade him to refute it; Bingham, when Butler pierced his shield +in the House of Representatives, and Bingham, when at the bar of the +Senate as manager of the impeachment he belabored his old-time +Commander-in-Chief, knew it; Holt, when he delivered his contradiction +through Judge Pierrepont to the Surratt jury, and when he felt the shadows +darkening over his head because of the "inexplicable conduct" of the great +War Minister in "perpetuating the pitiless outrage," knew it, and +recognized the President of the United States as the responsible author of +the tremendous accusation. + +If Holt is to be credited, the President must have known that four at +least of his confidential advisers stood ready to shatter the baseless +calumny. What conceivable motive, we ask again, to invent such a story--so +easy of refutation, so ruinous to himself, if refuted? + +The necessity to make some reply to this pressing question seems to have +driven both General Holt himself and his defenders into the maintenance of +the most absurd, antagonistic and untenable positions. + +Holt's theory on this subject in his "Refutation" is even ingenious in its +absurdity. He would have us believe that when Johnson originally +fabricated the calumny, "he had not yet broken with the Republican party, +and was, doubtless, in his heart at least, a candidate for reëlection," of +course by that party. If this is true, then the "fabrication" was made +before the fall of 1865, for by that time the President was in full swing +of opposition to the men who had elected him Vice-President. During this +brief transitory period, according to Holt, Johnson discovered that the +hostility of the Catholics (especially, as may be inferred, those of the +Republican party), on account of his signature to the death-warrant of +Mrs. Surratt, would blast this otherwise felicitous prospect. Accordingly, +to abate this uncomfortable hostility, this Republican candidate concocted +the vile slander and set it secretly and anonymously circulating among his +friends and followers;--even his greed for reëlection being not strong +enough to give full effect to his cowardly policy by openly clearing his +own skirts. Could the fatuity of folly farther go? The dream of Andrew +Johnson as a Republican candidate for President had ceased to be possible +even before the execution of Mrs. Surratt. The Catholics who could be +conciliated by any such story might be numbered on Johnson's fingers. And +the undisguised signature to the death-warrant could be obliterated by no +plea of abatement which the petitioner dared not avow. + +On the other hand, the other suggestion put forward, if not by Holt +himself; by several of his defenders, viz.: that the President propagated +the lie "to curry favor with the South in the hope to be elected to the +Presidency," has the one merit of being in direct antagonism to the +foregoing theory, but nevertheless is yet more flimsy and preposterous. At +the time he invented the story, if invention it was, (as Holt appears to +have perceived), the road to the Presidency was to curry favor with the +North and not with the down-trodden South. And after Johnson had escaped +conviction and removal by but one vote, and had retired from office +execrated by the North and distrusted even yet by the South, the chance of +the Presidency for such a character as he was popularly considered +then--especially by truckling to the discredited South--could only look +fair in the imagination of a lunatic. + +No Southern man has seriously thought of being, or has been seriously +thought of as, a candidate for President of either political party since +the termination of the war, let alone the one Southerner reputed to have +been false alternately to both parties and both sections. + +Besides, Andrew Johnson never apologized for his appointment of the +Military Commission, for his approval of its judgment, or for his +signature to the death-warrant. He pardoned Dr. Mudd on the very eve of +the Impeachment Trial. And he pardoned the two remaining prisoners just +before he went out of office. And he may, therefore, be held to have thus +signified his reawakened reverence for constitutional rights as expounded +in the Milligan decision. + +But in no other way did he ever acknowledge that in taking the life of +Mary E. Surratt he had done wrong. On the contrary, he defended his action +in his answer of 1873, and he justified his denial of the habeas corpus, +which the ex-Judge-Advocate had the exquisite affrontery to cast up +against him. That a President in his situation could cherish +aspirations--or hope--of reëlection, based on such a phantom foundation as +the whining plea that he would have commuted the unlawful sentence of a +woman, hung by his command, to imprisonment for life, had he been +permitted to see the petition of five of her judges;--such an imputation +can only be made by men mad enough to believe him to have been the +accomplice of Booth and Atzerodt. + +Finally, let us sternly put the question:--What right has Holt to ask us, +on the word of himself and his associates, to reject the testimony of +Andrew Johnson, who at the best was their accomplice or their tool? He, +and his associates, demanded the life of Atzerodt for barely imagining the +death of so precious a Vice-President. He, and his associates, hounded the +woman to the scaffold, welcoming with delight the stories of spies, +informers, personal enemies, false friends, against her, and meeting with +contumely and violence the least scrap of testimony in her favor. He +suppressed the "Diary." Why may he not have been bad enough to suppress +the recommendation? Two of the same band of woman-stranglers kept back +from the President the petition for mercy, which wailed out from the lips +of the stricken daughter. Why should he not have kept back the timorous +suggestion of five officers, who were so soft-hearted as to "discriminate" +as to sex? His fate will be--and therein equal and exact justice will be +done him--to go down through the ages, stealing away, in the dusk of the +evening, from the private entrance of the White House, bearing the fatal +missive--the last feeble hope of the trembling widow crushed in his +furtive hand. + + + + +CHAPTER VI. + +CONCLUSION. + + +That the petition for commutation was a device of the Triumvirate of +prosecutors to secure the coveted death-sentence, employed in reliance +upon the temporary ascendency of the chief of the three over the +beleaguered President, and upon the momentary pliability, heedlessness, +or, it may be, semi-stupefaction of the successor of the murdered Lincoln, +to smother the offensive prayer:--such an hypothesis alone seems adequate +in any degree to reconcile the apparent contradictions, clear up the +perplexities and solve the mysteries, which hang around this dark affair. + +It furnishes the only rational answer to the else insoluble question, how +it happened that a court, a majority of whose members had the inclination +and the power to lower the punishment of the solitary woman before them to +life-long imprisonment, as the court did with the three men who were tried +with her and convicted of the same crime, did nevertheless, by at least a +two-thirds vote, condemn her to die by the rope. + +It lights up the else inscrutable prohibition by Stanton of a public +exculpation of his subordinate officer, softened by the sardonic +admonition "to rely" for justification "on the final judgment of the +people." A source of glorification, rather, it should be, that no maudlin +pity for a woman had been suffered to intercept the death-stroke of a +righteous vengeance. + +It accounts for the "scrupulous obedience" of Bingham, not only until +Stanton's death, but three years after, until Seward, too, had gone. +Stanton knew the petition had been suppressed or made invisible; Seward, +that the petition never had been before the Cabinet. + +It throws a glimmer, faint it is true, on the shameful attitude of Speed, +eight years after the death of Johnson--still shutting his ears to the +repeated appeals of his agonized friend, and still falling back on his +propriety. According to Judge Harlan, the whole record had been examined +by the Attorney-General, as well as the Secretary of War. Speed, too, +under the spell of Stanton, may have fingered the obnoxious paper, which +might nip the bloody consummate flower of his "_common law of war_." + +It furnishes the only plausible reason why such an historic document did +not appear in the published official record of the proceedings of the +Military Commission, in November, 1865, or in the reports of the +Judge-Advocate, first, to the President, and, second, to the Congress. + +It illumines with a baleful light the atmosphere of sinister secrecy, in +which this adjunct to the record, for no lawful reason, has been +enshrouded; the mysterious incidents at the Surratt trial, such as the +tardy and reluctant production, the faltering and imperfect exhibition, +and the hasty withdrawal of the "roll of papers;" the two statements of +Mr. Pierrepont; the shrinking of the "full Cabinet meeting" into a +"confidential interview," until after Seward's death; and the singularly +equivocal language that the petition was "_before the President_" when he +signed the warrant. + +And, finally, when it is considered that the suppression of the paper was +not the overt act of any one man, but the result of a strictly formal +presentation of the record on the part of the Judge-Advocate, aided, it +may be, by a timely sleight-of-hand in writing the order of approval, and +of a blind carelessness on the part of the President in the examination of +the papers; this hypothesis goes far to explain the reluctance of General +Holt to rest his defense on his own evidence of the confidential +interview, his eager grasping after Cabinet corroboration, and the +abstention of both Judge-Advocate and President from taking official +action upon the charge, the one for vindication, the other for punishment. + + * * * * * + +And so the history of this murder of a woman by the forms of military rule +slowly unrolls itself, to disclose, as its appropriate finis, the writer +of the death-warrant struggling in the meshes of his own fraud. + +The draughtsman of the unaddressed petition for commutation, after waiting +eight years for death to clear the way, comes to the help of his old +colleague, only to be caught in the same net. + +The entangled twain call up the sullen shade of their departed master, and +force him to father the trick he fain would have scorned. + +These three are the men who, when the summary methods of martial law would +else have failed to crush out entirely the life of their victim, contrived +to attain their bloody end by cool and deliberate chicanery. + +The other actors on the scene may plead the madness of the time. For these +three no such plea is open. They superadded to the common madness of the +time the particular malice of the felon. Upon their three heads should +descend the full weight of criminal turpitude involved in this most +unnatural execution. + +They sat upon the thrones of power. They dragged a woman from her humble +roof and thrust her into a dungeon. They chose nine soldiers to try her +for the murder of their Commander-in-Chief. They chained her to the bar +along with seven men. They baited her for weeks with their Montgomerys and +Conovers, their Weichmans and Lloyds, the spawn of their bureau, dragooned +by terror or suborned by hope. They shouted into the ears of the court +appeal on appeal for her head. And, when at last five of their chosen sons +sickened at the task, and shrank from shedding a woman's blood, they +procured the death-sentence by a trick. They forged the death-warrant by +another. They turned thimble-riggers under the very shadow of the gallows. +They cheated their own court. They cheated their own President. They +cheated the very executioner. They sneaked a woman into the arms of death +by sleight-of-hand. They played their confidence game with the King of +Terrors. They managed to hide the cheat from the country until they +quarreled with their new Commander-in-Chief. Then ensued an interval of +ambiguous mutterings, dark equivocations, private accusation, private +defenses. From one side: "I never saw the paper." From the other: "It was +right before his eyes." + +The twin ex-Judge-Advocates, at length, brace each other up to the +sticking-point and venture on an appeal to the public. The ex-President, +thus driven at bay, fulminates the secret infamy in all its foul extent to +the whole world. Thereupon, Great Nemesis finds her opportunity, and makes +these once high-placed, invulnerable woman-slayers the sport of her mighty +hands. + +Every one, as if coerced by some magic power, comes at last to act as +though he were afraid of the other, and, willing or unwilling, contrives +to show how profoundly base the others are. + +Stanton slinks mysteriously into the shadow of death, refusing to cut his +co-conspirator down from the gibbet where the dreaded Johnson has swung +him. Bingham, standing like an Indian with a single female scalp bleeding +from his girdle, presses his finger to his lips until Stanton and Seward +die. Speed, with the obnoxious petition pressed again and again to his +nostrils, feebly yet persistently refuses to open his mouth. + +Holt pictures the dead Johnson exulting even in Hell over the silence of +his old Attorney-General; blasts the character of Stanton by ascribing his +injunction of silence to a motive the most diabolic; and, unconscious +seemingly that he does it, at the same time ruins the credit of Bingham by +extolling his "scrupulous obedience" to such an infernal command. + +Johnson unwittingly proclaims the pardon of the slain woman in his anxiety +to show that he signed her death-warrant through ignorance, forced upon +him by the ineffable depravity of the men in whom he was compelled to +trust. + +This controversy over the petition of clemency was the only thing needed +to round out and decorate the entire, complete and perfect iniquity of the +whole drama. It is immaterial and indifferent to history where the truth +lies between these combatants in so unsavory a strife. Each one tears off +the burning brand of shame, not to extinguish it, but to pass it on to his +colleague. If we credit Holt, it is difficult to conceive the malignity +of soul of Andrew Johnson, who could invent so foul a charge, the meanness +of spirit of Edwin M. Stanton, who, knowing its blackness, could forbid +the promulgation of the truth, the cowardly silence of John A. Bingham, +whose lips the death of the dreaded Stanton alone could unclose. If we +credit Johnson, then in all the crowded catalogue of inquisitors, +persecutors, cruel or pettifogging prosecuting officers, devil's advocates +and murderous Septembrisers, there is not one who would not spurn with +profane emphasis association with Holt or Bingham or Stanton. + +As the choicest specimen in this shower of accusations and +counter-accusations, listen to the tender-hearted ex-Judge-Advocate of +1873--once the stony head of the death-dealing Bureau--rebuking Andrew +Johnson for his cold-blooded cruelty! "I would have shuddered to propose +the brief period of two days within which the sentences should be +executed, for with all the mountain of guilt weighing on the heads of +those convicted culprits I still recognized them as human beings, with +souls to be saved or lost, and could not have thought for a moment of +hurrying them into the eternal world, as cattle are driven to the +slaughter-pen, without a care for their future." + +Listen again to the former expounder of the "common law of war" before the +Military Commission, as he arraigns the ex-President for his disregard of +the writ of habeas corpus: "The object of which was, and the effect of +which would have been, had it been obeyed, to delay the execution of Mrs. +Surratt at least until the questions of law raised had been decided by the +civil courts of the District; yet this writ was, by the express order of +the President, rendered inoperative. And so, under this Presidential +mandate, the execution proceeded. * * * But for his direct intervention +and defiant action on the writ, whatever might have been the final result, +it is perfectly apparent her life would not then have been taken." + +Once more. Hear J. Holt, the Recorder of the Commission! "As Chief +Magistrate he was, under the Constitution," (HEAR HIM!) "the depositary of +the nation's clemency and mercy to the condemned, and a pressing +responsibility rested upon him as such _to hear the victims of the law +before he struck them down_." (The italics are his who wrote out the +death-warrant.) "Did he do this? On the contrary, * * he gave * * a +peremptory order to admit nobody seeking to make an appeal in behalf of +the prisoners, saying that he would 'see no one on this business.' + +"He closed his door, his ears, and his heart against every appeal for +mercy in her behalf, and hurried this hapless woman almost unshrived to +the gallows." + +What a picture is this! + +The minion of Stanton, the colleague of Bingham, the tutor of Weichman, +the tutor of Lloyd, the procurer of the death-warrant, weeping over the +empty grave in the Arsenal, which, after his master's relentless watch was +over, had at length given up its dead! + +Here we are forced to stop. After such an exhibition, we can linger no +longer over this miserable scramble to shirk responsibility. Its only +consequence of historic importance, after all, is the light it casts upon +the memory of the sacrificial victim. Out of the cloud of mutual +vituperation, which covers the men who, among them, somehow, compassed her +slaughter, her innocence rises clearer and clearer, like the images of +retribution from the foul fumes of the witches' cauldron. + +Her vindication must be held to be final, complete and unassailable, when +John A. Bingham is anxious to acquaint the country that he drafted a +petition to save her life; when J. Holt pretends to weep for her; when +Andrew Johnson is forced, by the inexorable pressure of events, to confess +that when he signed her death-warrant he knew not what he did. + + * * * * * + +As we let fall the curtain at the close of this dark and shameful tragedy, +let us endeavor to anticipate the verdict of history. + +The execution of Mary E. Surratt is the foulest blot on the history of the +United States of America. + +It was a violation of the most sacred provisions of that Constitution, +whose enforcement was the vaunted purpose of the War. + +It was a violation of the fundamental forms and principles of criminal +jurisprudence, centuries older than the Constitution. + +It was a violation of that even-handed justice, which is said to rule in +the armies of Heaven and among the inhabitants of the earth. + +It was a violation of those chivalrous impulses which spring unbidden to +the manly breast in the presence of woman. + +It was a violation of the benign precepts of Jesus, which enjoin +tenderness to the fatherless and the widow. + +It was a violation of the magnanimity of the brave soldier, which scorns +to wound the weak, the fallen and the helpless. + +It was a violation of even the common instincts of fairness, which +subsist, as a matter of course, between man and man. + +It was unconstitutional. It was illegal. It was unjust. It was inhumane. +It was unholy. It was pusillanimous. It was mean. And it was each and all +of these in the highest or lowest degree. It resembles the acts of +savages, and not the deeds of civilized men. + +The annals of modern times will be searched in vain to furnish its +parallel. Execrations rise to our lips, as we read, in the pages of +Macaulay, of the hanging of Alice Lisle, and the burning of Elizabeth +Gaunt. But Alice Lisle and Elizabeth Gaunt were indicted by grand juries, +tried by petit juries, found guilty, and sentenced, in strict accordance +with criminal procedure. The forms of law, which the bigoted James, and +even the infamous Jeffrey, were careful to observe, were swept aside by +Holt and Bingham and Stanton, with a sneer. + +We turn aside with sickening horror from the recital of the murderous +orgies of the Terrorists of the French Revolution--shedding the blood of +the young, the tender, the beautiful, the brave. But the Terrorists of +France could plead the excuse, that they were driven to madness by the +thought, that the invading hosts, encompassing the new-born Republic, were +drawing nearer and nearer, every hour, with vengeance and +counter-revolution perched upon their banners; and a merciful destiny +granted them the grace to expiate their bloody deeds on the same scaffold +as their victims. + +But, in the case of Mary E. Surratt, not a single redeeming feature +relieves + + "The deep damnation of her taking off." + +Alas! Alas! Right in the centre of the glory which beams from the triumph +of the Union and Emancipation, there hangs a dark figure--casting an +eclipsing shadow--ever widening--ever deepening--in the eyes of all the +coming generations of the just. + + + + +Transcriber's Notes: + +Passages in italics are indicated by _italics_. + +In the original text, the list on pages 72-73 skips from 2 to 7. + + + + + + +End of the Project Gutenberg EBook of The Judicial Murder of Mary E. Surratt, by +David Miller DeWitt + +*** END OF THIS PROJECT GUTENBERG EBOOK THE JUDICIAL MURDER OF MARY *** + +***** This file should be named 36188-8.txt or 36188-8.zip ***** +This and all associated files of various formats will be found in: + http://www.gutenberg.org/3/6/1/8/36188/ + +Produced by Carla Foust and the Online Distributed +Proofreading Team at http://www.pgdp.net (This book was +produced from scanned images of public domain material +from the Google Print project.) + + +Updated editions will replace the previous one--the old editions +will be renamed. + +Creating the works from public domain print editions means that no +one owns a United States copyright in these works, so the Foundation +(and you!) can copy and distribute it in the United States without +permission and without paying copyright royalties. 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Thus, we do not necessarily +keep eBooks in compliance with any particular paper edition. + + +Most people start at our Web site which has the main PG search facility: + + http://www.gutenberg.org + +This Web site includes information about Project Gutenberg-tm, +including how to make donations to the Project Gutenberg Literary +Archive Foundation, how to help produce our new eBooks, and how to +subscribe to our email newsletter to hear about new eBooks. diff --git a/36188-8.zip b/36188-8.zip Binary files differnew file mode 100644 index 0000000..3ee46fa --- /dev/null +++ b/36188-8.zip diff --git a/36188-h.zip b/36188-h.zip Binary files differnew file mode 100644 index 0000000..f5950fd --- /dev/null +++ b/36188-h.zip diff --git a/36188-h/36188-h.htm b/36188-h/36188-h.htm new file mode 100644 index 0000000..e728492 --- /dev/null +++ b/36188-h/36188-h.htm @@ -0,0 +1,6892 @@ +<!DOCTYPE html PUBLIC "-//W3C//DTD XHTML 1.0 Strict//EN" + "http://www.w3.org/TR/xhtml1/DTD/xhtml1-strict.dtd"> + +<html xmlns="http://www.w3.org/1999/xhtml"> + <head> + <meta http-equiv="Content-Type" content="text/html;charset=iso-8859-1" /> + <title> + The Project Gutenberg eBook of The Judicial Murder of Mary E. Surratt, by David Miller DeWitt. + </title> + + <style type="text/css"> + + p {margin-top: .75em; text-align: justify; margin-bottom: .75em;} + + body {margin-left: 12%; margin-right: 12%;} + + .pagenum {position: absolute; left: 92%; font-size: smaller; text-align: right; font-style: normal;} + + h1,h2,h3,h4,h5,h6 {text-align: center; clear: both;} + + hr {width: 33%; margin-top: 2em; margin-bottom: 2em; margin-left: auto; margin-right: auto; clear: both;} + + table {margin-left: auto; margin-right: auto;} + + .giant {font-size: 200%} + .huge {font-size: 150%} + .large {font-size: 125%} + + .blockquot {margin-left: 5%; margin-right: 10%;} + .poem {margin-left:15%;} + .note {margin-left: 20%; margin-right: 20%;} + + .right {text-align: right;} + .center {text-align: center;} + + .smcap {font-variant: small-caps;} + .smcaplc {text-transform: lowercase; font-variant: small-caps;} + + .figcenter {margin: auto; text-align: center;} + + p.dropcap:first-letter{float: left; padding-right: 3px; font-size: 250%; line-height: 83%; width:auto;} + .caps {text-transform:uppercase;} + + a:link {color:#0000ff; text-decoration:none} + a:visited {color:#6633cc; text-decoration:none} + + .spacer {padding-left: 1em; padding-right: 1em;} + + </style> + </head> +<body> + + +<pre> + +The Project Gutenberg EBook of The Judicial Murder of Mary E. Surratt, by +David Miller DeWitt + +This eBook is for the use of anyone anywhere at no cost and with +almost no restrictions whatsoever. You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + +Title: The Judicial Murder of Mary E. Surratt + +Author: David Miller DeWitt + +Release Date: May 22, 2011 [EBook #36188] + +Language: English + +Character set encoding: ISO-8859-1 + +*** START OF THIS PROJECT GUTENBERG EBOOK THE JUDICIAL MURDER OF MARY *** + + + + +Produced by Carla Foust and the Online Distributed +Proofreading Team at http://www.pgdp.net (This book was +produced from scanned images of public domain material +from the Google Print project.) + + + + + + +</pre> + + + + +<div class="figcenter"><img src="images/cover.jpg" alt="" /></div> +<p> </p><p> </p> + +<p class="center"><span class="large">THE</span></p> +<p class="center"><span class="huge">JUDICIAL MURDER</span></p> +<p class="center">—OF—</p> +<p class="center"><span class="giant">MARY E. SURRATT.</span></p> +<p> </p><p> </p> +<p class="center"><span class="smcap">DAVID MILLER DeWITT.</span></p> +<p> </p><p> </p> +<p class="center">Baltimore:<br />JOHN MURPHY & CO.<br />1895.</p> + +<p> </p><p> </p> +<p class="center"><span class="smcap">Copyright, 1894, by David Miller DeWitt.</span></p> + + +<p> </p><p> </p> +<div class="note"> +<p>“<i>Oceans of horse-hair, continents of parchment, and learned-sergeant +eloquence, were it continued till the learned tongue wore itself small in +the indefatigable learned mouth, cannot make the unjust just. The grand +question still remains, Was the judgment just? If unjust, it will not and +cannot get harbour for itself, or continue to have footing in this +Universe, which was made by other than One Unjust. Enforce it by never +such statuting, three readings, royal assents; blow it to the four winds +with all manner of quilted trumpeters and pursuivants, in the rear of them +never so many gibbets and hangmen, it will not stand, it cannot stand. +From all souls of men, from all ends of Nature, from the Throne of God +above, there are voices bidding it: Away! Away!</i>”</p> + +<p class="right"><span class="smcap">Past and Present.</span></p></div> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<h2>CONTENTS.</h2> + +<table border="0" cellpadding="0" cellspacing="5" summary="table"> +<tr><td> </td><td align="right"><small>PAGE.</small></td></tr> +<tr><td align="center"><a href="#PRELIMINARY">PRELIMINARY</a></td></tr> +<tr><td> </td></tr> +<tr><td align="center"><a href="#CHAPTER_I"><span class="smcap">Chapter I.</span></a></td></tr> +<tr><td>The Reign of Terror,</td><td align="right"><a href="#Page_1">1</a></td></tr> +<tr><td> </td></tr> +<tr><td align="center"><a href="#CHAPTER_II"><span class="smcap">Chapter II.</span></a></td></tr> +<tr><td>The Bureau of Military (In)Justice,</td><td align="right"><a href="#Page_15">15</a></td></tr> +<tr><td> </td></tr><tr><td> </td></tr> +<tr><td align="center"><a href="#PART_I">PART I.</a><br />THE MURDER.</td></tr> +<tr><td> </td></tr> +<tr><td align="center"><a href="#CHAPTER_I.1"><span class="smcap">Chapter I.</span></a></td></tr> +<tr><td>The Opening of the Court. Was She Ironed?</td><td align="right"><a href="#Page_23">23</a></td></tr> +<tr><td> </td></tr> +<tr><td align="center"><a href="#CHAPTER_II.1"><span class="smcap">Chapter II.</span></a></td></tr> +<tr><td>Animus of the Judges. Insults to Reverdy Johnson and General Edward Johnson,</td><td align="right"><a href="#Page_41">41</a></td></tr> +<tr><td> </td></tr> +<tr><td align="center"><a href="#CHAPTER_III.1"><span class="smcap">Chapter III.</span></a></td></tr> +<tr><td>Conduct of the Trial,</td><td align="right"><a href="#Page_56">56</a></td></tr> +<tr><td> </td></tr> +<tr><td align="center"><a href="#CHAPTER_IV.1"><span class="smcap">Chapter IV.</span></a></td></tr> +<tr><td>Arguments of the Defense,</td><td align="right"><a href="#Page_70">70</a></td></tr> +<tr><td> </td></tr> +<tr><td align="center"><a href="#CHAPTER_V.1"><span class="smcap">Chapter V.</span></a></td></tr> +<tr><td>Charge of Judge Bingham,</td><td align="right"><a href="#Page_82">82</a></td></tr> +<tr><td> </td></tr> +<tr><td align="center"><a href="#CHAPTER_VI.1"><span class="smcap">Chapter VI.</span></a></td></tr> +<tr><td>Verdict, Sentence and Petition,</td><td align="right"><a href="#Page_91">91</a></td></tr> +<tr><td> </td></tr> +<tr><td align="center"><a href="#CHAPTER_VII.1"><span class="smcap">Chapter VII.</span></a></td></tr> +<tr><td>The Death Warrant and Execution,</td><td align="right"><a href="#Page_112">112</a></td></tr> +<tr><td> </td></tr> +<tr><td align="center"><a href="#CHAPTER_VIII.1"><span class="smcap">Chapter VIII.</span></a></td></tr> +<tr><td>Was it not Murder? The Milligan Case,</td><td align="right"><a href="#Page_126">126</a></td></tr> +<tr><td> </td></tr><tr><td> </td></tr> +<tr><td align="center"><a href="#PART_II">PART II.</a><br />THE VINDICATION.</td></tr> +<tr><td> </td></tr> +<tr><td align="center"><a href="#CHAPTER_I.2"><span class="smcap">Chapter I.</span></a></td></tr> +<tr><td>Setting Aside the Verdict. Discharge of Jefferson Davis,</td><td align="right"><a href="#Page_145">145</a></td></tr> +<tr><td> </td></tr> +<tr><td align="center"><a href="#CHAPTER_II.2"><span class="smcap">Chapter II.</span></a></td></tr> +<tr><td>Reversal on the Merits. Trial of John H. Surratt,</td><td align="right"><a href="#Page_165">165</a></td></tr> +<tr><td> </td></tr> +<tr><td align="center"><a href="#CHAPTER_III.2"><span class="smcap">Chapter III.</span></a></td></tr> +<tr><td>The Recommendation to Mercy,</td><td align="right"><a href="#Page_182">182</a></td></tr> +<tr><td> </td></tr> +<tr><td align="center"><a href="#CHAPTER_IV.2"><span class="smcap">Chapter IV.</span></a></td></tr> +<tr><td>Trial of Joseph Holt,</td><td align="right"><a href="#Page_207">207</a></td></tr> +<tr><td> </td></tr> +<tr><td align="center"><a href="#CHAPTER_V.2"><span class="smcap">Chapter V.</span></a></td></tr> +<tr><td>Andrew Johnson Signs another Death Warrant,</td><td align="right"><a href="#Page_236">236</a></td></tr> +<tr><td> </td></tr> +<tr><td align="center"><a href="#CHAPTER_VI.2"><span class="smcap">Chapter VI.</span></a></td></tr> +<tr><td>Conclusion,</td><td align="right"><a href="#Page_249">249</a></td></tr></table> + + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_1" id="Page_1">[Pg 1]</a></span></p> +<p class="center"><a name="PRELIMINARY" id="PRELIMINARY"></a><span class="giant">PRELIMINARY.</span></p> +<p> </p> +<h2><a name="CHAPTER_I" id="CHAPTER_I"></a>CHAPTER I.</h2> +<p class="center"><span class="large"><span class="smcap">The Reign Of Terror.</span></span></p> + +<p class="dropcap"><span class="caps">The</span> assassination of Abraham Lincoln burst upon the City of Washington +like a black thunder-bolt out of a cloudless sky. On Monday, the 3d of +April, 1865, Richmond was taken. On the succeeding Sunday (the ninth), +General Lee with the main Army of the South surrendered. The rebellion of +nearly one-half the nation lay in its death-throes. The desperate struggle +for the unity of the Republic was ending in a perfect triumph; and the +loyal people gave full rein to their joy. Every night the streets of the +city were illuminated. The chief officers of the government, one after +another, were serenaded. On the evening of Tuesday, the eleventh, the +President addressed his congratulations to an enthusiastic multitude from +a window of the White House. On the night of Thursday (the thirteenth) +Edwin M. Stanton, the Secretary of War, and Ulysses S. Grant, the +victorious General of the Army<span class="pagenum"><a name="Page_2" id="Page_2">[Pg 2]</a></span> of the North, were tumultuously greeted +with banners and music and cannon at the residence of the Secretary. The +next day, Friday the 14th, was the fourth anniversary of the surrender of +Fort Sumter to the South, and that national humiliation was to be avenged +by the restoration of the flag of the United States to its proper place +above the fort by the hand of the same gallant officer who had been +compelled to pull it down. In the evening, a torch-light procession +perambulated the streets of the Federal Capital. Enthusiastic throngs +filled the theatres, where the presence of great officials had been +advertised by huge placards, and whose walls were everywhere festooned +with the American flag. After four years of agonizing but unabating +strain, all patriots felt justified in yielding to the full enjoyment of +the glorious relaxation.</p> + +<p>Suddenly, at its very zenith, the snap of a pistol dislimns and scatters +this great jubilee, as though it were, indeed, the insubstantial fabric of +a vision. At half past ten that night, from the box of the theatre where +the President is seated, a shot is heard; a wild figure, hatless and +clutching a gleaming knife, emerges through the smoke; it leaps from the +box to the stage, falls upon one knee, recovers itself, utters one shout +and waves aloft its bloody weapon; then turns, limps across in front of +the audience and disappears like a phantom behind the scenes. +Simultaneously, there breaks upon the startled air the shriek of a woman, +followed close by confused<span class="pagenum"><a name="Page_3" id="Page_3">[Pg 3]</a></span> cries of “Water! Water!” and “The President is +shot!”</p> + +<p>For the first few moments both audience and actors are paralyzed. One man +alone jumps from the auditorium to the stage and pursues the flying +apparition. But, as soon as the hopeless condition of the President and +the escape of the assassin begin to transpire, angry murmurs of “Burn the +Theatre!” are heard in the house, and soon swell into a roar in the street +where a huge crowd has already assembled.</p> + +<p>The intermingling throng surges into the building from every quarter, and +mounts guard at every exit. Not one of the company of actors is allowed to +go out. The people seem to pause for a moment, as if awaiting from Heaven +a retribution as sudden and awful as the crime.</p> + +<p>All their joy is turned to grief in the twinkling of an eye. The rebellion +they had too easily believed to be dead could still strike, it seemed, a +fatal blow against the very life of the Republic. A panic seizes the +multitude in and around the theatre, and from the theatre spreads, “like +the Night,” over the whole city. And when the frightened citizens hear, as +they immediately do, the story of the bloody massacre in the house of the +Secretary of State, occurring at the same hour with the murder of the +President, the panic swells into a reign of terror. The wildest stories +find the quickest and most eager credence. Every member of the Cabinet and +the General of the Army have been, or are about to be, killed;<span class="pagenum"><a name="Page_4" id="Page_4">[Pg 4]</a></span> the +government itself is at a standstill; and the lately discomfited rebels +are soon to be in possession of the Capital. Patriotic people, delivering +themselves over to a fear of they know not what, cry hoarsely for +vengeance on they know not whom. The citizen upon whose past loyalty the +slightest suspicion can be cast cowers for safety close to his +hearth-stone. The terror-stricken multitude want but a leader cool and +unscrupulous enough, to plunge into a promiscuous slaughter, such as +stained the new-born revolution in France. A leader, indeed, they soon +find, but he is not a Danton. He is a leader only in the sense that he has +caught the same madness of terror and suspicion which has seized the +people, that he holds high place, and that he has the power and is in a +fit humor to pander to the panic.</p> + +<p>Edwin M. Stanton was forced by the tremendous crisis up to the very top of +affairs. Vice-President Johnson, in the harrowing novelty of his position, +was for the time being awed into passive docility. The Secretary of State +was doubly disabled, if not killed. The General of the Army was absent. +The Secretary of War without hesitation grasped the helm thus thrust into +his hand, but, alas! he immediately lost his head. His exasperation at the +irony of fate, which could so ruthlessly and in a moment wither the +triumph of a great cause by so unexpected and overwhelming a calamity, was +so profound and intense, his desire for immediate and<span class="pagenum"><a name="Page_5" id="Page_5">[Pg 5]</a></span> commensurate +vengeance was so uncontrollable and unreasoning, as to distort his +perception, unsettle his judgment, and thus cause him to form an estimate +of the nature and extent of the impending danger as false and exaggerated +as that of the most panic-stricken wretch in the streets. Personally, +besides, he was unfitted in many respects for such an emergency. Though an +able and, it may be, a great War-Minister, he exerted no control over his +temper; he habitually identified a conciliatory and charitable disposition +with active disloyalty; and, being unpopular with the people of Washington +by reason of the gruffness of his ways and the inconsistencies of his past +political career, he had reached the unalterable conviction that the +Capital was a nest of sympathizers with the South, and that he was +surrounded by enemies of himself and his country.</p> + +<p>When, therefore, upon the crushing news that the President was slain, +followed hard the announcement that another assassin had made a +slaughter-house of the residence of the Minister’s own colleague, +self-possession—the one supreme quality which was indispensable to a +leader at such an awful juncture—forsook him and fled.</p> + +<p>Before the breath was out of the body of the President, the Secretary had +rushed to the conclusion, unsupported as yet by a shadow of testimony, +that the acts of Booth and of the assailant of Seward (at the moment +supposed to be John H. Surratt) were the outcome of a widespread, numerous +and<span class="pagenum"><a name="Page_6" id="Page_6">[Pg 6]</a></span> powerful conspiracy to kill, not only the President and the Secretary +of State, but all the other heads of the Departments, the Vice-President +and the General of the Army as well, and thus bring the government to an +end; and that the primary moving power of the conspiracy was the defunct +rebellion as represented by its titular President and his Cabinet, and its +agents in Canada. This belief, embraced with so much precipitation, +immediately became more than a belief; it became a fixed idea in his mind. +He saw, heard, felt and cherished every thing that favored it. He would +see nothing, would hear nothing, and hated every thing, that in the +slightest degree militated against it. Upon this theory he began, and upon +this theory he prosecuted to the end, every effort for the discovery, +arrest, trial and punishment of the murderers.</p> + +<p>He was seconded by a lieutenant well-fitted for such a purpose—General +Lafayette C. Baker, Chief of the Detective Force. In one of the two +minority reports presented to the House of Representatives by the +Judiciary Committee, on the Impeachment Investigation of 1867, this man +and his methods are thus delineated:</p> + +<p class="blockquot">“The first witness examined was General Lafayette C. Baker, late chief +of the detective police, and although examined on oath, time and +again, and on various occasions, it is doubtful whether he has in any +one thing told the truth, even by accident. In every important +statement he is contradicted by witnesses of unquestioned credibility. +And there can be no doubt that to his many previous outrages, +entitling him to an<span class="pagenum"><a name="Page_7" id="Page_7">[Pg 7]</a></span> unenviable immortality, he has added that of +wilful and deliberate perjury; and we are glad to know that no one +member of the committee deems any statement made by him as worthy of +the slightest credit. What a blush of shame will tinge the cheek of +the American student in future ages, when he reads that this miserable +wretch for years held, as it were, in the hollow of his hand, the +liberties of the American people. That, clothed with power by a +reckless administration, and with his hordes of unprincipled tools and +spies permeating the land everywhere, with uncounted thousands of the +people’s money placed in his hands for his vile purposes, this +creature not only had power to arrest without crime or writ, and +imprison without limit, any citizen of the republic, but that he +actually did so arrest thousands, all over the land, and filled the +prisons of the country with the victims of his malice, or that of his +masters.”</p> + +<p>In this man’s hands Secretary Stanton placed all the resources of the War +Department, in soldiers, detectives, material and money, and commanded him +to push ahead and apprehend all persons suspected of complicity in the +assumed conspiracy, and to conduct an investigation as to the origin and +progress of the crime, upon the theory he had adopted and which, as much +as any other, Baker was perfectly willing to accept and then, by his +peculiar methods, establish. Forthwith was ushered in the grand carnival +of detectives. Far and wide they sped. They had orders from Baker to do +two things:</p> + +<p>I.—To arrest all the “Suspect.” II.—By promises, rewards, threats, +deceit, force, or any other effectual means, to extort confessions and +procure testimony to establish the conspiracy whose existence had been +postulated.</p> + +<p><span class="pagenum"><a name="Page_8" id="Page_8">[Pg 8]</a></span>At two o’clock in the morning of Saturday, the fifteenth, they burst into +the house of Mrs. Surratt and displaying the bloody collar of the coat of +the dying Lincoln, demanded the whereabouts of Booth and Surratt. It being +presently discovered that Booth had escaped on horseback across the Navy +Yard Bridge with David Herold ten minutes in his rear, a dash was made +upon the livery-stables of Washington, their proprietors taken into +custody, and then the whole of lower Maryland was invaded, the soldiers +declaring martial law as they progressed. Ford’s theatre was taken and +held by an armed force, and the proprietor and employees were all swept +into prison, including Edward Spangler, a scene-shifter, who had been a +menial attendant of Booth’s. The superstitious notion prevailed that the +inanimate edifice whose walls had suffered such a desecration was in some +vague sense an accomplice; the Secretary swore that no dramatic +performance should ever take place there again; and the suspicion was +sedulously kept alive that the manager and the whole force of the company +must have aided their favorite actor, or the crime could not have been so +easily perpetrated and the assassin escaped.</p> + +<p>On the night of the fifteenth (Saturday) a locked room in the Kirkwood +House, where Vice President Johnson was stopping, which had been engaged +by George A. Atzerodt on the morning of the fourteenth, was broken open, +and in the bed were found a bowie-knife and a revolver, and on the wall a +coat<span class="pagenum"><a name="Page_9" id="Page_9">[Pg 9]</a></span> (subsequently identified as Herold’s), in which was found, among +other articles, a bank book of Booth’s. The room had not been otherwise +occupied—Atzerodt, after taking possession of it, having mysteriously +disappeared.</p> + +<p>On the morning of the seventeenth (Monday), at Baltimore, Michael +O’Laughlin was arrested as a friend of Booth’s, and it was soon thought +that he “<i>resembled extremely</i>” a certain suspicious stranger who, it was +remembered, had been seen prowling about Secretary Stanton’s residence on +the night of the 13th, when the serenade took place, and there doing such +an unusual act as inquiring for, and looking at, General Grant.</p> + +<p>On the same day at Fort Monroe, Samuel Arnold was arrested, whose letter +signed “Sam” had been found on Saturday night among the effects of Booth.</p> + +<p>On the night of the seventeenth, also, the house of Mrs. Surratt with all +its contents was taken possession of by the soldiers, and Mrs. Surratt, +her daughter, and all the other inmates were taken into custody. While the +ladies were making preparations for their departure to prison, a man +disguised as a laborer, with a sleeve of his knit undershirt drawn over +his head, a pick-axe on his shoulder, and covered with mud, came to the +door with the story that he was to dig a drain for Mrs. Surratt in the +morning; and that lady asseverating that she had never seen the man +before, he was swept with the rest to headquarters, and there, to the +astonishment<span class="pagenum"><a name="Page_10" id="Page_10">[Pg 10]</a></span> of everybody, turned out to be the desperate assailant of +the Sewards.</p> + +<p>During these few days Washington was like a city of the dead. The streets +were hung with crape. The obsequies, which started on its march across the +continent the colossal funeral procession in which the whole people were +mourners, were being celebrated with the most solemn pomp. No business was +done except at Military Headquarters. Men hardly dared talk of the +calamity of the nation. Everywhere soldiers and police were on the alert +to seize any supposed or denounced sympathizer with the South. Mysterious +and prophetic papers turned up at the White House and the War Department. +Women whispered terrible stories of what they knew about the “Great +Crime.” To be able to give evidence was to be envied as a hero.</p> + +<p>And still the arch-devil of the plot could not be found!</p> + +<p>The lower parts of Maryland seethed like a boiling pot, and the prisons of +Washington were choking with the “suspect” from that quarter. Lloyd—the +drunken landlord of the tavern at Surrattsville, ten miles from +Washington, at which Booth and Herold had stopped at midnight of the fatal +Friday for carbines and whisky—after two days of stubborn denial was at +last frightened into confession; and Doctor Mudd, who had set Booth’s leg +Saturday morning thirty miles from Washington, was in close confinement. +All the intimate friends of the actor<span class="pagenum"><a name="Page_11" id="Page_11">[Pg 11]</a></span> in Washington, in Baltimore, in +Philadelphia, in New York and even in Montreal were in the clutches of the +government. Surratt himself—the pursuit of whom, guided by Weichman, his +former college-chum, his room-mate, and the favorite guest of his mother, +had been instant and thorough—it was ascertained, had left Canada on the +12th of April and was back again on the 18th.</p> + +<p>But where was Booth? where Herold? where Atzerodt?</p> + +<p>On the 20th, the Secretary of War applied the proper stimulus by issuing a +proclamation to the following effect:</p> + +<div class="blockquot"> +<p>“$50,000 reward will be paid by this department for the apprehension +of the murderer of our late beloved President.</p> + +<p>“$25,000 reward for the apprehension of John H. Surratt, one of +Booth’s accomplices.</p> + +<p>“$25,000 reward for the apprehension of Herold, another of Booth’s +accomplices.</p> + +<p>“Liberal rewards will be paid for any information that shall conduce +to the arrest of either of the above-named criminals or their +accomplices.</p> + +<p>“All persons harboring or secreting the said persons, or either of +them, or aiding or assisting in their concealment or escape, will be +treated as accomplices in the murder of the President and the +attempted assassination of the Secretary of State, and shall be +subject to trial before a military commission and the punishment of +death.”</p></div> + +<p>What is noteworthy about this document is that Stanton had already made up +his mind as to the guilt of the persons named as accomplices of Booth; +that he needed only their arrest, being assured of<span class="pagenum"><a name="Page_12" id="Page_12">[Pg 12]</a></span> their consequent +conviction; and that he had already determined that their trial and the +trial of all persons connected with the great crime, however remotely, +should be had before a military tribunal, and that the punishment to +follow conviction should be death.</p> + +<p>At four o’clock in the morning of the very day this proclamation was +issued, Atzerodt was apprehended at the house of his cousin in Montgomery +County, Md., about twenty-two miles northward of Washington, by a detail +of soldiers, to whom, by the way, notwithstanding the arrest preceded the +proclamation, $25,000 reward was subsequently paid. With Atzerodt his +cousin, Richter, was taken also. O’Laughlin, Payne, Arnold, Atzerodt and +Richter, as they were severally arrested, were put into the custody of the +Navy Department and confined on board the Monitor <i>Saugus</i>, which on the +morning of Saturday, when the President died, had been ordered to swing +out into the middle of the river opposite the Navy Yard, prepared to +receive at any hour, day or night, dead or alive, the arch-assassin. Each +of these prisoners was loaded with double irons and kept under a strong +guard. On the 23d, Atzerodt, by order of the Secretary of War, was +transferred to the Monitor <i>Montauk</i>, to separate him from his cousin, and +Payne, in addition to his double irons, had a ball and chain fastened to +each ankle by the direction of the same officer. On the next day Spangler, +who had hitherto been confined<span class="pagenum"><a name="Page_13" id="Page_13">[Pg 13]</a></span> in the Old Capitol Prison, was transferred +to one of the Monitors and presumably subjected to the same treatment. On +the same day the following order was issued:</p> + +<p class="blockquot">“The Secretary of War requests that the prisoners on board iron-clads +belonging to this department for better security against conversation +shall have a canvass bag put over the head of each and tied around the +neck, with a hole for proper breathing and eating, but not seeing, and +that Payne be secured to prevent self-destruction.”</p> + +<p>All of which was accordingly done.</p> + +<p>And still no Booth! It seems as though the Secretary were mad enough to +imagine that he could wring from Providence the arrest of the principal +assassin by heaping tortures on his supposed accomplices.</p> + +<p>At length, in the afternoon of the 26th—Wednesday, the second week after +the assassination—Col. Conger arrived with the news of the death of Booth +and the capture of Herold on the early morning of that day; bringing with +him the diary and other articles found on the person of Booth, which were +delivered to Secretary Stanton at his private residence. In the dead of +the ensuing night, the body of Booth, sewed up in an old army blanket, +arrived, attended by the dog-like Herold; and the living and the dead were +immediately transferred to the <i>Montauk</i>. Herold was double ironed, balled +and chained and hooded. The body of Booth was identified; an autopsy held; +the shattered bone of his<span class="pagenum"><a name="Page_14" id="Page_14">[Pg 14]</a></span> neck taken out for preservation as a relic (it +now hangs from the ceiling of the Medical Museum into which Ford’s Theatre +was converted, or did before the collapse); and then, with the utmost +secrecy and with all the mystery which could be fabricated, under the +direction of Col. Baker, the corpse was hurriedly taken from the vessel +into a small boat, rowed to the Arsenal grounds, and buried in a grave dug +in a large cellar-like apartment on the ground floor of the Old +Penitentiary; the door was locked, the key removed and delivered into the +hands of Secretary Stanton. No effort was spared to conceal the time, +place and circumstances of the burial. False stories were set afloat by +Baker in furtherance of such purpose. Stanton seemed to fear an escape or +rescue of the dead man’s body; and vowed that no rebel or no rebel +sympathizer should have a chance to glory over the corpse, or a fragment +of the corpse, of the murderer of Lincoln.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_15" id="Page_15">[Pg 15]</a></span></p> +<h2><a name="CHAPTER_II" id="CHAPTER_II"></a>CHAPTER II.</h2> +<p class="center"><span class="large"><span class="smcap">The Bureau of Military (In)justice.</span></span></p> + +<p class="dropcap"><span class="caps">Mingling</span> with the varied emotions evoked by the capture and death of the +chief criminal was a feeling of deepest exasperation that the foul +assassin should after all have eluded the ignominious penalty of his +crime. Thence arose a savage disposition on the part of the governing +powers to wreak this baffled vengeance first, on his inanimate body; +secondly, on the lives of his associates held so securely in such close +custody; and thirdly, on all those in high places who might be presumed to +sympathize with his deeds. It was too horrible to imagine that the ghost +of the martyred Lincoln should walk unavenged. So stupendous a calamity +must of necessity be the outcome of as stupendous a conspiracy, and must +in the very justice of things be followed by as stupendous a retribution. +A sacrifice must be offered and the victims must be forthcoming. To employ +the parallel subsequently drawn by General Ewing on the trial of the +conspirators: On the funeral pyre of Patroclus must be immolated the +twelve Trojan captives. They were sure of Payne and of Herold. They held +Arnold and<span class="pagenum"><a name="Page_16" id="Page_16">[Pg 16]</a></span> O’Laughlin and Atzerodt and Spangler and Doctor Mudd—all the +supposed satellites of Booth, save one. John H. Surratt could not be +found. Officers in company with Weichman and Holahan, boarders at his +mother’s house, who in the terror of the moment had given themselves up on +the morning of the fifteenth, traced him to Canada, as has already been +noticed, but had there lost track of him. They had returned disappointed; +and now Weichman and Holahan were in solitary confinement. Notwithstanding +the large rewards out for his capture, as to him alone the all-powerful +government seemed to be baffled. One consolation there was, however—if +they could not find the son, they held the mother as a hostage for him, +and they clung to the cruel expectation that by putting her to the torture +of a trial and a sentence, they might force the son from his hiding place.</p> + +<p>In the meanwhile the Bureau of Military Justice, presided over by +Judge-Advocate-General Holt, had been unceasingly at work. General Baker +with his posse of soldiers and detectives scoured the country far and wide +for suspected persons and witnesses, hauled them to Washington and shut +them up in the prisons. Then the Bureau of Military Justice took them in +hand, and, when necessary, by promises, hopes of reward and threats of +punishment, squeezed out of them the testimony they wanted. Colonel Henry +L. Burnett, who had become an expert in such proceedings from having +recently conducted<span class="pagenum"><a name="Page_17" id="Page_17">[Pg 17]</a></span> the trial of Milligan before a military tribunal at +Indianapolis, was brought on to help Judge Holt in the great and good +work. In the words of General Ewing in his plea for Dr. Mudd:</p> + +<p class="blockquot">“The very frenzy of madness ruled the hour. Reason was swallowed up in +patriotic passion, and a feverish and intense excitement prevailed +most unfavorable to a calm, correct hearing and faithful repetition of +what was said, especially by the suspected. Again, and again, and +again the accused was catechised by detectives, each of whom was +vieing with the other as to which should make the most important +discoveries, and each making the examination with a preconceived +opinion of guilt, and with an eager desire, if not determination, to +find in what might be said the proofs of guilt. Again, the witnesses +testified under the strong stimulus of a promised reward for +information leading to arrest and followed by convictions.”</p> + +<p>The Bureau conducted the investigation on the preconceived theory, +adopted, as we have seen, by the Secretary of War, that the Confederate +Government was the source of the conspiracy; and, by lavishing promises +and rewards, it had no difficulty in finding witnesses who professed +themselves to have been spies on the rebel agents in Canada and who were +ready to implicate them and through them the President of the defunct +Confederacy in the assassination. Richard Montgomery and Sanford Conover, +who had been in personal communication with these agents during the past +year, were eagerly taken into the employ of the Bureau, and made frequent +trips to Canada, to return every time laden with fresh proofs of the +complicity of the rebels.</p> + +<p><span class="pagenum"><a name="Page_18" id="Page_18">[Pg 18]</a></span>To illustrate how the Bureau of Military Justice dealt with witnesses who +happened to have been connected more or less closely with Booth, and who +were either reluctant or unable to make satisfactory disclosures, here are +two extracts from the evidence given on the trial of John H. Surratt in +1867.</p> + +<p>The first is from the testimony of Lloyd, the besotted keeper of the +Surratt tavern:</p> + +<div class="blockquot"> +<p>“I was first examined at Bryantown by Colonel Wells. I was next +examined by two different persons at the Carroll prison. I did not +know either of their names. One was a military officer. I think some +of the prisoners described him as Colonel Foster. I saw a man at the +conspiracy trial as one of the Judges who looked very much like him. * +* * I told him I had made a fuller statement to Colonel Wells than I +could possibly do to him under the circumstances, while things were +fresh in my memory. His reply was that it was not full enough, and +then commenced questioning me whether I had ever heard any person say +that something wonderful or something terrible was going to take +place. I told him I had never heard anyone say so. Said he I have seen +it in the newspapers.</p> + +<p>“He jumps up very quick off his seat, as if very mad, and asked me if +I knew what I was guilty of. I told him, under the circumstances I did +not. He said you are guilty as an accessory to a crime the punishment +of which is death. With that I went up stairs to my room.”</p></div> + +<p>The next is from the testimony of Lewis J. Carland, to whom Weichman +confessed his remorse after the execution of Mrs. Surratt:</p> + +<p class="blockquot">“He [Weichman] said it would have been very different with Mrs. +Surratt if he had been let alone; that a statement had been prepared +for him, that it was written out for him, and<span class="pagenum"><a name="Page_19" id="Page_19">[Pg 19]</a></span> that he was threatened +with prosecution as one of the conspirators if he did not swear to it. +He said that a detective had been put into Carroll prison with him, +and that this man had written out a statement which he said he had +made in his sleep, and that he had to swear to that statement.”</p> + +<p>Let us add another; it is so short and yet so suggestive. It is from the +testimony of James J. Gifford, who was a witness for the prosecution on +both trials.</p> + +<div class="blockquot"> +<p>“Q.—Do you know Mr. Weichman?</p> + +<p>“A.—I have seen him.</p> + +<p>“Q.—Were you in Carroll prison with him?</p> + +<p>“A.—Yes, sir.</p> + +<p>“Q.—Did he say in your presence that an officer of the government had +told him that unless he testified to more than he had already stated +they would hang him too?</p> + +<p>“A.—I heard the officer tell him so.”</p></div> + +<p>After a fortnight of such wholesale processes of arrest, imprisonment, +inquisition, reward and intimidation, the Bureau of Military Justice +announced itself ready to prove the charges it had formulated. Thereupon +two proclamations were issued by President Johnson. One, dated May the +first, after stating that the Attorney General had given his opinion “that +all persons implicated in the murder of the late President, Abraham +Lincoln, and the attempted assassination of the Hon. William H. Seward, +Secretary of State, and in an alleged conspiracy to assassinate other +officers of the Federal Government at Washington City, and their aiders +and abettors,<span class="pagenum"><a name="Page_20" id="Page_20">[Pg 20]</a></span> are subject to the jurisdiction of and legally triable +before a Military Commission,” ordered 1st, “that the Assistant +Adjutant-General (W. A. Nichols) detail nine competent military officers +to serve as a Commission for the trial of said parties, and that the +Judge-Advocate-General proceed to prefer charges against said parties for +their alleged offences, and bring them to trial before said Military +Commission.” 2d, “that Brevet Major-General Hartranft be assigned to duty +as Special Provost-Marshal-General for the purpose of said trial and +attendance upon said Commission, and the execution of its mandates.”</p> + +<p>The other proclamation, dated May 2nd, after reciting that “it appears +from evidence in the Bureau of Military Justice, that the atrocious murder +of the late President, Abraham Lincoln, and the attempted assassination of +the Hon. William H. Seward, Secretary of State, were incited, concerted, +and procured by and between Jefferson Davis, late of Richmond, Va., and +Jacob Thompson, Clement C. Clay, Beverly Tucker, George N. Sanders, +William C. Cleary, and other rebels and traitors against the Government of +the United States, harbored in Canada,” offered the following rewards:</p> + +<div class="blockquot"> +<p>“$100,000 for the arrest of Jefferson Davis.</p> + +<p>“$25,000 for the arrest of Clement C. Clay.</p> + +<p>“$25,000 for the arrest of Jacob Thompson, late of Mississippi.</p> + +<p>“$25,000 for the arrest of Geo. N. Saunders.</p> + +<p>“$25,000 for the arrest of Beverly Tucker.</p> + +<p><span class="pagenum"><a name="Page_21" id="Page_21">[Pg 21]</a></span>“$10,000 for the arrest of Wm. C. Cleary, late clerk of Clement C. +Clay.</p> + +<p>“The Provost-Marshal-General of the United States is directed to cause +a description of said persons, with notice of the above rewards, to be +published.”</p></div> + +<p>At this date the President of the defunct Confederacy was a fugitive, +without an army; and bands of U. S. Cavalry were already on the scout to +intercept his flight. Military Justice, however, was too impatient to +await the arrest of the prime object of its sword; and in obedience to the +first proclamation proceeded without delay to organize a court to try the +prisoners selected from the multitude undergoing confinement as the +fittest victims to appease the shade of the murdered President. Over some +of the “suspect” the Judge-Advocates for a time vacillated, whether to +include them in the indictment or to use them as witnesses; but, after a +season of rigid examinations, renewed and revised, they at last concluded +that such persons would be more available in the latter capacity.</p> + +<p>On the third day of May the funeral car, which, leaving Washington on the +twenty-first of April, had borne the body of the lamented Lincoln through +State after State, arrived at last at Springfield; and on the following +day the cherished remains were there consigned to the tomb. On the sixth, +by special order of the Adjutant-General, a Military Commission was +appointed to meet at Washington on Monday, the eighth day of May, or as +soon<span class="pagenum"><a name="Page_22" id="Page_22">[Pg 22]</a></span> thereafter as practicable, “for the trial of David E. Herold, +George A. Atzerodt, Lewis Payne, Michael O’Laughlin, Edward Spangler, +Samuel Arnold, Mary E. Surratt, Samuel A. Mudd and such other prisoners as +may be brought before it, implicated in the murder of the late President +and in the attempted assassination of the Secretary of State and in an +alleged conspiracy to assassinate other officers of the Federal Government +at Washington City, and their aiders and abettors. By order of the +President of the United States.” And so, all things being in readiness, +let the curtain rise.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_23" id="Page_23">[Pg 23]</a></span></p> +<p class="center"><a name="PART_I" id="PART_I"></a><span class="giant">PART I.</span></p> +<p class="center"><span class="large">THE MURDER.</span></p> +<p> </p> +<h2><a name="CHAPTER_I.1" id="CHAPTER_I.1"></a>CHAPTER I.</h2> +<p class="center"><span class="large"><span class="smcap">The Opening of the Court.</span></span></p> + +<p class="dropcap"><span class="caps">On</span> the ninth day of May the Commission met but only to adjourn that the +prisoners might employ counsel. On the same day, two of its members, +General Cyrus B. Comstock and Colonel Horace Porter—names to be noted for +what may have been a heroic refusal—were relieved from the duty of +sitting upon the Commission, and two other officers substituted in their +stead.</p> + +<p>So that Tuesday, May 10th, 1865—twenty-six days after the assassination, +a period much too short for the intense excitement and wild desire for +vengeance to subside—may properly be designated as the first session of +the Court. On the early morning of that day—before daylight—Jefferson +Davis had been captured, and was immediately conducted, not to Washington +to stand trial for his alleged <span class="pagenum"><a name="Page_24" id="Page_24">[Pg 24]</a></span>complicity in the assassination, but to +Fort Monroe. On the next day Clement C. Clay, also, surrendered himself to +the United States authorities, and was sent, not to Washington to meet the +awful charge formulated against him, but to the same military fortress.</p> + +<p>The room in which the Commission met was in the northeast corner of the +third story of the Old Penitentiary; a building standing in the U. S. +Arsenal Grounds at the junction of the Potomac with the Eastern Branch, in +a room on the ground floor of which the body of Booth had been secretly +buried. Its windows were guarded by iron gratings, and it communicated +with that part of the prison where the accused were now confined, by a +door in the western wall. The male prisoners had been removed some days +before from the Monitors to the Penitentiary, where Mrs. Surratt was +already incarcerated, and each of them, including the lady, was now +immured in a solitary cell under the surveillance of a special guard.</p> + +<p>Around a table near the eastern side of this room sat, resplendent in full +uniform, the members of the Court. At the head as President was +Major-General David Hunter—a stern, white-headed soldier, sixty-three +years old; a fierce radical; the first officer to organize the slaves into +battalions of war; the warm personal friend of Lincoln, at the head of +whose corpse he had grimly sat as it rested from place to place on the +triumphal progress to its burial, and<span class="pagenum"><a name="Page_25" id="Page_25">[Pg 25]</a></span> from whose open grave he had +hurried, in no very judicial humor to say the least, to take his seat +among the Judges of the accused assassins. On his right sat Major-General +Lew Wallace, a lawyer by profession; afterwards the President of the +Court-Martial which tried and hung Henry Wirz; but now, by a sardonic +freak of destiny, known to all the world as the tender teller of “Ben Hur, +a Tale of the Christ.” To the right of General Wallace sat Brevet +Brigadier-General James A. Ekin and Brevet Colonel Charles A. Tompkins; +about whom the only thing remarkable is that they had stepped into the +places of the two relieved officers, Colonel Tompkins being the only +regular army officer on the Board. On the left of General Hunter sat, +first, Brevet Major-General August V. Kautz, a native of Germany; next, +Brigadier-General Robert S. Foster, who may or may not have been the +“Colonel Foster” alluded to in the testimony of Lloyd quoted above, as +threatening the witness and as afterwards being seen by him on the +Commission—the presence of an officer, previously engaged by the +Government in collecting testimony against the accused, as one of the +judges to try him not being considered a violation of Military Justice. +Next sat Brigadier-General Thomas Mealey Harris, a West Virginian, and the +author of a book entitled “Calvinism Vindicated;” next, Brigadier-General +Albion P. Howe, and last, Lieutenant-Colonel David R. Clendenin.</p> + +<p><span class="pagenum"><a name="Page_26" id="Page_26">[Pg 26]</a></span>Not one of these nine men could have withstood the challenge which the +common law mercifully puts into the hands of the most abandoned culprit. +They had come together with one determined and unchangeable purpose—to +avenge the foul murder of their beloved Commander-in-Chief. They dreamt +not of acquittal. They were, necessarily, from the very nature of their +task, <i>organized to convict</i>.</p> + +<p>The accused were asked, it is true, whether they had any objections to any +member of the Court. But this was the emptiest of forms, as bias is no +cause of challenge in military procedure, and peremptory challenges are +unknown.</p> + +<p>Moreover, it was nothing but a cruel mockery to offer to that trembling +group of prisoners an opportunity, which, if any one of them had the +temerity to embrace, could only have resulted in barbing with the sting of +personal insult the hostile predisposition of the judges.</p> + +<p>At the foot of the table around which the Court sat—the table standing +parallel with the north side of the room—there was another, around which +were gathered the three prosecuting officers, who, according to military +procedure, were also members of the Commission.</p> + +<p>First, was Brigadier-General Joseph Holt, the Judge-Advocate of the U. S. +Army, and the Recorder of the Commission. During his past military career +he had distinguished himself on many a bloody court-martial.</p> + +<p><span class="pagenum"><a name="Page_27" id="Page_27">[Pg 27]</a></span>Second, designated by General Holt as First Assistant or Special +Judge-Advocate, was Hon. John A. Bingham, of Ohio—long a Representative +in Congress, then for a short interval a Military Judge-Advocate, now a +Representative in Congress again, and to become in the strange +vicissitudes of the near future, one of the managers of the impeachment of +President Johnson, whom he now cannot praise too highly. He was one of +those fierce and fiery western criminal lawyers, gifted with that sort of +vociferous oratory which tells upon jurors and on the stump, by nature and +training able to see but one side to a case and consequently merciless to +his victims. His special function was to cross-examine and brow-beat the +witnesses for the defense, a branch of his profession in which he was +proudly proficient, and, above all, by pathetic appeals to their +patriotism and loyalty, and by measureless denunciations of the murder of +their Commander-in-Chief and of the Rebellion, to keep up at a white heat +the already burning passions of the officers composing the tribunal. Next +to him came Colonel Henry L. Burnett; brought from Indiana where he had +won recent laurels in conducting the trial of Milligan for treason before +a Military Commission—laurels, alas! soon to be blasted by the decision +of the U. S. Supreme Court pronouncing that and all other Military +Commissions for the trial of citizens in places where the civil courts are +open illegal, and setting free the man this<span class="pagenum"><a name="Page_28" id="Page_28">[Pg 28]</a></span> zealous public servant had +been instrumental in condemning to death.</p> + +<p>In the centre of the room was a witness-stand facing the Court. To the +left of the witness-stand a table for the official reporters. Along the +western side and directly opposite the Court was a platform about a foot +high and four feet broad, with a strong railing in front of it. This was +the prisoners’ dock. The platform was divided near the left hand or +southern corner by the doorway which led to the cells. In front of the +southern end of the dock and behind the witness-stand was the table of the +prisoners’ counsel.</p> + +<p>At the appointed hour the door in the western side opens and an impressive +and mournful procession appears. Six soldiers armed to the teeth are +interspersed among seven male prisoners and one woman.</p> + +<p>First walks Samuel Arnold, the young Baltimorean, who is to sit at the +extreme right (<i>i. e.</i>, of the spectators), followed close by his armed +guard; next, Dr. Samuel T. Mudd and a soldier; next, Edward Spangler and a +soldier; next, Michael O’Laughlin, another Baltimorean, and his soldier; +next, George B. Atzerodt and a soldier; next, Lewis Payne, a tall +gladiator, though only twenty years old, and his soldier; and then David +E. Herold, looking like an insignificant boy, who is to sit next the door. +As they enter, their fetters clanking at every step, they turn to their +left and take seats on<span class="pagenum"><a name="Page_29" id="Page_29">[Pg 29]</a></span> the platform in the order named, the six soldiers +being sandwiched here and there between two of the men.</p> + +<p>Each of these prisoners, during the entire trial, was loaded down with +irons made as massive and uncomfortable as possible. Their wrists were +bound with the heaviest hand-cuffs, connected by bars of iron ten inches +long (with the exception of Dr. Mudd, whose hand-cuffs were connected by a +chain), so that they could not join their hands. Their legs were weighed +down by shackles joined by chains made short enough to hamper their walk. +In addition to these fetters, common to all, Payne and Atzerodt had, +attached by chains to their legs, huge iron balls, which their guards had +to lift and carry after them whenever they entered or left the Court room.</p> + +<p>Last, there emerges from the dungeon-like darkness of the doorway the +single female prisoner, Mary E. Surratt. She, alone, turns to her right +and, consequently, when she is seated has the left hand corner of the +platform to herself. But she is separated from her companions in misery by +more than the narrow passage-way that divides the dock; for she is a lady +of fair social position, of unblemished character and of exemplary piety, +and, besides, she is a mother, a widow, and, in that room amongst all +those soldiers, lawyers, guards, judges and prisoners, the sole +representative of her sex. Her womanhood is her peculiar weakness, yet +still her only shield.</p> + +<p><span class="pagenum"><a name="Page_30" id="Page_30">[Pg 30]</a></span>Is she too ironed?</p> + +<p>The unanimous testimony of eye-witnesses published at the time of the +trial is, that, though not hand-cuffed, she was bound with iron “anklets” +on her feet. And this detail, thus universally proclaimed in the Northern +Press and by loyal writers, was mentioned not as conveying the slightest +hint of reprobation, but as constituting, like the case of the male +prisoners, a part of the appropriate treatment by the military of a person +suffering under such a charge. And, moreover, no contemporaneous denial of +this widespread circumstance was anywhere made, either by Provost-Marshal, +Counsel, Judge-Advocate or member of the Court. It passed unchallenged +into history, like many another deed of shame, over which it is a wonder +that any man could glory, but which characterized that period of frenzy.</p> + +<p>Eight years after, during the bitter controversy between Andrew Johnson +and Joseph Holt over the recommendation of mercy to Mrs. Surratt, General +Hartranft, the former Special Provost-Marshal in charge of the prisoners, +first broke silence and, coming to the aid of the sorely-tried +Ex-Judge-Advocate, sent him a vehement categorical denial that Mrs. +Surratt was ever manacled at any time, or that there was ever a thought of +manacling her in any one’s mind. Now, what force should be given to such a +denial by so distinguished an officer, so long delayed and in the face of +such universal contemporaneous affirmation?</p> + +<p><span class="pagenum"><a name="Page_31" id="Page_31">[Pg 31]</a></span>No one knows how close and exclusive the charge of the prisoners by the +special Provost-Marshal was, nor how liable to interruption, interference +and supersession by the omnipotent Bureau of Military Justice, or by the +maddened Secretary of War and his obsequious henchmen.</p> + +<p>At the time the naked assertion was made, to heap indignities upon the +head of the only woman in the whole country whom the soldiery took for +granted was the one female fiend who helped to shed the blood of the +martyred President, was so consonant with the angry feeling, in military +circles, that an officer, having only a general superintendence over the +custody and treatment of what was called “a band of fiends,” would be very +likely to overlook such a small matter as that the she-assassin was not +exempted, in one detail, from the contumelies and cruelties it was thought +patriotic to pile upon her co-conspirators. The only wonder ought to be +that they relieved her from the hand-cuffs. They appear to have +discriminated in the case of Dr. Mudd also, substituting a chain for an +inflexible bar so that he for one could move his hands. There may have +been some unmentioned physical reasons for both of these alleviations, but +we may rest assured that neither sex, in the one case, nor profession in +the other, was among them.</p> + +<p>General Hartranft (or any other General) never denied, or thought it +necessary to deny, that the seven male prisoners sat through the seven +weeks<span class="pagenum"><a name="Page_32" id="Page_32">[Pg 32]</a></span> of the trial, loaded, nay tortured, with irons. And there is no +doubt that this unspeakable outrage, if thought of at all at the trial by +the soldiery—high or low—so far from being thought of as a matter of +reprobation, was a subject of grim merriment or stern congratulation.</p> + +<p>Eight years, however, passed away—eight years, in which a fund of +indignation at such brutality, above all to a woman, had been silently +accumulating, until at length to a soldier, whose beclouding passions of +the moment had in the meantime cooled down, its weight made every +loop-hole of escape an entrance for the very breath of life.</p> + +<p>The entire atmosphere had changed, and denials became the order of the +day. Memory is a most convenient faculty; and to forget what the lapse of +years has at last stamped with infamy is easy, when the event passed at +the time as a mere matter of course. Leaving these tardy repudiators of an +iniquity, the responsibility for which in the day of its first publication +they tacitly assumed with the utmost complacency, to settle the question +with posterity;—we insist that the preference is open to writers upon the +events of the year 1865 to rely upon the unprejudiced and unchallenged +statements of eye-witnesses; and, therefore, we do here reaffirm that Mary +E. Surratt walked into the court-room, and sat during her trial, with +shackles upon her limbs.</p> + +<p><span class="pagenum"><a name="Page_33" id="Page_33">[Pg 33]</a></span>At this late day it is a most natural supposition that these nine stalwart +military heroes, sitting comfortably around their table, arrayed in their +bright uniforms, with their own arms and their own legs unfettered, must +have felt at least a faint flush of mingled pity, shame and indignation, +as they looked across that room at that ironed row of human beings.</p> + +<p>Culprits arraigned before them, guarded by armed soldiery, without arms +themselves—why, in the name of justice, drag them into Court and force +them to sit through a long trial, bound with iron, hand and foot? Was it +to forestall a last possible effort of reckless and suicidal despair?</p> + +<p>These brave warriors could not have feared the naked arm of Payne, nor +have indulged the childish apprehension that seven unarmed men and one +unarmed woman might overpower six armed soldiers and nine gallant +officers, and effect their escape from the third story of a prison guarded +on all sides with bayonets and watched by detective police! And yet, so +far as appears, no single member of the Court, to whom such a desecration +of our common humanity was a daily sight for weeks, thought it deserving +of notice, much less of protest.</p> + +<p>There is but one explanation of this moral insensibility, and that applies +with the same force to the case of the woman as to those of the men. It +is, that the accused were <i>already doomed</i>. For them no humiliation could +be thought too deep, no indignity too vile, no hardship too severe, +because their<span class="pagenum"><a name="Page_34" id="Page_34">[Pg 34]</a></span> guilt was predetermined to be clear. And the members of the +Military Commission, as they looked across the room at that sorry sight, +saw nothing incongruous with justice, or even with the most chivalrous +decorum, that the traitorous murderers of their beloved Commander-in-Chief +should wear the shackles which were the proper precursors of the death of +ignominy, they were resolved the outlaws should not escape.</p> + +<p>We, civilians, must ever humbly bear in mind that the rule of the common +law, that every person accused of crime is presumed to be innocent until +his guilt is established beyond a reasonable doubt—a rule the benignity +of which is often sneered at by soldiers as giving occasion for lawyers’ +tricks and quibbles, and as an impediment to swift justice, is reversed in +military courts, where every person accused of crime is presumed to be +<i>guilty</i> until he himself prove his innocence.</p> + +<p>After the prisoners had been seated, and the members of the Commission, +the Judge-Advocates and the official reporters sworn in, the accused were +severally arraigned. There was but one Charge against the whole eight. +Carefully formulated by the three Judge-Advocates upon the lines of the +theory adopted by the Secretary of War, and which Gen. Baker and the +Bureau of Military Justice had been moving heaven and earth to establish, +it was so contrived as to allege a crime of such unprecedented, +far-reaching and profound heinousness as to be an<span class="pagenum"><a name="Page_35" id="Page_35">[Pg 35]</a></span> adequate cause of such +an unprecedented and profound calamity.</p> + +<p>The eight prisoners were jointly and severally charged with nothing less +than having, in aid of the Rebellion, “<i>traitorously</i>” conspired, +“together with one John H. Surratt, John Wilkes Booth, Jefferson Davis, +George N. Sanders, Beverley Tucker, Jacob Thompson, William C. Cleary, +Clement C. Clay, George Harper, George Young and others unknown, to kill +and murder” “Abraham Lincoln, late President of the United States and +Commander-in-Chief of the Army and Navy thereof, Andrew Johnson, then +Vice-President, Wm. H. Seward, Secretary of State, and Ulysses S. Grant, +Lieutenant-General;” and of having, in pursuance of such “traitorous +conspiracy,” “together with John Wilkes Booth and John H. Surratt” +“traitorously” murdered Abraham Lincoln, “traitorously” assaulted with +intent to kill, William H. Seward, and lain in wait “traitorously” to +murder Andrew Johnson and Ulysses S. Grant.</p> + +<p>On this elastic comprehensive Charge, in which treason and murder are +vaguely commingled, every one of the men, and Mary E. Surratt, were +arraigned, plead not guilty, and were put upon trial. There is no doubt, +by the way, that the Secretary of War would have been included as one of +the contemplated victims, had not Edwin M. Stanton borne so prominent a +part in the prosecution; and it was for this reason, and not because of +any change in the <span class="pagenum"><a name="Page_36" id="Page_36">[Pg 36]</a></span>evidence, that General Grant stood alone, as the mark +of O’Laughlin.</p> + +<p>To this single Charge there was, also, but a single Specification. This +document alleged that the design of all these traitorous conspirators was, +to deprive the Army and Navy of their Commander-in-Chief and the armies of +their Commander; to prevent a lawful election of President and +Vice-President; and by such means to aid and comfort the Rebellion and +overthrow the Constitution and laws.</p> + +<p>It then alleged the killing of Abraham Lincoln by Booth in the prosecution +of the conspiracy, and charged the murder to be the act of the prisoners, +as well as of Booth and John H. Surratt. It then alleged that Spangler, in +furtherance of the conspiracy, aided Booth in obtaining entrance to the +box of the theatre, in barring the door of the theatre box, and in +effecting his escape. Then, that Herold, in furtherance of the conspiracy, +aided and abetted Booth in the murder, and in effecting his escape. Then, +that Payne, in like furtherance, made the murderous assault on Seward and +also on his two sons and two attendants. Then, that Atzerodt, in like +furtherance, at the same hour of the night, lay in wait for Andrew Johnson +with intent to kill him. Then, that Michael O’Laughlin, in like +furtherance, on the nights of the 13th and 14th of April, lay in wait for +General Grant with like intent. Then, that Samuel Arnold, in prosecution +of the conspiracy, “did, on or before the 6th day of March, 1865, and<span class="pagenum"><a name="Page_37" id="Page_37">[Pg 37]</a></span> on +divers other days and times between that day and the 15th day of April, +1865, combine, conspire with and counsel, abet, comfort and support” +Booth, Payne, Atzerodt, O’Laughlin and their confederates. Then, “that, in +prosecution of the conspiracy, Mary E. Surratt, on or before the 6th of +March, 1865, and on divers other days and times between that day and the +20th of April, 1865, received, entertained, harbored and concealed, aided +and assisted” Booth, Herold, Payne, John H. Surratt, O’Laughlin, Atzerodt, +Arnold and their confederates, “with the knowledge of the murderous and +traitorous conspiracy aforesaid, and with intent to aid, abet and assist +them in the execution thereof, and in escaping from justice.” And, lastly, +that in prosecution of the conspiracy Samuel A. Mudd did from on or before +the 6th day of March, to the 20th of April “advise, encourage, receive, +entertain, harbor and conceal, aid and assist” Booth, Herold, Payne, John +H. Surratt, O’Laughlin, Atzerodt, Mary E. Surratt, Arnold and their +confederates, in its execution and their escape.</p> + +<p>After the prisoners, who as yet had no counsel, had pleaded not guilty to +the Charge and Specification, the Court adopted rules of proceeding—one +of which was that the sessions of the Court should be secret, and no one +but the sworn officers and the counsel for the prisoners, also sworn to +secrecy, should be admitted, except by permit of the President of the +Commission; and that only such portions<span class="pagenum"><a name="Page_38" id="Page_38">[Pg 38]</a></span> of the testimony as the +Judge-Advocate should designate should be made public.</p> + +<p>On the next day (Thursday, May 11th), Mr. Thomas Ewing, Jr. and Mr. +Frederick Stone appeared as counsel for Dr. Mudd, and Mr. Frederick A. +Aiken and Mr. John W. Clampitt for Mrs. Surratt; and on the succeeding day +(12th), Mr. Frederick Stone appeared for Herold “at the earnest request of +his widowed mother and estimable sisters;” General Ewing for Arnold (and +on Monday, the 15th, for Spangler); Mr. Walter S. Cox for O’Laughlin, and +Mr. William E. Doster for Payne and Atzerodt.</p> + +<p>By the rules of the Commission no counsel could appear for the prisoners +unless he took the “iron-clad oath” or filed evidence of having taken it. +So supersensitive was the loyalty of the Court that it could not brook the +presence of a “sympathizer with the South,” even in such a confidential +relation as counsel for accused conspirators in aid of the Rebellion.</p> + +<p>The demeanor of the Court towards the counsel for the defense, reflecting +as in a mirror the humor of the Judge-Advocates, was highly +characteristic. Sometimes they were treated with haughty indifference, +sometimes with ironical condescension, often with contumely, generally +with contempt. Their objections were invariably overruled, unless acceded +to by the Judge-Advocate. The Commission could<span class="pagenum"><a name="Page_39" id="Page_39">[Pg 39]</a></span> not conceal its secret +opinion that they were engaged in a disreputable and disloyal employment.</p> + +<p>This statement must be somewhat qualified, however, so far as it relates +to General Ewing. He was, or had been recently, of equal rank in the army +of the Union with the members of the Court. He was a brother-in-law of +General Sherman, and he had acquired a high reputation for gallantry and +skill, as well as loyalty, during the war. That such a distinguished +fellow-soldier should appear to defend the fiendish murderers of their +beloved Commander-in-Chief—outlaws they were detailed as a Court to +hang—evidently perplexed and disconcerted these military Judges and +tended in some degree to curb the over-bearing insolence of the Special +Judge-Advocate. Thus, this able lawyer and gallant officer and noble man +was enabled to be “the leading spirit of the defense;” and, as we shall +see, he wrought the miracle of plucking from the deadly clutches of the +Judge-Advocates the lives of every one of the men he defended. But this +instance was a most notable exception. As a rule, even the silent presence +of the counsel for the accused jarred upon the feelings of the Court, and +their vocal interference provoked, at intervals, its outspoken +animadversion. A trifling incident will serve to illustrate.</p> + +<p>The witnesses, while giving their testimony, were required to face the +Court, so that they necessarily turned their backs on the counsel for the +prisoners who were placed some distance behind the witness-stand.<span class="pagenum"><a name="Page_40" id="Page_40">[Pg 40]</a></span> These +counsel were also forced to cross-examine the witnesses for the +prosecution, and interrogate their own, without seeing their faces; and as +often as a witness in instinctive obedience to the dictates of good +manners would turn round to answer a question, the President of the Court +would check him by a “sharp reprimand” and the stern admonition: “Face the +Court!” The confusion of a witness, especially for the defense, when +thundered at in this way by General Hunter, and the reiterated humiliation +of counsel implied in the order, seem to have only called forth the wonder +that witnesses “would persist in turning towards the prisoners’ counsel!”</p> + +<p>Clearly these lawyers were an unmeaning, an impeding, an offensive, though +unavoidable, superfluity.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_41" id="Page_41">[Pg 41]</a></span></p> +<h2><a name="CHAPTER_II.1" id="CHAPTER_II.1"></a>CHAPTER II.</h2> +<p class="center"><span class="large"><span class="smcap">Animus of the Judges.</span></span></p> + +<p class="dropcap"><span class="caps">On</span> Saturday, the 13th of May, an incident occurred which throws much light +upon the judicial temper of the Court at the very beginning of the trial. +On that day Reverdy Johnson appeared as counsel for Mrs. Surratt. Admitted +to the bar in 1815, Senator of the United States as far back as 1845, +Attorney-General of the United States as long ago as 1849, and holding the +position of Senator of the United States again at that very moment; having +taken the constitutional oath in all the Courts including the Supreme +Court of the United States at whose bar he was one of the most eminent +advocates; three years after this time to be Minister Plenipotentiary to +England; as he stood there, venerable both in years and in honors, +appearing at great personal and professional sacrifice, gratuitously, for +a woman in peril of her life, one would have thought him secure at least +from insult. Yet no sooner did he announce his intention, if the Court +would permit him at any time to attend to his imperative duties elsewhere, +to act as counsel, than the President of the Commission read aloud a note<span class="pagenum"><a name="Page_42" id="Page_42">[Pg 42]</a></span> +he had received from one of his colleagues objecting “to the admission of +Reverdy Johnson as a counsel before this Court on the ground that he does +not recognize the moral obligation of an oath that is designed as a test +of loyalty;” and, in support of the objection, referring to Mr. Johnson’s +letter to the people of Maryland pending the adoption of the new +constitution of 1864.</p> + +<p>The following colloquy then took place:</p> + +<div class="blockquot"> +<p>“Mr. Johnson.—May I ask who the member of the Court is that makes +that objection?</p> + +<p>“The President.—Yes, sir, it is General Harris, and, if he had not +made it, I should have made it myself.</p> + +<p>“Mr. Johnson.—I do not object to it at all. The Court will decide if +I am to be tried.</p> + +<p>“The President.—The Court will be cleared.</p> + +<p>“Mr. Johnson.—I hope I shall be heard.</p> + +<p>“General Ekin.—I think it can be decided without clearing the Court.</p> + +<p>“General Wallace.—I move that Mr. Johnson be heard.</p> + +<p>“The President and others.—Certainly.</p> + +<p>“Mr. Johnson.—Is the opinion here to which the objection refers?</p> + +<p>“The President.—I think it is not.”</p></div> + +<p>It was discovered, farther on, that General Harris by his own admissions +had not even seen the opinion since he had read it a year ago, and that +his objection, involving so grave an attack upon the moral character of so +distinguished a man, was based upon a mere recollection of its contents +after that lapse of time.</p> + +<p><span class="pagenum"><a name="Page_43" id="Page_43">[Pg 43]</a></span>Naturally, the gray-haired statesman and lawyer was indignant at this +premeditated insult. In his address to the Court he repudiated with scorn +the interpretation put upon his letter by his accuser. He explained the +circumstances under which the opinion was delivered; that the Maryland +Convention had prescribed an oath to the voter which they had no right to +exact; “and all that the opinion said, or was intended to say, was, that +to take the oath voluntarily was not a craven submission to usurped +authority, but was necessary in order to enable the citizen to protect his +rights under the then constitution; and that there was no moral harm in +taking an oath which the Convention had no authority to impose.”</p> + +<p>Among other things he said:</p> + +<div class="blockquot"> +<p>“There is no member of this Court, including the President, and the +member that objects, who recognizes the obligation of an oath more +absolutely than I do; and there is nothing in my life, from its +commencement to the present time, which would induce me for a moment +to avoid a comparison in all moral respects between myself and any +member of this Court.</p> + +<p>“If such an objection was made in the Senate of the United States, +where I am known, I forbear to say how it would be treated.</p> + +<p>“I have lived too long, gone through too many trials, rendered the +country such services as my abilities enabled me, and the confidence +of the people in whose midst I am has given me the opportunity, to +tolerate for a moment—come from whom it may—such an aspersion upon +my moral character. I am glad it is made now, when I have arrived at +that period of life when it would be unfit to notice it in any other +way.</p> + +<p><span class="pagenum"><a name="Page_44" id="Page_44">[Pg 44]</a></span>“I am here at the instance of that lady (pointing to Mrs. Surratt) +whom I never saw until yesterday, and never heard of, she being a +Maryland lady; and thinking that I could be of service to her, and +protesting as she has done her innocence to me—of the facts I know +nothing—because I deemed it right, I deemed it due to the character +of the profession to which I belong, and which is not inferior to the +noble profession of which you are members, that she should not go +undefended. I knew I was to do it voluntarily, without compensation; +the law prohibits me from receiving compensation; but if it did not, +understanding her condition, I should never have dreamed of refusing +upon the ground of her inability to make compensation.”</p></div> + +<p>General Harris, in reply, insisted that the remarks of Mr. Johnson, +explanatory of the letter, corroborated his construction. “I understand +him to say that the doctrine which he taught the people of his state was, +that because the Convention had framed an oath, which was unconstitutional +and illegal in his opinion, therefore it had no moral binding force, and +that people might take it and then go and vote without any regard to the +subject matter, of the oath.”</p> + +<p>Mr. Johnson, interrupting, denied having said any such thing. General +Hunter, thereupon, to help his colleague out, had the remarks read from +the record. Mr. Johnson assenting to the correctness of the report, +General Harris continued: “If that language does not justify my +conclusion, I confess I am unable to understand the English language;” and +then repeated his construction of the letter.</p> + +<p><span class="pagenum"><a name="Page_45" id="Page_45">[Pg 45]</a></span>After he had concluded, Mr. Johnson endeavored to show the author of +“Calvinism Vindicated” that he did not understand the English language, by +pointing out the distinction between stating “there was no harm in taking +an oath, and telling the people of Maryland that there would be no harm in +breaking it after it was taken.” Again repelling the misconstruction +attempted to be put upon his words, he proceeded to open a new line as +follows:</p> + +<p>“But, as a legal question, it is something new to me that the objection, +if it was well founded in fact is well founded in law. Who gives to the +Court the jurisdiction to decide upon the moral character of the counsel +who may appear before them? Who makes them the arbiters of the public +morality and professional morality? What authority have they, under their +commission, to rule me out, or to rule any other counsel out, upon the +ground, above all, that he does not recognize the validity of an oath, +even if they believed it?”</p> + +<p>General Harris, in rejoinder, stated that under the rules adopted by the +Commission gentlemen appearing as counsel for the accused must either +produce a certificate of having taken the oath of loyalty or take it +before the Court, and that therefore the Court had a right to inquire +whether counsel held such opinions as to be incompetent to take the oath. +He then expressed his gladness “to give the gentleman the benefit of his +disclaimer. It is satisfactory to me, but it is, I must insist, a tacit +admission that<span class="pagenum"><a name="Page_46" id="Page_46">[Pg 46]</a></span> there was some ground for the view upon which my objection +was founded.”</p> + +<p>Mr. Johnson closed this irritating discussion by saying:</p> + +<p class="blockquot">“The order under which you are assembled gives you no authority to +refuse me admission because you have no authority to administer the +oath to me. I have taken the oath in the Senate of the United +States—the very oath that you are administering; I have taken it in +the Circuit Court of the United States; I have taken it in the Supreme +Court of the United States; and I am a practitioner in all the Courts +of the United States in nearly all the States; and it would be a +little singular if one who has a right to appear before the supreme +judicial tribunal of the land, and who has a right to appear before +one of the Legislative departments of the Government whose law creates +armies, and creates judges and courts-martial, should not have a right +to appear before a court-martial. I have said all that I proposed to say.”</p> + +<p>The President of the Court, who had already made himself a party to this +gross insult to a distinguished counsel—as if disappointed that the +affair was about to end so smoothly—here burst out:</p> + +<div class="blockquot"> +<p>“Mr. Johnson has made an intimation in regard to holding members of +this Court personally responsible for their action.</p> + +<p>“Mr. Johnson.—I made no such intimation; did not intend it.</p> + +<p>“The President.—Then I shall say nothing more, sir.</p> + +<p>“Mr. Johnson.—I had no idea of it. I said I was too old to feel such +things, if I even would.</p> + +<p>“The President.—I was going to say that I hoped the day had passed +when freemen from the North were to be bullied and insulted by the +humbug chivalry; and that, for my own part, I hold myself personally +responsible for everything I do here. The Court will be cleared.”</p></div> + +<p><span class="pagenum"><a name="Page_47" id="Page_47">[Pg 47]</a></span>On reopening, the Judge-Advocate read a paper from General Harris +withdrawing his objection because of Mr. Johnson’s disclaimer. General +Wallace remarked that it must be known to every member of the Commission +that Mr. Senator Johnson had taken the oath in the Senate of the United +States. He therefore suggested that the requirement of his taking the oath +be dispensed with.</p> + +<div class="blockquot"><p>“The suggestion was acquiesced in, <i>nem. con.</i></p> + +<p>“Mr. Johnson.—I appear, then, as counsel for Mrs. Surratt.”</p></div> + +<p>In reviewing, at this distance of time, the foregoing scene, it is +scarcely possible to realize the state of mind of a member of a tribunal +claiming at least to be a court of justice, that could prompt such an +onslaught—so shocking to the universal expectation of dignity and +decorum, not to say absolute impartiality, in a judge.</p> + +<p>The interpretation put upon the letter of Reverdy Johnson to his +constituents by Generals Harris and Hunter was the ordinary, +ill-considered, second-hand version circulated by blind party hostility. +This is clearly shown by the fact that the objection of General Harris was +not founded upon a recent perusal of the letter, but upon his own +recollection of the impression it made in his own party circles the year +before.</p> + +<p>When, on the next Wednesday, General Harris, having in the meantime looked +it up, presented a copy of the incriminated opinion, prefacing a request<span class="pagenum"><a name="Page_48" id="Page_48">[Pg 48]</a></span> +that it be made a part of the record by the sneering remark that “the +Honorable gentleman ought to be very thankful to me for having made an +occasion for him to disclaim before the country any obliquity of intention +in writing that letter;” and, on the suggestion of General Hunter, the +letter was read; every fair minded man ought to have been convinced that +it was open to such a malign misconstruction only by an unscrupulous +political enemy.</p> + +<p>But suppose for a moment that their own hasty and uncharitable +construction was correct, what right—what color of justification—did +that give these two military Judges to make that letter of the year before +the pretext for a sudden attack in open court upon such a man as Reverdy +Johnson, and on the consecrated occasion of his appearing as counsel for a +lady on trial for her life?</p> + +<p>As to General Harris’ argument that the requirement of an oath gave the +Commission a right to inquire whether the written opinions of a counsel +chosen for a defendant, previously delivered as a party leader, were of +such a character as to render him incompetent to take an oath which the +Supreme Court of the United States and the Senate of the United States had +recognized his competency to take; why, it is charitable to suppose—and +his subsequent<span class="pagenum"><a name="Page_49" id="Page_49">[Pg 49]</a></span> claim would have been scouted as preposterous in any +law-court in the world.</p> + +<p>With regard to General Hunter, his ferocious personal defiance, hurled +from the very Bench, demonstrated in a flash his preëminent unfitness for +any function that is judicial even in a military sense. It is manifest +that this whole attack, whether concerted or not, was not made from any +conscientious regard for the sanctity of an oath, nor from any sensitive +fear that Reverdy Johnson, as an oath-breaker, might contaminate the +tribunal; but it was either a mere empty ebullition of party spleen, or of +party hatred towards a distinguished democrat, or it was made with a +deliberate design to rob a poor woman of any probable advantage such +eminent counsel might procure for her.</p> + +<p>And whether the latter terrible suspicion be well founded or not, true it +is that this cruel result, notwithstanding the withdrawal of the +objection, did not fail of full accomplishment.</p> + +<p>Reverdy Johnson, though suffered to appear as counsel, was virtually out +of the case. He was present only at rare intervals during the trial, and +sent in his final argument to be read by one of his juniors. The Court had +put its brand upon him, and to any subsequent effort of his it turned an +indifferent countenance and a deaf ear. He, forsooth, had “sympathized” +with the Rebellion and that was enough! His appearance worked only harm to +his client, if harm could be done to one<span class="pagenum"><a name="Page_50" id="Page_50">[Pg 50]</a></span> whom the Court believed to have +been also a sympathizer with rebellion, and who was already doomed to +suffer in the place of her uncaptured son.</p> + +<p>Another incident, occurring after the testimony on behalf of the prisoners +had begun, will illustrate still more clearly, if possible, the mental +attitude of the Court.</p> + +<p>Among the witnesses sworn on the first day of the trial in secret session +was one Von Steinacker, who, according to his own statement, had been in +the Confederate Army, on the staff of Major-General Edward Johnson. He +told the usual cock-and-bull story about seeing Booth in Virginia, in +1863, consorting with the rebel officers and concocting the assassination +of Lincoln. At the time of his examination he was a prisoner of war, but +after he had given his testimony he was discharged. The counsel for the +defense knowing nothing of the witness did not cross-examine him at all. +But, subsequently, they discovered that, after having once been convicted +of an attempt to desert, he had at last succeeded in deserting the Union +Army, and had entered the service of the Confederates; that he had been +convicted of theft by a court-martial; and that his whole story was a +fiction. Thereupon, as soon as possible, the counsel for Mrs. Surratt +applied for the recall of the witness for cross-examination, so as to lay +the basis for his contradiction and impeachment; and they embodied the +facts they were ready to prove in a paper which was signed by Reverdy<span class="pagenum"><a name="Page_51" id="Page_51">[Pg 51]</a></span> +Johnson and the other counsel for Mrs. Surratt. This application seems to +have strangely disturbed the Judge-Advocates and aroused the ire of the +Court. The prosecuting officers professed to have no knowledge of the +whereabouts of the witness; and General Wallace, moved from his wonted +propriety, delivered himself as follows:</p> + +<p class="blockquot">“I, for my part, object to the appearance of any such paper on the +record, and wish to say now that I understand distinctly and hold in +supreme contempt, such practices as this. It is very discreditable to +the parties concerned, to the attorneys, and, if permitted, in my +judgment will be discreditable to the Court.”</p> + +<p>Mr. Clampitt, with the most obsequious deference to the Court, deprecated +any such reflection upon the conduct of counsel and alluded to their duty +to their unfortunate clients. But this humble apology was declared not +satisfactory to the General or to the Court; and the application was not +only refused but the paper was not allowed to go upon the record. However, +this summary method of keeping facts out of sight availed nothing. Mrs. +Surratt’s counsel had caused to be summoned as a witness, to contradict +and impeach Von Steinacker, Edward Johnson, the very Major-General on +whose staff the witness had sworn he had been.</p> + +<p>General Johnson, a distinguished officer in the Confederate Army, was +taken prisoner in 1864 and had been in confinement since, as such, at Fort +Warren. From thence he had been brought to<span class="pagenum"><a name="Page_52" id="Page_52">[Pg 52]</a></span> attend before the Commission +in obedience to a subpœna issued by the Court.</p> + +<p>On the 30th of May, he was called as a witness and appeared upon the stand +to be sworn. As he stood there, in his faded uniform, bearing, doubtless, +traces of the six months’ imprisonment from which he had come at the +command of the Court, facing the officers of the Army he had so often +encountered, and with his back turned upon the woman on whose behalf he +had been summoned; General Albion P. Howe deemed it his duty as an +impartial judge to make the following attack upon him.</p> + +<p>After stating that it was well known that “the person” before the Court +had been educated at the National Military Academy, and had since for many +years held a commission in the U. S. Army, and had therefore taken the +oath of allegiance, this gallant officer and upright judge proceeded:</p> + +<p class="blockquot">“In 1861, it became my duty as an officer to fire upon a rebel party, +of which this man was a member, and that party fired upon, struck +down, and killed loyal men that were in the service of the Government. +I understand that he is brought here now as a witness to testify +before this Court, and he comes here as a witness with his hands red +with the blood of his loyal countrymen, shed by him or by his +assistants, in violation of his solemn oath as a man and his faith as +an officer. I submit to this Court that he stands in the eye of the +law as an incompetent witness, because he is notoriously infamous. To +offer as a witness a man who stands with this character, who has +openly violated the obligations of his oath, and his faith as an +officer, and to administer the oath to him and present his testimony, +is but an insult to the Court and an outrage upon the administration +of<span class="pagenum"><a name="Page_53" id="Page_53">[Pg 53]</a></span> justice. I move that this man, Edward Johnson, be ejected from the +Court as an incompetent witness on account of his notorious infamy on +the grounds I have stated.”</p> + +<p>General Ekin welcomed the opportunity to distinguish himself by seconding +the motion and characterizing the appearance of the witness before the +Commission, “with such a character” as “the height of impertinence!” In +his haste to insult a fallen foe, he seems to have forgotten that the +witness had no alternative but to come.</p> + +<p>The counsel for the prisoner humbly reminded the Court that the +prosecution itself had sworn as its own witnesses men who had borne arms +against the Government. The Judge-Advocate saw that the members of the +Court had gone too far, and, after calling their attention to the familiar +rule that the record of conviction in a judicial proceeding was the only +basis of a total rejection of a witness, proceeded to provide a channel +for the relief of the Court by suggesting that they could discredit the +witness upon the ground stated, although they could not declare him +incompetent to testify.</p> + +<p>The assertion is confidently made that in the whole annals of English +criminal jurisprudence, full as they are of instances of the grossest +unfairness to persons on trial, no such outrage upon the administration of +justice as the foregoing can be found. To find its parallel you must go to +the records of the French Revolutionary Tribunal. What are we to<span class="pagenum"><a name="Page_54" id="Page_54">[Pg 54]</a></span> think of +the complaint of a Union General, that “a rebel party” fired (first? No! +but that when “it became his duty as an officer to fire upon a rebel +party” the rebel party fired) back? What in Mars’ name did this warrior +expect? Would he have had kinder feelings towards his brave adversary if, +in response to his own volley, the Confederate General had tamely laid +down his arms, or played the coward and run?</p> + +<p>Nowadays, when the blue and the gray meet, charges of infamy are no longer +heard, but the more deadly the past warfare, the greater the reciprocal +respect.</p> + +<p>However, this unprovoked assault upon an unoffending officer, powerless to +repel it, although it did not result in his ejection from the Court, +effectually disposed of General Johnson as a witness.</p> + +<p>In answer to the questions of counsel he calmly gave his testimony, which +exploded both Von-Steinacker and his story. Judge Bingham confined his +cross-examination to eliciting the facts, that the witness had graduated +from West Point, served in the U. S. Army until 1861, resigned, and joined +the Confederate Army. The Court paid no attention to his direct testimony +because he had fired upon Union men when they had fired upon him.</p> + +<p>The foregoing incidents conclusively show (were any such demonstration +necessary) that a Board of nine military officers, fresh from service in +the field in a bloody civil war, with all the fierce prejudices<span class="pagenum"><a name="Page_55" id="Page_55">[Pg 55]</a></span> naturally +bred by such a conflict hot within their bosoms, was the most unfit +tribunal possible to administer impartial justice to eight persons charged +with the murder of the Commander-in-Chief of the Army to which every +member of the Court belonged, committed in aid of that Rebellion which +during four years of hard fighting they had helped to suppress.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_56" id="Page_56">[Pg 56]</a></span></p> +<h2><a name="CHAPTER_III.1" id="CHAPTER_III.1"></a>CHAPTER III.</h2> +<p class="center"><span class="large"><span class="smcap">The Conduct of the Trial.</span></span></p> + +<p class="dropcap"><span class="caps">The</span> whole conduct of the trial emphasizes this conclusion. The Court, in +weighing the evidence, adopted and acted upon the following proposition; +that any witness, sworn for any of the prisoners, who had enlisted in the +Confederate service, or had at any time expressed secession sentiments, or +sympathized in any way with the South, was totally unworthy of credit. The +Court went a step farther, and adopted the monstrous rule that +participation in the Rebellion was evidence of participation in the +assassination! This assertion now seems incredible, but it is fully +attested by the record. At one stage of the trial, the Judge-Advocate +asked a witness whether or not the prisoner Arnold had been in the +military service of the rebels. General Ewing, his counsel, strenuously +objected to this question on the ground, that it tended to prove the +prisoner guilty of another crime than the one for which he was on trial, +and thus to prejudice him in the eyes of the Court.</p> + +<p><span class="pagenum"><a name="Page_57" id="Page_57">[Pg 57]</a></span>Judge Holt remarked: “How kindred to each other are the crimes of treason +against a nation and assassination of its chief magistrate.</p> + +<p>“The murder of the President * * * was preëminently a political +assassination.</p> + +<p>“When, therefore, we shall show, on the part of the accused, acts of +intense disloyalty, bearing arms in the field against the Government, we +show with him the presence of an animus towards the Government which +relieves this accusation of much, if not all, of its improbability.”</p> + +<p>He asserted that such a course of proof was constantly resorted to in +criminal courts; and when General Ewing challenged him (as well he might) +to produce any authorities for such a position, he called upon the +indomitable Bingham to state them.</p> + +<p>The Special Judge-Advocate responded, but he courteously, but +unmistakably, shied away from his colleague’s position and put the +competency of the testimony upon another ground, viz.: that where the +intent with which a thing was done is in issue, other acts of the prisoner +which tend to prove the intent may be given in evidence. Here he was +dealing with a familiar principle, and could cite any number of cases. He +then proceeded to apply his good law. How? By claiming that conspiracy to +murder having been laid in the charge, “<i>with the intent to aid the +Rebellion</i>,” that was the intent in issue here, and therefore to prove +that a man was in the Rebellion went to prove that intent.</p> + +<p><span class="pagenum"><a name="Page_58" id="Page_58">[Pg 58]</a></span>At the request of General Ewing he read the allegation which ran “in aid +of the Rebellion,” and not “<i>with intent</i> 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.</p> + +<p>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 <i>intent to kill</i>; 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.</p> + +<p>Judge Bingham contended (and cited authorities) for his familiar law, and +then again in applying it triumphantly asked:</p> + +<p>“When he [Arnold] entered it (<i>i. e.</i>, the Rebellion) he entered into it +to aid it, did he not?”</p> + +<p>“Mr. Ewing. He did not enter into that to assassinate the President.”</p> + +<p>At this, the Assistant Judge-Advocate rising to the decisive and +culminating point of his argument gave utterance to the following +proposition:</p> + +<p class="blockquot">“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.”</p> + +<p><span class="pagenum"><a name="Page_59" id="Page_59">[Pg 59]</a></span>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:</p> + +<p>“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.”</p> + +<p>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<span class="pagenum"><a name="Page_60" id="Page_60">[Pg 60]</a></span> 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.</p> + +<p>In a word, the judgment of the prosecuting officer—the retained counsel +for the Government, the plaintiff in the action—ruled with absolute sway, +both on the law and on the facts, the judgment of the Commission; the +members of which, for that matter, were also in the pay of the Government.</p> + +<p>It may, therefore, be readily anticipated with how little impartiality the +trial was conducted.</p> + +<p>Mrs. Surratt (as did the rest of the accused) plead to the jurisdiction of +the Commission on the grounds (1) that she was not and had not been in the +military service of the United States, and (2) that when the crimes +charged were committed the civil courts were open in Washington; both of +which allegations were admitted and were notoriously true. Whatever might +be the indifference with which the rights of the men to a constitutional +trial may have been viewed, it was so utterly incongruous with the spirit +of military jurisprudence and so unprecedented in<span class="pagenum"><a name="Page_61" id="Page_61">[Pg 61]</a></span> practice to try a woman +by court-martial, that had Mrs. Surratt been alone before that Commission +we venture to say those nine soldiers could not have brought themselves, +or allowed the Judge-Advocate to bring them, to the overruling of her +plea. As it was, however, the court-room was cleared of all save the +members of the Commission and the three Judge-Advocates; and after a +season of what is called “deliberation” (which meant the further +enforcement of the opinion of the prosecuting officers upon the point +under discussion, where necessary), the court reopened and “the +Judge-Advocate announced that the pleas * * * had been overruled by the +Commission.”</p> + +<p>Mrs. Surratt (as did the other prisoners) then asked for a separate trial; +a right guaranteed to her in all the civil courts of the vicinage. It was +denied to her, without discussion, as a matter of course.</p> + +<p>And yet no one now can fail to recognize the grievous disadvantage under +which this one woman labored, coupled in a single trial with such culprits +as Payne who confessed his guilt, and Herold who was captured with Booth.</p> + +<p>In fact, the scheme of trial contrived by the Judge-Advocates on a scale +comprehensive enough to embrace the prisoners, the Canadian exiles and the +Confederate Cabinet, would not work on a trial of Mrs. Surratt alone. Of +this pet plan they were highly proud and greatly enamoured. To it, +everything—the rights of woman as well as man; <span class="pagenum"><a name="Page_62" id="Page_62">[Pg 62]</a></span>considerations of equity +and of common fairness—must be made to give way.</p> + +<p>To the maintenance of this scheme in its integrity, they had marshalled +the witnesses, and they guided the Commission with a firm hand so that not +a jot or tittle of its symmetry should be marred.</p> + +<p>This determined purpose is indicated by the starting-point they chose for +the testimony.</p> + +<p>On Friday, the twelfth, the first witness was sworn, and his name was +Richard Montgomery. His testimony, as well as that of the other witnesses +sworn that day, was taken in secret session, and no portion of it was +allowed to reach the public until long after the trial. It was all +directed to establish the complicity of the rebel agents in Canada and +through them the complicity of Jefferson Davis and other officers of the +“Confederacy” in the assassination. In other words, this testimony was +given to prove the guilt, not of the men much less of the woman on trial, +but of the men included in the charge but not on trial; and whom, as it +now appears, the United States never intended to try.</p> + +<p>To connect the defunct Confederacy in the person of its captive Chief with +the murder of the President would throw a halo of romantic wickedness +about the crime, and chime in with the prevalent hatred towards every +human being in any way connected with the Rebellion.</p> + +<p>This class of testimony continued to be introduced every now and then +during the trial—whenever<span class="pagenum"><a name="Page_63" id="Page_63">[Pg 63]</a></span> most convenient to the prosecution—and as +often as it was given the court-room was cleared of spectators and the +session secret; the isolated counsel for Mrs. Surratt, utterly at a loss +to imagine the connection of such testimony, given under such solemn +precautions, with their own client, and knowing nothing whatever of the +witnesses themselves, must have looked on in bewildered amazement, and had +no motive for cross-examination.</p> + +<p>The chief witnesses who gave this carefully suppressed evidence were spies +upon the rebel agents in Canada paid by the United States, and, at the +same time, spies upon the United States paid by the rebel agents.</p> + +<p>They were, of course, ready to swear to as many conversations with these +agents, both before and after the assassination, in which those agents +implicated themselves and the heads of government at Richmond in the most +reckless manner, as the Judge-Advocates thought necessary or advisable.</p> + +<p>The head, parent and tutor of this band of witnesses was a man called +Sanford Conover. After giving his testimony before the Commission, he went +to Canada and again resumed his simulated intimacy with the Confederates +there, passing under the name of James W. Wallace. An unauthorized version +of his testimony having leaked out and appearing in the newspapers, he was +called to account for it by his Canadian friends. He then made and +published an affidavit that the person who had given<span class="pagenum"><a name="Page_64" id="Page_64">[Pg 64]</a></span> testimony before the +Commission was not himself but an imposter, and at the same time also +published an offer of $500 reward for the arrest of “the infamous and +perjured scoundrel who secretly personated me under name of Sanford +Conover, and deposed to a tissue of falsehood before the military +Commission at Washington.”</p> + +<p>Being reclaimed by the government from his Canadian perils, he appeared +again before the Court after the testimony had been closed and the summing +up of all the prisoners’ counsel had been completed (June 27th); when he +testified that his affidavit had been extorted from him by the +Confederates in Canada by threats of death at the point of a pistol. This +man Conover was subsequently (in 1867) tried and convicted of perjury and +sent to the penitentiary; and with him the whole structure of perjured +testimony, fabricated for reward by him and Montgomery and their co-spies, +fell to the ground. Secretary Seward testified before the Judiciary +Committee of the House of Representatives, in 1867, that, “the testimony +of these witnesses was discredited and destroyed by transactions in which +Sanford Conover appeared and the evidence of the alleged complicity of +Jefferson Davis thereupon failed.”</p> + +<p>But, at the period of the trial, when the passionate desire for vengeance +was at its height, any plausible scoundrel, whose livelihood depended on +the rewards for wholesale perjury, and who was sure to be attracted to +Washington by the scent of his favorite<span class="pagenum"><a name="Page_65" id="Page_65">[Pg 65]</a></span> game, was thrice welcome to the +Bureau of Military Justice. Any story, no matter how absurd or incredible, +provided it brought Jefferson Davis within conjectural fore-knowledge of +the assassination, was greedily swallowed, and, moreover, was rewarded +with money and employment. These harpies flocked, like buzzards, around +the doors of the old Penitentiary, and all—black and white, from +Richmond, from Washington and from Montreal—were eager, for a +consideration, to swear that Davis and Benjamin were the instigators of +Booth and Surratt. And such testimony as it was! For the most part the +sheerest hearsay! The private impressions of the witness! In one instance, +his recollection of the contents of a letter the witness had heard read or +talked about, the signature of which, although he did not see it himself, +he heard was the signature of Jefferson Davis!! Testimony wholly +inadmissible under the most elementary rules of evidence, but swept before +the Commission in the absence of counsel for the parties implicated and +under the immunity of a secret session.</p> + +<p>For example: a blind man, who had been, at an undated period during the +war, a hanger-on around the camp at Richmond, being asked whether he had +heard any conversations among the rebel officers in regard to the +contemplated assassination, answered:</p> + +<p class="blockquot">“In a general way, I have heard sums offered, to be paid with a +Confederate sum, for any person or persons to go North and assassinate +the President.”</p> + +<p><span class="pagenum"><a name="Page_66" id="Page_66">[Pg 66]</a></span>Being pressed to name the amount and by what officers, he answered:</p> + +<div class="blockquot"> +<p>“At this moment, I cannot tell you the particular names of +shoulder-straps, &c.</p> + +<p>“Q.—Do you remember any occasion—some dinner occasion?</p> + +<p>“A.—I can tell you this: I heard a citizen make the remark once, that +he would give from his private purse $10,000, in addition to the +Confederate amount, to have the President assassinated; to bring him +to Richmond dead or alive, for proof.</p> + +<p>“Q.—I understood you to say that it was a subject of general +conversation among the rebel officers?</p> + +<p>“A.—It was. The rebel officers, as they would be sitting around their +tent doors, would be conversing on such a subject a great deal. They +would be saying they would like to see his head brought there, dead or +alive, and they should think it could be done; and I have heard such +things stated as that they had certain persons undertaking it.”</p></div> + +<p>In the introduction of evidence against Mrs. Surratt, as well as the +others on trial, the Judge-Advocates allowed themselves the most unlimited +range.</p> + +<p>Narrations of all sorts of events connected with the progress of the +War—historical, problematical or fabulous—having no relevancy to the +particular charge against her, or them, but deadly in their tendency to +steel the minds of the Court against her, were admitted without scruple or +hesitation.</p> + +<p>Seven soldiers who had been prisoners of war at Libby Prison, Belle Island +or Andersonville were called and testified, in all its ghastly details, to +the terrible treatment they and their fellow-prisoners<span class="pagenum"><a name="Page_67" id="Page_67">[Pg 67]</a></span> had undergone. +Three witnesses were sworn to prove that the rebel government buried a +torpedo under the centre of Libby Prison, to be fired if the U. S. troops +entered Richmond. Letters found in the Richmond Archives were read, +offering to rid the world of the Confederacy’s deadliest enemies, and +projecting wholesale destruction to property in the North. Testimony was +allowed to be given of the burning of U. S. transports and bridges by men +in the Confederate service; of the raids from Canada into the United +States; of the alleged plot in all its horrible features to introduce the +yellow-fever into Northern cities by infected clothing, testified to by +the villain who swore he did it for money. It is scarcely to be credited, +yet it is a fact, that the confession of Robert Kennedy, hung in March +previous for attempting to burn the City of New York, was read in +evidence; as was also a letter from a Confederate soldier, detailing the +blowing up of vessels by a torpedo and the killing of Union men at City +Point, indorsed by a recommendation of the operator to favor.</p> + +<p>On June 27th, after the testimony had been closed and the summing up of +counsel for the defense ended, the case was reopened and there was +introduced an advertisement clipped from the “Selma Dispatch” of December +1st, 1864, wherein some anonymous lunatic offered, if furnished +$1,000,000, to cause the lives of Lincoln, Seward and Johnson to be taken +before the first of March.</p> + +<p><span class="pagenum"><a name="Page_68" id="Page_68">[Pg 68]</a></span>The prosecution closed its direct testimony on May 25th, reserving the +right (of which we have seen they availed themselves from time to time) +thereafter to call further witnesses on the character of the Rebellion and +the complicity of its leaders in the assassination.</p> + +<p>Out of about one hundred and fifty witnesses sixty-six gave testimony of +that kind. Of the remaining eighty-four about fifty testified to the +circumstances attending the assassination, the pursuit and capture of +Booth and Herold, and the terrific assault of Payne on William H. Seward +and his household. Of the remaining thirty-four there were nine whose +testimony was directed to the incrimination of Mrs. Surratt.</p> + +<p>The important witnesses against her were three soldiers testifying under +the eye of their superior officers as to her non-recognition of Payne, and +two informers who had turned state’s evidence to save their own necks, who +connected her with Booth.</p> + +<p>The witnesses for the defense, for the most part, were treated by the +Special Judge-Advocate as virtual accomplices of the accused; and, as soon +as, by a searching cross-examination, he had extorted from them a +reluctant admission of the slightest sympathy with the South (as in almost +every case he was able to do), he swept them aside as impeached, and their +testimony as unworthy of a moment’s consideration. A former slave, who +announced himself or herself as ready to give evidence against his or<span class="pagenum"><a name="Page_69" id="Page_69">[Pg 69]</a></span> her +former master, was a delicious morsel for the Bureau of Military Justice; +and several such were sworn for the prosecution. While, on the other hand, +nothing so exasperated the loyal Bingham or so astonished the Court as the +apparition of an old slave-woman, summoned by the defense, eagerly +endeavoring to exculpate her former master.</p> + +<p>Several priests testified as to the good character of Mrs. Surratt as a +lady and a christian, but the effect of their testimony was immediately +demolished in the eyes of the Court, when, on cross-examination, although +they refused to substantiate what the Judge-Advocate called “her notorious +intense disloyalty,” they could not remember that they had ever heard her +“utter one loyal sentiment.”</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_70" id="Page_70">[Pg 70]</a></span></p> +<h2><a name="CHAPTER_IV.1" id="CHAPTER_IV.1"></a>CHAPTER IV.</h2> +<p class="center"><span class="large"><span class="smcap">Arguments For The Defense.</span></span></p> + +<p class="dropcap"><span class="caps">The</span> testimony for the several defenses of the eight accused closed on the +7th of June, and the testimony in rebuttal ended on the 14th, with the +evidence of the physicians on the sanity of Payne.</p> + +<p>Thereupon, General Ewing endeavored to extract from the Judge-Advocate an +answer to the two following questions: First.—Whether his clients were on +trial for but one crime, viz.: Conspiracy, or four crimes, viz.: +Conspiracy, Murder, Attempt at murder, Lying in wait? and</p> + +<p>Second.—By what statute or code of laws the crimes of “traitorously” +murdering, or “traitorously” assaulting with intent to kill, or +“traitorously” lying in wait, were defined, and what was the punishment +affixed?</p> + +<p>The Judge-Advocate’s reply to the first question was, in substance, that +all the accused were charged with conspiring to assassinate the President +and the other members of the Government named, and further, with having +executed that conspiracy so far as the assassination of the President and +the assault on the Secretary of State were concerned, and “to have<span class="pagenum"><a name="Page_71" id="Page_71">[Pg 71]</a></span> +attempted its execution so far as concerns the lying in wait and other +matters.”</p> + +<p>Assistant Judge-Advocate Bingham added:</p> + +<div class="blockquot"> +<p>“The act of any one of the parties to a conspiracy in its execution is +the act of every party to that conspiracy; and therefore the charge +and specification that the President was murdered in pursuance of it +by the hand of Booth, is a direct and unequivocal charge that he was +murdered by every one of the parties to this conspiracy, naming the +defendants by name.</p> + +<p>“Mr. Ewing.—I understand * * * but I renew my inquiry, whether these +persons are charged with the crime of conspiracy alone, and that these +acts of murdering, assaulting, and lying in wait, were merely acts +done in execution of that conspiracy.</p> + +<p>“Mr. Bingham (interrupting).—And not crimes?</p> + +<p>“Mr. Ewing.—Or whether they are charged with four distinct crimes in +this one charge?</p> + +<p>“Mr. Bingham.—‘Where parties are indicted for a conspiracy, and the +execution thereof, it is but one crime at the common law. And that as +many * * * overt acts in the execution of the conspiracy as they are +guilty of, may be laid in the same count.’</p> + +<p>“Mr. Ewing.—It is then, I understand, one crime with which they are +charged.</p> + +<p>“Mr. Bingham.—One crime all round, with various parts performed.</p> + +<p>“Mr. Ewing.—The crime of conspiracy.</p> + +<p>“Mr. Bingham.—It is the crime of murder as well. It is not simply +conspiring but executing the conspiracy treasonably and in aid of the +Rebellion.</p> + +<p>“Mr. Ewing.—I should like an answer to my question, if it is to be +given: How many crimes are my clients charged with and being tried +for? I cannot tell.</p> + +<p>“Mr. Bingham.—We have told you, it is all one transaction.”</p></div> + +<p>General Ewing, not being able to get an answer intelligible to himself to +the first question, then<span class="pagenum"><a name="Page_72" id="Page_72">[Pg 72]</a></span> respectfully asked an answer to the second: By +what code or statute the crime was defined and the punishment provided?</p> + +<div class="blockquot"> +<p>“The Judge-Advocate.—I think the common law of war will reach that +case. This is a crime which has been committed in the midst of a great +civil war, in the capital of the country, in the camp of the +Commander-in-Chief of our armies, and if the common law of war cannot +be enforced against criminals of that character, then I think such a +code is in vain in the world.</p> + +<p>“Mr. Ewing.—Do you base it, then, only on the law of nations?</p> + +<p>“The Judge-Advocate.—The common law of war.</p> + +<p>“Mr. Ewing.—Is that all the answer to the question?</p> + +<p>“The Judge-Advocate.—It is the one I regard as perfectly appropriate +to give.</p> + +<p>“Mr. Ewing.—I am as much in the dark now as to that as I was in +reference to the other inquiry.”</p></div> + +<p>It is significant that the ready Special Judge-Advocate rendered no aid to +his colleague on the latter branch of the inquiry.</p> + +<p>According to the theory of the prosecution, then, Mary E. Surratt was +tried, as a co-conspirator of Jefferson Davis and seven of his agents, of +the seven men tried with her, and of Booth and her own son, for the crime +of “traitorous conspiracy” to murder the President, Vice-President, +Secretary of State and Lieutenant-General, of the United States; and for +the following crimes committed in pursuance thereof:</p> + +<p>1. Assassination of the President, with Booth.</p> + +<p>2. Attempt to murder the Secretary of State, his two sons and two +attendants (five crimes instead of one), with Payne.</p> + +<p><span class="pagenum"><a name="Page_73" id="Page_73">[Pg 73]</a></span>7. Lying in wait to kill the Vice-President, with Atzerodt.</p> + +<p>8. Lying in wait to kill the Lieutenant-General, with O’Laughlin.</p> + +<p>Eight separate species of crimes, beside the generic one of “traitorous +conspiracy.” And she, a citizen, a non-combatant, a woman, was tried on +this nine-fold, omnibus charge, jointly with seven men, under “the common +law of war”!</p> + +<hr style="width: 25%;" /> + +<p>On the 16th of June (Friday), Mr. Clampitt read the argument of Reverdy +Johnson against the jurisdiction of the Commission—one of the most cogent +and convincing ever delivered in a court of justice.</p> + +<p>The Supreme Court of the United States, subsequently (December, 1866), in +deciding the Milligan case, did but little more than reiterate the +propositions maintained by this great lawyer.</p> + +<p>He opened his address by reminding the Court that the question of their +jurisdiction to try and sentence the accused was for the Court alone to +decide, and that no mandate of the President, if in fact and in law the +Constitution did not tolerate such tribunals in such cases, could protect +any member of the Commission from the consequences of his illegal acts. He +then advanced and proved the following propositions: that none but +military offenses are subject to the jurisdiction of military courts, and +that the offenders when they commit such offenses must be subject to +military jurisdiction—in other<span class="pagenum"><a name="Page_74" id="Page_74">[Pg 74]</a></span> words, must belong to the army or navy; +that the President himself had no right to constitute military courts of +his own motion, but that such power must first be exercised by Congress +under the constitutional grant to that body to make rules for the +government and regulation of the land and naval forces; that, by the fifth +and sixth amendments of the constitution, every person, except those +belonging to the land or naval forces or to the militia in active service +in time of war, and, being such, committing a military or naval crime, is +guaranteed an investigation by a grand jury as a preliminary to trial, and +a speedy and public trial by an impartial jury. He then took up and +examined the grounds on which the jurisdiction of the Commission was +sought to be maintained. Calling the Court’s attention to the +constitutional provision that, if the institution of such Commission was +an incident to the war power, that power was lodged exclusively in +Congress and not at all in the President, and, therefore, Congress only +could authorize such tribunals, he showed that, neither by the articles of +war nor by the two acts, relied on, passed during the Rebellion, had +Congress ever authorized any such tribunal; and that a military commission +like the present and under present circumstances “is not to be found +sanctioned, or the most remotely recognized, or even alluded to, by any +writer on military law in England or the United States, or in any +legislation of either country.”</p> + +<p><span class="pagenum"><a name="Page_75" id="Page_75">[Pg 75]</a></span>And, in this connection, he pronounced the suggestion that the civil +courts and juries of the District of Columbia could not safely be relied +upon for the trial of these cases, “an unjust reflection upon the judges, +upon the people, upon the marshal, an appointee of the President, by whom +the juries were summoned, and upon our civil institutions themselves;” and +he closed his remarks upon this branch of his subject by saying that the +foregoing suggestion,</p> + +<p class="blockquot">“upon another ground, is equally without force. It rests on the idea +that the guilty only are ever brought to trial; that the only object +of the Constitution and laws in this regard is to afford the means to +establish alleged guilt; that accusation, however made, is to be +esteemed <i>prima facie</i> evidence of guilt, and that the Executive +should be armed, without other restriction than his own discretion, +with all the appliances deemed by him necessary to make the +presumption from such evidence conclusive. Never was there a more +dangerous theory. The peril to the citizen from a prosecution so +conducted, as illustrated in all history, is so great that the very +elementary principles of constitutional liberty, the spirit and letter +of the Constitution itself repudiated it.”</p> + +<p>After depicting the peril to the rights of the citizen of confiding to the +option of the Executive the power of substituting a secret for a public +tribunal for the trial of offenses, he established the following +propositions: That the creation of a Court is an exclusively legislative +function; that constitutional guarantees are designed for times of war as +well as times of peace; that the power to suspend the writ of Habeas +Corpus carries with it only the temporary<span class="pagenum"><a name="Page_76" id="Page_76">[Pg 76]</a></span> suspension of the right to +inquire into the cause of the arrest, and does not extend in any way over +the other rights of the accused. The distinguished advocate then further +maintained that, conceding the articles of war provide for a military +court like this, yet the offense charged in the present case being nothing +less than treason could not under the provision of the constitution, +regulating the trial of treason, be tried by a military commission; and, +also, that under the articles of war persons who were not and never had +been in the army were not subject to military law. And, in order to +illustrate this branch of his argument as forcibly as possible, passing in +review the guaranteed and historic rights of accused persons on trials +before civil courts, he arrayed the open and flagrant violations of these +rights which had been permitted by the Commission on the present trial: +First, in the character of the pleadings, which for indefiniteness and +duplicity would not have been tolerated by any civil tribunal. Second, as +to the rules of evidence, which, according to the Judge-Advocate, allowed +proof of separate and distinct offenses alleged to have been committed, +not only by the parties on trial, but by other persons, and which the +accused, however innocent, could not be supposed able to meet. Third, he +quoted Lord Holt to show that in a civil court “these parties could not +have been legally fettered during their trial.” Referring to the row of +miserable beings weighed down with shackles as they had entered<span class="pagenum"><a name="Page_77" id="Page_77">[Pg 77]</a></span> the +court-room, as they confronted their epauletted judges, and as they +departed to their solitary cells, day by day, for more than a month, he +repeated the words of the great jurist, then 200 years old:</p> + +<p class="blockquot">“Hearing the clanking of chains, though no complaint was made to him, +he said, ‘I should like to know why the prisoner is brought in ironed. +Let them be instantly knocked off. When prisoners are tried they +should stand at their ease.’”</p> + +<p>Then, characterizing the claim, that martial law prevailing in the +District of Columbia therefore warranted the Commission, as alike +indefensible and dangerous, and at the same time irrelevant because +martial law had never been proclaimed and the civil courts were in the +full and undisturbed exercise of all their functions, the counsel drove +this point home as follows:</p> + +<p class="blockquot">“We learn, and the fact is doubtless true, that one of the parties, +the very chief of the alleged conspiracy, has been indicted, and is +about to be tried before one of those courts. If he, the alleged head +and front of the conspiracy, is to be and can be so tried, upon what +ground of right, of fairness or of policy, can the parties who are +charged to have been his mere instruments be deprived of the same mode +of trial?”</p> + +<p>At the close of his speech he recurs to the warning that the President’s +command can furnish no justification to the members of the tribunal. If +their function were only to act as aides to the President to enable him to +discharge his prerogative of punishment, and is to that extent legal, then +it is only so<span class="pagenum"><a name="Page_78" id="Page_78">[Pg 78]</a></span> because the President might have dispensed with the Court +altogether, and ordered the punishment of the culprits without any formal +trial.</p> + +<p>No, he warned them, in the most courtly and courteous manner, they could +not shield themselves behind the President.</p> + +<p class="blockquot">“Responsibility to personal danger can never alarm soldiers who have +faced * * * death on the battle-field. But there is a responsibility +that every gentleman, be he soldier or citizen, will constantly hold +before him and make him ponder—responsibility to the constitution and +laws of his country and an intelligent public opinion—and prevent his +doing anything knowingly that can justly subject him to the censure of +either. I have said that your responsibility is great. If the +Commission under which you act is void and confers no authority, +whatever you may do may involve the most serious personal liability.”</p> + +<p>He then cited the case of Governor Wall, hung in London in 1802 for +murder—a soldier, under his government in the island of Goree, having +been whipped to death by sentence of a regimental court-martial, twenty +years before.</p> + +<p class="blockquot">“In that instance want of jurisdiction in the court-martial was held +to be fatal to its judgment as a defense for the death that ensued +under it. In this, if the Commission has no jurisdiction, its judgment +for the same reason will be of no avail, either to Judges, Secretary +of War, or President, if either shall be called to a responsibility +for what may be done under it.”</p> + +<p>The learned counsel then added:</p> + +<p class="blockquot">“The opinion I have endeavored to maintain is believed to be the +almost unanimous opinion of the profession and certainly is of every +judge or court who has expressed any.”</p> + +<p><span class="pagenum"><a name="Page_79" id="Page_79">[Pg 79]</a></span>And he cited the then recent charge of Judge Bond to the grand jury at +Baltimore, in which the Judge declared in reference to such military +commissions as the present, that,</p> + +<p class="blockquot">“Such persons exercising such unlawful jurisdiction are liable to +indictment by you as well as responsible in civil actions to the parties.”</p> + +<p>And he quoted to the Court that portion of the charge of Judge Rufus W. +Peckham to a grand jury in New York City, delivered during the progress of +this very trial, wherein the right of a military commission to try was +denied:</p> + +<div class="blockquot"> +<p>“A great crime has lately been committed that has shocked the +civilized world. Every right-minded man desires the punishment of the +criminals, but he desires that punishment to be administered according +to law, and through the judicial tribunals of the country. No +star-chamber court, no secret inquisition, in this nineteenth century, +can ever be made acceptable to the American mind.</p> + +<p class="center"><span style="margin-left: 2em;"><span class="spacer">*</span><span class="spacer">*</span><span class="spacer">*</span><span class="spacer">*</span><span class="spacer">*</span><span class="spacer">*</span><span class="spacer">*</span><span class="spacer">*</span></span></p> + +<p>“Grave doubts, to say the least, exist in the minds of intelligent +men, as to the constitutional right of the Military Commission at +Washington to sit in judgment upon the prisoners now on trial for +their lives before that tribunal. Thoughtful men feel aggrieved that +such a commission should be established in this free country, when the +war is over, and when the common law courts are open and accessible to +administer justice according to law, without fear or favor. * * *</p> + +<p>“The unanimity with which the leading press of our land has condemned +this mode of trial ought to be gratifying to every patriot.”</p></div> + +<p><span class="pagenum"><a name="Page_80" id="Page_80">[Pg 80]</a></span>On the twenty-third, General Ewing, too, assailed the jurisdiction of the +Court in a short but powerful speech from which are taken the following +extracts:</p> + +<div class="blockquot"><p>“The jurisdiction of the Commission has to be sought <i>dehors</i> the +Constitution, and against its express prohibition. It is, therefore, +at least of doubtful validity. If that jurisdiction do not exist; if +the doubt be resolved against it by our judicial tribunals, when the +law shall again speak, the form of trial by this unauthorized +Commission cannot be pleaded in justification of the seizure of +property or the arrest of persons, much less the infliction of the +death penalty. In that event, however fully the recorded evidence may +sustain your findings, however moderate may seem your sentences, +however favorable to the accused your rulings on the evidence, your +sentence will be held in law no better than the rulings of Judge +Lynch’s courts in the administration of lynch law.</p> + +<p>“Our judicial tribunals, at some future day * * * will be again in the +full exercise of their constitutional powers, and may think, as a +large proportion of the legal profession think now, that your +jurisdiction in these cases is an unwarranted assumption; and they may +treat the judgment which you pronounce and the sentence you cause to +be executed, as your own unauthorized acts.</p> + +<p>“Conviction may be easier and more certain in this Military +Commission, than in our constitutional courts. Inexperienced as most +of you are in judicial investigation, you can admit evidence which the +courts would reject, and reject what they would admit, and you may +convict and sentence on evidence which those courts would hold to be +wholly insufficient. Means, too, may be resorted to by detectives, +acting under promise or hope of reward, and operating on the fears or +the cupidity of witnesses, to obtain and introduce evidence, which +cannot be detected and exposed in this military trial, but could be +readily in the free, but guarded, course of investigation before our +regular judicial tribunals. The Judge-Advocate, with whom chiefly +rests the fate of these citizens, is learned in the law,<span class="pagenum"><a name="Page_81" id="Page_81">[Pg 81]</a></span> but from his +position he can not be an impartial judge, unless he be more than a +man. He is the prosecutor in the most extended sense of the word. As +in duty bound, before this court was called, he received the reports +of detectives, pre-examined the witnesses, prepared and officially +signed the charges, and, as principal counsel for the Government, +controlled on the trial the presentation, admission and rejection of +evidence. In our courts of law, a lawyer who has heard his client’s +story, if transferred from the bar to the bench, may not sit in the +trial of the cause, lest the ermine be sullied through the partiality +of counsel. This is no mere theoretical objection—for the union of +prosecutor and judge works practical injustice to the accused. The +Judge-Advocate controls the admission and rejection of evidence—knows +what will aid and what will injure the case of the prosecution, and +inclines favorably to the one and unfavorably to the other. The +defense is met with a bias of feeling and opinion on the part of the +judge who controls the proceedings of the Court, and on whom, in great +measure, the fate of the accused depends, which morals and law alike +reject.”</p></div> + +<p>Whatsoever else may be pleaded in excuse or palliation of the acts of the +Commission, it can never be said that its members were driven on by an +overpowering sense of their duty as soldiers, in blind ignorance of the +Constitution and the law. Each and every officer was made fully aware of +his awful responsibility and apprised of the precarious footing of his +authority.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_82" id="Page_82">[Pg 82]</a></span></p> +<h2><a name="CHAPTER_V.1" id="CHAPTER_V.1"></a>CHAPTER V.</h2> +<p class="center"><span class="large"><span class="smcap">Charge of Judge Bingham.</span></span></p> + +<p class="dropcap"><span class="caps">From</span> the sixteenth to the twenty-seventh of June the time was consumed by +the summing up of the several counsel for the prisoners on the facts +disclosed by the evidence; and on the last mentioned day and the +succeeding one, Special Judge-Advocate Bingham delivered his address in +answer to all the foregoing pleas, both as to the jurisdiction of the +Court and also as to the merits of the case.</p> + +<p>This long, carefully prepared and yet impassioned speech may be fairly +considered as embodying the very proof-charge of the prosecution. Indeed, +under the rules of military procedure, it occupies the place and performs +the functions of the judge’s charge in the common-law courts. As such, it +deserves a closer analysis and a more extended examination than can be +given to it here. The briefest and most cursory review, however, will +suffice to show its tone and temper.</p> + +<p>After a solemn asseveration of his desire to be just to the accused, and a +warning to the Court that “a wrongful and illegal conviction or a wrongful +and illegal acquittal * * * would impair somewhat the<span class="pagenum"><a name="Page_83" id="Page_83">[Pg 83]</a></span> security of every +man’s life and shake the stability of the Republic,” the learned advocate +specifically declares, that the charge “is not simply the crime of +murdering a human being” but a “combination of atrocities,” committed as +charged upon the record, “in pursuance of a treasonable conspiracy entered +into by the accused with one John Wilkes Booth, and John H. Surratt, upon +the instigation of Jefferson Davis, Jacob Thompson, George N. Sanders and +others, with intent thereby to aid the existing rebellion and subvert the +constitution and laws of the United States.”</p> + +<p>A denunciation of the Rebellion as “itself simply a criminal conspiracy +and a gigantic assassination”; the following glowing period—“Now that +their battalions of treason are broken and flying before the victorious +legions of the republic, the chief traitors in this great crime against +your government secretly conspire with their hired confederates to achieve +by assassination what they in vain attempt by wager of battle”;—and the +unequivocal announcement that “it is for this secret conspiracy in the +interest of the rebellion, formed at the instigation of the chief in that +rebellion, and in pursuance of which the acts charged and specified are +alleged to have been done, and with the intent laid, that the accused are +upon trial”: finish the exordium.</p> + +<p>The speaker then tackles the question of jurisdiction, which, he remarks +by the way, “as the Court has already overruled the plea,” he would pass +over<span class="pagenum"><a name="Page_84" id="Page_84">[Pg 84]</a></span> in silence, “but for the fact that a grave and elaborate argument +has been made by the counsel for the accused, not only to show want of +jurisdiction, but to arraign the President of the United States before the +country and the world as a usurper of power over the lives and the +liberties of the prisoners.”</p> + +<p>He dexterously evades the force of the argument that the civil courts of +the District were open when the crime was committed, by asserting that +“they were only open * * * and are only open at this hour by force of the +bayonet;” and he claims that the President acting by a military force had +as much right to try the co-conspirators of Booth, as to pursue, capture +and kill the chief criminal himself; which, if true, leads us into the +maintenance of the monstrous doctrine that the President by a summary +order might have strung up the culprits without the interposition of any +court. He then enters upon an argument to show that the Commission, from +the very nature of its organization, cannot decide that it is no Court, +and he ridicules the idea that these nine subordinate military officers +could question the authority of their Commander-in-Chief.</p> + +<p>In this connection, he gently rebukes Mr. Ewing for his bold statement to +the Commission: “You, gentlemen, are no court under the Constitution!” +reminding him that “not many months since he was a general in the service +of the country and as such in his department in the West proclaimed and +enforced martial law;” and asks him whether he is<span class="pagenum"><a name="Page_85" id="Page_85">[Pg 85]</a></span> “quite sure he will not +have to answer for more of these alleged violations of the rights of +citizens than any of the members of the Court?”</p> + +<p>He professes his high regard for General Ewing as a military commander who +has made a “liberal exercise of this power,” and facetiously wishes “to +know whether he proposes, by his proclamation of the personal +responsibility awaiting all such usurptions,” that he himself shall be +“drawn and quartered.”</p> + +<p>After disposing of General Ewing in this gingerly manner, he compensates +himself for the slight restraint by pouring the vials of his unstinted +wrath upon Reverdy Johnson; representing him as “denouncing the murdered +President and his successor,” as making “a political harangue, a partisan +speech against his government and country, thereby swelling the cry of the +armed legions of sedition and rebellion that but yesterday shook the +heavens.” He characterizes one of the most temperate and dignified of +arguments as “a plea in behalf of an expiring and shattered rebellion,” +and “a fit subject for public condemnation.”</p> + +<p>He calls upon the people to note,</p> + +<p class="blockquot">“That while the learned gentleman [Mr. Johnson], as a volunteer, +without pay, thus condemns as a usurpation the means employed so +effectually to suppress this gigantic insurrection, the New York News, +whose proprietor, Benjamin Wood, is shown by the testimony upon your +record to have received from the agents of the rebellion $25,000, +rushes into the lists to champion the cause of the rebellion, its +aiders and abettors, by <span class="pagenum"><a name="Page_86" id="Page_86">[Pg 86]</a></span>following to the letter his colleague [Mr. +Johnson], and with greater plainness of speech, and a fervor +intensified doubtless by the $25,000 received, and the hope of more, +denounces the Court as a usurpation and threatens the members with the +consequences.”</p> + +<p>And he interrupts his tirade against one of the greatest men this country +has produced to burst forth into the following grandiloquent apostrophe:</p> + +<p class="blockquot">“Youngest born of the Nations! Is she not immortal by all the dread +memories of the past—by that sublime and voluntary sacrifice of the +present, in which the bravest and noblest of her sons have laid down +their lives that she might live, giving their serene brows to the dust +of the grave, and lifting their hands for the last time amidst the +consuming fires of battle!”</p> + +<p>After a brief defense of the secret sessions of the Commission, the +learned advocate enters upon his circumstantial reply to the argument of +Mr. Johnson, into which it is not worth while to follow him, as the main +points of his contention have been rendered obsolete by the Supreme Court +of the United States.</p> + +<p>Suffice it to say, he holds that the President of the United States has +the power, of his own motion, to declare martial law in time of war, over +the whole United States, whether the States are within the theatre of the +war or not; and that President Lincoln exercised this power by his +proclamation of September, 1862, by virtue of which martial law prevailed +over the whole North, including, of course, the District of Columbia, on +the day of the assassination; and, farther, that certain subsequent acts<span class="pagenum"><a name="Page_87" id="Page_87">[Pg 87]</a></span> +of Congress, though not in express terms yet by fair implication, had +ratified the proclamation.</p> + +<p>He contends, in consequence, that “nothing can be clearer than that +citizen and soldier alike, in time of civil or foreign war, are triable by +military tribunals for all offences of which they may be guilty, in the +interest of, or in concert with the enemy;” and that “these provisions, +therefore, of your Constitution for indictment and trial by jury in civil +courts of <i>all crimes</i> are * * * silent and inoperative in time of war +when the public safety requires it.”</p> + +<p>Listen to this judicial expounder of constitutional law!</p> + +<div class="blockquot"><p>“Here is a conspiracy organized and prosecuted by armed traitors and +hired assassins, receiving the moral support of thousands in every +State and district, who pronounced the war for the Union a failure, +and your now murdered but immortal Commander-in-Chief a tyrant.</p> + +<p>“It is in evidence that Davis, Thompson, and others * * * agreed and +conspired with others to poison the fountains of water which supply +your commercial metropolis, and thereby murder its inhabitants; to +secretly deposit in the habitation of the people and in the ships in +your harbor inflammable materials, and thereby destroy them by fire; +to murder by the slow and consuming torture of famine your soldiers, +captives in their hands; to import pestilence in infected clothes to +be distributed in your capital and camps, and thereby murder the +surviving heroes and defenders of the Republic.</p> + +<p>“I claim that the Constitution itself * * * by express terms, has +declared whatever is necessary to make the prosecution of the war +successful, may be done, and ought to be done, and is therefore +constitutionally lawful.</p> + +<p>“Who will dare to say that in the time of civil war no person shall be +deprived of life, liberty and property, without due<span class="pagenum"><a name="Page_88" id="Page_88">[Pg 88]</a></span> process of law? +This is a provision of your Constitution, than which there is none +more just and sacred in it; it is, however, only the law of peace, not +of war.</p> + +<p>“In time of war the civil tribunals of justice are wholly or partially +silent, as the public safety may require; * * * the limitations and +provisions of the Constitution in favor of life, liberty and property +are therefore wholly or partially suspended.”</p></div> + +<p>He makes allusion to the recent re-election of President Lincoln, as +ratifying any doubtful exercise of power by him:</p> + +<p class="blockquot">“The voice of the people, thus solemnly proclaimed, by the omnipotence +of the ballot * * * ought to be accepted, and will be accepted, I +trust, by all just men, as the voice of God.”</p> + +<p>He concludes his plea in favor of the jurisdiction of the Commission, by +declaring that for what he had uttered in its favor “he will neither ask +pardon nor offer apology,” and by quoting Lord Brougham’s speech in +defence of a bill before the House of Lords empowering the Viceroy of +Ireland to apprehend and detain all Irishmen <i>suspect</i> of conspiracy.</p> + +<p>The Special Judge-Advocate then proceeds to sum up the evidence, in doing +which he leaves nothing to the free agency of the Court. He, first, by a +review of the testimony of the Montgomeries and Conovers, proves to his +own and, presumably, to the Court’s satisfaction, that “Davis, Thompson, +Cleary, Tucker, Clay, Young, Harper, Booth and John H. Surratt did combine +and conspire together in Canada to kill and murder Abraham Lincoln,<span class="pagenum"><a name="Page_89" id="Page_89">[Pg 89]</a></span> +Andrew Johnson, Wm. H. Seward and Ulysses S. Grant.”</p> + +<div class="blockquot"><p>“Surely no word further need be spoken to show that John Wilkes Booth +was in this conspiracy; that John H. Surratt was in this conspiracy; +and that Jefferson Davis, and his several agents named, in Canada, +were in this conspiracy.</p> + +<p>“Whatever may be the conviction of others, my own conviction is that +Jefferson Davis is as clearly proven guilty of this conspiracy as is +John Wilkes Booth, by whose hand Jefferson Davis inflicted the mortal +wound upon Abraham Lincoln.”</p></div> + +<p>After such utterances as these, it is hardly necessary to state that this +impartial Judge declares every single person on trial, as well as John H. +Surratt, guilty beyond the shadow of a doubt.</p> + +<div class="blockquot"><p>“That John H. Surratt, George A. Atzerodt, Mary E. Surratt, David E. +Herold, and Louis Payne entered into this conspiracy with Booth, is so +very clear upon the testimony, that little time need be occupied in +bringing again before the Court the evidence which establishes it.</p> + +<p>“It is almost imposing upon the patience of the Court to consume time +in demonstrating the fact, which none conversant with the testimony of +this case can for a moment doubt, that John H. Surratt and Mary E. +Surratt were as surely in the conspiracy to murder the President as +was John Wilkes Booth himself.”</p></div> + +<p>He lets out the secret that the mother is on trial as a substitute for her +son, whom the Secretary of War and the Bureau of Military Justice had +failed to capture, by saying:</p> + +<p class="blockquot">“Nothing but his conscious coward guilt could possibly induce him to +absent himself from his mother, as he does, upon her trial.”</p> + +<p><span class="pagenum"><a name="Page_90" id="Page_90">[Pg 90]</a></span>After having reiterated over and over again, with all the authority of his +office, what he had for hours endeavoured to enforce by all the resources +of his intellect, that the guilt “of all these parties, both present and +absent” is proved “beyond any doubt whatever,” and “is no longer an open +question;” he closes by formally, and with a very cheap show of +magnanimity, leaving “the decision of this dread issue” to the Court.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_91" id="Page_91">[Pg 91]</a></span></p> +<h2><a name="CHAPTER_VI.1" id="CHAPTER_VI.1"></a>CHAPTER VI.</h2> +<p class="center"><span class="large"><span class="smcap">The Verdict, Sentence and Petition.</span></span></p> + +<p class="dropcap"><span class="caps">With</span> the loud and repeated denunciations of this elaborate and vindictive +harangue, full as it was of rhetorical appeals to the members of the +Commission to avenge the murder of “their beloved Commander-in-Chief,” and +of repeated and most emphatic assurances of the undoubted guilt of each +and every one of the prisoners, as well as of all their alleged +accomplices, still ringing in the ear of the Court; the room is for the +last time cleared of spectators, counsel for the prisoners and reporters; +the mournful procession of the accused marches for the last time from the +dock to their solitary cells, their fetters clanking as they go; and the +Commission meets to deliberate upon its verdict. But who remains in the +room, meets with the Court and participates in its secret and solemn +deliberations? Who but Colonel Burnett, the officer who had so zealously +conducted the preliminary examinations of the witnesses and marshalled the +evidence for the prosecution? Who but Recorder Joseph Holt, the head of +the Bureau of Military Justice, the left hand of Stanton as Baker was his +right? Who but John<span class="pagenum"><a name="Page_92" id="Page_92">[Pg 92]</a></span> A. Bingham, the Special Judge-Advocate, who had so +mercilessly conducted the trial, assailing counsel, browbeating witnesses +for the defense, declaring that all participants in the rebellion were +virtually guilty of the assassination, and who had just closed his long +speech, in which he had done his utmost to stir up the Commission to the +highest pitch of loyalty, unreasoning passion and insatiable desire for +vengeance?</p> + +<p>Where can we look in the history of the world for a parallel to such a +spectacle? A woman of refinement and education, thrown together in one +mass with seven men, to be tried by nine soldiers, for the crime of +conspiring with Jefferson Davis, the arch-enemy of every member of the +tribunal, to kill, and killing, the beloved Commander-in-Chief of every +member of the tribunal; three experienced criminal lawyers eagerly +engaging in the task of proving her guilty; pursuing it for days and weeks +with the unrelenting vigor of sleuth-hounds; winding up by reiterating in +the most solemn manner their overwhelming conviction of her guilt; and +then all three being closeted with the Court to take part in making up the +doom of death!</p> + +<p>And here let us pause to consider one feature of the trial and of the +summing up of Judge Bingham, which has not yet been noticed because it +deserves special and prominent remark.</p> + +<p>It appeared from the testimony on the part of the prosecution, +unmistakably, that, during the fall of 1864 and the winter of 1864-5, +Booth was brooding<span class="pagenum"><a name="Page_93" id="Page_93">[Pg 93]</a></span> over a wild plot for the capture of the President +(either on one of his drives, or in the theatre, where the lights were to +be turned off), then hurrying off the captive to lower Maryland, thence +across the Potomac, and thence to Richmond; thereby to force an exchange +of prisoners, if not, possibly, a cessation of the war. It was a plot of +the kind to emanate from the disordered brain of a young, spoiled, +dissipated and disappointed actor. During this period, Booth made some +trifling and miserably inadequate preparations, and endeavored to enlist +some of his associates in its execution; and, by his personal ascendency +over them, he did in fact entangle, in a more or less vague adhesion to +the plot, Arnold, O’Laughlin, Atzerodt, Payne, Herold, John H. Surratt, +Lloyd, and, possibly, Dr. Mudd and Weichman.</p> + +<p>On the fall of Richmond, and the surrender of Lee, this any-how +impracticable scheme was necessarily abandoned. Indeed, the proof showed +that Arnold and O’Laughlin had deserted their leader some time before.</p> + +<p>It further appeared in the testimony that it was not until after the +forced abandonment of this plot and the desertion of most of his +adherents, that Booth, plunged as he was into the depths of chagrin and +despair because of the collapse of the rebellion, suddenly, as a mere +after-thought, the offspring of a spirit of impotent revenge, seized upon +the idea of murder, which was not in fact brought to the<span class="pagenum"><a name="Page_94" id="Page_94">[Pg 94]</a></span> birth until the +afternoon of the fourteenth, when he was first informed of the promised +attendance of President Lincoln and General Grant at the theatre. Now, the +existence of the plot to capture, although it looked forth from the +evidence steadily into their faces, the Judge-Advocates bound themselves +not to recognize. In the first place, such a concession would forever +demolish the preconceived theory of the Secretary of War, Colonel Baker +and the Bureau of Military Justice, that the conspiracy to murder emanated +from the Confederate Government through its Canadian agents, by pointing +directly to another plot than the one to kill as that in which these +agents had been interested. The horrid monster of a widespread, +treasonable conspiracy to overthrow the government, which had been +conjured up in the imagination of the Secretary of War and then cherished +in the secret recesses of the Bureau of Military Justice, would have +immediately shrunk into the comparatively simple case of an assassination +of the President and an attempted assassination of the Secretary of State, +by two worthless villains suddenly seizing opportunity by the forelock to +accomplish their murderous purpose. And, in the next place, the concession +of such a plot as a fact would go far to establish the innocence of Mrs. +Surratt, Arnold, O’Laughlin and Mudd, as well as that of John H. Surratt, +by explaining such suspicious circumstances as the frequent rendezvous of +Booth, Payne and others at Mrs. Surratt’s house, which practice, as it<span class="pagenum"><a name="Page_95" id="Page_95">[Pg 95]</a></span> +was proved, ceased altogether on the fall of Richmond and the immediate +departure of the son to Canada. To the Judge-Advocates, if not to the +Court, any evidence looking towards innocence was most distasteful and +unwelcome. They were in no mood to reconcile what they considered the +damning proofs of a conspiracy to kill their “beloved Commander-in-Chief” +with the innocence of the fettered culprits before them, by admitting a +plot to capture, into which nevertheless those same proofs fitted with +surprising consistency. Besides, in the eyes of Bingham and Holt, +complicity in a plot to capture, although unexecuted, was proof of +complicity in the plot to murder, and also of itself deserved death. In +this direction, therefore, the Judge-Advocates were mole-eyed. On the +contrary, they hailed the slightest indication of guilt with a glow of +triumph. In the direction of guilt, they were lynx-eyed.</p> + +<p>Consequently, they bent every energy to identify the plot to capture with +the plot to kill. They introduced anonymous letters, dropped letters; a +letter mailed nearly a month after the assassination directed to J. W. B.; +a letter in cipher, purporting to be dated the day after the +assassination, addressed to John W. Wise, signed “No Five,” found floating +in the water at Morehead City, North Carolina, as late as the first of +May; this last, the most flagrant violation and cynical disregard of the +law of evidence on record.</p> + +<p><span class="pagenum"><a name="Page_96" id="Page_96">[Pg 96]</a></span>They did more. They labored to keep out all reference to the plot to +capture. And it was for this reason, that the Judge-Advocates deliberately +suppressed the diary found on the body of Booth. Its contents demonstrated +the existence of the plot to capture.</p> + +<p>Instead of allowing the officer who testified to the articles taken from +the dead body of Booth to make a detailed statement in response to one +general question as to what they were, the examining counsel shows him +first the knife, then the pistols, then the belt and holster, then a file +with a cork at one end, then a spur, then the carbine, then the bills of +exchange, then the pocket-compass; following the exhibition of every +article with the interrogatory, “Did you take this from the corpse of the +actor?” But no diary was exhibited or even spoken of, although, as has +been mentioned, it was carried by this same officer and Colonel Baker to +Secretary Stanton on the night following the capture. That these +Judge-Advocates had carefully searched through the diary for items they +could use against the prisoners, is shown by their calling one of the +proprietors of the “National Intelligencer,” as a witness, to contradict +the statement that Booth had left a written article, setting forth the +reasons for his crime, for publication in that paper—a statement found +only in the diary whose very existence they kept secret.</p> + +<p>Therefore, when Judge Bingham came to review the evidence, he utterly +refused to recognize in the<span class="pagenum"><a name="Page_97" id="Page_97">[Pg 97]</a></span> testimony any such thing as a plot to +capture; he shut his eyes to it and obstinately ignored it; he scornfully +swept it aside as an absurdity it would be waste of time to combat; and he +twisted every circumstance which looked to a connection, however remote, +with an abandoned plot to kidnap, into a proof, solid and substantial, of +complicity in the plot to murder.</p> + +<p>And, therefore, when this same thorough-going advocate, with his two +emulous associates, proceeded in secret conclave with the members of the +Commission to go over the testimony for the purpose of making up their +verdict and sentence, he summarily stifled any hint as to the possibility +of a plot to capture; he banished from the minds of the Court, if they +ever entertained such a purpose, any attempt to reconcile the +circumstantial evidence with the existence of such a plot; and, besides, +he held it up to the condemnation of those military men as equally heinous +and as deserving the same punishment as the actual assassination.</p> + +<p>Thus, the presence of these prosecutors during the deliberations of the +Court must have exerted a deadly influence (if any influence were +necessary) against the prisoners, and benumbed any impartiality and +freedom of judgment which might otherwise have lodged in the members of +the Commission.</p> + +<p>The Commission, with its three attending prosecuting officers, held two +secret sessions—Thursday and Friday, the 29th and 30th of June; on the +first<span class="pagenum"><a name="Page_98" id="Page_98">[Pg 98]</a></span> day from 10 o’clock in the morning until 6 o’clock in the evening, +on the second day, probably, during the morning only. The record of the +proceedings is meagre, but contains enough to show the lines of the +discussion which, in such an unexpected manner through one whole day, +prolonged the deliberations of a tribunal organized solely to obey the +predetermination of a higher power, and even made necessary an adjournment +over night.</p> + +<p>There was no difficulty with the verdicts, except in the case of Spangler, +over the degree of whose guilt a majority of the Commission presumed for +the first time to differ with the Judge-Advocates. They would unite in a +conviction of the crime of assisting Booth to escape from the theatre with +knowledge of the assassination, but they would go no farther. They would +not find him a participant in the “traitorous conspiracy.” This poor +fellow, as we can see <i>now</i>, was clearly innocent of the main charge; but +that was no reason, <i>then</i>, why the Commission should find him so. There +was more testimony pointing to his complicity with Booth on the fatal +night than there was against Arnold or O’Laughlin or even Mrs. Surratt; +and Judge Bingham, the guardian and guide of the Court, had pronounced it +“Conclusive and brief.” The testimony of the defense, however, appears +overwhelmingly convincing, and, moreover, his case was admirably managed +by General Ewing.</p> + +<p><span class="pagenum"><a name="Page_99" id="Page_99">[Pg 99]</a></span>For all the rest there was no mercy in the verdict. Every one was found +guilty of the charge as formulated (eliminating Spangler); that is, in the +judgment of the Commission, they had, each and all, been engaged in a +treasonable conspiracy with Jefferson Davis, John H. Surratt, John Wilkes +Booth and the others named, to kill Abraham Lincoln, President, Andrew +Johnson, Vice-President, Wm. H. Seward, Secretary of State, U. S. Grant, +Lieutenant-General; and that in pursuance of such conspiracy they (the +prisoners) together with John H. Surratt and J. Wilkes Booth, had murdered +Abraham Lincoln, assaulted with intent to kill W. H. Seward, and lain in +wait with intent to kill Andrew Johnson and U. S. Grant.</p> + +<p>This was the deliberate judgment of the Commission as guided by +Judge-Advocates Holt, Burnett and Bingham. With the same breath with which +they pronounced the guilt of Mrs. Surratt, they pronounced also the guilt +of her son, of Jefferson Davis, of Clement C. Clay, of George H. Sanders, +of Beverly Tucker. And there can be no doubt that if these men had also +been upon trial, they all would have been visited with the same +condemnation and would have met the same doom.</p> + +<p>The Commission, further, found Herold, Atzerodt, Payne and Arnold guilty +of the Specification as formulated (eliminating Spangler); Mrs. Surratt +guilty, except that she had not harbored and concealed Arnold or +O’Laughlin; Dr. Mudd guilty,<span class="pagenum"><a name="Page_100" id="Page_100">[Pg 100]</a></span> except that he had not harbored or concealed +Payne, John H. Surratt, O’Laughlin, Atzerodt or Mrs. Surratt; and, +strangest of all, they found O’Laughlin guilty of the Specification, +<i>except that he had not lain in wait for General Grant with intent to kill +him</i>, which was the very part in the conspiracy he was charged in the +Specification with having undertaken. It should be recollected that, in +the first moments of the panic succeeding the assassination, Stanton and +his subordinates had included among the objects of the conspiracy, as if +to complete its symmetry, the murder of the Secretary of War, himself. +Afterwards, probably because of the attitude of Stanton relative to the +prosecution, Grant was substituted as the victim of O’Laughlin and not of +Booth; Stanton’s son having discovered a resemblance of the captured +O’Laughlin to the mysterious visitor at his father’s house during the +serenade on the night of the 13th of April, when General Grant was also +present. This pretty romance, the testimony on behalf of O’Laughlin +effectually dissipated on the trial, but the indomitable Bingham still +insisted on holding the prisoner to a general complicity with the plot. In +this instance, as well as in that of Spangler, there may have been some +dissension between a majority of the officers and the Judge-Advocates, +but, taken altogether, the eight verdicts could not have cost the +Commission much time. It was organized to convict, and it did convict.</p> + +<p><span class="pagenum"><a name="Page_101" id="Page_101">[Pg 101]</a></span>So that it was not until the Court, having made up its verdicts, proceeded +to affix its sentences, that the three advocates, still assisting at the +work of death, encountered the unforeseen difficulties which compelled a +prolongation of the session. The crime or crimes of which the prisoners +were all pronounced guilty (with the possible exception of Spangler’s) +were capital, and the Secretary of War, on the eve of the assembling of +the Commission, had already denounced against such offenses (not excepting +Spangler’s) the punishment of death.</p> + +<p>The sentence, however, under the rules governing military commissions, was +wholly within the power of the Court, which, no matter what the nature of +the verdict, could affix any punishment it saw fit, from a short +imprisonment up to the gallows. Its two-fold function was, like a jury to +find a verdict, not only, but, like the judge in a common-law court, to +pronounce sentence; and, unlike such a judge, in pronouncing sentence, the +Commission was confined within certain limits by no statute. Although the +whole proceedings of the Court must be subjected to the final approval of +the President, yet its members were clothed alike with the full +prerogative of justice and the full prerogative of clemency. There was one +limit, however. While a majority could find the verdict and prescribe +every other punishment, it required two-thirds of the Commission to +inflict the penalty of death. Four officers, therefore, could block the +way to the scaffold, and five could <span class="pagenum"><a name="Page_102" id="Page_102">[Pg 102]</a></span>mitigate any sentence, to any degree, +and for any, or for no reason.</p> + +<p>The Commission must have taken up the cases for sentence in the order +adopted in the formal Charge. As to the first three—Herold, Atzerodt and +Payne—there could have been no dissent or hesitation. The Commission, +with hardly a moment’s deliberation, must have ratified the judgment of +the Judge-Advocates and condemned the prisoners to be hung by the neck +until dead. The sentences of death formally declare in every instance that +two-thirds of the Commission concur therein, but, as to these three, we +can scarcely be in error in stating the Court was unanimous. It was not +until the cases of the next three—O’Laughlin, Spangler and Arnold—were +reached, that symptoms of dissatisfaction with the sweeping doom of death, +so confidently pronounced by Judge Bingham in his charge, first began to +show themselves amongst the members of the Court. It seems that now, after +having joined with the counsel in pronouncing capital punishment upon the +three most prominent culprits, the majority could no longer whet their +appetite for blood so as to keep it up to the same fierce edge as that of +the Judge-Advocates.</p> + +<p>The deviations from the Charge and Specification, the Court had finally +prescribed in the verdicts against O’Laughlin and Spangler, were not +thought by the prosecutors to be of such importance as to warrant a +softening of the sentence. But here the<span class="pagenum"><a name="Page_103" id="Page_103">[Pg 103]</a></span> loyalty of some members of the +Commission began to falter, and refuse to bear the strain. They had found +O’Laughlin guilty of the “traitorous conspiracy,” and Spangler guilty of +aiding Booth to escape, and Arnold guilty in the same degree as Herold, +Atzerodt and Payne, but in none of these cases could the attending +advocates extort a two-thirds vote for death. In the case of Spangler, +owing, it is said, to the impression made by General Ewing and the +influence of General Wallace, they were compelled to allow a sentence of +but six years imprisonment. And in the case of the two others—convicted +co-conspirators with Booth and Davis though they were—these prosecuting +officers had to rest satisfied with but life-long imprisonment.</p> + +<p>It was too evident that five members of the Commission had slipped the +bloody rein. Three lives had they taken. Henceforth they would stop just +this side the grave.</p> + +<p>At this point—when the Commission had sentenced to death three men and +had just declined to sentence to death two more whom it had pronounced +guilty of the same crime—at this point it was, that the sentence of Mary +E. Surratt came up for determination.</p> + +<p>Now, the crimes of which Arnold had been found guilty were both in law and +in fact the same of which she had been found guilty. Even the particular +allegation in the Specification is the same in both<span class="pagenum"><a name="Page_104" id="Page_104">[Pg 104]</a></span> cases, except some +immaterial variance in the verbiage and in the names of co-conspirators.</p> + +<p>Of course, it will be presumed that the Commission had found the woman +guilty without being pressed. But, equally of course, it will not be +doubted that, in determining the sentence which should follow the verdict, +the question of exercising the same mercy as the Commission had just +exercised in the case of a man convicted of the same crime, must have +arisen in the case of the woman. And, the question once having arisen, the +first impulse of the majority, if inclined still to mercy, must have been +to exert their own unquestioned function, and, as in the other cases, +mitigate the sentence themselves. They would have, originally, no motive +to thrust upon the President, who was to know comparatively nothing of the +evidence, the responsibility of doing that thing, which they themselves +who had heard the whole case thought ought to be done, and which in a +parallel case they had just done. Even if they believed the woman’s crime +had a deeper tinge of iniquity than either Arnold’s or Mudd’s (of which +the respective verdicts, however, give no hint), but that nevertheless her +age and sex ought to save her from the scaffold, they need not have turned +to the President for mercy on such a ground. The woman clothed upon by her +age and sex had sat for weeks bodily before them. This very mitigation was +what a majority of the Court had power to administer. The reason of the +mitigation was a<span class="pagenum"><a name="Page_105" id="Page_105">[Pg 105]</a></span> matter of no moment. The Court could commute for “age +and sex” as well as the President, and, for that matter, could state the +reason for the milder penalty in the sentence itself.</p> + +<p>Therefore, it may be taken for granted that here the Judge-Advocates again +found that two-thirds of the Court would not concur in the infliction of +the death penalty. Nay, that even a majority could not be obtained. Five +out of the nine officers announced themselves in favor of imprisonment for +life.</p> + +<p>Here, indeed, was a coil! The prosecutors were at their wits’ ends. And +lo! when they passed on to consider the last case, that of Dr. Mudd, the +same incomprehensible reluctance to shed more blood did but add to their +discomfiture. The verdict indeed had been easily obtainable, but the +coveted death-sentence would not follow. The whole day had been spent in +these debatings. The expedient of adjourning over to the next day, +perhaps, was now tried; and the dismayed Judge-Advocates, with but three +out of the eight heads they had made so sure of, and their “female fiend” +likely to slip the halter, hurry away to consult with their Chief.</p> + +<p>Edwin M. Stanton, as he had presided over the whole preparatory process, +so too had kept watch over the daily progress of the trial from afar. +Every evening his zealous aide-de-camps made report for the day and took +their orders for the morrow.</p> + +<p>After the death of Booth and the escape of John H. Surratt, the +condemnation to death of the<span class="pagenum"><a name="Page_106" id="Page_106">[Pg 106]</a></span> mother of the fugitive had become his one +supreme aim.</p> + +<p>The condemnation of the other prisoners was to him either a matter of no +doubt or was a minor affair. Three heads of the band of assassins stood +out in bloody prominence—Booth, John H. Surratt and Payne. The first had +been snatched from his clutches by a death too easy. Payne, with +hand-cuffs and fetters and chains and ball and hood, he might be +confident, could not evade his proper doom. Surratt, by the aid of some +inscrutable, malignant power, had contrived to baffle all the efforts of +his widespread and mighty machinery of military and detective police. But +he had the mother, the friend of Booth and the entertainer of Payne; and +she, the relentless Secretary with his accordant lackeys had sworn, should +not fail to suffer in default of the self-surrender of her son. She, +moreover, was to be made an example and a warning to the women of the +South, who, in the judgment of these three patterns of heroism, had +“unsexed” themselves by cherishing and cheering fathers, brothers, +husbands and sons on the tented field.</p> + +<p>In the conclave which Stanton and his two co-adjutors held, either during +the recesses of the prolonged session of the first day, or most likely +during the night of the adjournment, it was resolved, that if the manly +reluctance of five soldiers to doom a woman to the scaffold could be +overcome in no other way, to employ as a last resort the “<i>suggestion</i>,”<span class="pagenum"><a name="Page_107" id="Page_107">[Pg 107]</a></span> +that the Court formally condemn her to death, and then, as a compromise, +the soft-hearted five petition the President to commute—the three +plotters trusting to the chances of the future, with the petition in their +custody and the President under their dominion, to render ineffectual this +forced concession to what they scorned as a weak sentimentalism. This +suggestion of what was in truth a most extraordinary device—a petition to +the President to do what the Court could do itself—could not have +emanated from the merciful majority of the Court, which subsequently did +sign the fatal document. <i>They</i>, at least, were sincere, and, if let +alone, would have proceeded immediately to embody their own clemency in a +formal sentence, as they had done with O’Laughlin and Arnold, and as they +were about to do with Mudd. Had there been but one, or two, or three +dissentients, so that they were powerless in the face of two-thirds of the +Commission; or even had there been four—a number sufficient to block a +death-sentence but not sufficient to dictate the action of the Court, +then, indeed, recourse to the clemency of the Executive might have been a +natural proceeding. But a clear majority had no need to look elsewhere for +a power of commutation which they themselves possessed in full vigor, and +which, in all probability, after the first three death-penalties, they had +determined to apply in every one of the other cases. Neither could the +suggestion have been made by one of the minority, because none of them +signed<span class="pagenum"><a name="Page_108" id="Page_108">[Pg 108]</a></span> the petition to the last. The four must have been steadfast and +uncompromising for blood. The whole scheme proceeded from a quarter +outside the Court—a quarter which, on the one hand, was possessed by an +overmastering revengeful passion, such as was required to point the five +officers to a seeming source of mercy to which they might appeal and thus +avoid the exercise of their own prerogative in antagonism to their four +brethren, and, on the other hand, harbored some secret knowledge or malign +intent that the petition would or should be, in fact, an empty form; from +a quarter, in short, where the desire for the condemnation to death of +Mrs. Surratt was all-controlling and where the condition of the President +was well known. They, who suggested the death-sentence and the petition as +a substitute for the milder penalty, were surely all on the side of death, +and hoped, if they did not believe, that the prayer of the petition would +be of no avail; else they would not have adopted such a circuitous method +to do what the five officers could immediately have accomplished +themselves. In one word, the contrivers of the device of petition were not +those who desired to save the bare life of the convicted she-conspirator, +but were those who would be satisfied with nothing less than her death on +the scaffold. The suggestion was wholly sinister and malevolent. On the +other hand, the majority of the Court did really desire that her +punishment should not exceed that of Arnold, O’Laughlin and Mudd, and +they<span class="pagenum"><a name="Page_109" id="Page_109">[Pg 109]</a></span> certainly would never have had recourse to a petition to the +President, had they not been cheated into believing that that method of +proceeding was likely to effectuate what they had full power to do. Never +would these five soldiers, or any two of them, have given their voices for +the death of this woman, had they dreamed for a moment that their signing +of the petition was, and was meant to be, but a farce. They would not have +played such a ghastly trick under the shadow of the gibbet.</p> + +<p>Accordingly, when the Commission reassembled, either after recess or +adjournment, the reinvigorated counsellors immediately unfolded their +plan. We can almost hear their voices, in that upper room of the Old +Penitentiary, as they alternately urge on the Court. Holt, making a merit +of yielding in the cases of Spangler, of O’Laughlin, of Arnold and of +Mudd, denounces the universal disloyalty of the women of the South, and +pleads the necessity of an example.</p> + +<p>Bingham, holding up both mother and son as equally deep-dyed in blood with +Booth and Payne, both insinuates and threatens at the same time, that, if +“<i>tenderness</i>,” forsooth, is to be shown because of the age and sex of +such a she-assassin, then, for the sake of the blood of their murdered +Commander-in-Chief, do not his own soldiers show it, but let his successor +take the fearful responsibility.</p> + +<p>One of the five gives way, and now there is a majority for death. One more +appeal! The life of<span class="pagenum"><a name="Page_110" id="Page_110">[Pg 110]</a></span> the woman trembles in the balance. Once more to the +breach! The supreme reserve is at last brought forward—an argument much +in use with Judge-Advocates in cases of refractory courts-martial, as a +last resort—that the President will not allow a hair of her head to be +harmed, but that <i>terror</i>, <span class="smcaplc">TERROR</span>, is necessary; in this instance, to +force the son to quit his hiding place, the life of the mother must be the +bait held out to catch the unsurrendering son. We will hang him and then +free the woman’s neck.</p> + +<p>Another vote comes over. Two-thirds at last concur, and her doom is +sealed. They sentence “Mary E. Surratt to be hanged by the neck until she +be dead.” Judge Bingham sits down and embodies the memorable “suggestion” +in writing as follows:</p> + +<div class="blockquot"> +<p class="center">[It is without address.]</p> + +<p>“The undersigned, members of the Military Commission detailed to try +Mary E. Surratt and others for the conspiracy and the murder of +Abraham Lincoln, late President of the United States, &c., +respectfully pray the President, in consideration of the sex and age +of the said Mary E. Surratt, if he can, upon all the facts in the +case, find it consistent with his sense of duty to the country, to +commute the sentence of death, which the Court have been constrained +to pronounce, to imprisonment in the penitentiary for life.</p> + +<p class="right">Respectfully submitted.”</p></div> + +<p>General Ekin copies it on a half-sheet of legal-cap paper, and the five +officers, viz.: Generals Hunter, Kautz, Foster and Ekin, and Colonel +Tompkins,<span class="pagenum"><a name="Page_111" id="Page_111">[Pg 111]</a></span> sign the copy; General Ekin keeping the draft of Bingham as a +memento of so gentle an executioner.</p> + +<p>The Commission then proceeds to the next and last case, and, again +exercising its prerogative of clemency, sentences Dr. Mudd to imprisonment +for life. It is now Friday noon. The result of the two-days’ secret +session, consisting of a succinct statement of the verdict and sentence in +every case, in the foregoing order, is redacted into a record. The +presiding officer signs, and the Recorder countersigns it. It is placed in +the hands of the Judge-Advocate, together with the petition to the +President. There is an adjournment without day. The members disperse, and +the work of the Military Commission is over.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_112" id="Page_112">[Pg 112]</a></span></p> +<h2><a name="CHAPTER_VII.1" id="CHAPTER_VII.1"></a>CHAPTER VII.</h2> +<p class="center"><span class="large"><span class="smcap">The Death Warrant and the Execution.</span></span></p> + +<p class="dropcap"><span class="caps">From</span> Friday afternoon, the thirtieth of June, through Saturday, Sunday, +Monday and Tuesday, the first four days of July, the record of the +findings and sentences remained under the seal of sworn secrecy in the +custody of the Judge-Advocate-General. To consummate the work of the +Commission, the signature of the President to a warrant approving its +action and directing the execution of its judgment was necessary. But, +during this interval, as it was given out from the White House, President +Johnson was too ill to attend to public business. In the meantime, the +city, and even the whole country to its very borders, were agitated by the +question: What is to be the fate of Mrs. Surratt? The doom of the male +culprits was for the moment forgotten in the intense anxiety over hers.</p> + +<p>Despite the seven-fold seal of secrecy which covered the proceedings of +the secret sessions, whispers of a recommendation of mercy filled the air. +In the War Department, the main source of anxiety, at the same time, must +have been this superfluous<span class="pagenum"><a name="Page_113" id="Page_113">[Pg 113]</a></span> paper—the distressing outcome of an +unsuspected sentimental weakness in five of our chosen men. After the +final adjournment of the Commission, the unobtrusive, unaddressed +half-sheet had been fastened to the record of the sentences by the same +narrow yellow silk ribbon which held its own sheets together, and to which +it now dangled as a last leaf, or back. A safety-valve to the misplaced +chivalry of the Court—it had served its purpose, and was henceforth +useless. That it should now turn itself into an implement of evil, +minister to the cause of rebellion and assassination, cause “Our Own Andy” +to flinch at last and thus the she-fiend of the Bureau escape her doom! It +would be treason to suffer it. Upon that resolve, the Triumvirate of +Stanton, Holt and Bingham had once for all determined. Indestructible, +inconcealable, omnipotent, indeed, must that paper be, which could thwart +their united purpose.</p> + +<p>At length, on the morning of Wednesday, the fifth, Preston King, who, in +those days, was a favored guest at the White House, announced in the +Judge-Advocate’s office that the President was so much better as to be +able to sit up; and at a later hour in the day, General Holt, in pursuance +of an appointment, started on his solemn errand. The volumes of testimony +taken before the Commission by official stenographers, daily reports of +which had been furnished, he, of course, did not carry with him. In the +interview that was to come, there<span class="pagenum"><a name="Page_114" id="Page_114">[Pg 114]</a></span> would be no time and no inclination to +read over bulky rolls of examinations and cross-examinations of witnesses. +From aught that appears, the President was not expected to read over the +evidence, nor was it customary in such cases. It may have been the duty of +the Secretary of War or the Attorney-General to scrutinize the testimony, +either from day to day or at the close of the trial. But all that the +President was supposed to know about the merits of the case appears to +have been derived from what any of his Cabinet saw fit to inform him, from +what he himself casually and unofficially read, but, especially and +principally, from what the Judge-Advocate was now coming to tell him. As +to the guilt of the accused, and especially of Mrs. Surratt, his mind had +long ago been made up for him by his imperious War Minister, from whose +despotic sway he had not as yet recovered energy enough to free himself. +He was still in that brief introductory period of his Presidency which may +be called his Stanton Apprenticeship; still eager “to make treason +odious;” full of threatenings to hang Davis and other Southern leaders. He +had not yet awakened from the state of semi-stupefaction into which his +sudden and awful elevation seems to have thrown him; and, in this state, +he must have been extremely averse to dwelling on any of the circumstances +of the assassination to which he owed his high place. The idea of clemency +to any one of the band of assassins, male or female, which his +War-Secretary’s court<span class="pagenum"><a name="Page_115" id="Page_115">[Pg 115]</a></span> might convict, would have been intolerable to his +imagination and sickening to his sense of security. What Andrew Johnson, +at this moment, wanted was to push away from his mind all thoughts of the +tragic end of his predecessor, and to allow retributive vengeance to take +the most summary course with the least possible knowledge and trouble to +himself. And this mood of the presidential mind was well known to the +Judge-Advocate-General, as he entered the President’s room. He brought +with him so much of the record of the proceedings of the Commission as was +necessary to the accomplishment of his errand—viz.: the record of the +findings and sentences, which the President was to endorse. This document +consisted of a few sheets of legal-cap paper fastened together at the top, +written on both sides in the fashion of legal papers, <i>i. e.</i>, beginning +at the top of the first page and, on reaching the bottom, turning up the +paper and writing on the back from the bottom to top. It was a document +complete in itself, the written record ending on the first page of the +last half-sheet—thus leaving blank the remainder of that page and the +whole of the obverse side; ample room for the death-warrant. To this +record, but forming no part of it, the Petition, as we have said, had been +affixed, but in such a manner as to be easily separable without +mutilation. He must also have brought with him his official report of the +trial—styled “The formal brief review of the case,” which was +subsequently appended to the regular<span class="pagenum"><a name="Page_116" id="Page_116">[Pg 116]</a></span> Report of the Judge-Advocate-General +to the Secretary of War and transmitted to the Congress in December +following—because it is addressed “To the President,” is dated “<i>July 5, +1865</i>,” and is signed “J. Holt.” It recites the verdicts and sentences; +justifies its brevity by referring to “the full and exhaustive” argument +of Judge Bingham; certifies to the regularity and fairness of the +proceedings; and recommends the execution of the sentences; <i>but it makes +no mention of the Petition, or any “suggestion” of mercy</i>.</p> + +<p>The Judge-Advocate could have anticipated no difficulty in obtaining the +approval of the President, conscious as he was that the grounds of such +approval were to be furnished to the President by himself. The approval +being had, the fixing of the day of execution could cause no disagreement. +His only possible source of embarrassment was the petition for +commutation. But it would be strange, indeed, if a few apt words could not +further emasculate the mild, hypothetical language in which his colleague, +Bingham, had seen fit to clothe that paper.</p> + +<p>He found the President “alone,” and (as he himself says) “waiting for” +him, “very pale, as if just recovered from a severe illness.”</p> + +<p>“Without delay” he “proceeded to discharge the duty which brought” him +“into his presence.” What took place at this “confidential interview” (as +Holt calls it) can never be precisely known; the distinguished +interlocutors having subsequently risen<span class="pagenum"><a name="Page_117" id="Page_117">[Pg 117]</a></span> into unappeasable quarrel over +the presence or absence of the petition, and given contradictory versions. +Whatever the truth may be, it is evident that everything went smoothly at +the moment. The Judge-Advocate was not disappointed. No difficulty was +encountered. What was done was done quickly and at once. The record may +have been read over; but this was hardly necessary, as the bare mention of +the several sentences would convey a correct summary of its contents. He +may have read the “brief review of the case” he had prepared. As Judge +Holt relates, he said to the President, “frankly, as it was his official +duty to do,” that in his judgment “the proceedings of the Court were +regular, and its findings and sentences justified by the evidence, and +that the sentences should be enforced.” And this was what he had written +in his “Brief Review.” What more could the successor of the murdered +Lincoln want? His approval must have been spontaneous and immediate. As +Holt says, “at that time Mr. Johnson needed no urging.” Mention may have +been made of the curious weakness infecting some members of “our Court” +towards the wicked woman, who, as Johnson seems then to have thought, “had +kept the nest that hatched the egg;” but only to be scouted by both +Judge-Advocate and President as most reprehensible and actually +<i>disloyal</i>.</p> + +<p>Their unanimity over the salutary effect of the hanging of this one woman +on the female rebels was<span class="pagenum"><a name="Page_118" id="Page_118">[Pg 118]</a></span> more than fraternal. And it is probable that no +more explicit mention of an actual petition was made by Judge Holt in his +conversation with the President than was made in his written report to the +President, dated the same day, and which he had with him at the time.</p> + +<p>The day of execution was fixed upon with the same alacrity. “Make it as +soon as possible, so that the disagreeable business may be over; say the +day after to-morrow—Friday, the seventh.” And, thereupon, everything +being agreed upon, Judge Holt turns over the papers to the last page of +the record and spreads it upon the table. Beginning, a few lines below the +signature of “D. Hunter, President” which closes the record, with the +date,</p> + +<p class="poem">“Executive Mansion, July 5th, 1865,”</p> + +<p>“with his own hand” he writes out the death warrant. As this includes the +approval of the sentences, the appointment of the day and hour of +execution, and the designation of the place of confinement of those +condemned to imprisonment, the bottom of the page is reached before he +completes his task. If he had turned up the page and continued his writing +on the obverse side from the bottom down, as all the foregoing had been +written, then the petition of mercy, unaddressed as it was, would have +been, if still attached, directly beneath the eye of the President as he +signed the death-warrant. But, as now appears from the record itself, the +careful <span class="pagenum"><a name="Page_119" id="Page_119">[Pg 119]</a></span>Judge-Advocate did not turn up the page from the bottom. On the +contrary, reverting to the layman’s way of writing papers, he whisks the +whole record over, and continues the writing of the death-warrant on the +back of the last half-sheet of the record <i>from the top to the bottom</i>—by +this change of method, either throwing the petition under the leaves of +the record, or, if disengaged, leaving it <i>upside down</i>.</p> + +<p>When he has thus finished his draft he shoves it over to the President. +The President signs it with tremulous hand. The “confidential interview” +is at an end; and the Judge-Advocate, taking up the papers, hurries out +and over to the Department of War.</p> + +<p>At this moment the petition disappears from view. We hear no more of it. +Thrust as a convenient succedaneum into the hands of the majority of the +Commission, ignored, suppressed or slurred over when before the President, +it had served its pitiful purpose. Neither the Adjutant-General nor any of +his clerks, appear to have noticed it, although the record must have been +copied more than once in his office. It seems to have sunk suddenly into +oblivion; its very existence became the subject of dispute. It was omitted +from the authorized published proceedings of the Commission. It was +omitted from the annual report of the Judge-Advocate. The disloyal paper +must have been laid alongside the suppressed “Diary,” there to repose +unseen until the Impeachment<span class="pagenum"><a name="Page_120" id="Page_120">[Pg 120]</a></span> of Johnson and the Trial of Surratt summoned +them together into the light of day.</p> + +<hr style="width: 25%;" /> + +<p>On the morning of Thursday, the sixth day of July, the six days ominous +silence of the War-Department is broken. An order issues from the +Adjutant-General’s office which, bearing date the day before and reciting +the findings and death-sentences of the Commission and the death-warrant +of the President, commands Major-General Hancock to see execution done, on +the seventh, between the hours of ten and two.</p> + +<p>This order was read to Mrs. Surratt at noon. She had all along been +encouraged to hope. She, herself, had never been able to realize the +possibility of a capital condemnation in her own case. And, here, +suddenly, was Death, with violence and shame, within twenty-four hours. +She sank down under the blow. In faltering accents she protested that she +had no hand in the murder of the President, and pleaded for a few days +more time to prepare for death. During the remainder of the day and +throughout the night, she was so prostrated by physical weakness and +mental derangement as to necessitate medical aid to keep her alive and +sane. The cries of her daughter could be heard in the still darkness +outside the prison. At five o’clock in the morning, the mother (with the +three condemned men), was removed to a solitary cell on the first floor, +preparatory to the execution.</p> + +<p><span class="pagenum"><a name="Page_121" id="Page_121">[Pg 121]</a></span>In the meantime, when it first became known that, by the sentence of the +Commission and the direction of the President, Mrs. Surratt was to die by +the rope on the same scaffold with Payne, Herold and Atzerodt within +twenty-four hours, a chill of despairing terror froze the blood of her +relatives and friends, a thrill of consternation swept over the body of +the citizens, and dark misgivings disturbed even the most loyal breasts. A +stream of supplicants at once set in towards the Executive Mansion—not +only friends and acquaintances of the condemned woman, but strangers, +high-placed men, and women too, who were haunted by doubts of her guilt +and could in some degree realize her agony.</p> + +<p>But even this expiring effort of sympathy, the powers behind the President +had anticipated. Apprehensive that Andrew Johnson, at the last moment, +might yield to distressing importunities for more time, they had already +taken measures that their sick man’s wish to hear nothing till all was +over should be scrupulously respected. Preston King and General James Lane +undertook to keep the door and bar all access to the President during the +dreadful interval between the promulgation of the sentence and its +execution. It was rumored that they, with a congenial crew, held high +revelry around their passive Chief in his private apartments. Be this as +it may, no supplicant—friend, acquaintance or stranger—was allowed to +gain access to the President.</p> + +<p><span class="pagenum"><a name="Page_122" id="Page_122">[Pg 122]</a></span>The priests, who had attested upon her trial the good character, the piety +and the general worth of their parishioner, instinctively turned their +steps to the White House to beg for clemency, or, at least, a respite. +They were repulsed from its door. In ghastly mockery, they were told to go +to —— Judge Holt.</p> + +<p>At last, the daughter of the victim made her way to the very threshold of +the President’s room. Frenzied with grief she assailed the portal with her +cries for admission to plead for her dying mother. She was denied +admittance. In the extremity of her despair she lay down upon the steps, +and, in the name of God, appealed to the President and to the wardens, +only to listen to her prayer. The grim guardians of the door held it shut +in her face.</p> + +<p>Denied, thus, even an appeal to Executive clemency, the friends of the +poor woman, as a last most desperate resort, invoked the Constitution of +their and her country through the historic writ of Habeas Corpus. On the +morning of the day of the execution, they found a judge (Judge Wylie; all +honor to his memory!) who had the independence and courage to grant the +writ. At half-past eleven, General Hancock appeared before the Judge and +made return that by order of the President the Habeas Corpus was suspended +and therefore he did not produce the body. The order of the President +dated ten o’clock, same morning, was annexed to the return and directed +the General to proceed with the execution.</p> + +<p><span class="pagenum"><a name="Page_123" id="Page_123">[Pg 123]</a></span>No sooner had the guarantees of the Constitution been, thus, finally set +at naught, than the cell-doors were thrown open and the prisoners summoned +to their doom. As the enfeebled widow raised her trembling limbs from off +the coarse mattress which alone separated her body from the stone floor of +her dungeon, she strove, in broken words, to assure the soldiers, who had +come to bind her arms behind her back and tie cords around her skirts +above and below the knee, of her utter, yet helpless innocence. Her +confessor, who stood by her until the last, gently pointed out to her the +uselessness of such appeals, at such a moment, and directed her hopes +towards Heaven.</p> + +<p>Amid the tolling of the bells, sending a shudder through the silent +population of the city, and heralded by the tramp of armed men, the +death-march of the doomed woman and the doomed men begins. The still +breathing men and still breathing woman are clothed already in their +shrouds. As she totters first along the corridor, accompanied by her +priest and requiring two soldiers to hold her erect, the very extremity of +her helplessness and woe bears witness in her favor. Even the bloody +Payne, who walks next behind her, has broken through that stolid +indifference to his own fate, so remarkable as to indicate insanity, to +clear her from all complicity with the assassination. Herold and Atzerodt, +who follow, though themselves speechless with terror, seem to wave her +mute acquittal, as they stumble along into<span class="pagenum"><a name="Page_124" id="Page_124">[Pg 124]</a></span> the swift-coming Darkness. +They reach the prison-yard. They mount the high scaffold. They are seated +in four chairs facing the four dangling nooses, while the death-warrant is +once more read. Their graves, already dug, are in full sight close by. +Their coffins stand by the side of the open graves. They are raised up and +pushed forward upon the two drops, Herold and Atzerodt on one, Mrs. +Surratt and Payne on the other; the half-conscious woman still supported +by the two guards. The ropes are adjusted. The hoods drawn over the face. +The signal is given. The two drops fall. Surrounded by the unpitying +soldiery, headed by the unpitying Hartranft, the woman and the men hang +writhing in the agonies of an ignominious death. When pronounced dead, the +bodies are cut down. They are laid out on the top of the coffins. A +hurried post-mortem examination is made. And, then, at four o’clock in the +afternoon, they are inclosed in the coffins and buried side by side. The +soldiers depart with flourish of trumpet and beat of drum. Silence +descends on the grounds of the old Arsenal; broken only by the pace of the +sentinel set to guard the four corpses.</p> + +<p>The daughter may beg the stern Secretary to yield up the body of her +murdered mother, that she may place it in consecrated ground. But she will +beg in vain.</p> + +<p>And so ended the fell tragedy. And so did brave soldiers avenge the murder +of their “beloved Commander-in-Chief.” Methinks their beloved +<span class="pagenum"><a name="Page_125" id="Page_125">[Pg 125]</a></span>Commander-in-Chief, could his freed spirit have found a mortal voice, +would have spurned, with indignant horror, the savage sacrifice of a +defenseless woman to appease his gentle shade.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_126" id="Page_126">[Pg 126]</a></span></p> +<h2><a name="CHAPTER_VIII.1" id="CHAPTER_VIII.1"></a>CHAPTER VIII.</h2> +<p class="center"><span class="large"><span class="smcap">Was it not Murder?</span></span></p> + +<p class="dropcap"><span class="caps">And</span> now what shall be said as to this taking of human life?</p> + +<p>Maintaining the most rigorous allegiance to the simple unadulterated +truth, what can be said? Arraigned at the bar of the common law as +expounded by the precedents of centuries, and confronted by plain +provisions of the Constitution of the United States, which need no +exposition and yet have been luminously expounded; but one thing can be +said.</p> + +<p>Had Mary E. Surratt the right guaranteed by the Constitution to a trial +singly and alone, in a regularly constituted civil court, and by a jury of +the vicinage, the individuals of which she might select by challenge, both +for cause, in all cases, and without cause to a certain number, before she +could be legally convicted of any crime whatever, or be lawfully punished +by the most trivial loss of property or the minutest injury to limb, to +say nothing of the brutal crushing out of her life? That’s the unevadable +question which the ages put and will continue to put. And upon its +precisely truthful answer, depend the character and color of the acts of +every person<span class="pagenum"><a name="Page_127" id="Page_127">[Pg 127]</a></span> who had lot or part in the execution of this woman.</p> + +<hr style="width: 25%;" /> + +<p>On the 21st day of October, 1864—while the war was still raging—Lambdin +P. Milligan, a citizen of the United States and a resident of Indiana, was +arraigned before a Military Commission convened by the commanding General +of that Military District, at Indianapolis, on the following charges +preferred against him by Henry L. Burnett, Judge-Advocate of the +Department of the West:</p> + +<p>1. Conspiracy against the Government of the United States.</p> + +<p>2. Affording aid and comfort to the rebels.</p> + +<p>3. Inciting insurrection.</p> + +<p>4. Disloyal practices.</p> + +<p>5. Violation of the laws of war.</p> + +<p>There were also specifications, the substance of which was that Milligan +had joined and aided a secret society, known as the Order of American +Knights or Sons of Liberty, for the purpose of overthrowing the Government +and authorities of the United States; had communicated with the enemy; +conspired to seize munitions of war in the arsenals, and to liberate +prisoners; resisted and encouraged resistance to the draft: at or near +Indianapolis, in Indiana, “a State within the military lines of the Army +of the United States, and the theatre of military operations, and which +had been and was constantly threatened to be invaded by the enemy.”</p> + +<p><span class="pagenum"><a name="Page_128" id="Page_128">[Pg 128]</a></span>On these charges and specifications, Milligan was subjected to a lengthy +trial by this Military Commission which finally found him guilty on all +the charges and sentenced him to be hanged. The record was approved by the +Commanding General, and then transmitted to President Lincoln, who held it +long under advisement, and was so holding it when he was killed. His +successor, at about the same time that he summoned the Commission to try +Mrs. Surratt, at length approved the findings and ordered the sentence to +be executed on Friday, the 19th day of May, 1865.</p> + +<p>But this object-lesson to the Commission sitting at that date in the old +Penitentiary was intercepted. On the 10th of May, Milligan brought the +record before the United States Circuit Court by a petition for his +discharge, and, the two judges differing upon the main question of the +jurisdiction of the Commission, the cause was certified under the statute +to the Supreme Court of the United States; in deference to which action +the President suspended the execution. The argument before that high +tribunal coming on in the winter of 1865-66, a great array of counsel +appeared upon both sides; David D. Field, James A. Garfield and Jeremiah +S. Black for the prisoner, and Attorney-General Speed and Benjamin F. +Butler for the United States. The counsel for the Government followed the +same line as did Judge Bingham in his argument on the “Conspiracy Trial;” +the counsel for the prisoner on their side, only <span class="pagenum"><a name="Page_129" id="Page_129">[Pg 129]</a></span>enlarging, emphasizing +and enforcing the argument of Reverdy Johnson. At the close of the term +the Court unanimously decided that the Military Commission had no +jurisdiction to try Milligan; that its verdict and sentence were void; and +ordered the defendant discharged.</p> + +<p>At the next term, the Court handed down two opinions—one the opinion of +the Court, read by Judge Davis, in which four of his colleagues concurred, +and one by Chief-Justice Chase, in which three of his colleagues +concurred. The two opinions agreed that, as matter of law, the President +could not of his own motion authorize such a Commission, and that, as +matter of fact, the Congress had not authorized such a Commission; and +therefore they were at one in their conclusion. But they differed in this; +that, whereas the majority of the Court held that not even the Congress +could authorize such a Court, the minority, while agreeing that the +Congress had not exercised such a power, were of opinion that such a power +was lodged in that branch of the Government.</p> + +<p>The attempt has often been made to distinguish the case of Mrs. Surratt +from that of Milligan by alleging that Washington at the time of the +assassination was within the theatre of military operations, and actually +under martial law, whereas Indiana at the time of the Commission of +Milligan’s alleged offenses was not.</p> + +<p>Now, it must be admitted that at the time of the murder of President +Lincoln the war had swept far<span class="pagenum"><a name="Page_130" id="Page_130">[Pg 130]</a></span> away from the vicinity of the Capital. +There had been no Confederate troops near it since Early’s raid in the +summer of 1864, and no enemy even in the Shenandoah Valley since October. +It must also be admitted, and was, in fact, proved on the trial, that the +civil courts were open and in full and unobstructed discharge of their +functions. As for the reiterated affirmation of Judge Bingham that the +courts were only kept open by the protection of the bayonet; that is +precisely what was affirmed by General Butler, in his argument before the +Supreme Court, to have been the fact in Indiana.</p> + +<p>None of the counsel in the Milligan case claimed that a Military +Commission could possibly have jurisdiction to try a simple citizen in a +State where there was no war or rumors of war.</p> + +<p class="blockquot">“We do fully agree, that if at the time of these occurrences there +were no military operations in Indiana, if there was no army there, if +there was no necessity of armed forces there, * * * then this +Commission had no jurisdiction to deal with the relator, and the +question proposed may as well at once be answered in the negative.”</p> + +<p>They contended, as the very basis of their case, that the acts of Milligan +“took place in the theatre of military operations, within the lines of the +army, in a State which had been, and then was constantly threatened with +invasion.”</p> + +<p>And, in fact, the record in so many words so stated, and the statement was +uncontroverted by the relator.</p> + +<p><span class="pagenum"><a name="Page_131" id="Page_131">[Pg 131]</a></span>General Butler with great earnestness put the question:</p> + +<div class="blockquot"><p>“If the Court takes judicial notice that the courts are open, must it +not also take judicial notice how, and by whose protection, and by +whose permission they were so open? that they were open because the +strong arm of the military upheld them; because by that power these +Sons of Liberty and Knights of the American Circle, who would have +driven them away, were arrested, tried and punished.</p> + +<p>“If the soldiery of the United States, by their arms, had not held the +State from intestine domestic foes within, and the attacks of traitors +without; had not kept the ten thousand rebel prisoners of war confined +in the neighborhood from being released by these Knights and men of +the Order of the Sons of Liberty; there would have been no courts in +Indiana, no place in which the Circuit Judge of the United States +could sit in peace to administer the laws.”</p></div> + +<p>Moreover, the opinion of the minority Judges bases their contention that +Congress had the power, if it had chosen to exercise it, to authorize such +a Military Commission, upon this very fact.</p> + +<p class="blockquot">“In Indiana, for example, at the time of the arrest of Milligan and +his co conspirators, it is established by the papers in the record, +that the State was a military district; was the theatre of military +operations, had been actually invaded, and was constantly threatened +with invasion. It appears, also, that a powerful secret association, +composed of citizens and others, existed within the State, under +military organization, conspiring against the draft, and plotting +insurrection, the liberation of the prisoners of war at various +depots, the seizure of the State and national arsenals, armed +co-operation with the enemy, and war against the national government.”</p> + +<p><span class="pagenum"><a name="Page_132" id="Page_132">[Pg 132]</a></span>Not one of which circumstances (except that it was a military district) +can be truthfully predicated of the District of Columbia at the time of +the assassination.</p> + +<p>As for actual martial law, there was no declaration of martial law claimed +for the City of Washington, other than the proclamation of the President +which applied as well to Indiana, and, indeed, to the whole North.</p> + +<p>We are justified, therefore, in saying, that the Supreme Court of the +United States, in this case of Milligan, pronounced the final condemnation +of the whole proceedings of the Military Commission which tried and +condemned Mary E. Surratt; declaring, with all the solemn force of a +determination of the highest judicial tribunal known to this nation, that +every one of its acts, from its creation by the President to its +transmission of its record of doom to the President, was in direct +contravention of the Constitution of the United States and absolutely null +and void.</p> + +<p>That illustrious Court, speaking by Judge David Davis, thus enunciates the +law:</p> + +<div class="blockquot"><p>“The Constitution of the United States is a law for rulers and people, +equally in war and in peace, and covers with the shield of its +protection all classes of men, at all times, and under all +circumstances. No doctrine, involving more pernicious consequences, +was ever invented by the wit of man than that any of its provisions +can be suspended during any of the great exigencies of government. +Such a doctrine leads directly to anarchy or despotism.”</p> + +<p><span class="pagenum"><a name="Page_133" id="Page_133">[Pg 133]</a></span>“From what source did the Military Commission * * derive their +authority?”</p> + +<p>“It is not pretended that the commission was a court ordained or +established by Congress.”</p> + +<p>“They cannot justify on the mandate of the President; because he is +controlled by law and has his appropriate sphere of duty, which is to +execute not to make the law; and there is no unwritten criminal code +to which resort may be had as a source of jurisdiction.”</p> + +<p>“The laws and usages of war can never be applied to citizens in states +which have upheld the authority of the government and where the courts +are open and their processes unobstructed. And no usage of war could +sanction a military trial there for any offence whatever of a citizen +in civil life, in nowise connected with the military service. Congress +could grant no such power; and to the honor of our national +legislature be it said it has never been provoked by the state of the +country even to attempt its exercise.”</p> + +<p>“All other persons,” (<i>i. e.</i>, all other than those in the military +and naval service) “citizens of states where the courts are open, if +charged with crime, are guaranteed the inestimable privilege of trial +by jury. This privilege is a vital principle, underlying the whole +administration of criminal justice; it is not held by sufferance, and +cannot be frittered away on any plea of state or political necessity.”</p> + +<p>“It is claimed that martial law covers with its broad mantle the +proceedings of this Military Commission.”</p> + +<p>“Martial law cannot arise from a threatened invasion. The necessity +must be actual and present; the invasion real, such as effectually +closes the courts and deposes the civil administration.”</p> + +<p>“Martial law can never exist where the courts are open, and in the +proper and unmolested exercise of their jurisdiction. It is also +confined to the locality of actual war.”</p></div> + +<p>Had the swift process by which this unfortunate woman was hurried to the +scaffold been interrupted<span class="pagenum"><a name="Page_134" id="Page_134">[Pg 134]</a></span> by a stay to allow a review by the same high +tribunal which rescued Milligan from the jaws of death, it cannot be +doubted that in her case, as in his, the same conclusions would have been +reached, viz.:</p> + +<div class="blockquot"><p>1st. “One of the plainest constitutional provisions was, therefore, +infringed when” (Mary E. Surratt) “was tried by a court not ordained +and established by Congress, and not composed of judges appointed +during good behavior.”</p> + +<p>2nd. “Another guarantee of freedom was broken when” (Mary E. Surratt) +“was denied a trial by jury;”</p></div> + +<p>that, in her case, as in his, the Court would have set the prisoner free; +there would have been no hanging, no felon’s grave, and not even an +ulterior attempt at a constitutional trial.</p> + +<p>For it is remarkable that although the Military tribunal which tried +Milligan pronounced him guilty of crimes deserving a traitor’s death; the +seeming strength of the evidence must have melted away, strangely enough, +when subjected to the prospective investigation of constitutional courts, +as there was not even a subsequent effort on the part of the Government to +call him to account.</p> + +<p>Let us add, as a final corollary to this exposition of the Constitution by +the Supreme Court, the following remark: that the ground and argument +employed by Attorney General Speed in his opinion upon the right of the +President to order the trial of the alleged assassins by Military +Commission, and by Judge-Advocate Bingham in his address to that +Commission, involve a <i>reductio ad absurdum</i>, or,<span class="pagenum"><a name="Page_135" id="Page_135">[Pg 135]</a></span> rather, a <i>reductio ad +monstrosum</i>, that is, a <i>Reductio ad absurdum quia monstrosum</i>.</p> + +<p>For, that ground and that argument, invoked to uphold and sanction the +trial of civilians by military commissions, necessarily and inevitably go +farther, and proclaim the right of President Johnson, alone, of his own +motion and without the interposition of a formal court, whether military +commission or drum-head court-martial, to have commanded the immediate +execution of every person whom he might believe to be guilty of +participation in the assassination of his predecessor or in the presumed +attempt upon himself.</p> + +<p>The conclusion forced upon us, therefore,—the one only thing to be +said—is, that the hanging of Mary E. Surratt was nothing less than the +crime of murder.</p> + +<p>Murder, not only in the case of the private soldiers who dragged her to +the scaffold and put the rope about her neck; they, at least can plead the +almost irresistible force of military discipline.</p> + +<p>But murder, also, in the case of the Major-General whose sword gave the +signal for the drop to fall. General and soldiers are in the precise +position, before the law, of a mob of Lynchers carrying out the judgment +of a Lynch court.</p> + +<p>Murder, not only in the case of the one military officer who superintended +the details of the execution. He, too, though with much less force, can +plead that he was the mere bailiff of what he believed to be a competent Court.</p> + +<p><span class="pagenum"><a name="Page_136" id="Page_136">[Pg 136]</a></span>But murder, also, on the part of the nine military officers and the three +advocates who tried and sentenced this woman to death. These men, in the +forum of the law, stand in the precise position of any nine policemen +steered by any three police attorneys in the city of New York, who should +dare to try, convict and sentence to death a citizen of that city.</p> + +<p>Murder, not only on the part of the Commission and its lawyers; they too +might, possibly, plead—though with still diminishing force—that, +although they were warned and took the awful responsibility, still they +believed in their competency.</p> + +<p>But murder, also, in the President of the United States, who appointed the +court, approved its findings, and commanded the execution of its sentence. +He stands before the law in the same position as though, sweeping aside +all empty forms, he had seized a sword and with his own hand cut off the +head of the woman, without the mockery of a trial. In our frame of +government, there is surely no room for such a twi-formed +barbarian-despot, as a President having the power to pick out from the +army, of which he is the commander-in-chief, the members of a court to try +and punish with death, at his option, any one of the citizens, for an +abortive attempt on his own life.</p> + +<p>And it was murder, not only in the case of the President; he, too, but +with scarcely audible voice, might plead the coercion of his +situation—sitting as he did in the seat of the murdered Lincoln.</p> + +<p><span class="pagenum"><a name="Page_137" id="Page_137">[Pg 137]</a></span>But it was murder, also, in the Secretary of War, who initiated the +iniquitous process, pushed on the relentless prosecution, shut his own +ears and the ears of the President to all pleas for mercy, presided like a +Moloch over the scaffold, and kept the key of the charnel-house, where, +beside the unpitied carcasses of the reputed ruffians forced upon her in +her ordeal of torture and in the hour of death, the slaughtered lady lay +mouldering in her shroud. Here, at least, the plea of mitigation exhales +in a cry like that of Payne, “I was mad!”</p> + +<p>Weigh the extenuating circumstances in whatever scale you may; extend as +much mercy as possible to those who showed no mercy in their day of +power—still, the offense of every one and all, who had hand, part or lot +in this work of death, contains every element which, under the most +rigorous definition of the law, makes up the Crime of Murder. The killing +was there. The unlawful killing was there. The premeditated design to +effect death was there. The belief of the perpetrators, that they had a +right to kill, or that they were commanded to kill by an overruling power, +before a court of law avails not a whit. Ignorance of the constitution as +well as the law excuses no man, be he civilian or soldier, President or +assassin, War-Minister or Payne.</p> + +<p>Murder it essentially was, and as such it should be denounced to the +present and future generations.</p> + +<p><span class="pagenum"><a name="Page_138" id="Page_138">[Pg 138]</a></span>Garrett Davis told no more than the exact truth when he declared in his +place in the Senate of the United States:</p> + +<p class="blockquot">“There is no power in the United States, in time of war or peace, that +can legitimately and constitutionally try a civilian who is not in the +naval or military service of the United States, or in the militia of a +State in the actual service of the United States, by a court-martial +or by a military commission. It is a usurpation, and a flagitious +usurpation of power for any military court to try a civilian, and if +any military court tries a civilian and sentences him to death and he +is executed under the sentence, the whole court are nothing but +murderers, and they may be indicted in the State courts where such +military murders are perpetrated; and if the laws were enforced firmly +and impartially every member of such a court would be convicted, +sentenced and punished as a murderer.”</p> + +<p>Although the actual guilt of any of the victims constitutes no legal +defense to this fearful charge, yet as the unquestioning obedience which +the soldier yields, as a matter of course, to the commands of his superior +officer must alleviate, if it do not wipe away, the guilt of the members +of the Commission, in the forum of morals; so the ascertainment that the +sufferers on the scaffold and in prison, in fact, deserved their doom, +cannot but blunt the edge of our condemnation of the iniquity of the +trial, as well as weaken our pity for the condemned and our sense of shame +over the tyrannous acts of the government.</p> + +<p>A word or two, therefore, will be appropriate in respect to the +sufficiency of the testimony to establish the guilt of the accused.</p> + +<p><span class="pagenum"><a name="Page_139" id="Page_139">[Pg 139]</a></span>I. As to Arnold and O’Laughlin, it may be said in one emphatic word, that +there was no evidence at all against them of complicity in the plot to +kill. The letter of Arnold to Booth shows, when fairly construed, that, if +the writer had conspired with the actor, he conspired to abduct; and, +also, for the time being, even that conspiracy he had abandoned. He was at +Fort Monroe for the two weeks prior to the assassination. His confession, +used on the trial against himself not only but also against O’Laughlin +because he was mentioned in it as present at a meeting of the +conspirators, was a confession only of a conspiracy to abduct which had +been given up. The condemnation of these two men was brought about by the +conduct of Judge Bingham, to which we have drawn attention, in +systematically shutting his eyes to the existence of any conspiracy to +capture, and employing the letter and confession as proof that both these +men were guilty of conspiracy to murder.</p> + +<p>II. As to Dr. Mudd, the evidence leaves it doubtful whether or not he +recognized Booth under his disguise on the night he set his broken leg, +and therefore whether he may have been an accessory after the fact or not; +but the testimony of the informer Weichman, by which chiefly if not solely +the prosecution sought to implicate the doctor in the conspiracy to +murder, was greatly damaged, if not completely broken down, by the proof +on the part of the defense that Dr. Mudd had not been in<span class="pagenum"><a name="Page_140" id="Page_140">[Pg 140]</a></span> Washington from +November or December, 1864, until after the assassination.</p> + +<p>III. As to Payne, his guilt of the assault on Seward in complicity with +Booth was clear, and confessed by himself. He was but twenty years of age, +of weak mind, entirely dominated by the superior intellect and will of +Booth. He claimed he acted under the command of his captain. He was so +stolidly indifferent during the trial as to raise suspicion of his sanity, +and he repeatedly expressed his wish for the termination of the trial so +that he might cease to live.</p> + +<p>IV. As to the boy Herold, it was manifest that, as the mere tool and +puppet of Booth, he was acquainted beforehand with the design of his +master to kill the President, but there is no evidence that he aided or +abetted Booth in the actual assassination in any way except to participate +in his flight after he had got out of Washington.</p> + +<p>V. As to Atzerodt, for whom there appears to have been no pity or sign of +relenting, it is nevertheless a fact, that the testimony to his lying in +wait for Andrew Johnson is so feeble as to be almost farcical. The poor +German was a coward and never went near Johnson. There is no circumstance +in the evidence inconsistent with his own confession, that he was in the +plot to capture, knew nothing of the design to murder until 8 o’clock on +the evening of the 14th, and then refused to enact the part assigned him +by Booth.</p> + +<p><span class="pagenum"><a name="Page_141" id="Page_141">[Pg 141]</a></span>Indeed, it would appear as if the Commission, by a sort of proleptic +vision of the future course of the President in his desperate struggle +with the Congress, in grim irony actually hung Atzerodt because he did +<i>not</i> kill Andrew Johnson.</p> + +<p>VI. And as to Mrs. Surratt, the only witnesses of importance against her +are Weichman and Lloyd. Without their testimony the case for the +prosecution could not stand for a moment. Weichman, a boarder and intimate +in her house, the college chum of her son, and, equally with him, the +associate of Payne, Atzerodt, Herold and Booth, who, frightened almost to +death at the outlook, was swearing, under a desperate strain, to clear his +own skirts from the conspiracy and thus save his threatened +neck:—Weichman’s testimony before the Commission, even at such a pass, is +for some reason quite vague and indefinite, and only becomes deadly when +supplemented by Lloyd’s. This man Lloyd it was who, in fact, furnished the +only bit of evidence directly connecting Mrs. Surratt with the crime. He +testifies to two conversations he had with her—one on the 11th and the +other on the 14th of April—when she alluded to the weapons left weeks +before at the hotel at Surrattsville owned by her and kept by Lloyd—on +the 11th, that the “shooting-irons” would be wanted soon; on the 14th, +that they would be called for that night. Lloyd, himself, however, admits, +and it is otherwise clearly shown, that on the 14th he was so drunk as<span class="pagenum"><a name="Page_142" id="Page_142">[Pg 142]</a></span> +hardly to be able to stand up. Lloyd, also, was deeply implicated in the +conspiracy to capture if not to assassinate. He had aided the fugitive +assassins to escape, had kept their weapons hidden in his house, and he +had, for two days after his arrest, denied all knowledge of Booth and +Herold’s stopping at his hotel at midnight after the murder. He had been +placed in solitary confinement and threatened with death. His nervous +system, undermined by debauchery, gave way; his terrors were startling to +witness and drove him well-nigh mad, and, at last, in a moment of +distraction, he turned against Mrs. Surratt and her son. Like Weichman’s, +his, also, was the frenzied effort of a terror-stricken wretch to avoid +impending death by pushing someone forward to take his place. Reverdy +Johnson, at the close of his plea to the jurisdiction of the court, let +fall the following words, no less weighty for their truth than their +force:</p> + +<p class="blockquot">“This conclusion in regard to these witnesses must be, in the minds of +the Court, and is certainly strongly impressed upon my own, that, if +the facts which they themselves state as to their connection and +intimacy with Booth and Payne are true, their knowledge of the purpose +to commit the crimes and their participation in them, is much more +satisfactorily established than the alleged knowledge and +participation of Mrs. Surratt.”</p> + +<p>Moreover, the testimony of both these witnesses, suborned as they were +alike by their terrors and their hopes, is perfectly reconcilable with the +<span class="pagenum"><a name="Page_143" id="Page_143">[Pg 143]</a></span>alternative hypothesis, either that the woman in what she did was an +innocent dupe of the fascinating actor, or that she was unaware of the +sudden transformation of the long-pending plot to capture, of which she +might have been a tacit well-wisher, into an extemporaneous plot to kill.</p> + +<p>Much stress was laid by Mr. Bingham on her solemn denial of any prior +acquaintance with Payne when confronted with him on the night of her +arrest. But it is more than probable that the non-recognition was +unsimulated, because of the disguise and pitiable plight of the desperado, +who had been hidden in the mud of the suburbs three days and three nights, +and, also, because the non-recognition was shared with her by the other +ladies of the house. Besides, that a woman, caught in the toils in which +Booth and her own son had unwittingly involved her, under the terror of +recent arrest and imminent imprisonment, should have shrunk from any +acknowledgment of this midnight intruder, even to the extent of falsehood, +certainly is in no wise incompatible with innocence.</p> + +<p>These are the only circumstances by which Mrs. Surratt is brought nearer +than conjectural connection with the assassination, and the force of these +is greatly weakened by the testimony in her defense.</p> + +<p>It is neither necessary, nor relevant to this exposition, to enter into a +lengthy discussion upon the <i>pros</i> and <i>cons</i> of her case. Her innocence +has been demonstrated in a more decisive manner by subsequent<span class="pagenum"><a name="Page_144" id="Page_144">[Pg 144]</a></span> events, and +stands tacitly admitted by the acts of the officers of the government. Few +impartial hearers would have said then, and no impartial readers will say +now, that the testimony against her is so strong as to render her +innocence a mere fanciful or even an improbable hypothesis. No one can say +that a jury, to a trial by which she was entitled under the Constitution, +would have pronounced her guilty, and every one will admit that had her +sentence been commuted to imprisonment for life, as five of her judges +recommended, she would have been pardoned with Arnold, Spangler and Mudd, +and might have been living with her daughter to-day. The circumstances of +the whole tragedy warrant the assertion that, had John H. Surratt been +caught as were the other prisoners, he, and not she, would have been put +upon trial; he, and not she, would have been condemned to death; he, and +not she, would have died by the rope. If he was innocent, then much more +was she. Mary E. Surratt, I repeat, suffered the death of shame, not for +any guilt of her own, but as a vicarious sacrifice for the presumed guilt +of her fugitive son.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_145" id="Page_145">[Pg 145]</a></span></p> +<p class="center"><a name="PART_II" id="PART_II"></a><span class="giant">PART II.</span></p> +<p class="center"><span class="large">THE VINDICATION.</span></p> +<p> </p> +<h2><a name="CHAPTER_I.2" id="CHAPTER_I.2"></a>CHAPTER I.</h2> +<p class="center"><span class="large"><span class="smcap">Setting Aside the Verdict.</span></span></p> + +<p class="dropcap"><span class="caps">When</span> the President of the United States, the Secretary of War, the +Military Commission, the Judge-Advocates, and the Executioner-General had +buried the woman against whose life the whole military power of the +Government, fresh from its triumph over a gigantic rebellion, had been +levelled;—buried her broken body deep beneath the soil of the +prison-yard, in close contact with the bodies of confessed felons; +flattened the earth over her grave, replaced the pavement of stone, locked +the door of entrance to the charnel-house and placed the key in the +keeping of the stern Secretary;—they may have imagined that the iniquity +of the whole proceeding was hidden forever.</p> + +<p>But, <i>horribile dictu!</i> the ghost of Mary E. Surratt would not down. It +troubled the breast of the<span class="pagenum"><a name="Page_146" id="Page_146">[Pg 146]</a></span> witness Weichman. It haunted the precincts of +the Bureau of Military Justice. It pursued Bingham into the House of +Representatives. It blanched the laurels of the great War Minister. +Politics, history and the very vicissitudes of human events seemed +subservient to the vindication of this humble victim.</p> + +<p>Hardly had the delivery of the prisons of Washington, which followed the +close of the trial, taken place, before the man who, as he himself swore, +always had been treated as a son by the woman he betrayed, began to make +advances to her sorrowing friends. He pretended to make confession of his +perjury. He told a friend that his testimony would have been very much +more favorable had it not been dictated to him by the officers who had him +in charge; that the meeting of Lloyd and Mrs. Surratt was accidental, as +she and he (Weichman) had already started for home before Lloyd returned, +and only turned back because the buggy was discovered to be broken. The +traitor soon discovered that he made no headway by such disclosures, but +only met with a sterner repulse and a deeper loathing. His troubled soul +then turned to another quarter. It has been stated that his testimony on +the trial was somewhat indefinite and inconclusive. Complaints had been +uttered by the officers conducting the prosecution. It was proved upon a +subsequent occasion that one of these officers had actually threatened the +witness that he would hang<span class="pagenum"><a name="Page_147" id="Page_147">[Pg 147]</a></span> as an accomplice in the assassination did he +not make his evidence more satisfactory. It appeared, also, that the +Secretary of War had promised to protect and take care of him. Driven back +by Mrs. Surratt’s friends from his attempt at propitiation, Weichman +resolved that he would yet earn his reward by retouching his former +testimony so as to make it more definite and telling. He saw, at last, +that to save himself from everlasting ignominy he must, as far as in him +lay, make sure of the guilt of his victim. Actuated by these or similar +motives, he, on the 11th day of August, 1865, wrote out, and swore to, a +statement in which he, by a suspicious exercise of memory, detailed +conversations with Mrs. Surratt and significant incidents, all pointing to +complicity with Booth, no mention of which had been made on the trial, and +which this candid witness stated “<i>had come to my</i> (his) <i>recollection +since the rendition of my</i> (his) <i>testimony</i>.”</p> + +<p>This affidavit, containing (if true) more evidence of the guilt of Mrs. +Surratt than his whole testimony on the trial, but, on the other hand, +drawn up to suit himself without fear of cross-examination—he transmitted +to Colonel Burnett, who, as though he, too, distrusted the sufficiency of +the evidence against the dead woman as it had been actually given on the +trial, was careful to append the <i>ex parte</i> statement to the published report.</p> + +<p><span class="pagenum"><a name="Page_148" id="Page_148">[Pg 148]</a></span>Weichman, at length, gets his reward in the shape of a clerkship in the +Custom House at Philadelphia.</p> + +<p>But the final breaking down of the fabric of testimony against the leaders +of the rebellion, as instigators of the assassination, threw consternation +into the Bureau of Military Justice and the Cabinet. Jefferson Davis was +still confined in Fort Monroe, and two companies of United States +soldiers, who had fought and shed each other’s blood in their eagerness to +be the first to seize the fugitive, were already quarreling over the +$100,000 reward for his arrest as an accomplice of Booth. Clement C. Clay, +for whose arrest $25,000 reward had been offered, as another accomplice, +was also still in the hands of the authorities. Jacob Thompson, George N. +Sanders and Beverly Tucker, for the arrest of each of whom $25,000 had +been offered, were still at large. Every one of these men, it should be +borne in mind, had been pronounced guilty by the military board which had +condemned Mrs. Surratt. John H. Surratt, her son, for whose capture an +enormous reward had been offered both by the Government and by the City of +Washington, and whom the Military Commission had condemned as the +go-between of the President of the Confederacy and his agents in Canada in +the instigation of the murderous conspiracy, and also as the active aider +and abettor of both Booth and Payne in the perpetration of their bloody +crimes; he, too, had so far<span class="pagenum"><a name="Page_149" id="Page_149">[Pg 149]</a></span> eluded all efforts to find even his +whereabouts. It is only fair to presume that the astute lawyers connected +with the Bureau of Military Justice must have had serious misgivings from +the first, concerning the testimony of the spies, Montgomery, Conover and +others, going to implicate Davis and the Canadian Rebels in the +assassination. Such testimony was hearsay or secondary evidence at best; +and they could have cherished no hope that such loose talk and the +fragmentary repetition of letters heard read would ever be allowed to pass +muster by an impartial judge in a civil court. And they had reason to +believe that public opinion would not tolerate the experiment of another +military commission. As early as July, 1865, an attempt was made to buy +the papers of Jacob Thompson, among which it was supposed were the +criminatory letters of Davis; and Attorney-General Speed was dispatched +with $10,000 government money to effect the purchase. William C. Cleary, +for whom $10,000 reward had been offered as one of the conspirators, and +who had just been found guilty by the Military Commission, was to deliver +the letters and receive the money. Speed met Cleary at the Clifton House, +but the latter, in the meanwhile, had seen in a newspaper a portion of the +testimony before the Military Commission implicating him, and he utterly +refused to give up the papers, as he had to rely upon them, as he said, to +vindicate himself. The shadows thus began to darken over the<span class="pagenum"><a name="Page_150" id="Page_150">[Pg 150]</a></span> credibility +of the corps of spies that the Bureau had employed. Indictments for +perjury against Montgomery, Conover and other paid witnesses began to be +talked of. Friends, and enemies as well, of the imprisoned ex-President +began to clamor for his trial or release. Even the implicated agents in +Canada showed a bold front, and professed a willingness to meet the +terrible charge if guaranteed a trial by jury. A jury! A jury of twelve +men! Trial by jury! If there was anything that could shake the souls of +the members of the Bureau of Military Justice, it was to hear of trial by +jury. It was a damnable institution. It impeded justice. It screened the +guilty. It was beyond control. It could not be relied on to convict. And +yet it was to this tribunal they foresaw they must come.</p> + +<p>In September, 1865, embarrassing news arrived at the Department of State. +The consul at Liverpool informed the American Minister at London that John +H. Surratt was in England and could be extradited at any time. Here was +the villain who was, with Booth, the prime mover of the conspiracy and the +active accomplice of Booth and Payne in their work of blood. At least, so +the Military Commission found, who hung his mother in his stead. And yet +the United States Government informed Mr. Adams, and Mr. Adams so informed +the consul, that the Government did not intend to prosecute. On the 24th +of November<span class="pagenum"><a name="Page_151" id="Page_151">[Pg 151]</a></span> ensuing, the War Department, by general order, revoked the +“rewards offered for the arrest of Jacob Thompson, Beverly Tucker, George +N. Sanders, William S. Cleary and John H. Surratt.” Where now was the +redoubtable Bingham who, over and over again, had assured the Commission +he guided of the unmistakable guilt of all these persons? The whole theory +of the Secretary of War, which he had preconceived in the midst of the +panic following the assassination, that the murder of the President was +the outcome of a deep-laid and widespread conspiracy, of which Jefferson +Davis was the head and Booth and Payne the bloody hands—this theory, +which the Bureau of Military Justice, aided by Baker and his detectives, +had so sedulously labored to establish, and which Judge Bingham had so +persistently pressed upon the nine military men who composed the Court, to +the exclusion of any such hypothesis as a plot to capture—this +preconceived theory all at once fell to the ground. The perjured spies, +who had been the willing and paid tools to build it up, were about to be +unmasked and their poisoned fangs drawn. After no great interval, Conover +was, in fact, convicted of perjury in another case, and sentenced to +imprisonment in the Albany penitentiary. The whole prosecution of the +so-called conspirators, from its inception to its tragic close, turned out +to have been founded on an enormous blunder. The findings of the +Commission were falsified. Whatever the guilt of the doomed<span class="pagenum"><a name="Page_152" id="Page_152">[Pg 152]</a></span> victims, they +were not guilty of the crime of which they were convicted. The terrible +conspiracy, stretching from Richmond to Canada, and from Canada back to +Washington, involving statesmen and generals, and crowning the wickedness +of rebellion with the Medusa-head of assassination, shrank into the +comparatively common-place and isolated offense of the murder of Lincoln +and the assault upon Seward, suddenly concocted by Booth, on the afternoon +of the 14th of April, in wild despair over the collapse of the rebellion. +In such a predicament, the hanging of Mrs. Surratt could not have been a +pleasing reminiscence to the Secretary of War, to Judge-Advocate Holt, or +to the hangers-on of the Bureau of Military Justice. At such a moment they +certainly had no use for her son John.</p> + +<p>On the 12th of November, Preston King, who held one side of the door of +the White House while the daughter of Mrs. Surratt pleaded for admission, +walked off a ferry-boat into the Hudson River, with two bags of shot in +the pockets of his overcoat, and was seen no more. This event might have +passed as a startling coincidence, to be interpreted according to the +feelings of the hearer, had it not been followed by the suicide of Senator +James S. Lane, who held the other side of the door, and who, on the 11th +day of July, 1866, blew his brains out on the plains of Kansas. That these +two men had together stood between the President and the filial suppliant +for mercy, in a case of life and death,<span class="pagenum"><a name="Page_153" id="Page_153">[Pg 153]</a></span> and that, then, within a year, +both had perished by their own hands, aroused whispers in the air, caused +a holding of the breath and a listening, as if to catch the faint but +increasing cry of innocent blood, coming up from the ground.</p> + +<p>When the Congress met in December, 1865, the leaders of the dominant party +were in a fierce and bitter humor. The Rebellion had been suppressed, the +South subjugated and its chiefs captured, yet no one—not even the +arch-traitor Davis—had been hung. And, more deeply exasperating still, +the man they had elected Vice-President, and who had thus succeeded the +martyred Lincoln, upon whom their hopes had been fixed to make treason +odious, to hang the leaders higher than Haman, and to set aside the humane +policy of reconstruction his predecessor had already outlined and +substitute a more radical and retributive method—this man, whose precious +life had been providentially spared from the pistol of the assassin to be +the Moses of the colored people, and for harboring any such blasphemous +purpose as lying in wait for him, a Court, appointed by himself and whose +sentence he himself had approved, had hung a bewildered German—why this +man had already shown himself a renegade, was bent on a general amnesty, +appeared to have forgotten the assassination, was already hobnobbing with +southern traitors, and was attempting to carry out a policy of +reconstruction in the South, the result of which could be nothing less +than the<span class="pagenum"><a name="Page_154" id="Page_154">[Pg 154]</a></span> dethronement of the party who had brought the war for the Union +to a triumphant end. These men resolved that such treachery should be +balked at whatever cost. Ignorant as yet of the tainted character and of +the break-down of the evidence adduced to show Confederate complicity in +the assassination, the House of Representatives passed resolutions calling +for the trial of Jefferson Davis for treason and for the other crimes with +which he was charged; the ill-starred Bingham, once again in the House, +insisting that the Confederate Chief should be put upon trial before a +military tribunal for the same offense of which his former court had found +him guilty in his absence. The House appointed a committee to investigate +the complicity of Davis and others in the assassination, and in July, +1866, through its chairman, Mr. Boutwell, made a report, followed by a +resolution, “that it is the duty of the executive department of the +Government to proceed with the investigation of the facts connected with +the assassination of the late President without unnecessary delay, that +Jefferson Davis and others named in the proclamation of President Johnson +of May 2d, 1865, may be put upon trial,” which was adopted <i>nem. con.</i> In +this action, little as they reeked, these radical politicians were the +unconscious tools of that Nemesis which stalks after lawlessness and +triumphant crime. This resolution, and the news that John H. Surratt had +been betrayed by one of his comrades in the<span class="pagenum"><a name="Page_155" id="Page_155">[Pg 155]</a></span> Papal Zouaves into the hands +of the Roman authorities, who had detained him to await the order of the +American Government, and that the prisoner had escaped from his guard and +fled to Malta, forced the Department of War to revoke the order of +November, 1865, withdrawing the reward for the arrest of the fugitive.</p> + +<p>Meanwhile the great contest over the reconstruction of the South waxed +fiercer and fiercer. Congress, during this session, became farther and +farther alienated from the President, so that when that body met in +December, 1866, the reckless majority in both Houses united in the resolve +to get rid of Andrew Johnson, not indeed by the bloody method employed by +Booth, but by the no less efficient, though more insidious and less bold, +expedient of impeachment by the House and conviction by the Senate. No +sooner had Congress convened than Mr. Boutwell made an attack upon the +Executive for its dilatory action in the arrest of John H. Surratt, +stating that he had reason to believe that the Government knew where the +assassin was the May before. A committee appointed to investigate the +matter made a report just at the close of the session obliquely censuring +the Executive Department for its lack of diligence in effecting the +arrest. On January 7th, 1867, the famous Ashley introduced his resolutions +impeaching Andrew Johnson. The Judiciary Committee, to which they were +referred, took testimony during<span class="pagenum"><a name="Page_156" id="Page_156">[Pg 156]</a></span> the winter and made a report at the close +of the session that it was unable to complete the investigation, and +handed it over to the Fortieth Congress. That Congress met immediately at +the close of the Thirty-ninth, and the testimony already taken was +referred to the Judiciary Committee of its House, which proceeded with the +matter during the spring and summer, and in November, 1867, after the +recess; with the final result of a failure to pass the resolution of +impeachment reported by a bare majority of the committee.</p> + +<p>In process of this investigation all sorts of accusations and charges were +made against the President. His enemies now employed the very same weapons +against him which had been employed to convict the alleged assassins of +his predecessor and the alleged conspirators against his own life. General +Baker and his detectives, Conover and his allies, appear once more upon +the scene. They actually invaded the privileged quarters of the White +House and stationed spies in the very private apartments of the President. +This time, however, they are ready to swear, and in fact do swear, not to +having seen letters from Jefferson Davis to his agents in Canada advising +assassination, but letters from Andrew Johnson to Davis squinting in that +direction. They actually charged the President with being an accomplice in +the assassination of Abraham Lincoln. Forgetting that a human being had +been hung for lying in wait to kill Andrew<span class="pagenum"><a name="Page_157" id="Page_157">[Pg 157]</a></span> Johnson as a part of a general +conspiracy to murder the heads of the Government, these desperate men +propose to impeach the President for being an accomplice in his own +attempted murder. Ashley openly denounced him, in the House of +Representatives on the 7th of March, 1867, as “the man who came into the +Presidency through the door of assassination,” and alluded to the “dark +suspicion which crept over the minds of men as to his complicity in the +assassination plot,” and “the mysterious connection between death and +treachery which this case presents.” Ashley had private interviews in the +jail with Conover and Cleaver, who were confined there for their crimes, +and they assured him of the guilt of Andrew Johnson. They furnished him +with memoranda and letters purporting to show that Andrew Johnson and +Booth were in communication with each other before the murder of Lincoln, +and that Booth had said before his death that if Andrew Johnson dared go +back on him he would have him hung higher than Haman. To such preposterous +stuff, from professional perjurers, did the zealous Ashley seriously +incline.</p> + +<p>It was during this investigation that the evidence given by Secretaries +Seward and Stanton and by Attorney-Generals Speed and Stansbery, +demonstrated the utter futility of an attempt to establish complicity in +the assassination on the part of Davis, Thompson and the rest, by +witnesses who had been<span class="pagenum"><a name="Page_158" id="Page_158">[Pg 158]</a></span> shown, in other cases, to be unworthy of a +moment’s belief.</p> + +<p>While the impeachers were in the very act of pursuing the President as an +accomplice in the murder of Abraham Lincoln, while the mighty Bingham, who +had so eloquently defended President Johnson before the Military +Commission against the charge of usurpation of power, and so bitterly +denounced Jefferson Davis for alluding to Johnson as “The Beast,” now, +with a complete change of tune, was clamoring for the impeachment of “his +beloved Commander-in-Chief;”—Jefferson Davis, himself, is brought, by +direction of the Secretary of War, in obedience to a writ of habeas +corpus, before the United States Court at Richmond; there, without a word +of remonstrance, transferred to the custody of the civil authority; and +forthwith discharged on bail, Horace Greeley, who had never seen him +before, becoming one of his bondsmen. Since that day in May, 1867, no +attempt has ever been made to call the ex-President of the Southern +Confederacy to account as one of the conspirators in the murder of +Lincoln. Clay had been let go on parole as long before as April 19th, +1866; his property was restored to him in February, 1867; and proceedings +under an indictment found against him for treason and conspiracy, +indefinitely suspended on the 26th of March of the same year. Thompson and +Sanders and Tucker returned to their country and appeared unmolested +amongst us.<span class="pagenum"><a name="Page_159" id="Page_159">[Pg 159]</a></span> Jefferson Davis died recently full of years and honors. At +the death of Thompson, the flags of the Interior Department were lowered +half-mast. Tucker was appointed to office not long ago by President +Harrison. And all this, notwithstanding the Judge-Advocate had assured the +Military Commission that the guilt of these men was as clear as the guilt +of Booth or of Surratt, notwithstanding the Military Commission under his +guidance so found, and, had these men been present before that tribunal, +would doubtless have hung them on the same scaffold with Mrs. Surratt.</p> + +<p>It was during this same investigation, that the diary of Booth, which had +been so carefully concealed by the War Department and the Bureau of +Military Justice from the Military Commission, was unearthed. Its +publication produced a profound sensation, as it made clear the reality of +a plan to capture the President; a plan, which had been blasted by the +collapse of the Rebellion and, only at the last moment and without +consultation, arbitrarily superseded by a hurried resolution to kill. When +produced by Judge Holt before the committee, its mutilated condition gave +rise to a terrible suspicion. Holt, himself, and Stanton were confident +the book was in the same condition as when they first saw it. Colonel +Conger, also, though not positive, thought it was unchanged since he took +it from the dead body of Booth. But, to the great wonder of everybody, the +distinguished<span class="pagenum"><a name="Page_160" id="Page_160">[Pg 160]</a></span> detective, General Baker, testified, and stuck to it with +emphasis when recalled, that, when he first examined the diary before it +was lodged with the Secretary of War, there were no leaves missing and no +stubs, although the diary, as exhibited to the committee, showed by means +of the stubs remaining that sixteen or twenty leaves had been cut or torn +out. The disclosures made by the production of the diary, together with +the fact of its suppression, stirred the soul of General Butler; and, in +this way, it came about that the ghost of Mrs. Surratt stalked one day +into the House of Representatives. Judge Bingham, in his rollicking way, +was upbraiding General Butler for having voted for Jefferson Davis fifty +times as his candidate for President, and slurring his war record by +calling him “the hero of Fort Fisher;” when, suddenly, at the petrific +retort of his adversary that “the only victim of the gentleman’s prowess +was an innocent woman hung upon the scaffold!” the spectre stood before +him, forcing, as from “white lips and chattering teeth,” the exclamation +of Macbeth: “Thou canst not say I did it!”</p> + +<p>“Look to the true and brave and honorable men who found the facts upon +their oaths and pronounced the judgment!” he retorted, clutching at the +self-soothing sophistry of the murderer of Banquo, ignoring the fact that +he himself was a part of the tribunal and virtually dictated the +judgment.</p> + +<p><span class="pagenum"><a name="Page_161" id="Page_161">[Pg 161]</a></span>Another discovery was made by the Judiciary Committee in the “Article” +which, as recorded in his diary, Booth had left behind him for publication +in the National Intelligencer. John Matthews, a fellow actor and an +intimate friend of the assassin, testified that on the afternoon of the +14th of April Booth had met him in the street and left with him a letter +directed to that newspaper, to be delivered in the morning. The witness +was on the stage of the theatre that night at the time the fatal shot was +fired, and, in the confusion that followed, he called to mind the +communication. Hurrying to his lodgings he opened the envelope, read the +letter, and, fearing to be compromised by the possession of such a +document, burnt it up. The substance of the letter, as near as Matthews +could recollect, was that for a long time he (Booth) had devoted his +money, time and energies to the accomplishment of an end, but had been +baffled. “The moment has at length arrived when my plans must be changed. +The world may censure me for what I do; but I am sure that posterity will +justify me.” And the communication was signed (all the names being in the +hand-writing of Booth): “Men who love their country better than gold or +life. J. W. Booth, —— Payne, —— Atzerodt, —— Herold.”</p> + +<p>The significance of this piece of testimony was negative. The name of +Surratt was not there.</p> + +<p>One suggestive circumstance was called out in the testimony of Secretary +Seward and General Eckert.<span class="pagenum"><a name="Page_162" id="Page_162">[Pg 162]</a></span> It appeared that Payne before his trial had +talked with General Eckert about his motives and movements in the assault +upon the disabled Secretary of State, the particulars of which +conversation Eckert had related to Seward, after the recovery of the +latter from his wound, and had promised to reduce to writing. Among other +things, Payne had said that he and Booth were in the grounds in front of +the White House on the night of Tuesday, the 11th of April, when Abraham +Lincoln made his speech of congratulation on the fall of Richmond and the +surrender of Lee; and that on that occasion Booth tried to persuade him to +shoot the President as he stood in the window, but that he would take no +such risk; and that Booth, turning away, remarked: “That is the last +speech he will ever make.”</p> + +<p>Such an incident is consistent only with the theory that the assassination +plot was concocted at the last moment as a forlorn hope, and that, if +there had been any conspiracy, it was a conspiracy to capture. It is easy +to see why the Bureau of Military Justice suppressed this testimony also, +because, although it bears hard upon Payne himself, and Herold, and +possibly John Surratt, it renders it highly improbable that Mrs. Surratt +was aware of any design to kill.</p> + +<p>Even such a fragmentary review, as the foregoing, of the public history of +the two years succeeding the execution—which any reader may complete, as<span class="pagenum"><a name="Page_163" id="Page_163">[Pg 163]</a></span> +well as test, for himself by referring to the Congressional Globe of that +period, to the printed reports of the Committee, and to the leading +newspapers of the day—is sufficient to indicate how the general tendency +of events, and every event in its place, appear to have conspired to the +accomplishment of one result,—the setting aside, in the public mind, of +the verdict of the Military Commission in the case of Mrs. Surratt.</p> + +<p>This was not done by a direct assault upon that tribunal, or upon its mode +of procedure; not even upon the character of the witnesses against the +particular culprit, nor upon the weakness of the case made against her. +These points of attack were all passed by, and the verdict was taken on +the flank.</p> + +<p>The condemnation of the woman was subverted by the <i>wind</i>, so to speak, of +passing events.</p> + +<p>The irrepressible conflict between the President and the Congress; the +consequent schism in the very ranks of the triumphant conquerors; the +insane charge against Andrew Johnson of complicity in a conspiracy against +his own life, supported by the incredible statements of the very witnesses +who were responsible for the charge of complicity against Jefferson Davis +and others; the final and complete exposure of the fiction of a conspiracy +to assassinate, either by the Confederate authorities, or anybody else; +and the true, historical character of the Assassination of Abraham +Lincoln;—all combined to shake the edifice of guilt, which<span class="pagenum"><a name="Page_164" id="Page_164">[Pg 164]</a></span> the Bureau of +Military Justice had so carefully built up around their helpless victim, +upon such an aerial foundation. Whilst the gradual abatement of that +furious uncharitableness, which in the hey-day of the war could find +nothing not damnable in the Southern people, and no secessionist who was +not morally capable either of murder or of perjury in its defense or +concealment, was, surely but imperceptibly, clearing up the general +atmosphere of public opinion, and thus preparing for the cordial reception +of such a measure of retributive justice, as Time, with his sure revenges, +was daily disclosing to be more and more inevitable.</p> + +<p>The Milligan decision dissipated the technical jurisdiction of the +Commission. But lawyers could still distinguish, and the hyperloyal could +still maintain the essential rightfulness of the verdict.</p> + +<p>But the explosion of the great assassination conspiracy; the nol-pros. of +the awful charge against Jefferson Davis, Clement C. Clay, Jacob Thompson, +and their followers—a crime, which, if capable of proof, no government on +earth would have dared to condone—discredited forever the judgment of the +Military Commission, reopened wide all questions of testimony, of +character, of guilt or innocence, and summoned the silent and dishonored +dead to a new and benignant trial.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_165" id="Page_165">[Pg 165]</a></span></p> +<h2><a name="CHAPTER_II.2" id="CHAPTER_II.2"></a>CHAPTER II.</h2> +<p class="center"><span class="large"><span class="smcap">Reversal upon the Merits.</span></span></p> + +<p class="dropcap"><span class="caps">The</span> new trial was in fact at hand. In the summer of the year 1867, the +interest excited by the investigation of the Judiciary Committee of the +House of Representatives, referred to in the last chapter, suddenly became +merged into the intenser and more widespread interest excited by the trial +of John H. Surratt in the Criminal Court of the District of Columbia.</p> + +<p>Surratt, after escaping from his captors in Italy by leaping down a +precipice, fled to Malta and thence to Alexandria, where, on the 21st of +December, 1866, he was recaptured and taken on board the United States +vessel “Swatara.” In this vessel, bound hand and foot, the prisoner +arrived at Washington on the 21st of February following. Thus the radicals +in Congress, impelled by their growing enmity to the President over the +reconstruction contest, by scattering abroad sinister intimations that the +cause of his remissness in bringing to punishment the accomplices of the +convicted assassins was fear for himself of a full investigation of the +assassination, succeeded at last in forcing the Executive<span class="pagenum"><a name="Page_166" id="Page_166">[Pg 166]</a></span> Department, +apprehensive, as it had good reason to be, of the shadows which any future +trial in the civil courts was likely to reflect back upon the Military +Commission, and aware of the breaking down of the case against the +Canadian confederates and Jefferson Davis, face to face with the necessity +of ratifying the conviction of the mother by securing the conviction of +the son. On the one hand, the radicals, in blind ignorance of the true +inwardness of affairs, clamored for the trial, in the hope that the guilt +of the prisoner’s supposed accomplices, Davis and Company, and possibly of +the President himself, might be detected. On the other hand, the +administration, now that the man had been forced upon its hands, knowing +the futility of the hope of its enemies, pushed on the trial in the hope +that, with its powerful appliances, a result could be obtained which would +vindicate the verdict of the Military Commission. No one on either side, +however, so much as dreamed of renewing the iniquity of a trial by +court-martial. Amid the silence of the Holts and the Binghams and the +Stantons, Surratt was duly indicted by a grand jury for the murder of “one +Abraham Lincoln,” and for conspiring with Booth, Payne, Atzerodt, Herold +and Mary E. Surratt to murder “one Abraham Lincoln,” which conspiracy was +executed by Booth. There was no averment about the traitorous conspiracy +to murder the heads of Government, in aid of the rebellion; nor were the +names of Dr.<span class="pagenum"><a name="Page_167" id="Page_167">[Pg 167]</a></span> Mudd, O’Laughlin, Arnold or Spangler, then undergoing +punishment on the Dry Tortugas, inserted as parties to the conspiracy; nor +was any mention made of Seward or Johnson or Grant, as among the +contemplated victims. All was precise and perspicacious, as is required in +pleadings in the civil courts. The loose, vague, indefinite and impalpable +charges permissible, seemingly, on military trials, gave place to plain +and simple allegations, such as an accused person might reasonably be +expected to be able to meet. On Monday, June 10, 1867, while the +investigation before the Judiciary Committee of the House was still going +on, while the sensation produced by the sight of Booth’s diary and by +Matthews’ disclosures was still fresh, while the echoes of the encounter +of Bingham and Butler still lingered in the air, the momentous trial came +on. Great and unprecedented preparations had been made by the prosecution. +Again the country was ransacked for witnesses, as in the palmy days of +Baker and his men. Again the Montgomeries and other Canada spies haunted +the precincts of the District Attorney’s office, willing as ever to swear +to anything necessary to make out the case for the prosecution. Even the +voice of Conover was heard, <i>de profundis clamavi</i>, from his dungeon cell. +The Bureau of Military Justice started into active life, and Holt and his +satellites bestirred themselves as though fully conscious of the impending +crisis. Indeed, every one of these officials, from the President<span class="pagenum"><a name="Page_168" id="Page_168">[Pg 168]</a></span> and the +Secretary of War down to the meanest informer and hired hangman, who had +had anything to do with the trial and execution of Mary E. Surratt, felt +as if he, too, was to be put on trial in the trial of her son. A Court +recognized in, and drawing its life and jurisdiction from, the +Constitution was to act as a court of appeal to review the process and +judgment of that extra-constitutional tribunal, which had, summarily and +without legal warrant, put a free American woman to a felon’s death. A +Daniel in the shape of a jury—a common law jury—a jury of +civilians—unadorned by sword, epaulette or plume—a jury guaranteed by +the Bill of Rights—a Daniel had come to judgment! The Shylocks of the +days of arbitrary power dropped their sharpened knives and ejaculated, “Is +that the law?”</p> + +<p>Great, assuredly, must have been the flurry of the once omnipotent Bureau, +when it was ascertained that the tribunal before which it must come could +not be “organized to convict;” that there could be no soldiery around the +Court, no shackles on the prisoners or the witnesses for the defense, no +prosecuting officers in the jury room. Everything must be done decently +and in order, with the same calm dignity, unruffled composure, the same +presumption of the innocence of the accused, as though the murdered man +had been the humblest citizen of the land. One great advantage, however, +the prosecution managed to secure. A Judge was selected to<span class="pagenum"><a name="Page_169" id="Page_169">[Pg 169]</a></span> preside whom +they could rely on, as “organized to convict.” But this was the sole +reminiscence of the unbridled reign of the military only two years before. +A jury of twelve intelligent men, some of them the best citizens of the +District, was speedily obtained to the evident satisfaction of both the +people and the prisoner,—and the succeeding Monday, the 17th, the +struggle began.</p> + +<p>As we have given the names of the members of the Court which tried the +mother, we may be pardoned for giving the names of the jurors who tried +the son. Although there were no major-generals among them, they are +entitled to the honor of being within, and not without, the ægis of the +Constitution.</p> + +<p>The jurors were W. B. Todd, Robert Ball, J. Russell Barr, Thomas Berry, +George A. Bohrer, C. G. Schneider, James Y. Davis, Columbus Alexander, +William McLean, Benjamin Morsell, B. E. Gittings, W. W. Birth.</p> + +<p>They were thus spoken of by the District Attorney:</p> + +<p>“It is a matter of mutual congratulation that a jury has been selected +agreeable to both parties; the representatives of the wealth, the +intelligence, and the commercial and business character of this community; +gentlemen against whose character there cannot be a whisper of suspicion. +I would trust you with my life and my honor; and I will trust you with the +honor of my country.”</p> + +<p><span class="pagenum"><a name="Page_170" id="Page_170">[Pg 170]</a></span>The scene which the court-room presented, when the Assistant District +Attorney arose to open the case for the United States, afforded a speaking +contrast to the scene presented at the opening of the Military Commission. +The Court was not held in a prison, and there was an entire absence of the +insignia of war. The doors of the court-room were wide open to the +entrance of the public, not locked up in sullen suspicion, and the keys in +the hands of the prosecuting officer. The counsel for the prisoner +confronted the jury and the witness-stand upon an equal line with the +counsel for the United States; and there was neither heard, seen, nor +surmised, in the words or bearing of Edwards Pierrepont, the leading +counsel for the prosecution, any of the insolence and supercilious +condescension shown in the words and bearing of John A. Bingham.</p> + +<p>As the prisoner entered the court and advanced to the bar, no clank of +fetters jarred upon the ear; and, as he sat at his ease by the side of his +counsel, like a man presumed to be innocent, the recollection of that wan +group of culprits, loaded down with iron, as they crouched before their +imperious doomsmen, must have aroused a righteous wrath over the barbarous +procedure of the military, in comparison with the benign rules of the +civil, tribunals. The atmosphere surrounding the court and the trial +seemed, also, to be free from passion and prejudice, when contrasted with +the tremendous excitement and the thirst for blood, which permeated the +<span class="pagenum"><a name="Page_171" id="Page_171">[Pg 171]</a></span>surroundings of the Military Commission. Although the Bureau of Military +Justice had busied itself in the prosecution, and thrust its aid on the +office of the District Attorney; although the whole weight of the federal +administration was thrown in the same direction to vindicate, if possible, +the signature of the President to the death warrant of the victims of his +military court; and notwithstanding the presence upon the bench of a judge +“organized to convict:” still, so repellant to partial passion were the +precincts of what might fitly be styled a temple of justice, a neutral +spectator might feel reliance that in that chamber innocence was safe.</p> + +<p>But there was one sentiment hovering over the trial and dwelling in all +bosoms, which clothed the proceedings with a peculiar awfulness. All felt +that the dead mother was on trial with the living son. She had been +executed two years before for the same crime with which he was now +charged. And, as he stood in the flesh, with upraised hand, looking at the +jury which held his life in its hands, it required no great effort of +fancy to body forth the image of his mother, standing beside him, +murmuring from shadowy lips the plea of not guilty, amid the feeble +repetitions of which, to her priest, she had died upon the scaffold. To +convict her son, now, by the unanimous verdict of twelve men, and punish +him according to law, would go far to condone the unconstitutional trial +and illegal execution of the mother. Whereas, on the other hand, the +acquittal<span class="pagenum"><a name="Page_172" id="Page_172">[Pg 172]</a></span> of her son of the same crime, by the constitutional tribunals +of the country, would forever brand the acts of the Military Commission as +murder under the forms of military rule. This dread alternative met the +prosecution at the threshold of the trial, oppressed them with its +increasing weight during its progress, and tarried with them even at its +close. It appeared in the indictment, where the name of the mother, as one +of the conspirators, was associated with the name of her son. It appeared +in the examination of the jurors, when Judge Pierrepont endeavored to +extract from them whether they had formed or expressed an opinion as to +the guilt or the innocence of the prisoner, not only, but also as to the +guilt or the innocence of his mother. It appeared during the taking of +testimony, where evidence bearing upon the guilt of Mrs. Surratt alone was +admitted at all times as evidence against her son. It appeared in the +argument of the District Attorney, when he compares the mother of the +prisoner to Herodias and Lucrezia Borgia, and “traces her connection with +the crime” and “leaves it to the jury to say whether she was guilty;” +where he pleads, like Antony, in behalf of the members of the Military +Commission that they were “all honorable men,” and were not to be blamed +for obeying the orders of the President. It appeared in the arguments of +the counsel for the prisoner, when Mr. Merrick taunted the Government that +they were pressing for a verdict to “vindicate the fearful action<span class="pagenum"><a name="Page_173" id="Page_173">[Pg 173]</a></span> they +had committed;” when he appealed to the jury to “deal fairly by this young +man,” “even if the reputation of Joseph Holt should not have the +vindication of innocent blood;” when he invoked the spirit of Mrs. Surratt +as a witness for her son, and rebuked the prosecution for objecting to the +admission of her dying declaration when they were putting her again on +trial though dead; when Mr. Bradley charged that for four weeks and more +they had been trying Mrs. Surratt and not her son, and denounced Weichman +and Lloyd, avowing that “the proof against her was not sufficient to have +hung a dog” and was “rotten to the core.” It appeared in the speech of +Judge Pierrepont, when he flourished the record of the Military Commission +before the jury, and asserted that the recommendation of Mrs. Surratt to +mercy was attached to it; in his avowal of his belief in her guilt; in his +extolling the jury as a tribunal far more fit for the trial of such crimes +than any military court; and in his covert threat that the people would +punish the City of Washington by the removal of the Capitol, if the jury, +by their verdict, did not come up to the high standard erected for them. +And, lastly, it appeared in the charge of the Judge, which is a model of +what a one-sided charge ought to be. It opens with the words of the Old +Testament: “Whoso sheddeth man’s blood, by man shall his blood be shed.” +Then follows a sneer at the “sentimental philosophers,” who were opposed +to capital<span class="pagenum"><a name="Page_174" id="Page_174">[Pg 174]</a></span> punishment. Then the Court inveighs against some imaginary +advocates, who argued that to kill a king was a greater crime than to kill +a president; and then casts an imputation upon the integrity of the +decision in the Milligan Case, as “predicated upon a misapprehension of +historic truth,” and that therefore “we could not perhaps have looked for +a more rightful deduction,” “all loyal hearts” being “unprepared for such +an announcement.” The Judge, then, holds that the Court will take judicial +cognizance that the crime charged was the murder of the President of the +United States, and a more heinous offense than the murder of a simple +individual. He, then, complacently sets aside the rule of Sir Matthew +Hale, implicitly followed since, as he himself admits, by “writers and +judges seeming contented with his reasons or indisposed to depart from his +principles,” as “not very satisfactory to my (the Judge’s) mind;” and +accordingly he declares that, in felonies of such high grade, as in cases +of treason, there can be no accessories before the fact, but all are +principals; and, to support this conclusion, he then cites and details at +length two cases, apparently overruling Sir Matthew beforehand; (as he +says) “reported in that book of highest authority known among Christian +nations, decided by a judge from whose decision there can be no appeal and +before whose solemn tribunal all judges and jurors will in the great day +have their verdict and judgments passed in review.” One, the case<span class="pagenum"><a name="Page_175" id="Page_175">[Pg 175]</a></span> “of +Naboth and Ahab, contained in the 21st chapter of the First Book of +Kings,” the other, “that of David and Uriah, recorded in the 11th chapter +of Second Samuel;” at the end of the statement of which case the Judge +remarks, “this judgment of the Lord was not that David was accessory +before the fact of this murder, but was guilty as the principal, because +he procured the murder to be done. It was a judgment to the effect that he +who does an act by another does it himself, whether it be a civil or a +criminal act.” This extraordinary deliverance closes with an echo of Judge +Pierrepont’s warning to the jury, to uphold by their verdict the District +of Columbia, as a place for “the public servants, commissioned by the +people of the nation, to do their work safe and sacred from the presence +of unpunished assassins within its borders.”</p> + +<p>It would be foreign to our purpose, as well as tedious to the reader, to +examine in detail the testimony given on this trial. One conclusion—and +that is the important thing—is certain. It is true, beyond the shadow of +a doubt, that the prosecution made an incomparably stronger case against +Surratt than was made against his mother. They had but one culprit at whom +to direct their aim, and they made a far more desperate and thorough-going +effort to convict, because of the known unreliability of a jury to do what +the prosecution might tell them to do without the aid of proof. Before a +Military Commission, tossed about by the passions<span class="pagenum"><a name="Page_176" id="Page_176">[Pg 176]</a></span> of its members and +steered by Judge-Advocates, the accusers could afford to be careless of +gaps in their scheme of proof, missing links in the chain of +circumstantial evidence. Not so now and here. Vehement affirmation without +evidence availed nothing. Curses against treason, traitors, disloyalty, +apostrophes to the imperiled Union, tears over the beloved +Commander-in-Chief, could fill no void in the testimony. Of course, there +was no such outrage against not only the elementary rules of evidence, but +against ordinary decent fairness, as an attempt to introduce testimony of +the horrors of Libby Prison and Andersonville; but the door looking in +that direction was opened as wide as possible by the eager Judge. All the +material testimony given upon the “Conspiracy Trial” against Mrs. Surratt, +not only, but also against Payne, Herold, Atzerodt, Arnold and O’Laughlin, +was reproduced here. The direct testimony on the part of the United States +occupied from June 17th to July 5th, and in that period eighty-five +witnesses were examined. On the Conspiracy Trial, the direct case consumed +the time from May 12th to May 25th, and about one hundred and thirty +witnesses were examined against the eight accused persons, not only, but +also against the eight accessories, headed by Jefferson Davis, included in +the charge, the testimony ranging over the whole rebellion and including +Libby, Andersonville, Canada, St. Albans, and projected raids on New York, +Washington and<span class="pagenum"><a name="Page_177" id="Page_177">[Pg 177]</a></span> other cities. Every witness, whose testimony on the former +trial had the remotest bearing upon the question of the guilt or innocence +of Mrs. Surratt, once more showed his face and retold his story.</p> + +<p>Lloyd was there, compelled, despite his superstitious reluctance to speak +against a woman now she was dead, to rehearse the tale which his terrors +had evolved out of his drunken imagination. This time, however, his +sottish memory or failure of memory, his fright at the time of his arrest, +his repeated denials of the visit of Booth and Herold, his temptations and +bribes to accuse his landlady, were, under the keen cross-examination of +the counsel for the prisoner, fully exposed.</p> + +<p>Weichman “came also:” this time with his story carefully elaborated, +touched and retouched here and there, and written down beforehand. He had +been engaged for three or four months in aiding the prosecution, had +prepared a carefully detailed statement for the use of the Assistant +District Attorney, and now openly acknowledged that “his character was at +stake” in this trial, and that he “intended to do all he could to help the +prosecution.” He had conned over and over again the report of his evidence +on the Conspiracy Trial, had corrected it to meet objections subsequently +made and to eliminate discrepancies and contradictions, and had thus +brought its several disjointed parts into some logical sequence; he then +had added to it the incidents and conversations disclosed for the first +time in the<span class="pagenum"><a name="Page_178" id="Page_178">[Pg 178]</a></span> affidavit sent to Colonel Burnett, which was appended to the +published report of the trial, to which allusion has been made; and, now, +in the final delivery of his deadly charge, coolly averring that his +memory was much more distinct now than at the time of the former trial two +years ago, he, with a superadded concentrated venom, flavored his +narrative with a few damning incidents never heard of before—one, the +most poisonous of all, that on the evening of the fatal 14th, while Booth +was about his murderous work, Mrs. Surratt was pacing her parlor floor +begging her pious boarder “to pray for her intentions.” This time, +however, the witness did not escape unscathed. When he emerged from the +skillful hands of Mr. Bradley, his malicious and sordid <i>animus</i> laid +bare,—his self-contradictions, his studied revisions, his purposeful +additions to his testimony, exposed—his intimacy with the conspirators, +his terrified repentance, his abject self-surrender and his cowardly +eagerness to shift his peril upon the head of his protectress,—and then +his simulated remorse and his later recantation—all made clear—he was an +object of loathing to gentlemen; a stumbling block to the philanthropist; +to the indifferent, an enigma; and to the common man, a perpetual +provocation to a breach of the peace.</p> + +<p>Twelve witnesses testified that they saw John H. Surratt in Washington on +the 14th of April, only one of whom had testified to that effect on the +other trial. It is curious now to discern how the memory<span class="pagenum"><a name="Page_179" id="Page_179">[Pg 179]</a></span> of the +witnesses, it may be unconsciously, swerved under pressure toward the mark +of identification. The witnesses for the defense established that the +prisoner was in Elmira on the afternoon of the 13th, made it more than +probable he was there on the 14th, and almost certain he was there on the +15th. The prosecution, under the force of this proof, suddenly conceded +his presence in Elmira on the 13th, and then, by the accident of a special + +train and the testimony of a ferryman whom the notorious Montgomery +unearthed in the very crisis of the emergency, contrived with much +straining to land him in Washington at 10 o’clock on the morning of the +fatal day. Any calm observer, reading the account of the trial now, can +see plainly that the truth is, the prisoner had not been in Washington +since the 3rd of April.</p> + +<p>The production of Booth’s diary by the prosecuting officers was forced +upon them by the popular indignation over its suppression before the +Military Commission; otherwise, it is clear they would not have been +guilty of such a mistake in tactics as its introduction as a part of the +case for the United States. Its opening sentences—“Until to-day nothing +was ever thought of sacrificing to our country’s wrongs. For six months we +had worked to capture. But our cause being almost lost something decisive +and great must be done”—settled the question of a plot to kidnap suddenly +given up;<span class="pagenum"><a name="Page_180" id="Page_180">[Pg 180]</a></span> and the testimony of Weichman indicated the hour of +abandonment.</p> + +<p>That every conceivable effort to obtain the conviction of the prisoner was +made, and that a most formidable array of circumstances was marshalled +against him, compared to which the two disconnected pieces of evidence +which were so magnified against his mother seem weak indeed, will be +controverted by no sane person. From June 10th to August 7th—nearly two +months—the contest went on. On the last-mentioned day, which was +Wednesday, Judge Fisher delivered his remarkable charge, and a little +before noon the jury retired. At one o’clock in the afternoon of Saturday, +the 10th, after a session of three days and three nights, a communication +was received from the jury to the effect that they stood as at first, +nearly equally divided, that they could not possibly agree, and the health +of several of their numbers was becoming seriously impaired. The Court, +notwithstanding the protest of the prisoner, discharged the jury, and the +prisoner was remanded to jail.</p> + +<p>There he did not long remain, however. Every one recognized the futility +of another trial. The strength of the proof of the prisoner’s presence in +Elmira on the day of the assassination wrought a reaction of public +opinion in his favor. The administration was glad to escape with less than +an unequivocal condemnation. The Bureau of Military<span class="pagenum"><a name="Page_181" id="Page_181">[Pg 181]</a></span> Justice was silent. +John H. Surratt was quietly let go.</p> + +<p>This obscure occurrence, the discharge of John H. Surratt, which caused +not a ripple on the surface of human affairs, nevertheless constituted a +cardinal event; for it worked a national estoppel. When that young man +stepped forth from the threshold of the prison, to which the United States +had brought him in irons from Egypt across the Mediterranean and the +Atlantic, not to follow his mother to the scaffold and a felon’s grave, +but to walk the earth a living, free man,—the innocence of the mother was +finally and forever established by the universal acknowledgment of all +fair men. No condemnation of the Military Commission could be so heavy, +and at the same time so indubitably final, as the simultaneous conviction +arrived at by all men, that if the son had been tried by such a tribunal +he would assuredly have been put to death, and that if the mother had been +reserved to calmer times and the tribunal guaranteed by the Constitution +to every man and woman, she would now have been living with her daughter, +instead of lying, strangled to death, beneath the pavement of a prison.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_182" id="Page_182">[Pg 182]</a></span></p> +<h2><a name="CHAPTER_III.2" id="CHAPTER_III.2"></a>CHAPTER III.</h2> +<p class="center"><span class="large"><span class="smcap">The Recommendation to Mercy.</span></span></p> + +<p class="dropcap"><span class="caps">The</span> worst was still behind.</p> + +<p>It was left to Time to disclose the astounding fact, that all the military +machinery of the War Department, its Bureaus, its Court, its +Judge-Advocates, its unconstitutional, anti-constitutional and +extra-constitutional processes, would not have compassed the death of this +helpless woman, had not the prosecutors, in the last extremity, called in +the help of Fraud.</p> + +<p>It has been narrated in the chronological order of events, how five +members of the Military Commission were, in all probability, beguiled into +the abdication of their own power of commutation and did, as matter of +fact, sign a paper “praying” the President, “if he could find it +consistent with his sense of duty to the country,” to commute the death +sentence of Mrs. Surratt; how that the paper may have been carried to the +President by Judge Holt and have been present at the confidential +interview when the death warrant was composed; and how that Judge Holt, in +drafting the death warrant, went out of his way to so write it out, as in +fact, if<span class="pagenum"><a name="Page_183" id="Page_183">[Pg 183]</a></span> not by design, to withdraw from the eye of the President, as he +signed it, this paper praying him to withhold his signature.</p> + +<p>But it should be borne in mind that all this was shrouded in the deepest +secrecy. That there had been any hesitation among the members of the +Commission in fixing the sentence of Mrs. Surratt—any more than in the +cases of Herold, Atzerodt and Payne—much more that it had been found +necessary to resort to a petition to the President, was entirely unknown +to the public at large. As to what had taken place in the sessions of the +Court when the sentences were made up, every member thereof and the three +Judge-Advocates were sworn to secrecy; and, outside these officers, the +knowledge of the petition was confined to the Secretary of War (possibly +the Attorney-General) and one or two subordinates in the War Department. +The record of the findings and sentences, to which the petition was +attached, was kept from the official reporters, and not a soul outside a +close coterie in the War Department was allowed to set eyes on it.</p> + +<p>In the recital of the death sentences in the order of the Adjutant-General +directing their execution, the sentence of the woman differed in no +respect from the three sentences of the men which preceded it. So far as +the public eye could discover, there was not a gleam of mercy for the +woman in the bosom of the Commission.</p> + +<p><span class="pagenum"><a name="Page_184" id="Page_184">[Pg 184]</a></span>It is true, that even before the execution there were rumors that the +Court had united in a recommendation to mercy, and it was stated in the +newspapers of the 6th and 7th of July that five members of the Commission +had signed such a recommendation and the whole Court concurred in it. It +is also certain, that almost immediately after the execution the story +sprang up that the President had never been allowed to see the +recommendation which the Court had addressed to him.</p> + +<p>But all these statements remained without corroboration from any authentic +source, and could not stand before the indubitable facts of the sentence, +its approval by the President, and its summary execution. The single +indication that in all these reports the paper is miscalled “a +recommendation to mercy” shows of itself that the real nature of the +secret was well kept.</p> + +<p>In November, 1865, there appeared a volume compiled by Benn Pitman styled +“The Recorder to the Commission,” claiming to be “An authentic record of +the trial of the assassins of the late President,” to which was prefixed a +certificate “to its faithfulness and accuracy” by Colonel Burnett, who had +been assigned by Judge Holt to superintend the compilation and “made +responsible for its strict accuracy.” This work, so authenticated, was on +its face intended by its compiler to be a complete history “for future use +and reference” of the proceedings of the Commission, from the order of +the<span class="pagenum"><a name="Page_185" id="Page_185">[Pg 185]</a></span> President convening it to the approval of the President of its +findings and sentences. It had for frontispiece portraits of the +conspirators and a map of portions of Maryland and Virginia showing the +route of Booth, and for afterpiece a diagram of the stage of Ford’s +theatre and a diagram of the streets in its vicinity. Beside matter +strictly of record, such as the testimony and the findings and sentences, +it included the arguments of all the counsel, the approval of the +President, the order changing the place of imprisonment from Albany to the +Dry Tortugas, the proceedings under the writ of habeas corpus in the case +of Mrs. Surratt; and (in the appendix) the opinion of Attorney-General +Speed; army instructions in ten sections; a proclamation of President +Lincoln; a poisonous affidavit of Weichman, inclosed in a letter to +Colonel Burnett; and an affidavit of Captain Dutton, who took Dr. Mudd to +the Dry Tortugas, giving the confessions the Captain swears the Doctor +made on the way, sent to General Holt in obedience to his request for such +information. Nevertheless, amid all this wealth of illustration, there is +not the faintest allusion to any such thing as a recommendation to mercy, +in the volume. On the one hand, Pittman may not have seen the paper. His +findings and sentences are obviously taken from the order of the +Adjutant-General, and not from the original record, as he puts them in the +same order, which is not the order of the record. But, if he never saw the +paper, it<span class="pagenum"><a name="Page_186" id="Page_186">[Pg 186]</a></span> must have been purposely kept from his knowledge, and thus from +the knowledge of the public, by some person interested in its suppression. +And Colonel Burnett, who had himself attached the paper “at the end” of +the record, instead of certifying to the “faithfulness and accuracy” of a +compilation omitting it, ought rather to have insisted that so important +and interesting a document, about the existence of which so much talk had +arisen, be at last given to the world.</p> + +<p>On the other hand, if Pitman knew of the paper, he certainly would not +have voluntarily left it out of his book for the reason, he himself felt +constrained afterwards to assign, that “it formed no part of the +proceedings, was not mentioned in open session;” since he had given room +to so much matter, not of record, solely for the purpose of adding +interest and completeness to his work, and this critical document could +add so much to the one and its absence detract so much from the other.</p> + +<p>Moreover, in December, the report of the Judge-Advocate-General to the +Secretary of War appeared, in which the trial was reviewed, and to which +the report to the President, dated July 5th, 1865, was appended. But in +both the existence of the petition was ignored.</p> + +<p>Whatever may have been the true inwardness of these significant omissions, +their inevitable effect was to convince the mass of the people of the +non-existence of a recommendation to mercy; and the<span class="pagenum"><a name="Page_187" id="Page_187">[Pg 187]</a></span> petition of the five +officers might have reposed in silence in the secret archives of the War +Department, had it not been for the alienation of the President from the +party which had elected him, his gradual gravitation towards his own +section, and finally his revolt from the sway of Stanton. During this +period, the rumors that the Court had recommended Mrs. Surratt to the +clemency of the Executive and that the paper had never reached the +Executive, coupled with stories that from the close of the trial to the +hour of the execution the President had been kept under confinement and in +a state of semi-stupefaction by a band of reckless partisans who were +bound there should be no clemency, grew louder and louder. But they were +never traceable to any reliable source. In fact, the coolness which had +been for a long time growing between Andrew Johnson and Edwin M. Stanton +did not break out into an open rupture until as late as the month of +March, 1867. The other members of the Cabinet, which Johnson had inherited +from Lincoln, who disagreed with Johnson on the question of +Reconstruction, Harlan, Dennison and Speed, resigned, on account of that +disagreement, in the summer of 1866; but Stanton stayed on. When the +Tenure of Office bill was passed by the Congress in February, 1867, the +Secretary of War was still so much in accord with the President as to +unite with the other members of the reconstructed Cabinet in an emphatic +condemnation of the bill as unconstitutional, and<span class="pagenum"><a name="Page_188" id="Page_188">[Pg 188]</a></span> to be asked by the +President to draft his veto message.</p> + +<p>But, on the passage of that Act over the veto, Stanton, thinking his +tenure of office secure, at last threw off the double-faced mask he seems +to have worn in every Cabinet to which he ever had the honor to belong. +From that time he stood alone in the Cabinet, irreconcilable in his +hostility to every move of his Chief, in open league with his Chief’s +active enemies, and determined to remain where he was not wanted and could +only act as a hindrance and a spy. In this perilous state of affairs, a +secret like that of the petition of the five officers burned towards +disclosure. Yet, so far as is at present ascertainable, no authoritative +affirmation of the existence of such a paper, on the one hand, and no +authoritative denial that it had been presented to the President, on the +other, had yet been made.</p> + +<p>Upon such an arrangement of combustible material, the trial of John H. +Surratt acted like a spark of fire.</p> + +<p>On the second day (June 11th, 1867), during the impanelling of the jury, +Mr. Pierrepont, the leading counsel for the United States, alluding to the +rumors then flying about, took occasion to predict that the Government on +that trial would set all these false stories at rest.</p> + +<p>Among other things he said:</p> + +<p class="blockquot">“It has likewise been circulated through all the public journals that +after the former convictions, when an effort was<span class="pagenum"><a name="Page_189" id="Page_189">[Pg 189]</a></span> made to go to the +President for pardon, men active here at the seat of government +prevented any attempt being made or the President being even reached +for the purpose of seeing whether he would not exercise clemency; +whereas the truth, and the truth of the record which will be presented +in this court, is that all this matter was brought before the +President and presented to a full Cabinet meeting, where it was +thoroughly discussed; and after such discussion, condemnation and +execution received not only the sanction of the President but that of +every member of his Cabinet.”</p> + +<p>The testimony in the case closed, however, and the summing up began, and +there had been no attempt at a fulfillment of this prediction.</p> + +<p>On Thursday afternoon, August 1st, Mr. Merrick, the junior counsel for the +prisoner, then nearing the close of his address, twitted the prosecution +with this breach of its promise in these words:</p> + +<div class="blockquot"><p>“Where is your record? Why didn’t you bring it in? Did you find at the +end of the record a recommendation to mercy in the case of Mrs. +Surratt that the President never saw? You had the record here in +Court.</p> + +<p>“Mr. Bradley: And offered it once and withdrew it?</p> + +<p>“Mr. Merrick: Yes, sir; offered it and then withdrew it.</p> + +<p>“Did you find anything at the close of it that you did not like? Why +didn’t you put that record in evidence, and let us have it here?”</p></div> + +<p>Stung by the necessity of making some answer to this defiant challenge, +Mr. Pierrepont on the moment sent for the record. And in response to the +summons, Judge-Advocate Holt, who naturally must have followed the +prosecution and trial with the most absorbing anxiety, on that very +afternoon<span class="pagenum"><a name="Page_190" id="Page_190">[Pg 190]</a></span> brought the record “with his own hand,” “with his own voice” +told its history, in the presence of “three gentlemen,” to Mr. Pierrepont, +and then left the papers with him.</p> + +<p>On the succeeding day, August 2nd, Mr. Bradley, the senior counsel of the +prisoner, renewed the attack:</p> + +<div class="blockquot"><p>“It was boastfully said in the opening of this case that they would +vindicate the conduct of the law officers of the Government engaged in +the conspiracy trials. They would produce Booth’s diary; they would +show that the judgment of the court was submitted to the Cabinet and +fully approved; that no recommendation for mercy for Mrs. +Surratt—that no petition for pardon to the Government—had been +withheld from the President. Is it so?”</p></div> + +<p>The next morning, Saturday, August 3d, Mr. Pierrepont began his address to +the jury. Having kept possession of the record since Thursday afternoon, +and having been made acquainted with its history by Judge-Advocate Holt in +such an impressive manner, he, thus, in his exordium, at last, redeemed +the promise of the prosecution:</p> + +<p class="blockquot">“The counsel certainly knew when they were talking about that +tribunal” (<i>i. e.</i> the Military Commission), “and when they were thus +denouncing it, that President Johnson * * * ordered it with his own +hand, that President Johnson * * * signed the warrant that directed +the execution, that President Johnson * * * when that record was +presented to him, laid it before his Cabinet, and that every single +member voted to confirm the sentence, and that the President with his +own hand wrote his confirmation of it, and with his own hand signed +the warrant. I hold in my hand the original record, and no other man +as it<span class="pagenum"><a name="Page_191" id="Page_191">[Pg 191]</a></span> appears from that paper ordered it. No other one touched this +paper, and when it was suggested by some of the members of the +Commission that in consequence of the age and the sex of Mrs. Surratt, +it might possibly be well to change her sentence to imprisonment for +life, he signed the warrant for her death with the paper right before +his eyes—and there it is (handing the paper to Mr. Merrick). My +friend can read it for himself.”</p> + +<p>This is the first appearance in public of the precious record. On +Wednesday, July 5th, 1865, Andrew Johnson put his name to the +death-warrant written on its back by Judge Holt. And, now, two years +after, emerging from its hiding-place, it is flung upon a table in a +court-room by the counsel for the United States.</p> + +<p>Even now it seems to be destined to a most unsatisfactory publication. For +the counsel of the prisoner decline to look at it, because (as Mr. Merrick +subsequently explained), “he mistrusted whatever came from the +Judge-Advocate-General’s office;” because it “had been carefully withheld +until all opportunity had passed for taking evidence in relation to it;” +and because the official report of the trial contained no recommendation +of mercy. The mysterious roll of paper, consequently, lies there unopened, +until Judge Holt comes to reclaim it that same afternoon; and that officer +is careful, when receiving it back, to repeat over again, before other +witnesses, the same history of the document, he had told before to the +counsel for the prosecution, and which that counsel had just retold to the jury.</p> + +<p><span class="pagenum"><a name="Page_192" id="Page_192">[Pg 192]</a></span>But that had been said and done which must blow away the atmosphere of +unwholesome secrecy which had so long enveloped this addendum to the +record. The explicit declaration of the counsel for the United States, +made in a crowded court-room on so celebrated a trial, with the “identical +paper” in his hand, that the President had laid the record before his +Cabinet and “every single member voted to confirm the sentence,” and that +the President had signed the death-warrant with the “suggestion” of +commutation “right before his eyes,” was immediately published far and +wide, and must have been read on Sunday, the 4th, or at latest on Monday, +the 5th, by the President himself. And the President was certainly +astounded. By a most singular providence, Judge Holt himself, in a letter +written to himself, at his request, by his chief clerk, and published by +him in 1873 for another purpose, has furnished independent proof that the +President was now for the first time startled into sending for the record.</p> + +<p>Here is what Chief Clerk Wright says:</p> + +<p class="blockquot">“On the 5th day of August, 1867, Mr. Stanton, the Secretary of War, +sent for me, and in the presence of General Grant asked me who was in +charge of the Bureau in your absence. I informed him Colonel Winthrop. +He requested I should send him over to him, which I did. The Colonel +returned and asked me for the findings and sentence of the conspiracy +trial, telling me he had to take it to the President. On taking the +portion of the record referred to from the bundle, I found, from the +frequent handling of it, several of the last leaves had<span class="pagenum"><a name="Page_193" id="Page_193">[Pg 193]</a></span> torn loose +from the ribbon fastening, and to secure them I put the eyelet in one +corner of it.”</p> + +<p>The Judge-Advocate-General, though in court on Saturday getting back the +record and retelling its history, was absent, it would appear, from his +office on Monday, or was considered absent by Stanton, who it also appears +was still Secretary of War and in communication with Johnson. It was +thought best to employ a deputy to carry the papers to the President. +Holt, probably, had no stomach for another “confidential interview,” with +the identical record in his hand.</p> + +<p>Let Andrew Johnson himself tell what followed. The statement is from his +published reply to Holt in 1873, and was made with no reference to, and +apparently with no recollection of, the foregoing incidents of the John H. +Surratt trial:</p> + +<div class="blockquot"><p>“Having heard that the petition had been attached to the record, I +sent for the papers on the 5th day of August, 1867, with a view of +examining, for the first time, the recommendation in the case of Mrs. +Surratt.</p> + +<p>“A careful scrutiny convinced me that it was not with the record when +submitted for my approval, and that I had neither before seen nor read +it.”</p></div> + +<p>It may have been only a coincidence, but on this very day, Monday, August +5th, 1867, and necessarily after the sending for the record, because that +was done through the Secretary of War, the following interesting missive +was dispatched by the President to that member of his Cabinet:</p> + +<p class="blockquot"><span class="pagenum"><a name="Page_194" id="Page_194">[Pg 194]</a></span>“Sir: Public considerations of a high +character constrain me to say that your resignation as Secretary of War will be accepted.”</p> + +<p>Stanton immediately replied:</p> + +<p class="blockquot">“Public considerations of a high character constrain me not to resign +before the next meeting of Congress.”</p> + +<p>And, on the 12th, he was suspended from office.</p> + +<p>But Andrew Johnson was not the only interested personage who read the +explicit declaration of Mr. Pierrepont. The statement that every member of +the Cabinet voted to confirm the sentence of Mrs. Surratt, with the +record, including, of course, the recommendation, before them, must have +been read also by William H. Seward, Edwin M. Stanton, Hugh McCulloch, and +Gideon Welles, the members of that “full Cabinet” who still remained in +office. They surely knew the truth of the statement, if it was true, or +its falsity, if it was false. If it was true, is it not perfectly +inconceivable that the President, conscious that these four of his +confidential advisers had seen the record and voted to deny the petition, +would have dared to enact the comedy of sending for the record, and then +brazenly assert that the petition had not been attached to it when before +him, and that he had neither seen nor read it?</p> + +<p>And if he had been guilty of so foolhardy a course of action, now was the +time for the Judge-Advocate to fortify the declaration which he had +inspired Mr. Pierrepont to make, by appealing to these members<span class="pagenum"><a name="Page_195" id="Page_195">[Pg 195]</a></span> of the +Cabinet to confront their shameless chief with their united testimony, and +forever silence the “atrocious accusation.”</p> + +<p>From his course of proceeding at a later day, it is not probable that he +made any such attempt. At all events, he got no help from Seward, from +McCulloch or from Welles. Nay, he got no help to sustain his history of +the record, even from Stanton. If help came from that quarter at all, it +was to shield him from the awakened wrath of the hood-winked Executive, by +drawing the fire upon the head of his department.</p> + +<p>But what the Judge-Advocate-General did do, in view of the crisis, is +sufficiently apparent. He took immediate measures to retract all that +portion of Mr. Pierrepont’s declaration of Saturday, which expressed or +implied any knowledge on the part of the Cabinet of the disputed paper.</p> + +<p>The counsel for the United States had continued his speech to the jury all +day Monday, apparently unconscious of the tempestuous effect of his +statement of Saturday, and of the predicament in which it had involved his +informant. In the evening, he must have had a “confidential interview” +with Judge Holt. For, on rising to resume his speech on Tuesday morning, +the 6th of August, from no apparent logical cause arising from the course +of his argument, he saw fit to recur to the now absent record, and to +interpolate the following perfectly insulated and seemingly superfluous +piece of information:</p> + +<p class="blockquot"><span class="pagenum"><a name="Page_196" id="Page_196">[Pg 196]</a></span>“You will recollect, gentlemen, when a call was +made several days ago by Mr. Merrick * * asking that we should produce the record of the +Conspiracy Trial, that I brought the original record here and handed +it to counsel. I then stated that as a part of that record was a +suggestion made by a part of the Court that tried the conspirators, +that, if the President thought it consistent with his public duty, +they would suggest, in consideration of the sex and age of one of +those condemned, that a change might be made in her sentence to +imprisonment for life. I stated that I had been informed that when +that record was before the President, and when he signed the warrant +of execution, that recommendation was then before him. I want no +misunderstanding about that, and I do not intend there shall be any. +That is a part of the original record which I here produced in Court. +It is in the hand-writing of one of the members of that Court, to wit, +General Ekin. The original of that is now in his possession and in the +hand-writing of Hon. John A. Bingham. When the counsel called for that +record, I sent the afternoon of that day to the +Judge-Advocate-General, in whose possession these records are. He +brought it to me with his own hand, and told me with his own voice, in +the presence of three other gentlemen, that that identical paper, then +a part of the record, was before the President when he signed the +warrant of execution, and that he had a conversation with the +President at that time on the subject. That is my authority. +Subsequently to this, having presented it here, the +Judge-Advocate-General called to receive it back, and reiterated in +the presence of other gentlemen the same thing. That is my knowledge +and that is my authority.”</p> + +<p>Here we have, then, the final statement of his side of the case, made by +Judge Holt, through the mouth of counsel, revised and corrected under the +stress of the occurrences at the White House and the negatory attitude of +the members of the Cabinet present on the spot. Stripped of the allegation +that<span class="pagenum"><a name="Page_197" id="Page_197">[Pg 197]</a></span> the record was laid before the Cabinet and voted upon by every +member of the Cabinet, its affirmations, carefully confined to “the +confidential interview” between the President and the Judge-Advocate, go +no farther than that “the identical paper” was “before the President,” +when he signed the death warrant, and they had a conversation “on the +subject.”</p> + +<p>“He wants no misunderstanding” and does “not intend there shall be any.” +The counsel in great detail relates how he came by his facts. “That is my +knowledge and that is my authority.” Of course it is open to everybody to +believe, if he choose, that the talk of the Cabinet meeting and of the +unanimous vote of its members against the petition, was a mere rhetorical +exaggeration of a simple narrative of Holt relating the incidents of an +interview between the President and himself, struck off by Judge +Pierrepont in the full fervor of his eloquence; but, nevertheless, it +remains true that the Judge-Advocate, until the catastrophe befell, was +satisfied it should stand, rhetoric and all; because he “reiterated the +same thing” on Saturday, <i>after</i> the counsel had concluded his statement, +and on Monday the counsel continued his address all day without being +advised of the necessity for any retraction.</p> + +<p>Be this as it may, there is now, at the last, no appeal by the +Judge-Advocate to the members of the Cabinet, all of whom were living, as +witnesses<span class="pagenum"><a name="Page_198" id="Page_198">[Pg 198]</a></span> to the President’s knowledge of the petition of mercy. He +abandons hope of corroboration from members of the Cabinet, and he takes +his stand upon the single categorical affirmation, that the “identical +paper” formed part of the record when the record was before the President +in 1865.</p> + +<p>And, singular as it may appear, this is the very thing that the President +does not categorically deny; he only infers the contrary from the +appearance of the record in 1867.</p> + +<p>The single categorical negation of the President is that he neither saw +nor read the recommendation. And, singular as it may appear, this the +Judge-Advocate does not categorically affirm; he leaves it to be inferred +from his averment of the presence of the paper and a conversation on the +subject.</p> + +<p>In short, the statements of the two disputants are not contradictory. Both +may be true. And, when we recollect the feeble state of health of the +President at the time of the “confidential interview” and his mood of mind +towards the distasteful task forced upon him in a season of nervous +debility; when we recollect the mode and manner the Judge-Advocate adopted +of writing out the death warrant; it will seem extremely probable that +both statements <i>are</i> true. The President made no “careful scrutiny” of +the record in 1865, or he would not have needed to do so in 1867. The +Judge-Advocate, inspired by his master, would not be too officious in +pointing out to the listless and uninquiring Executive the<span class="pagenum"><a name="Page_199" id="Page_199">[Pg 199]</a></span> superfluous +little paper. He might do his whole duty, by conversing on the subject of +the commutation of the sentence of the one woman condemned, and, then, by +so placing the roll of papers for the President’s signature to the death +warrant as to bring the modest “suggestion” of the five officers “<i>right +before his eyes</i>,” though upside down. If the sick President did not +carefully scrutinize the papers, was that the Judge-Advocate’s fault? Nay, +in writing out the death warrant in the inspired way he did, this zealous +patriot may have felt even a pious glow, in thus lending himself as an +instrument to ward off a frustration of Divine justice. Alas! one may +easily lose one’s self in endeavoring to trace out the abnormal vagaries +of the “truly loyal” mind, at that period of hysterical patriotism.</p> + +<hr style="width: 25%;" /> + +<p>After these incidents on the Surratt trial, and at the White House, there +could be no more mystery about the recommendation to mercy. It was +historically certain that such a document, or rather a “suggestion,” did +in fact emanate from the Commission, and was at some time affixed to the +record. Left out of Pitman’s official compilation, nevertheless it was +there. The only question about it which could any longer agitate the +people was, had it been suppressed? And this, unfortunately, was now +narrowed down to a mere question of veracity between the President and his +subordinate officer, as to what occurred at the Confidential Interview; +and which,<span class="pagenum"><a name="Page_200" id="Page_200">[Pg 200]</a></span> moreover, threatened to resolve itself into a maze of special +pleading about the lack of attention, on the part of the Executive, and +the duty of thorough explanation, on the part of the Judge-Advocate, in +the delicate task of approving the judgment of a Military Commission.</p> + +<p>Whether this unsatisfactory and ticklish state of the issue was the cause +or not, nothing was done in consequence of these revelations of the +Surratt trial. The President, indeed, plunged as he was in the struggle to +get rid of Stanton, which finally led to his impeachment, and remembering +his own remissness in not scrutinizing the papers before he signed the +death-warrant, could have had but little inclination to provoke another +conflict, on such precarious grounds, by attempting the removal of the +incriminated subordinate of his rebellious Secretary. He kept possession +of the record, however, long enough to subject it to a thorough inspection +by himself and his advisers, for (as appears from the letter of the chief +clerk already quoted) it was not returned to the Judge-Advocate-General’s +office until December, 1867.</p> + +<p>The Judge-Advocate, on his part, remained likewise passive and displayed +no eagerness for a vindication by a court of inquiry.</p> + +<p>He pleads in 1873, as excuse for his non-action, that “it would have been +the very madness of folly” for him “to expose his reputation to the perils +of a judicial proceeding in which his enemy and slanderer<span class="pagenum"><a name="Page_201" id="Page_201">[Pg 201]</a></span> would play the +quadruple role of organizer of the court, accuser, witness and final +judge.” Forgetting the “history” he had told Mr. Pierrepont, and then +withdrawn, in 1867, he actually claims that he “was not aware that any +member of Mr. Johnson’s Cabinet knew of his having seen and considered the +recommendation,” and that he “was kept in profound ignorance of” “this +important information” “<i>through the instrumentality of Mr. Stanton</i>”!</p> + +<p>But, were it credible that the Judge-Advocate “supposed,” as he says, +“that this information was confined to” the President and himself, (not +even his master, Stanton, knowing anything of the petition), even in that +case the “perils” of an investigation, which he affects to dread, were all +on the side of his adversary. The necessity for the President of the +United States, himself, to come forward as the one sole witness to his own +accusation—especially when the charge involved an admission of his own +delinquency, and was to be met by the loud and defiant denial of his +arraigned subordinate—was enough, of itself, to deter the Chief +Magistrate of a great nation from descending into so humiliating a combat.</p> + +<p>But, to lay no stress upon this consideration, it must be manifest to any +one acquainted with the state of public feeling at the time, that the +single, uncorroborated testimony of the maligned, distrusted Andrew +Johnson, branded as a traitor by the triumphant republican party, on the +eve of impeachment,<span class="pagenum"><a name="Page_202" id="Page_202">[Pg 202]</a></span> a hostile army under his nominal command, Stanton +harnessed on his back, unfriendly private secretaries pervading his +apartments, and detectives in his bed-chamber; in support of such a +“disloyal” charge, disclosing, as it was sure to be asserted, a latent +remorse for the righteous fate of the she-assassin; would have been hailed +in all military circles with derision. The popular, the eminently loyal, +the politically sound Judge-Advocate, backed by Stanton, Bingham and +Burnett, by his Bureau and his Court, by General Grant and the Army, had +certainly nothing to fear.</p> + +<p>But, though this hero of so many courts-martial appears to have had no +mind for a dose of his own favorite remedy, he began, in his +characteristic secret way, to collect testimony corroborative of his +version of the confidential interview. He writes no letter to a single +Cabinet officer. But, immediately after the close of the John H. Surratt +trial (August 24, 1867), he writes to General Ekin reminding him of an +interview, soon after the execution, in which he (Holt) mentioned that the +President had seen the petition; and he obtains from that officer the +information he sought. In January, 1868, he quietly procures from two +clerks in his office, letters testifying to the condition of the record +when it arrived from the Commission, when the Judge-Advocate took it to +carry to the President, and when he brought it back. It is needless to say +that, though these clerks state that the page, on which the petition was +written, and<span class="pagenum"><a name="Page_203" id="Page_203">[Pg 203]</a></span> the page, on which the latter portion of the death-warrant +was written, are “directly face to face to each other;” they do not notice +that, when the death-warrant was signed, the page, on which the petition +was written, must have been, either under the other pages of the record, +or upside down.</p> + +<p>In this same month, the resolution of the Senate refusing to concur in the +suspension of Stanton was adopted (January 13th, 1868). General Grant, the +Secretary of War <i>ad interim</i>, in violation of his promise to the +President, as alleged by the latter, thereupon surrendered the office to +the favorite War-Minister, who thus forced himself back among the +confidential advisers of the President.</p> + +<p>On the 21st of February, the President, with one last desperate stroke, +removed him from office; and on the 24th, Andrew Johnson was impeached for +this “high crime.”</p> + +<p>In the midst of his troubles, the President finds time to pardon Dr. Mudd +(Feb. 8th), who soon returns to his family and friends.</p> + +<p>The impeachment trial ends May 26th, the President escaping conviction by +but one vote; and Stanton at last lets go his hold on the War office.</p> + +<p>In December, 1868, the Judge-Advocate is privately seeking testimony from +the Rev. J. George Butler, of Washington, the minister who attended +Atzerodt in his last moments, whose letter of the 15th is most +satisfactory on Johnson’s belief in the<span class="pagenum"><a name="Page_204" id="Page_204">[Pg 204]</a></span> guilt of Mrs. Surratt, but most +unsatisfactory in regard to the petition of mercy.</p> + +<p>On the 1st of March, 1869, among the last acts of his stormy +administration, the President undid, as far as he could then undo, the +work of the Military Commission by setting Arnold and Spangler free; +O’Laughlin having died from the effects of the climate. Had the five +officers of the Military Commission been permitted to exercise their power +of mitigating the sentence of Mrs. Surratt, as they did in the cases of +these men, or had the Executive granted their prayer for clemency; the +President might have signalized the close of his term by a still more +memorable pardon, and the mother, rescued from death by mercy, would have +joined the son, rescued from death by justice.</p> + +<p>During the four years of the first administration of President Grant, +while Andrew Johnson was fighting his way back to his old place, among the +people of Tennessee, the story of the suppressed recommendation ever and +anon circulated anew with unquenchable vitality. The reappearance of Mudd, +Spangler and Arnold, as free men; the “doubtful” death of Stanton, “with +such maimed rites” of burial, as might “betoken</p> + +<p class="poem">The corse, they follow, did with desperate hand<br /> +<span style="margin-left: 3em;">Fordo its own life;”</span></p> + +<p>every incident connected in any way with the tragedy of the woman’s trial +and death, and every<span class="pagenum"><a name="Page_205" id="Page_205">[Pg 205]</a></span> prominent event in the career of the men who had +surrounded the illstarred successor of the murdered Lincoln in the awful +hour of his accession, revived the irrepressible question; and the friends +of Mrs. Surratt’s memory, and the friends of Johnson, alike, each by their +own separate methods, on every such opportunity, appealed and re-appealed +to the public, asserting again and again the suppression of the plea for +mercy, propagating what General Holt brands as “the atrocious accusation,” +or, as he elsewhere characterizes their actions, “for long years wantonly +and wickedly assailing” the ex-Judge-Advocate. And yet, during all these +years, the baited hero is silent. He lies low. As far as appears, he makes +no further efforts to secure testimony. His friend and old associate, +Bingham, is by his side, yet he makes no appeal to him. He keeps close by +him the letters he has already secured to substantiate his own version of +the confidential interview. But he seeks for no Cabinet testimony. His +stern master in the War Department, after the acquittal of the President, +lays down his sceptre, and then, though the deadliest enemy of Johnson, is +allowed to die in silence. Seward lives on and is asked to give no help. +The ex-Judge-Advocate still lies low.</p> + +<p>At length came the appointed time.</p> + +<p>William H. Seward died on the 12th day of October, 1872.</p> + +<p><span class="pagenum"><a name="Page_206" id="Page_206">[Pg 206]</a></span>On the 11th day of February, 1873, Gen. Holt makes his appeal for +testimony from the officers of Johnson’s first Cabinet, by letter to John +A. Bingham, requesting him to furnish his recollections of the late +Stanton and the late Seward. On March 30th, 1873, he writes to James +Speed, Ex-Attorney-General, inclosing a copy of Bingham’s reply. On May +21st, 1873, he writes to James Harlan, Ex-Secretary of the Interior, +inclosing a copy of Bingham’s reply. In July, 1873, he writes to General +Mussey, once Johnson’s private secretary; and, in August, armed with the +answers of these correspondents and with the letters he had gathered in +1867 and 1868, and unprovoked by any revivification of the old charge, he +rushes into the columns of the Washington Chronicle with his formidable +“Vindication.”</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_207" id="Page_207">[Pg 207]</a></span></p> +<h2><a name="CHAPTER_IV.2" id="CHAPTER_IV.2"></a>CHAPTER IV.</h2> +<p class="center"><span class="large"><span class="smcap">The Trial of Joseph Holt.</span></span></p> + +<p class="dropcap"><span class="caps">On</span> the threshold of his Vindication, Gen. Holt revives the discredited and +apparently forgotten declaration made by Mr. Pierrepont on the trial of +John H. Surratt, and stakes his whole case upon the establishment of the +truth of the allegation that the petition for commutation, attached as it +was to the record of the findings and sentences of the Military +Commission, was the subject of consideration at a meeting of the Cabinet +of President Johnson, and its prayer rejected with the concurrence of the +members present at such meeting.</p> + +<p>So long as the contention is limited to what took place during that +momentous hour between the President and himself, “alone,” with the light +thrown upon it by the record including the endorsed death-warrant and the +affixed paper, he exhibits a certain lack of confidence in the strength of +his defense. For, although he prints the “circumstantial evidence,” as he +calls it, to sustain his own version of the “confidential interview” +(consisting of the two letters from his former clerk, heretofore alluded +to, and the letter from Gen. Mussey saying that the<span class="pagenum"><a name="Page_208" id="Page_208">[Pg 208]</a></span> “acting President” +told him of the recommendation “about that time”), he confesses it was not +until he recently had secured certain testimony that the petition had been +considered by officers of the Cabinet, that he at length felt his case +strong enough to warrant a public challenge of his adversary, and himself +justified in submitting it to the public.</p> + +<p>In short, we have a sort of reversal of the position of six years before. +<i>Then</i>, after having at first put forward the assertion that the petition +was considered by the Cabinet, the Judge-Advocate summarily suppresses +that branch of his case, and puts into the foreground the explicit +asseveration of the identical paper being “right before the President’s +eyes” when he signed the death-warrant. “He wants no misunderstanding +about that.” <i>Now</i>, while he keeps in mind, it is true, this version of +the confidential interview, he relegates it to the rear, and constitutes +the Cabinet consideration the very citadel of his cause.</p> + +<p>As to what takes place at a meeting of the Cabinet, its members of course +are the first, if not the only, witnesses. And it is a matter of surprise +that General Holt, so far as is apparent, never, in all these past years, +applied to any one of them to substantiate so essential a part of his +vindication. He states that he has always been satisfied that the matter +must have been considered in the Cabinet, and adds that “from the +confidential character of Cabinet deliberations” he has “thus far been +denied access to this source of information.” But he does<span class="pagenum"><a name="Page_209" id="Page_209">[Pg 209]</a></span> not say when, +or to whom, he applied for such “access,” or how he had been “denied.” It +is certain, from what he says elsewhere, that he never applied to Stanton +or to Seward; he admits in a subsequent communication that he never +applied to McCulloch, Welles or Dennison; and, from the tenor of their +letters now in reply to his, it appears he never applied before to Harlan +or to Speed. And these are all the members of the Cabinet of President +Johnson in July, 1865. Moreover, he does not, even now, in 1873, make +application in the first instance to an ex-Cabinet officer. His first +application is made to John A. Bingham, his old colleague in the +prosecution of Mrs. Surratt, for Cabinet information in the shape of +conversations with the two ministers, who, after so many years of +unsolicited silence in life, are now silent, beyond the reach of +solicitation, in death. And it is not until he has secured the desired +information, which he would have us believe was entirely unexpected, that +he is stirred up to the necessity of a public vindication of his +character; and then he selects the two of the surviving ministers of the +Cabinet, known to be hostile to the ex-President, as the objects of +solicitation, sending them, as a spur to their recollections, the letter +containing the reminiscences of his serviceable ally. But, by some +fatality, the industrious inquirer takes nothing by his somewhat +complicated manœuvre. The letters he produces from Cabinet officers +afford him no assistance.<span class="pagenum"><a name="Page_210" id="Page_210">[Pg 210]</a></span> Judge Harlan can recall only an informal +discussion by three or four members of the Cabinet (Seward, Stanton, +himself and probably Speed) of the question of the commutation of the +sentence of Mrs. Surratt because of her sex; which, she being the one +woman under condemnation, would surely arise in a tribunal of gentlemen, +whether there was a recommendation or not, as in fact it did even among +the stern soldiers of the Military Commission. But the writer, who, as +Senator from the State of Iowa, had voted for the conviction of President +Johnson, makes the positive declaration, that “no part of the record of +the trial, the decision of the court, or the recommendation of clemency +was at that time or ever at any time read in my (his) presence.” He +remembers, with undoubting distinctness, inquiring at the time whether the +Attorney-General had examined the record, and was told that the whole case +had been carefully examined by the Attorney-General and the Secretary of +War; and he states that the question was never submitted to the Cabinet +for a formal vote.</p> + +<p>This letter is most significant, both for what it says and for what it +refrains from saying. Its positive statement annihilates the story of a +“full Cabinet” when “the vote of every member” was adverse, and indeed of +any Cabinet meeting whatever, where the paper was present and +considered—such a story as Judge Pierrepont first gathered from the +“voice” of Holt; and the absence of all affirmation that the<span class="pagenum"><a name="Page_211" id="Page_211">[Pg 211]</a></span> writer had +either seen or heard of the recommendation, while he expressly states that +it was never read in his presence (considering the occasion and object of +the letter and the bias of the ex-Senator), warrants the conclusion that +such a document was not mentioned at the informal Cabinet consultation he +describes.</p> + +<p>In any view, the letter furnishes no support to Holt’s contention. The +writer expressly negatives the presence of the record and the paper, and +he does not affirm that such a petition was alluded to, in terms, in the +discussion in the presence of the President; which he surely would have +done, in aid of his sorely tried friend, if such had been the fact.</p> + +<p>The Judge-Advocate fares even worse at the hands of the +Ex-Attorney-General. Here is a man who knew, if any other member of the +Cabinet except Stanton knew, whether the paper in question ever came up +for discussion before the President in his Cabinet. He goes so far as to +say that, after the findings and before the execution, he saw the paper +attached to the record “in the President’s office;” a statement which +reminds us of another of the same elusive and evasive character, (that the +paper was “<i>before the President</i>”), and, like that, affirms nothing one +way or the other as to the consciousness of the President of its presence.</p> + +<p>And then he proceeds as follows:</p> + +<p>“I do not feel at liberty to speak of what was said at Cabinet meetings. +In this I know I differ<span class="pagenum"><a name="Page_212" id="Page_212">[Pg 212]</a></span> from other gentlemen” (presumably an allusion to +the Seward and Stanton of Bingham’s letter), “but feel constrained to +follow my own sense of propriety.”</p> + +<p>His friend’s necessity would have been met by something less than a +repetition of what was <i>said</i> at Cabinet meetings. He had only to tell +whether he saw a certain paper (not in the President’s office), but at a +meeting of the President and his advisers, or knew of the recognition +there of its mere existence;—a revelation which would not have violated +the most punctilious sense of official propriety; and he feels constrained +to withhold the least ray of light upon so simple a question.</p> + +<p>The witness “declines to answer.”</p> + +<p>Ten years after the present controversy, Judge Holt, feeling acutely this +weak point in his vindication, again appeals to Speed, in the most moving +tones, to break his unaccountable silence and rescue his friend’s gray +head from “the atrocious accusation,” “known to him to be false in its +every intendment,” with which that perfidious monster, dead now eight +years, and, (as Holt significantly quotes), “gone to his own place,” +sought “to blacken the reputation of a subordinate officer holding a +confidential interview with him.”</p> + +<p>And, strange to say, Speed first neglects even to reply to Holt’s repeated +communications for six months, and then just opens his lips to whisper, “I +cannot say more than I have said.” He had offered<span class="pagenum"><a name="Page_213" id="Page_213">[Pg 213]</a></span> in private (if we may +credit Holt) to write a letter to his aggrieved friend, giving him the +desired information, “but not to be used until after Holt’s death;” a +proposition quite naturally discouraged by Holt, who made this sensible +reply: “that a letter thus strangely withheld from the public would not, +when it appeared, be credited.”</p> + +<p>But, when repeatedly implored to spread “the desired information” before +the public, he again declines to answer. James Speed would not tell the +truth, when by telling the truth he might relieve his old friend in “the +closing hours of his life” from a most damnable calumny, because, +forsooth, “of his sense of propriety.” He could not violate the secrecy of +a Cabinet meeting, held nearly twenty years before; a secrecy which he had +good reason to believe had already been broken, in the professed interest +of truth, by three of his own colleagues, and, in the alleged interest of +a most foul falsehood, by the President himself.</p> + +<p>Before the Judge finally gives up his old associate as hopeless, he +craftily points out to him a way by which the ex-Cabinet officer may give +his testimony without violating the most punctilious sense of propriety, +not only, but without departing one iota from the literal truth. Since his +first letter, General Holt informs him: “I have learned that although you +gained the information while a member of the Cabinet, it was not strictly +in your capacity as such, but that at the moment I laid before the +President<span class="pagenum"><a name="Page_214" id="Page_214">[Pg 214]</a></span> the record of the trial, with the recommendation for clemency +on behalf of Mrs. Surratt, you chanced to be so situated as to be assured +by the evidence of your own senses that such petition of recommendation +was by me presented to the President, and was the subject of conversation +between him and myself.” Does this mean that Speed was an unseen spectator +of the confidential interview, and witnessed the writing of the +death-warrant? At all events, for some reason, the ex-Attorney-General was +afraid to accept this opportunity to equivocate.</p> + +<p>Holt may well wonder at Speed’s obstinate silence. He exclaims: “It is a +mystery to me.” It will be a mystery to every one, provided the black +charge was false. But, on the hypothesis that the charge was true, that +the paper was suppressed, either actually or virtually, there is no +mystery.</p> + +<p>Had Speed known that the paper was, not only “<i>before</i>” the President, but +considered by him, either in or out of the Cabinet, it is beyond the limit +of human credulity to believe, for a moment, that, with all possible +motives to lead him to succor his friend, and with none to lead him to +shield the character of his dead political foe, he would not have uttered +the one decisive word in the controversy. And he comes as near doing so as +he dares, evidently. He shows, in 1873, a yearning to help his old +friend—a yearning so strong that we may be sure it was not the frivolous +pretext of “official propriety” which constrained him, then, much less in 1883.</p> + +<p><span class="pagenum"><a name="Page_215" id="Page_215">[Pg 215]</a></span>If he, too, as Holt said of Stanton, feared the resentment of the +dethroned Johnson in life, he certainly could not have feared the +resentment of Johnson’s ghost after death.</p> + +<p>He must be numbered among those who,</p> + +<p class="poem">“With arms encumbered thus, or this head-shake,<br /> +Or by pronouncing of some doubtful phrase,<br /> +As, <i>‘Well, well, we know;’ or ‘We could, an’ if we would;’ or</i><br /> +<span style="margin-left: 1.5em;"><i>‘If we list to speak;’ or ‘There be, an’ if they might;’</i>”</span></p> + +<p>“ambiguously give out” to know what they are sworn “never to speak of.” If +there was any oath-guarding “fellow in the cellarage,” rest assured it was +not the pale wraith of the hood-winked Johnson, but the blood-boltered +spectre of his once wide-ruling Minister of War.</p> + +<hr style="width: 25%;" /> + +<p>Amid such a dearth of direct explicit testimony of members of the Cabinet +about a disputed Cabinet incident, it is curious and interesting to watch +the assiduous ex-Judge-Advocate, with the most ingenious and industrious +sophistry, attempt to extract corroboration from the statements of the two +ex-Cabinet officers, whom he has induced to speak, where in truth no +corroboration can be found.</p> + +<p>After all his efforts, he is forced at last to fall back upon the single +testimony of the one man without whose encouraging information he frankly +informs us he would not have dared to come before<span class="pagenum"><a name="Page_216" id="Page_216">[Pg 216]</a></span> the people, and upon +whom he brings himself to believe he might safely rest his defense. That +man is John A. Bingham, now, as once before, Special Assistant +Judge-Advocate to Joseph Holt.</p> + +<p>During the eight years which had elapsed since their crowning achievement +of hanging a woman for the murder of Abraham Lincoln, these two men had +lived, for a considerable portion of the time, in the same city. They were +together in the contest over reconstruction and impeachment, standing in +the front rank of the enemies of Johnson. They were both at the Capital +during the trial of John H. Surratt, when the ghastly reminiscences of the +trial of the mother along with seven chained men must have drawn the two +military prosecutors into a most sympathetic union.</p> + +<p>And yet when, in February, 1873, Joseph Holt sits down in Washington to +write his letter of inquiry to John A. Bingham, then in the same city, he +would have us believe that he had never before poured into the bosom of +his old colleague his own sufferings over the frightful calumny so long +poisoning the very air he breathed, never before told him his +embarrassment over the difficulty to elicit evidence from Cabinet +officials, never before besought his friend for his own powerful testimony +on the side of his persecuted fellow-official.</p> + +<p>He writes to his former assistant, as though the information were now +communicated for the first time, that the President and he were alone +when<span class="pagenum"><a name="Page_217" id="Page_217">[Pg 217]</a></span> the record was presented and the death-warrant signed; that he had +always been satisfied the petition was considered in a Cabinet meeting, +but has hitherto been unable to obtain any evidence upon that point; and +then, in an artless, ingenuous manner, as if putting the question for the +first time, asks his correspondent whether or not he had had a +conversation with William H. Seward, Secretary of State under President +Johnson, in reference to the petition, and “if so, state as nearly as you +may be able to do all he said on the subject;” with a like request as to +Edwin M. Stanton, Secretary of War.</p> + +<p>With a diviner’s skill he selects the two members of the Cabinet who are +then dead; and, not to disappoint him, Bingham, in a letter from +Washington six days later, informs him that he has struck the two-fold +mark. With the same apparent artlessness which characterizes the letter of +inquiry, this useful advocate now, as if for the first time, discloses to +his long-tried colleague, that he did indeed have a conversation with each +of the eminent men he had hit upon, who are now, alas! dead.</p> + +<p>Judge Bingham is a most willing witness. He relates with great +circumstantiality that “after the Military Commission had tried and +sentenced the parties” he “prepared the form of the petition to the +President.” He then gives the form thus prepared as he now recollects it +(in which there are two significant mistakes); he states that he wrote it +with his own hands, that General Ekin copied it,<span class="pagenum"><a name="Page_218" id="Page_218">[Pg 218]</a></span> and the five signed the +copy; as if all this particularity had any relevance to the question at +issue, as if the point in dispute was the existence of the paper, and not +its suppression at a critical moment after it was written. He affects to +believe it necessary to state to his old colleague, that he “deemed it his +duty to call the attention of Secretary Stanton to the petition, and did +call his attention to it before the final action of the President;”—as if +it were among the possibilities, that the head of the War Department could +in any case have overlooked so important a paper, much less that the +imperious Chief of this very prosecution could have been kept in +ignorance, one hour, of what was done by his tools.</p> + +<p>The Special Assistant, however, at last comes to the point:</p> + +<p class="blockquot">“After the execution, the statement to which you refer was made that +President Johnson had not seen the petition for the commutation of the +death sentence upon Mrs. Surratt. I afterwards called at your office, +and, without notice to you of my purpose, asked for the record in the +case of the assassins. It was opened and shown me, and there was then +attached to it the petition, copied and signed as hereinbefore +stated.”</p> + +<p>Oh, what an artless pair of correspondents! The former Special Assistant +tells the former Judge-Advocate how he played the detective on him to his +friend’s justification; “<i>without notice of my purpose</i>”!</p> + +<p class="blockquot">“Soon thereafter I called upon Secretaries Stanton and Seward, and +asked if this petition had been presented to the President before the +death-sentence was by him approved, and was <span class="pagenum"><a name="Page_219" id="Page_219">[Pg 219]</a></span>answered by each of those +gentlemen that the petition was presented to the President, and was +duly considered by him and his advisers, before the death-sentence +upon Mrs. Surratt was approved, and that the President and the Cabinet +upon such consideration were a unit in denying the prayer of the +petition; Mr. Stanton and Mr. Seward stating that they were present.”</p> + +<p>In weighing the credibility of this statement, so conclusive if true, two +considerations should be borne in mind.</p> + +<p>1. That we have here, not the testimony of either Seward or Stanton, but +the testimony of a man who, if the paper was in fact suppressed, must have +been a participant in the foul deed. For no one will believe, for a +moment, that Joseph Holt would have dared to perpetrate, if he could, or +could have perpetrated, if he dared, so unspeakable a wickedness, without +the knowledge and coöperation of his fiery leader in the conduct of the +trial.</p> + +<p>2. If this decisive information was in the possession of Judge Bingham at +so early a date as “soon after the execution,” why had he not communicated +it to his distressed partner while Stanton and Seward lived? He had taken +pains to obtain it to meet the ugly stories that were even then +circulating against the Judge-Advocate. He knew it at the time of the +struggle at close quarters over the petition during the Surratt trial, and +he must have been cognizant of the fact, that for the lack of it, that +officer had been forced to withdraw the allegation of a full Cabinet +consideration of the petition, which he had at<span class="pagenum"><a name="Page_220" id="Page_220">[Pg 220]</a></span> first prompted the counsel +of the United States boldly and publicly to make.</p> + +<p>After the trial the reports grew louder and louder, until it was +everywhere said that Andrew Johnson habitually declared that he had never +seen the paper. Holt ran hither and thither collecting testimony from all +available quarters. Hear Holt himself: “Every time the buzz of this +slanderous rumor reached him (Bingham) during the last eight years—which +was doubtless often—his awakened memory must have reminded him that he +held in his keeping proof that this rumor was false.” Why did not his +former assistant even relieve his tremendous anxiety by telling him that +he had evidence which would blow the calumny into the air? General Holt, +in a letter in reply to Bingham’s, dated at Washington the next day, which +he also prints in his Vindication, says:</p> + +<p>“It would have been fortunate indeed, could I have had this testimony in +my possession years ago.”</p> + +<p>He calls its concealment “a sad, sad mockery.” Yes; and why was Judge +Bingham willing to perpetrate such a “mockery,” and continue the “mockery” +until Stanton’s death, and then until Seward’s death, which occurred only +a few months before he at last enlightens his colleague? Can the most +credulous of men believe that, during all these years, he was guilty of +such cruelty as not even to whisper such welcome intelligence into the +ears of his sorely distressed brother officer?</p> + +<p><span class="pagenum"><a name="Page_221" id="Page_221">[Pg 221]</a></span>And what shall we say of William H. Seward?</p> + +<p>If that great man told Judge Bingham in 1865 what the Judge, after Seward +was dead, first says he did, why had William H. Seward kept silent so many +years, and at last died and made no sign? He must have heard the charge, +so infamous if false, and, if Judge Bingham be believed, he must have +known it to be false.</p> + +<p>He must have heard the statement of Judge Pierrepont in open court in +1867. He must have known of the President’s sending for the record and of +the explosion thereupon in the Department of War. Why did he not at that +crisis come forward with the proof of which the Judge-Advocate was so +dreadfully in need?</p> + +<p>The Secretary of State could not have intrenched himself behind the +inviolability of proceedings of Cabinet meetings, as did the +over-scrupulous Attorney-General, because, according to Judge Bingham, he +himself had betrayed the secret long before.</p> + +<p>And why did not Judge Bingham force him to speak, or else make public his +interview with him, while Seward was alive and could either affirm or +contradict it?</p> + +<p>No, these two eminent lawyers, yoked together as the common mark of what +they call a “most atrocious slander,” originating with a President of the +United States, bruited about everywhere both in official and private +circles, wait eight long years, and until after the death of the head of +that President’s<span class="pagenum"><a name="Page_222" id="Page_222">[Pg 222]</a></span> Cabinet, from whose lips one of them at least had heard +at its very inception a solemn refutation of the black lie, before they +venture to proclaim it to the world.</p> + +<p>Mr. Bingham admits in his letter that, in 1865, “he desired to make” the +facts he had ascertained “public.” Why did he not “make public” what +Seward had told him, while Seward was living?</p> + +<p>He furnishes no answer to this question, and until he does, his testimony +on the matter is tainted with a most reasonable suspicion.</p> + +<p>And, besides, what we know of the situation of the Secretary of State at +the time of the execution of Mrs. Surratt, of his subsequent career, and +of his lofty character as a man, is sufficient to stamp the account of +Judge Bingham as incredible.</p> + +<p>William H. Seward, one of the most distinguished statesmen of the era of +the civil war, one of the most illustrious founders of the republican +party, and one of the most trusted advisers of Abraham Lincoln, remained +in the Cabinet of Andrew Johnson until the close of his administration. He +united in the pardon of Mudd, Spangler and Arnold. He stood by the +President fearlessly in the dark days of the impeachment, and when the +President had become the target of the daily curses of thousands of +Seward’s former political friends. Had he known that the accusation +against General Holt was false, and at the same time heard the daily +reiteration of its truth from the lips of his Chief, he would not have +remained an hour in<span class="pagenum"><a name="Page_223" id="Page_223">[Pg 223]</a></span> the Cabinet of such a monumental slanderer. So far +from allowing the ceremonial restraints of Cabinet rules to make him a +silent accomplice in a foul falsehood, he would have proclaimed the truth, +if necessary, even from the steps of the Capitol.</p> + +<p>Mr. Seward, at the time of the execution of Mrs. Surratt, could have but +barely recovered from the broken jaw and broken arm from which he was +suffering, when he bore the savage assault of Payne, and from the grievous +wounds which that mad ruffian inflicted. One of his sons was still +incapacitated because of injuries from the same hand, and his wife died +June 21st, 1865. It is not at all probable that, in such dolorous +circumstances, he would be required to give close attention to a subject +entirely outside of the duties of his department, and in which his +personal feelings as a sufferer were so deeply involved. He said himself +under oath to a Congressional Committee: “Having been myself a sufferer in +that business, the subject would be a delicate one for me to pursue +without seeming to be over-zealous or demonstrative.”</p> + +<p>In spite of the eight-years-embalmed testimony of a hundred Binghams, we +would not believe that the uncomplaining victim of Payne voted to deny the +Petition of Mercy.</p> + +<p>While no attempt is made to explain the silence of Seward during his +lifetime, or the silence of Judge Bingham himself regarding the +information he got from Seward, this willing witness does give a most<span class="pagenum"><a name="Page_224" id="Page_224">[Pg 224]</a></span> +singular and perplexing explanation of his long silence regarding the +information he got from Stanton.</p> + +<p>He says: (in the same letter) “Having ascertained the fact as stated, I +then desired to make the same public, and so expressed myself to Mr. +Stanton, who advised me not to do so, but to rely upon the final judgment +of the people.”</p> + +<p>General Holt, in a subsequent article, states that Stanton “enjoined upon +the Judge silence in reference to the communication.”</p> + +<p>We are called upon to believe that the Secretary of War, at the very first +interview with Judge Bingham, when, upon the theory of the truth of the +information, there could have been no conceivable motive for its +concealment, advised his inquiring friend to suppress a fact essential to +the refutation of a despicable slander, blotting the fair name of a +brother officer. Not only this; but that the Secretary continued the +injunction of silence during all the years the terrible charge was being +bandied about on the lips of men to the daily torment of the poor man so +cruelly assailed. As General Holt says: “It was a deliberate and merciless +sacrifice of me, so far as he could accomplish it.”</p> + +<p>And he “enforced” the “silence” up to the day of his death.</p> + +<p>But we ask what reason had the “Great War Minister” “to perpetrate so +pitiless an outrage?” Why, in the days of the trial of John H. Surratt, +why, in the days of his stern enmity towards the<span class="pagenum"><a name="Page_225" id="Page_225">[Pg 225]</a></span> President, when his +removal furnished the main ground of impeachment, did he not once speak +out for his slandered servant, or even unlock the sealed lips of the +obedient Bingham and suffer him to tell the truth?</p> + +<p>General Holt, in 1883, on affirming in the text of his article that +“Messrs. Seward and Stanton declared the truth to Judge Bingham,” adds the +following explanatory note:</p> + +<p>“This praise was certainly due to Mr. Seward, but not, in strictness, to +Mr. Stanton, since on making the communication to Judge Bingham, he +endeavored and successfully, to prevent him from giving it publicity.</p> + +<p>“The fear of Andrew Johnson’s resentment, added to a determination on his +part to leave my reputation—then under fire from his silence—to its +fate, sufficiently explain his otherwise inexplicable conduct.”</p> + +<p>But does it? Is this in truth a sufficient explanation?</p> + +<p>Stanton, the stern War Minister, fear the resentment of Andrew Johnson! +When was he taken with it? When he bearded the President in his Cabinet? +When he defied him in the War Department, and scattered his missive of +removal to the winds? Or did he wait to begin to fear him until the +President retired to private life, just escaping conviction by +impeachment, and shorn of all popularity North or South? The preposterous +nature of<span class="pagenum"><a name="Page_226" id="Page_226">[Pg 226]</a></span> the cause assigned casts suspicion upon the assignor himself. +As to the second cause, we are at a loss to conceive why Mr. Stanton +should harbor such motiveless malignity against the reputation of his +former colleague, then his pliant subordinate, and always his friend. We +need, in this regard, an explanation of the explanation. If it be true, it +settles the character of Stanton for all time.</p> + +<p>But, it appears, in the words of General Holt, that “while he (Stanton) +lived, this enforced silence was scrupulously obeyed.” Again we ask why?</p> + +<p>Why should Bingham have obeyed the “advice,” even if given by Stanton so +long before? Why should the associate of Holt, in the prosecution and +execution of Mrs. Surratt, have ministered to the malignity of Stanton, +scrupulously obeyed his base injunction, and never even told his beloved +fellow-laborer on the field of courts-martial, that he possessed such +secret sacred testimonials in his favor?</p> + +<p>The General gives us no explanation of this “inexplicable conduct.”</p> + +<p>Surely, the undaunted Bingham—who, as manager on the impeachment trial, +so clawed the character of the arraigned President, could have had no +“fear of the resentment of Andrew Johnson.” And, unless the masterful +Stanton held some secret back to feather his “advice,” or lend weight to +his injunction of silence, we see no reason why the fear of Stanton should +have closed the lips of the voluble Special Judge-Advocate. He surely +could not have<span class="pagenum"><a name="Page_227" id="Page_227">[Pg 227]</a></span> joined in the fine irony of the Secretary, that it would +be better for their mutual friend, although “under fire,” “to rely on the +judgment of the people.”</p> + +<p>But another, and a final, explanation is necessary. The Great War Minister +died in December, 1869. Holt more than hints that “Providence” shortened +his life so that he should no longer “perpetrate so pitiless an outrage” +as keeping Bingham’s mouth shut.</p> + +<p>Why, then, do we hear nothing from Judge Bingham for three years more? In +the words of Holt, “after the Secretary had, amid the world’s funeral +pomp, gone down into his sepulchre, the truth came up out of the grave to +which he had consigned it,” and was “resurrected and openly announced by +Judge Bingham.” But why was the resurrection delayed until February, 1873? +He does not tell us. Why should “the buzz of this slanderous rumor” (to +use Holt’s own words), “sadly recall to him that, though holding that +proof, he was not yet privileged to divulge it?” There is no answer to +this; none. The “scrupulosity” of Bingham did not end with the +providential taking off of Stanton, but prolonged its reverential +obedience to the advice of the dead, until his great colleague also was +summoned from the scene.</p> + +<p>Such resurrected truth, like the suggested letter of Speed to be used only +after poor Holt’s death, seems doubly obnoxious to the latter’s own +common<span class="pagenum"><a name="Page_228" id="Page_228">[Pg 228]</a></span> sense remark: “thus strangely withheld from the public, it would +not, when it appeared, be credited.”</p> + +<hr style="width: 25%;" /> + +<p>On the whole, it is exceedingly doubtful whether Judge Bingham’s testimony +does not do more harm than good to General Holt’s case. It is the +testimony of an accomplice, if the charge it is meant to refute is true. +Its subject-matter is hearsay, withheld, so long as the direct evidence +was attainable, for no good reason, or for a reason assigned which will +not stand a moment’s examination.</p> + +<p>This interchange of letters between two associates in infamy, if infamy +there were, the one applying for, and the other disclosing ostensibly for +the first time, at so late a day, decisive information, which, in the +ordinary course of things, the one must have asked for or the other +revealed, and both talked over from the beginning, wears upon the face all +the features of a collusive correspondence.</p> + +<p>No one acquainted with the facts can be induced to credit what both these +men state upon the threshold of their correspondence, and upon the truth +of which their credibility is staked for all time, that, if two such +conversations with Judge Bingham actually took place, this co-victim of a +common charge would ever have withheld all knowledge of such important +testimony from his brother in affliction for eight years, and until the +lips of his two eminent interlocutors, whose confirmation would have at +once and for ever crushed the calumny, were closed in death.</p> + +<p><span class="pagenum"><a name="Page_229" id="Page_229">[Pg 229]</a></span>And, with this incontrovertible assertion, we dismiss John A. Bingham to +keep company with Richard Montgomery and Sanford Conover, two witnesses +who were once the subjects of his own fervid eulogy.</p> + +<p>Another aspect of the case must for a moment detain us.</p> + +<p>Under the admitted fact that the President approved the death-sentence on +Wednesday, July 5th, it is by no means clear how we are to find room for +this supposed Cabinet meeting.</p> + +<p>The natural construction of Bingham’s letter would lead us to believe that +the Cabinet meeting, which the two Secretaries are said to have described, +was a regular consultation between “the President and his advisers,” held +<i>before</i> the “confidential interview” at which the President “approved the +death-sentence;” and that the entire Cabinet voted on the question raised +by the petition, because it was “a unit in denying the prayer.” This is +but another version of the “full Cabinet” of Judge Pierrepont’s first +statement, and forcibly suggests that the two have an identical origin—at +first withdrawn under compulsion while Seward lived, at last brought +forward again after his death.</p> + +<p>And every one, on such construction, would expect to hear the voices of +McCulloch, Welles and Dennison, still living in 1873, and accessible to +the ex-Judge-Advocate.</p> + +<p><span class="pagenum"><a name="Page_230" id="Page_230">[Pg 230]</a></span>He states in his “Refutation,” that he “had satisfactory reasons for +believing that they were not there;” but he could not have gathered those +reasons from Judge Bingham or his letter, which really is only consistent +with the presence of some, if not all, of the three; and it is naturally +to be inferred he got them from the ex-members themselves in letters +repudiating all knowledge of the petition;—letters he takes care not to +publish.</p> + +<p>Again: the Cabinet meeting described in Judge Bingham’s letter cannot be +made to square with the meeting described in the letter of Judge Harlan. +The former was a regular Cabinet meeting, the latter was an informal +discussion by a few members of the Cabinet. At the one, the petition was +“duly considered,” at the other, neither record nor petition was present. +At the one, “a formal vote” was taken upon the “question as to Mrs. +Surratt’s case;” at the latter, her case “was never submitted to a formal +vote.”</p> + +<p>But—not to dwell further on dispensable points—it is enough to say that +<i>any</i> Cabinet meeting whatever, for the consideration of the petition, +held <i>before</i> the President’s approval of the death-sentence, is, on the +admitted facts of the case, an impossibility.</p> + +<p>Indeed Holt himself, when driven to the question, does not claim that +there was. The record was in the custody of the Judge-Advocate from the +30th of June until that officer carried it to the President on the 5th of +July, and during that interval the<span class="pagenum"><a name="Page_231" id="Page_231">[Pg 231]</a></span> President was sick-a-bed. It was +General Holt, as he himself states, who first “drew his attention to the +recommendation,” and “the President then and there read it in my (his) +presence.” And this was at the confidential interview on Wednesday, July +5th. There could have been no meeting of the President and his Cabinet at +which the record and petition were present and discussed, “before the +approval of the death-sentence;” which confessedly was done at the +confidential interview.</p> + +<p>When this impossibility was pointed out by Andrew Johnson, General Holt, +in his “refutation,” with great show of indignation, denounces such an +argument as “intensely disingenuous.” While conceding at once that from +the adjournment of the Commission to the 5th of July, the President “had +been sick in bed, and had, of course, had no opportunity of conferring +with any members of his Cabinet;” he proceeds to show what his idea of +intense ingenuousness is, by claiming that what “Messrs. Seward and +Stanton” (of Bingham’s letter) “clearly meant was, that before the +President had <i>finally</i> and <i>definitely</i> approved the sentences in +question,” the recommendation to mercy “had been considered by him and his +advisers in Cabinet meeting;” and therefore such a meeting might have been +held <i>after</i> the signature to the death-warrant, say on Wednesday +afternoon (5th), or on Thursday, the 6th. And he, now, once again, as in +the days of the Surratt trial, abandons all idea of a “full” or regular +Cabinet<span class="pagenum"><a name="Page_232" id="Page_232">[Pg 232]</a></span> meeting, and endeavors, with the most transparent sophistry, to +identify the informal discussion of Judge Harlan’s letter with the Cabinet +Council of Judge Bingham. But alas! for the ingenuous General! +Circumstances are too strong for him. For there is no more room for a +Cabinet meeting, formal or informal, to do what Judge Bingham’s informants +are said to relate—<i>i. e.</i> consider, and then vote upon the +petition—<i>after</i> the confidential interview than <i>before</i>.</p> + +<p>It is agreed on all hands that the President approved of the +death-sentence on Wednesday, at the confidential interview between Holt +and himself, and, at that very time, and by the same warrant, appointed +Friday the 7th, for the executions. The whole matter was begun and ended +in an hour.</p> + +<p>There was neither opportunity, nor, if there had been, use, to hold a +Cabinet consultation upon the question of commutation after that.</p> + +<p>The President had reviewed the record, and, without consultation with any +human being but Holt, put his name to the death-warrant. Why consult his +confidential advisers after he had decided the whole matter? Holt himself +says that, at this private interview, it was not he, but Andrew Johnson, +who had fully made up his mind that Mrs. Surratt must be put to death; +that the President needed no urging or advice on that subject; that he +inveighed against the women of the South with a ferocity which reminds us +of the loyal Bingham<span class="pagenum"><a name="Page_233" id="Page_233">[Pg 233]</a></span> himself. Holt says that the President himself, +without a suggestion from him, was “prompt and decided” “as to <i>when</i> the +execution should take place,” “and in the same spirit too, in which he +subsequently suspended the writ of Habeas Corpus, he fixed the Friday +following.” Why call in his “advisers” after he had, with the approval of +his judgment and his conscience, put his hand to the work of blood! +Besides, if he needed such a supererogatory endorsement of his “advisers,” +there was no time to get it.</p> + +<p>The record with the death-warrant went direct to the Adjutant-General’s +office that very Wednesday. Holt cannot remember whether he took it or +not, nor can the Adjutant-General remember when or how he received it. But +this is of no consequence. The order for the execution was drawn on that +day, the necessary copies made that day; it was promulgated on the morning +of Thursday the 6th, and on that day at <i>noon</i>, the warrant for her death, +within twenty-four hours, was read to the fainting woman in her cell. All +day long, on the 6th, the White House was besieged by her friends, her +priests and her daughter, to obtain a reprieve. The guardians of the +President had no time to hold Cabinet consultations over foregone dooms of +death. They were too busy intercepting verbal prayers for mercy, holding +shut the doors of the President’s private room, sending away all +petitioners, for a few more hours’ life, to the merciful Judge-Advocate, +making sure<span class="pagenum"><a name="Page_234" id="Page_234">[Pg 234]</a></span> that there should be four pine coffins and four newly dug +graves, and that the Habeas Corpus should not leave one empty. Hold a +Cabinet meeting after the President had signed the bloody warrant, and +Stanton had once clutched it! Reopen the perilous question to hear Welles +and Dennison, and McCulloch and Seward, to say nothing of Harlan and Speed +And Stanton, discuss a petition addressed to the President who had already +denied it! “Five members of our court have been suborned by their feelings +to swerve from their duty. We run no more risks of soft-hearted gallantry +this time amid the members of the Cabinet. Let the funeral games begin.”</p> + +<p>The ex-Judge-Advocate insists that the signature to the death-warrant was +a matter of very little moment. The President could withdraw it at any +time. But would he have us believe that, after the President had +dispatched such a fatal missive to the officer whose sole duty, with +regard to it, consisted in the promulgation of an order for its execution +within twenty-four hours, such action was simply provisional and, +according to usage, still subject to rescission by a Cabinet vote?</p> + +<p>Desperate, indeed, must be the necessities of a defence, which drive the +defendant on the forlorn hope of identifying a Cabinet meeting, voting as +a unit to deny a petition for clemency, “<i>before the death-warrant was +approved</i>,” with a Cabinet discussion of the petition, <i>after</i> the +death-warrant, fixing the execution on the next day but one, had been<span class="pagenum"><a name="Page_235" id="Page_235">[Pg 235]</a></span> +signed by the President, (who is represented as urgent and eager at the +moment of his signature to exact in the shortest time the extremest +penalty); on the ground that the latter was held <i>before</i> the theoretical +<i>animus revocandi</i> of the Executive had become technically inoperative +with the last sigh of the condemned.</p> + +<hr style="width: 25%;" /> + +<p>It has been suggested by one of his subordinate officers that the +Secretary of War having seen the petition as soon as the record came to +his department, it is inconceivable that, at some moment between the 30th +and the 7th, the matter should not have been discussed by him with the +President.</p> + +<p>Of course, there can be no doubt that Stanton knew all about the +recommendation. But, (and this obvious answer seems to have altogether +escaped the attention of his friend), if the paper was in fact suppressed, +it was suppressed with Stanton’s own knowledge. Indeed, his must have been +the master-hand. He it was who kept the late Vice-President up to the mark +of severity as long as the bloody humor lasted.</p> + +<p>He was the sovereign, and Bingham and Holt but his vassals. Everybody will +give them the credit of not having dared to dream of suppression without +the electrifying nod of their imperious lord.</p> + +<p>And, from the long silence of one, if not both, of his slaves, it would +appear, that he not only directed the suppression of the paper, but was +too proud to deny, or suffer his minions to deny, it to his dying day.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_236" id="Page_236">[Pg 236]</a></span></p> +<h2><a name="CHAPTER_V.2" id="CHAPTER_V.2"></a>CHAPTER V.</h2> +<p class="center"><span class="large"><span class="smcap">Andrew Johnson Signs Another Death-Warrant.</span></span></p> + +<p class="dropcap"><span class="caps">Let</span> us turn from the case made by General Holt, which on a cursory +inspection seems so strong, but the seeming strength of which, on a closer +scrutiny, dissipates itself among such perplexing questions, and lands us +at last in the “enjoined silence” of Stanton, to the first public, +authoritative charge made by the ex-President.</p> + +<p>It appeared, November 12th, 1873, in the same newspaper which had +published General Holt’s Vindication, to which it was a reply. For it must +be remembered that it was Joseph Holt, for eight years the accused, and +not Andrew Johnson, for eight years the accuser, at the bar of rumor, who +first threw down his gage in the public arena, defying his secret +antagonist to come forth.</p> + +<p>The gallant knight chose his own good time; and, at last, surrounded with +sponsors, both clerical and martial, with banners flying and a most +sonorous peal of trumpets, he burst into the lists, as though he would +fain hope by noise and show to over-awe his dreaded adversary into +submissive silence.</p> + +<p><span class="pagenum"><a name="Page_237" id="Page_237">[Pg 237]</a></span>His thunders availed nothing. His glove had no sooner reached the ground +than it was taken up.</p> + +<p>Let us hear the plain, straightforward statement of Andrew Johnson. There +are no mysteries to unravel, no explanations to explain.</p> + +<p class="blockquot">“The findings and sentences of the court were submitted on the 5th of +July (he and I being alone), were then and there approved by the +Executive, and taken by the Judge-Advocate-General to the War +Department, where on the same afternoon the order to carry them into +effect was issued. Mr. Speed, doubtless, saw the record, but it must +have been in the Department of War, and not in the Executive office.”</p> + +<p>After thus quietly disposing of Mr. Speed’s evidence, he proceeds:—</p> + +<p class="blockquot">“The record of the court was submitted to me by Judge Holt in the +afternoon of the 5th day of July, 1865. Instead of entering the +Executive Mansion in the usual way, he gained admission by the private +or family entrance to the Executive office. The examination of the +papers took place in the library, and he and I alone were present. The +sentences of the court in the cases of Herold, Atzerodt and Payne, +were considered in the order named, and then the sentence in the case +of Mrs. Surratt. In acting upon her case no recommendation for a +commutation of her punishment was mentioned or submitted to me.”</p> + +<p>He then states that the question of sex was discussed alone; Holt +insisting upon carrying out the sentence without discriminating as to sex; +that a woman unsexed was worse than a man; that too many females had +abetted traitors during the war, and that there was a necessity an example +should be made.</p> + +<div class="blockquot"><p><span class="pagenum"><a name="Page_238" id="Page_238">[Pg 238]</a></span>“He was not only in favor of +the approval of the sentence but its execution on the earliest practicable day.</p> + +<p>“Upon the termination of our consultation, Judge Holt wrote the order +approving the sentences of the Court. I affixed my name to it, and, +rolling up the papers, he took his leave, carrying the record with +him, and departing as he had come through the family or private +entrance.”</p></div> + +<p>And there we must leave him.</p> + +<p>True, he rejoined, in December, in another very long article, contributed +to the same newspaper, in which he endeavored to break the force of +several points made in Johnson’s answer, and dwelt with much insistence on +the abstention of the President from making any open charge against him, +and on his adversary’s present silence with regard to General Mussey’s +letter. But there is nothing new in the way of testimony, except two +sympathizing letters from Generals Ekin and Hunter, respectively; the +former of which might be construed by the uncharitable as evidence that +General Holt, at the time of the execution, was already forestalling +anticipated accusation by defending himself in private to his friends; the +latter is a tribute from the grim President of the Military Commission to +the Judge-Advocate’s <i>tenderness</i> to the prisoners before that body, of +which the printed record of the trial affords such striking illustrations.</p> + +<p>This lengthy “Refutation,” as it was entitled, upon the whole added +little, if any, strength to the “Vindication.” His accuser, on his side, +resting<span class="pagenum"><a name="Page_239" id="Page_239">[Pg 239]</a></span> content with his one single explicit public utterance, paid no +attention to it.</p> + +<p>And when, at the present hour, we calmly survey the relative standing, the +position, the character and career of the two combatants, the +circumstances surrounding the momentous confidential interview, the silent +testimony of the record with the significant twist of the death-warrant, +the nature of the accusation, the mysteries enveloping the belated +defense, the probable motives actuating each, the thirst for blood which +for a time maddened the leading spirits of the War Department, the +passivity of Johnson for the few weeks after his sudden and sombre +inauguration, and for the same period the wild and reckless predominance +of Stanton;—what valid reason exists why we should discredit, or even +suspect for a moment, the veracity of the ex-President? Andrew Johnson +looms up in history a very different figure from the one discerned by his +enemies, both North and South, amid the passions of his epoch. He was no +inebriate, as he was stigmatized because of the unfortunate incident at +his inauguration as Vice-President. He was no weak, frightened tool, as he +appeared to be at the bloody crisis of his accession to the Presidency. He +was no apostate from his section, as he was cursed by the South for being +at the breaking out of the war. He was no traitor to the North, as he was +denounced by the impeachers for the mere endeavor to carry out the +reconstruction policy of his lamented <span class="pagenum"><a name="Page_240" id="Page_240">[Pg 240]</a></span>predecessor. He was not the +garrulous fool, he was called in ridicule when he “swung around the +circle.” He is now recognized, when his career is reviewed as a whole, as +a man temperate in his habits, firm, self-willed and honest; as a +statesman, intelligent though uncultured, sometimes profound and always +sincere; and as a union-loving, non-sectional, earnest patriot. His +impeachment is looked back upon by the whole country with shame. His +impeachers are already, themselves, both impeached and convicted at the +bar of history.</p> + +<p>In sober truth, so unique and perfect a triumph never capped and completed +the career of Roman warrior or modern ruler of men, as when, but little +more than a year after his reply to General Holt, the ex-President—once +again the chosen representative of that State whose rebellious people he +had coerced with an iron hand as military governor during the Civil +War—took his seat in that body, before which he had been arraigned on the +impeachment of the House of Representatives and had escaped conviction by +but a single vote.</p> + +<p>With the words of Holt’s denunciation still fresh in their remembrance, +the citizens of Washington loaded the desk of the retributive Senator with +flowers; and, when he advanced, amidst so many colleagues who had +condemned him as judges, to take the oath of office, and again when, a few +days later, his voice, which had before been heard pleading for the +imperiled Union, was from the same<span class="pagenum"><a name="Page_241" id="Page_241">[Pg 241]</a></span> place once more heard pleading for the +imperiled Constitution, the crowded galleries and corridors gave him a +conquering hero’s welcome.</p> + +<p>When in the following summer he died, his body was followed to its grave +in the mountains by what it is hardly an exaggeration to call the whole +people of his State. When Congress reassembled, the Senate and the House +clothed themselves with crape. One of his former judges, who had voted him +guilty of high crimes and misdemeanors (Morton, of Indiana), thus spoke of +him in the Senate:</p> + +<p>“In every position in life he showed himself to be a man of ability and +courage, and I believe it proper to say of Andrew Johnson that his honesty +has never been suspected; that the smell of corruption was never upon his +garments.”</p> + +<p>The same Senator related that when Johnson, as the newly appointed +Military Governor, arrived at Nashville “he was threatened with +assassination on the streets and in the public assemblies, but he went on +the streets; he defied those dangers; he went into public assemblies, and +on one occasion went into a public meeting, drew his pistol, laid it on +the desk before him, and said: ‘I have been told that I should be +assassinated if I came here. If that is to be done then it is the first +business in order, and let that be attended to.’ No attempt having been +made he said: ‘I conclude the danger has passed by;’ and then proceeded to +make his speech.”</p> + +<p><span class="pagenum"><a name="Page_242" id="Page_242">[Pg 242]</a></span>Again the Senator said: “After I had voted for his impeachment, and met +him accidentally, he wore the same kindly smile as before, and offered me +his hand. I thought that showed nobility of soul. There were not many men +who could have done that.”</p> + +<p>The man, of whom two such incidents could be truthfully related, could +never have invented so foul a charge against an innocent subordinate.</p> + +<p>A Senator from a neighboring State, (McCreery), on the same mournful +occasion said of him:</p> + +<div class="blockquot"><p>“When he went to Greeneville he was a stranger, and a tailor’s “kit,” +his thimbles and his needles, were probably the sum-total of his +earthly possessions; at his death, the hills and the valleys and the +mountains and the rivers, sent forth their thousands to testify to the +general grief at the irreparable loss.</p> + +<p>“I honor him for that manly courage which sustained him on every +occasion, and which never quailed in presence of opposition, no matter +how imposing. I honor him for that independence of soul which had no +scorn for the lowly, and no cringing adulation for the exalted. I +honor him for that sterling integrity which was beyond the reach of +temptation, and which, at the close of his public service, left no +blot, no stain upon his escutcheon. I honor him for that magnanimity +which after the war cloud had passed, and the elements had settled, +would have brought every citizen under the radiant arch of the bow of +peace and pardon.”</p></div> + +<p>Another Senator (Paddock, of Nebraska) gave utterance to the following +unchallenged statement:</p> + +<p class="blockquot">“I believe, sir, notwithstanding the fact that a painful chapter +relating to the official acts of Andrew Johnson was made in this very +chamber, that no Senator here present will refuse <span class="pagenum"><a name="Page_243" id="Page_243">[Pg 243]</a></span>to-day to join me +in the declaration that he was essentially an honest man; aye, sir, a +patriot in the fullest sense of the term.”</p> + +<p>Yet another (Bogy, of Missouri), said:</p> + +<p class="blockquot">“His last election to a seat on this floor as Senator was the work of +his own hands, brought about by his own indomitable will and pluck, +the reward of a long and terrible contest, continuing for seven years, +unsuccessful for a time, and appearing to all the world besides +himself as utterly hopeless; nevertheless, finally he was triumphant. +From what I have learned from those who are familiar with this, his +last contest, he exhibited more openly his true and peculiar nature, +than at any other period of his life—which was to fight with all his +might and all his ability, asking no quarter and granting none; and +although like bloody Richard now and then unhorsed, still to fight and +never surrender, until victory perched upon his banner.”</p> + +<p>Senator Bayard said: “Friend or foe alike must admit his steady, unshaken +love of country; his constant industry; his simple integrity and honesty; +his courage of conviction, that never faltered.”</p> + +<hr style="width: 25%;" /> + +<p>Truly, the solemn word of a man, of whom such things can be said, is no +light thing,—to be thrust aside by windy abuse or vociferous denial.</p> + +<p>Now, what conceivable motive had such a man, seated in the chair of the +Chief Magistracy of this republic, surrounded by Cabinet officers who had +been the advisers of his predecessor, to invent, in the first place, so +horrible a story as that a friendly subordinate officer had deliberately, +in a case of life and death, suppressed so vital a document? For it<span class="pagenum"><a name="Page_244" id="Page_244">[Pg 244]</a></span> is +contradictory of historical fact, that he never openly made the charge +until the year 1873.</p> + +<p>This may be true of the period from about the time of the execution up to +the disclosures of the John H. Surratt trial in 1867. But our review of +the incidents of that trial, which General Holt in his refutation seemed +to have totally forgotten, proves, beyond the possibility of controversy, +that the President then first thought himself driven to inspect the record +to ascertain the existence of such a paper, and then first, after the +discovery that there was in fact a recommendation, at once, and at all +times afterwards, openly asserted that he had not seen it or read it. +Every one around him knew that he so said. Stanton, his great enemy, +Seward, his great friend, knew it. Bingham, at the very beginning when +Stanton forbade him to refute it; Bingham, when Butler pierced his shield +in the House of Representatives, and Bingham, when at the bar of the +Senate as manager of the impeachment he belabored his old-time +Commander-in-Chief, knew it; Holt, when he delivered his contradiction +through Judge Pierrepont to the Surratt jury, and when he felt the shadows +darkening over his head because of the “inexplicable conduct” of the great +War Minister in “perpetuating the pitiless outrage,” knew it, and +recognized the President of the United States as the responsible author of +the tremendous accusation.</p> + +<p>If Holt is to be credited, the President must have known that four at +least of his confidential<span class="pagenum"><a name="Page_245" id="Page_245">[Pg 245]</a></span> advisers stood ready to shatter the baseless +calumny. What conceivable motive, we ask again, to invent such a story—so +easy of refutation, so ruinous to himself, if refuted?</p> + +<p>The necessity to make some reply to this pressing question seems to have +driven both General Holt himself and his defenders into the maintenance of +the most absurd, antagonistic and untenable positions.</p> + +<p>Holt’s theory on this subject in his “Refutation” is even ingenious in its +absurdity. He would have us believe that when Johnson originally +fabricated the calumny, “he had not yet broken with the Republican party, +and was, doubtless, in his heart at least, a candidate for reëlection,” of +course by that party. If this is true, then the “fabrication” was made +before the fall of 1865, for by that time the President was in full swing +of opposition to the men who had elected him Vice-President. During this +brief transitory period, according to Holt, Johnson discovered that the +hostility of the Catholics (especially, as may be inferred, those of the +Republican party), on account of his signature to the death-warrant of +Mrs. Surratt, would blast this otherwise felicitous prospect. Accordingly, +to abate this uncomfortable hostility, this Republican candidate concocted +the vile slander and set it secretly and anonymously circulating among his +friends and followers;—even his greed for reëlection being not strong +enough to give full effect to his cowardly policy by openly clearing his +own skirts. Could<span class="pagenum"><a name="Page_246" id="Page_246">[Pg 246]</a></span> the fatuity of folly farther go? The dream of Andrew +Johnson as a Republican candidate for President had ceased to be possible +even before the execution of Mrs. Surratt. The Catholics who could be +conciliated by any such story might be numbered on Johnson’s fingers. And +the undisguised signature to the death-warrant could be obliterated by no +plea of abatement which the petitioner dared not avow.</p> + +<p>On the other hand, the other suggestion put forward, if not by Holt +himself; by several of his defenders, viz.: that the President propagated +the lie “to curry favor with the South in the hope to be elected to the +Presidency,” has the one merit of being in direct antagonism to the +foregoing theory, but nevertheless is yet more flimsy and preposterous. At +the time he invented the story, if invention it was, (as Holt appears to +have perceived), the road to the Presidency was to curry favor with the +North and not with the down-trodden South. And after Johnson had escaped +conviction and removal by but one vote, and had retired from office +execrated by the North and distrusted even yet by the South, the chance of +the Presidency for such a character as he was popularly considered +then—especially by truckling to the discredited South—could only look +fair in the imagination of a lunatic.</p> + +<p>No Southern man has seriously thought of being, or has been seriously +thought of as, a candidate for President of either political party since +the <span class="pagenum"><a name="Page_247" id="Page_247">[Pg 247]</a></span>termination of the war, let alone the one Southerner reputed to have +been false alternately to both parties and both sections.</p> + +<p>Besides, Andrew Johnson never apologized for his appointment of the +Military Commission, for his approval of its judgment, or for his +signature to the death-warrant. He pardoned Dr. Mudd on the very eve of +the Impeachment Trial. And he pardoned the two remaining prisoners just +before he went out of office. And he may, therefore, be held to have thus +signified his reawakened reverence for constitutional rights as expounded +in the Milligan decision.</p> + +<p>But in no other way did he ever acknowledge that in taking the life of +Mary E. Surratt he had done wrong. On the contrary, he defended his action +in his answer of 1873, and he justified his denial of the habeas corpus, +which the ex-Judge-Advocate had the exquisite affrontery to cast up +against him. That a President in his situation could cherish +aspirations—or hope—of reëlection, based on such a phantom foundation as +the whining plea that he would have commuted the unlawful sentence of a +woman, hung by his command, to imprisonment for life, had he been +permitted to see the petition of five of her judges;—such an imputation +can only be made by men mad enough to believe him to have been the +accomplice of Booth and Atzerodt.</p> + +<p><span class="pagenum"><a name="Page_248" id="Page_248">[Pg 248]</a></span>Finally, let us sternly put the question:—What right has Holt to ask us, +on the word of himself and his associates, to reject the testimony of +Andrew Johnson, who at the best was their accomplice or their tool? He, +and his associates, demanded the life of Atzerodt for barely imagining the +death of so precious a Vice-President. He, and his associates, hounded the +woman to the scaffold, welcoming with delight the stories of spies, +informers, personal enemies, false friends, against her, and meeting with +contumely and violence the least scrap of testimony in her favor. He +suppressed the “Diary.” Why may he not have been bad enough to suppress +the recommendation? Two of the same band of woman-stranglers kept back +from the President the petition for mercy, which wailed out from the lips +of the stricken daughter. Why should he not have kept back the timorous +suggestion of five officers, who were so soft-hearted as to “discriminate” +as to sex? His fate will be—and therein equal and exact justice will be +done him—to go down through the ages, stealing away, in the dusk of the +evening, from the private entrance of the White House, bearing the fatal +missive—the last feeble hope of the trembling widow crushed in his +furtive hand.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_249" id="Page_249">[Pg 249]</a></span></p> +<h2><a name="CHAPTER_VI.2" id="CHAPTER_VI.2"></a>CHAPTER VI.</h2> +<p class="center"><span class="large"><span class="smcap">Conclusion.</span></span></p> + +<p class="dropcap"><span class="caps">That</span> the petition for commutation was a device of the Triumvirate of +prosecutors to secure the coveted death-sentence, employed in reliance +upon the temporary ascendency of the chief of the three over the +beleaguered President, and upon the momentary pliability, heedlessness, +or, it may be, semi-stupefaction of the successor of the murdered Lincoln, + +to smother the offensive prayer:—such an hypothesis alone seems adequate +in any degree to reconcile the apparent contradictions, clear up the +perplexities and solve the mysteries, which hang around this dark affair.</p> + +<p>It furnishes the only rational answer to the else insoluble question, how +it happened that a court, a majority of whose members had the inclination +and the power to lower the punishment of the solitary woman before them to +life-long imprisonment, as the court did with the three men who were tried +with her and convicted of the same crime, did nevertheless, by at least a +two-thirds vote, condemn her to die by the rope.</p> + +<p><span class="pagenum"><a name="Page_250" id="Page_250">[Pg 250]</a></span>It lights up the else inscrutable prohibition by Stanton of a public +exculpation of his subordinate officer, softened by the sardonic +admonition “to rely” for justification “on the final judgment of the +people.” A source of glorification, rather, it should be, that no maudlin +pity for a woman had been suffered to intercept the death-stroke of a +righteous vengeance.</p> + +<p>It accounts for the “scrupulous obedience” of Bingham, not only until +Stanton’s death, but three years after, until Seward, too, had gone. +Stanton knew the petition had been suppressed or made invisible; Seward, +that the petition never had been before the Cabinet.</p> + +<p>It throws a glimmer, faint it is true, on the shameful attitude of Speed, +eight years after the death of Johnson—still shutting his ears to the +repeated appeals of his agonized friend, and still falling back on his +propriety. According to Judge Harlan, the whole record had been examined +by the Attorney-General, as well as the Secretary of War. Speed, too, +under the spell of Stanton, may have fingered the obnoxious paper, which +might nip the bloody consummate flower of his “<i>common law of war</i>.”</p> + +<p>It furnishes the only plausible reason why such an historic document did +not appear in the published official record of the proceedings of the +Military Commission, in November, 1865, or in the reports of the +Judge-Advocate, first, to the President, and, second, to the Congress.</p> + +<p><span class="pagenum"><a name="Page_251" id="Page_251">[Pg 251]</a></span>It illumines with a baleful light the atmosphere of sinister secrecy, in +which this adjunct to the record, for no lawful reason, has been +enshrouded; the mysterious incidents at the Surratt trial, such as the +tardy and reluctant production, the faltering and imperfect exhibition, +and the hasty withdrawal of the “roll of papers;” the two statements of +Mr. Pierrepont; the shrinking of the “full Cabinet meeting” into a +“confidential interview,” until after Seward’s death; and the singularly +equivocal language that the petition was “<i>before the President</i>” when he +signed the warrant.</p> + +<p>And, finally, when it is considered that the suppression of the paper was +not the overt act of any one man, but the result of a strictly formal +presentation of the record on the part of the Judge-Advocate, aided, it +may be, by a timely sleight-of-hand in writing the order of approval, and +of a blind carelessness on the part of the President in the examination of +the papers; this hypothesis goes far to explain the reluctance of General +Holt to rest his defense on his own evidence of the confidential +interview, his eager grasping after Cabinet corroboration, and the +abstention of both Judge-Advocate and President from taking official +action upon the charge, the one for vindication, the other for punishment.</p> + +<hr style="width: 25%;" /> + +<p>And so the history of this murder of a woman by the forms of military rule +slowly unrolls itself, to disclose, as its appropriate finis, the writer +of the<span class="pagenum"><a name="Page_252" id="Page_252">[Pg 252]</a></span> death-warrant struggling in the meshes of his own fraud.</p> + +<p>The draughtsman of the unaddressed petition for commutation, after waiting +eight years for death to clear the way, comes to the help of his old +colleague, only to be caught in the same net.</p> + +<p>The entangled twain call up the sullen shade of their departed master, and +force him to father the trick he fain would have scorned.</p> + +<p>These three are the men who, when the summary methods of martial law would +else have failed to crush out entirely the life of their victim, contrived +to attain their bloody end by cool and deliberate chicanery.</p> + +<p>The other actors on the scene may plead the madness of the time. For these +three no such plea is open. They superadded to the common madness of the +time the particular malice of the felon. Upon their three heads should +descend the full weight of criminal turpitude involved in this most +unnatural execution.</p> + +<p>They sat upon the thrones of power. They dragged a woman from her humble +roof and thrust her into a dungeon. They chose nine soldiers to try her +for the murder of their Commander-in-Chief. They chained her to the bar +along with seven men. They baited her for weeks with their Montgomerys and +Conovers, their Weichmans and Lloyds, the spawn of their bureau, dragooned +by terror or suborned by hope. They shouted into the ears of the<span class="pagenum"><a name="Page_253" id="Page_253">[Pg 253]</a></span> court +appeal on appeal for her head. And, when at last five of their chosen sons +sickened at the task, and shrank from shedding a woman’s blood, they +procured the death-sentence by a trick. They forged the death-warrant by +another. They turned thimble-riggers under the very shadow of the gallows. +They cheated their own court. They cheated their own President. They +cheated the very executioner. They sneaked a woman into the arms of death +by sleight-of-hand. They played their confidence game with the King of +Terrors. They managed to hide the cheat from the country until they +quarreled with their new Commander-in-Chief. Then ensued an interval of +ambiguous mutterings, dark equivocations, private accusation, private +defenses. From one side: “I never saw the paper.” From the other: “It was +right before his eyes.”</p> + +<p>The twin ex-Judge-Advocates, at length, brace each other up to the +sticking-point and venture on an appeal to the public. The ex-President, +thus driven at bay, fulminates the secret infamy in all its foul extent to +the whole world. Thereupon, Great Nemesis finds her opportunity, and makes +these once high-placed, invulnerable woman-slayers the sport of her mighty +hands.</p> + +<p>Every one, as if coerced by some magic power, comes at last to act as +though he were afraid of the other, and, willing or unwilling, contrives +to show how profoundly base the others are.</p> + +<p><span class="pagenum"><a name="Page_254" id="Page_254">[Pg 254]</a></span>Stanton slinks mysteriously into the shadow of death, refusing to cut his +co-conspirator down from the gibbet where the dreaded Johnson has swung +him. Bingham, standing like an Indian with a single female scalp bleeding +from his girdle, presses his finger to his lips until Stanton and Seward +die. Speed, with the obnoxious petition pressed again and again to his +nostrils, feebly yet persistently refuses to open his mouth.</p> + +<p>Holt pictures the dead Johnson exulting even in Hell over the silence of +his old Attorney-General; blasts the character of Stanton by ascribing his +injunction of silence to a motive the most diabolic; and, unconscious +seemingly that he does it, at the same time ruins the credit of Bingham by +extolling his “scrupulous obedience” to such an infernal command.</p> + +<p>Johnson unwittingly proclaims the pardon of the slain woman in his anxiety +to show that he signed her death-warrant through ignorance, forced upon +him by the ineffable depravity of the men in whom he was compelled to +trust.</p> + +<p>This controversy over the petition of clemency was the only thing needed +to round out and decorate the entire, complete and perfect iniquity of the +whole drama. It is immaterial and indifferent to history where the truth +lies between these combatants in so unsavory a strife. Each one tears off +the burning brand of shame, not to extinguish it, but to pass it on to his +colleague. If we credit<span class="pagenum"><a name="Page_255" id="Page_255">[Pg 255]</a></span> Holt, it is difficult to conceive the malignity +of soul of Andrew Johnson, who could invent so foul a charge, the meanness +of spirit of Edwin M. Stanton, who, knowing its blackness, could forbid +the promulgation of the truth, the cowardly silence of John A. Bingham, +whose lips the death of the dreaded Stanton alone could unclose. If we +credit Johnson, then in all the crowded catalogue of inquisitors, +persecutors, cruel or pettifogging prosecuting officers, devil’s advocates +and murderous Septembrisers, there is not one who would not spurn with +profane emphasis association with Holt or Bingham or Stanton.</p> + +<p>As the choicest specimen in this shower of accusations and +counter-accusations, listen to the tender-hearted ex-Judge-Advocate of +1873—once the stony head of the death-dealing Bureau—rebuking Andrew +Johnson for his cold-blooded cruelty! “I would have shuddered to propose +the brief period of two days within which the sentences should be +executed, for with all the mountain of guilt weighing on the heads of +those convicted culprits I still recognized them as human beings, with +souls to be saved or lost, and could not have thought for a moment of +hurrying them into the eternal world, as cattle are driven to the +slaughter-pen, without a care for their future.”</p> + +<p>Listen again to the former expounder of the “common law of war” before the +Military Commission, as he arraigns the ex-President for his <span class="pagenum"><a name="Page_256" id="Page_256">[Pg 256]</a></span>disregard of +the writ of habeas corpus: “The object of which was, and the effect of +which would have been, had it been obeyed, to delay the execution of Mrs. +Surratt at least until the questions of law raised had been decided by the +civil courts of the District; yet this writ was, by the express order of +the President, rendered inoperative. And so, under this Presidential +mandate, the execution proceeded. * * * But for his direct intervention +and defiant action on the writ, whatever might have been the final result, +it is perfectly apparent her life would not then have been taken.”</p> + +<p>Once more. Hear J. Holt, the Recorder of the Commission! “As Chief +Magistrate he was, under the Constitution,” (<span class="smcap">Hear Him!</span>) “the depositary of +the nation’s clemency and mercy to the condemned, and a pressing +responsibility rested upon him as such <i>to hear the victims of the law +before he struck them down</i>.” (The italics are his who wrote out the +death-warrant.) “Did he do this? On the contrary, * * he gave * * a +peremptory order to admit nobody seeking to make an appeal in behalf of +the prisoners, saying that he would ‘see no one on this business.’</p> + +<p>“He closed his door, his ears, and his heart against every appeal for +mercy in her behalf, and hurried this hapless woman almost unshrived to +the gallows.”</p> + +<p>What a picture is this!</p> + +<p><span class="pagenum"><a name="Page_257" id="Page_257">[Pg 257]</a></span>The minion of Stanton, the colleague of Bingham, the tutor of Weichman, +the tutor of Lloyd, the procurer of the death-warrant, weeping over the +empty grave in the Arsenal, which, after his master’s relentless watch was +over, had at length given up its dead!</p> + +<p>Here we are forced to stop. After such an exhibition, we can linger no +longer over this miserable scramble to shirk responsibility. Its only +consequence of historic importance, after all, is the light it casts upon +the memory of the sacrificial victim. Out of the cloud of mutual +vituperation, which covers the men who, among them, somehow, compassed her +slaughter, her innocence rises clearer and clearer, like the images of +retribution from the foul fumes of the witches’ cauldron.</p> + +<p>Her vindication must be held to be final, complete and unassailable, when +John A. Bingham is anxious to acquaint the country that he drafted a +petition to save her life; when J. Holt pretends to weep for her; when +Andrew Johnson is forced, by the inexorable pressure of events, to confess +that when he signed her death-warrant he knew not what he did.</p> + +<hr style="width: 25%;" /> + +<p>As we let fall the curtain at the close of this dark and shameful tragedy, +let us endeavor to anticipate the verdict of history.</p> + +<p>The execution of Mary E. Surratt is the foulest blot on the history of the +United States of America.</p> + +<p><span class="pagenum"><a name="Page_258" id="Page_258">[Pg 258]</a></span>It was a violation of the most sacred provisions of that Constitution, +whose enforcement was the vaunted purpose of the War.</p> + +<p>It was a violation of the fundamental forms and principles of criminal +jurisprudence, centuries older than the Constitution.</p> + +<p>It was a violation of that even-handed justice, which is said to rule in +the armies of Heaven and among the inhabitants of the earth.</p> + +<p>It was a violation of those chivalrous impulses which spring unbidden to +the manly breast in the presence of woman.</p> + +<p>It was a violation of the benign precepts of Jesus, which enjoin +tenderness to the fatherless and the widow.</p> + +<p>It was a violation of the magnanimity of the brave soldier, which scorns +to wound the weak, the fallen and the helpless.</p> + +<p>It was a violation of even the common instincts of fairness, which +subsist, as a matter of course, between man and man.</p> + +<p>It was unconstitutional. It was illegal. It was unjust. It was inhumane. +It was unholy. It was pusillanimous. It was mean. And it was each and all +of these in the highest or lowest degree. It resembles the acts of +savages, and not the deeds of civilized men.</p> + +<p>The annals of modern times will be searched in vain to furnish its +parallel. Execrations rise to our lips, as we read, in the pages of +Macaulay, of the<span class="pagenum"><a name="Page_259" id="Page_259">[Pg 259]</a></span> hanging of Alice Lisle, and the burning of Elizabeth +Gaunt. But Alice Lisle and Elizabeth Gaunt were indicted by grand juries, +tried by petit juries, found guilty, and sentenced, in strict accordance +with criminal procedure. The forms of law, which the bigoted James, and +even the infamous Jeffrey, were careful to observe, were swept aside by +Holt and Bingham and Stanton, with a sneer.</p> + +<p>We turn aside with sickening horror from the recital of the murderous +orgies of the Terrorists of the French Revolution—shedding the blood of +the young, the tender, the beautiful, the brave. But the Terrorists of +France could plead the excuse, that they were driven to madness by the +thought, that the invading hosts, encompassing the new-born Republic, were +drawing nearer and nearer, every hour, with vengeance and +counter-revolution perched upon their banners; and a merciful destiny +granted them the grace to expiate their bloody deeds on the same scaffold +as their victims.</p> + +<p>But, in the case of Mary E. Surratt, not a single redeeming feature +relieves</p> + +<p class="poem">“The deep damnation of her taking off.”</p> + +<p>Alas! Alas! Right in the centre of the glory which beams from the triumph +of the Union and Emancipation, there hangs a dark figure—casting an +eclipsing shadow—ever widening—ever deepening—in the eyes of all the +coming generations of the just.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><strong>Transcriber’s Note:</strong> In the original text, the list on pages 72-73 skips from 2 to 7.</p> + + + + + + + + + +<pre> + + + + + +End of the Project Gutenberg EBook of The Judicial Murder of Mary E. 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You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + +Title: The Judicial Murder of Mary E. Surratt + +Author: David Miller DeWitt + +Release Date: May 22, 2011 [EBook #36188] + +Language: English + +Character set encoding: ASCII + +*** START OF THIS PROJECT GUTENBERG EBOOK THE JUDICIAL MURDER OF MARY *** + + + + +Produced by Carla Foust and the Online Distributed +Proofreading Team at http://www.pgdp.net (This book was +produced from scanned images of public domain material +from the Google Print project.) + + + + + + + + + + THE JUDICIAL MURDER + + --OF-- + + MARY E. SURRATT. + + + DAVID MILLER DEWITT. + + + Baltimore: + JOHN MURPHY & CO. + 1895. + + + + +COPYRIGHT, 1894, BY DAVID MILLER DEWITT. + + + + +"_Oceans of horse-hair, continents of parchment, and learned-sergeant +eloquence, were it continued till the learned tongue wore itself small in +the indefatigable learned mouth, cannot make the unjust just. The grand +question still remains, Was the judgment just? If unjust, it will not and +cannot get harbour for itself, or continue to have footing in this +Universe, which was made by other than One Unjust. Enforce it by never +such statuting, three readings, royal assents; blow it to the four winds +with all manner of quilted trumpeters and pursuivants, in the rear of them +never so many gibbets and hangmen, it will not stand, it cannot stand. +From all souls of men, from all ends of Nature, from the Throne of God +above, there are voices bidding it: Away! Away!_" + +PAST AND PRESENT. + + + + +CONTENTS. + + + PAGE. + + PRELIMINARY + + CHAPTER I. The Reign of Terror, 1 + + CHAPTER II. The Bureau of Military (In)Justice, 15 + + + PART I. THE MURDER. + + CHAPTER I. The Opening of the Court. Was She Ironed? 23 + + CHAPTER II. Animus of the Judges. Insults to Reverdy Johnson + and General Edward Johnson, 41 + + CHAPTER III. Conduct of the Trial, 56 + + CHAPTER IV. Arguments of the Defense, 70 + + CHAPTER V. Charge of Judge Bingham, 82 + + CHAPTER VI. Verdict, Sentence and Petition, 91 + + CHAPTER VII. The Death Warrant and Execution, 112 + + CHAPTER VIII. Was it not Murder? The Milligan Case, 126 + + + PART II. THE VINDICATION. + + CHAPTER I. Setting Aside the Verdict. Discharge of Jefferson + Davis, 145 + + CHAPTER II. Reversal on the Merits. Trial of John H. Surratt, 165 + + CHAPTER III. The Recommendation to Mercy, 182 + + CHAPTER IV. Trial of Joseph Holt, 207 + + CHAPTER V. Andrew Johnson Signs another Death Warrant, 236 + + CHAPTER VI. Conclusion, 249 + + + + +PRELIMINARY. + + + + +CHAPTER I. + +THE REIGN OF TERROR. + + +The assassination of Abraham Lincoln burst upon the City of Washington +like a black thunder-bolt out of a cloudless sky. On Monday, the 3d of +April, 1865, Richmond was taken. On the succeeding Sunday (the ninth), +General Lee with the main Army of the South surrendered. The rebellion of +nearly one-half the nation lay in its death-throes. The desperate struggle +for the unity of the Republic was ending in a perfect triumph; and the +loyal people gave full rein to their joy. Every night the streets of the +city were illuminated. The chief officers of the government, one after +another, were serenaded. On the evening of Tuesday, the eleventh, the +President addressed his congratulations to an enthusiastic multitude from +a window of the White House. On the night of Thursday (the thirteenth) +Edwin M. Stanton, the Secretary of War, and Ulysses S. Grant, the +victorious General of the Army of the North, were tumultuously greeted +with banners and music and cannon at the residence of the Secretary. The +next day, Friday the 14th, was the fourth anniversary of the surrender of +Fort Sumter to the South, and that national humiliation was to be avenged +by the restoration of the flag of the United States to its proper place +above the fort by the hand of the same gallant officer who had been +compelled to pull it down. In the evening, a torch-light procession +perambulated the streets of the Federal Capital. Enthusiastic throngs +filled the theatres, where the presence of great officials had been +advertised by huge placards, and whose walls were everywhere festooned +with the American flag. After four years of agonizing but unabating +strain, all patriots felt justified in yielding to the full enjoyment of +the glorious relaxation. + +Suddenly, at its very zenith, the snap of a pistol dislimns and scatters +this great jubilee, as though it were, indeed, the insubstantial fabric of +a vision. At half past ten that night, from the box of the theatre where +the President is seated, a shot is heard; a wild figure, hatless and +clutching a gleaming knife, emerges through the smoke; it leaps from the +box to the stage, falls upon one knee, recovers itself, utters one shout +and waves aloft its bloody weapon; then turns, limps across in front of +the audience and disappears like a phantom behind the scenes. +Simultaneously, there breaks upon the startled air the shriek of a woman, +followed close by confused cries of "Water! Water!" and "The President is +shot!" + +For the first few moments both audience and actors are paralyzed. One man +alone jumps from the auditorium to the stage and pursues the flying +apparition. But, as soon as the hopeless condition of the President and +the escape of the assassin begin to transpire, angry murmurs of "Burn the +Theatre!" are heard in the house, and soon swell into a roar in the street +where a huge crowd has already assembled. + +The intermingling throng surges into the building from every quarter, and +mounts guard at every exit. Not one of the company of actors is allowed to +go out. The people seem to pause for a moment, as if awaiting from Heaven +a retribution as sudden and awful as the crime. + +All their joy is turned to grief in the twinkling of an eye. The rebellion +they had too easily believed to be dead could still strike, it seemed, a +fatal blow against the very life of the Republic. A panic seizes the +multitude in and around the theatre, and from the theatre spreads, "like +the Night," over the whole city. And when the frightened citizens hear, as +they immediately do, the story of the bloody massacre in the house of the +Secretary of State, occurring at the same hour with the murder of the +President, the panic swells into a reign of terror. The wildest stories +find the quickest and most eager credence. Every member of the Cabinet and +the General of the Army have been, or are about to be, killed; the +government itself is at a standstill; and the lately discomfited rebels +are soon to be in possession of the Capital. Patriotic people, delivering +themselves over to a fear of they know not what, cry hoarsely for +vengeance on they know not whom. The citizen upon whose past loyalty the +slightest suspicion can be cast cowers for safety close to his +hearth-stone. The terror-stricken multitude want but a leader cool and +unscrupulous enough, to plunge into a promiscuous slaughter, such as +stained the new-born revolution in France. A leader, indeed, they soon +find, but he is not a Danton. He is a leader only in the sense that he has +caught the same madness of terror and suspicion which has seized the +people, that he holds high place, and that he has the power and is in a +fit humor to pander to the panic. + +Edwin M. Stanton was forced by the tremendous crisis up to the very top of +affairs. Vice-President Johnson, in the harrowing novelty of his position, +was for the time being awed into passive docility. The Secretary of State +was doubly disabled, if not killed. The General of the Army was absent. +The Secretary of War without hesitation grasped the helm thus thrust into +his hand, but, alas! he immediately lost his head. His exasperation at the +irony of fate, which could so ruthlessly and in a moment wither the +triumph of a great cause by so unexpected and overwhelming a calamity, was +so profound and intense, his desire for immediate and commensurate +vengeance was so uncontrollable and unreasoning, as to distort his +perception, unsettle his judgment, and thus cause him to form an estimate +of the nature and extent of the impending danger as false and exaggerated +as that of the most panic-stricken wretch in the streets. Personally, +besides, he was unfitted in many respects for such an emergency. Though an +able and, it may be, a great War-Minister, he exerted no control over his +temper; he habitually identified a conciliatory and charitable disposition +with active disloyalty; and, being unpopular with the people of Washington +by reason of the gruffness of his ways and the inconsistencies of his past +political career, he had reached the unalterable conviction that the +Capital was a nest of sympathizers with the South, and that he was +surrounded by enemies of himself and his country. + +When, therefore, upon the crushing news that the President was slain, +followed hard the announcement that another assassin had made a +slaughter-house of the residence of the Minister's own colleague, +self-possession--the one supreme quality which was indispensable to a +leader at such an awful juncture--forsook him and fled. + +Before the breath was out of the body of the President, the Secretary had +rushed to the conclusion, unsupported as yet by a shadow of testimony, +that the acts of Booth and of the assailant of Seward (at the moment +supposed to be John H. Surratt) were the outcome of a widespread, numerous +and powerful conspiracy to kill, not only the President and the Secretary +of State, but all the other heads of the Departments, the Vice-President +and the General of the Army as well, and thus bring the government to an +end; and that the primary moving power of the conspiracy was the defunct +rebellion as represented by its titular President and his Cabinet, and its +agents in Canada. This belief, embraced with so much precipitation, +immediately became more than a belief; it became a fixed idea in his mind. +He saw, heard, felt and cherished every thing that favored it. He would +see nothing, would hear nothing, and hated every thing, that in the +slightest degree militated against it. Upon this theory he began, and upon +this theory he prosecuted to the end, every effort for the discovery, +arrest, trial and punishment of the murderers. + +He was seconded by a lieutenant well-fitted for such a purpose--General +Lafayette C. Baker, Chief of the Detective Force. In one of the two +minority reports presented to the House of Representatives by the +Judiciary Committee, on the Impeachment Investigation of 1867, this man +and his methods are thus delineated: + + "The first witness examined was General Lafayette C. Baker, late chief + of the detective police, and although examined on oath, time and + again, and on various occasions, it is doubtful whether he has in any + one thing told the truth, even by accident. In every important + statement he is contradicted by witnesses of unquestioned credibility. + And there can be no doubt that to his many previous outrages, + entitling him to an unenviable immortality, he has added that of + wilful and deliberate perjury; and we are glad to know that no one + member of the committee deems any statement made by him as worthy of + the slightest credit. What a blush of shame will tinge the cheek of + the American student in future ages, when he reads that this miserable + wretch for years held, as it were, in the hollow of his hand, the + liberties of the American people. That, clothed with power by a + reckless administration, and with his hordes of unprincipled tools and + spies permeating the land everywhere, with uncounted thousands of the + people's money placed in his hands for his vile purposes, this + creature not only had power to arrest without crime or writ, and + imprison without limit, any citizen of the republic, but that he + actually did so arrest thousands, all over the land, and filled the + prisons of the country with the victims of his malice, or that of his + masters." + +In this man's hands Secretary Stanton placed all the resources of the War +Department, in soldiers, detectives, material and money, and commanded him +to push ahead and apprehend all persons suspected of complicity in the +assumed conspiracy, and to conduct an investigation as to the origin and +progress of the crime, upon the theory he had adopted and which, as much +as any other, Baker was perfectly willing to accept and then, by his +peculiar methods, establish. Forthwith was ushered in the grand carnival +of detectives. Far and wide they sped. They had orders from Baker to do +two things: + +I.--To arrest all the "Suspect." II.--By promises, rewards, threats, +deceit, force, or any other effectual means, to extort confessions and +procure testimony to establish the conspiracy whose existence had been +postulated. + +At two o'clock in the morning of Saturday, the fifteenth, they burst into +the house of Mrs. Surratt and displaying the bloody collar of the coat of +the dying Lincoln, demanded the whereabouts of Booth and Surratt. It being +presently discovered that Booth had escaped on horseback across the Navy +Yard Bridge with David Herold ten minutes in his rear, a dash was made +upon the livery-stables of Washington, their proprietors taken into +custody, and then the whole of lower Maryland was invaded, the soldiers +declaring martial law as they progressed. Ford's theatre was taken and +held by an armed force, and the proprietor and employees were all swept +into prison, including Edward Spangler, a scene-shifter, who had been a +menial attendant of Booth's. The superstitious notion prevailed that the +inanimate edifice whose walls had suffered such a desecration was in some +vague sense an accomplice; the Secretary swore that no dramatic +performance should ever take place there again; and the suspicion was +sedulously kept alive that the manager and the whole force of the company +must have aided their favorite actor, or the crime could not have been so +easily perpetrated and the assassin escaped. + +On the night of the fifteenth (Saturday) a locked room in the Kirkwood +House, where Vice President Johnson was stopping, which had been engaged +by George A. Atzerodt on the morning of the fourteenth, was broken open, +and in the bed were found a bowie-knife and a revolver, and on the wall a +coat (subsequently identified as Herold's), in which was found, among +other articles, a bank book of Booth's. The room had not been otherwise +occupied--Atzerodt, after taking possession of it, having mysteriously +disappeared. + +On the morning of the seventeenth (Monday), at Baltimore, Michael +O'Laughlin was arrested as a friend of Booth's, and it was soon thought +that he "_resembled extremely_" a certain suspicious stranger who, it was +remembered, had been seen prowling about Secretary Stanton's residence on +the night of the 13th, when the serenade took place, and there doing such +an unusual act as inquiring for, and looking at, General Grant. + +On the same day at Fort Monroe, Samuel Arnold was arrested, whose letter +signed "Sam" had been found on Saturday night among the effects of Booth. + +On the night of the seventeenth, also, the house of Mrs. Surratt with all +its contents was taken possession of by the soldiers, and Mrs. Surratt, +her daughter, and all the other inmates were taken into custody. While the +ladies were making preparations for their departure to prison, a man +disguised as a laborer, with a sleeve of his knit undershirt drawn over +his head, a pick-axe on his shoulder, and covered with mud, came to the +door with the story that he was to dig a drain for Mrs. Surratt in the +morning; and that lady asseverating that she had never seen the man +before, he was swept with the rest to headquarters, and there, to the +astonishment of everybody, turned out to be the desperate assailant of +the Sewards. + +During these few days Washington was like a city of the dead. The streets +were hung with crape. The obsequies, which started on its march across the +continent the colossal funeral procession in which the whole people were +mourners, were being celebrated with the most solemn pomp. No business was +done except at Military Headquarters. Men hardly dared talk of the +calamity of the nation. Everywhere soldiers and police were on the alert +to seize any supposed or denounced sympathizer with the South. Mysterious +and prophetic papers turned up at the White House and the War Department. +Women whispered terrible stories of what they knew about the "Great +Crime." To be able to give evidence was to be envied as a hero. + +And still the arch-devil of the plot could not be found! + +The lower parts of Maryland seethed like a boiling pot, and the prisons of +Washington were choking with the "suspect" from that quarter. Lloyd--the +drunken landlord of the tavern at Surrattsville, ten miles from +Washington, at which Booth and Herold had stopped at midnight of the fatal +Friday for carbines and whisky--after two days of stubborn denial was at +last frightened into confession; and Doctor Mudd, who had set Booth's leg +Saturday morning thirty miles from Washington, was in close confinement. +All the intimate friends of the actor in Washington, in Baltimore, in +Philadelphia, in New York and even in Montreal were in the clutches of the +government. Surratt himself--the pursuit of whom, guided by Weichman, his +former college-chum, his room-mate, and the favorite guest of his mother, +had been instant and thorough--it was ascertained, had left Canada on the +12th of April and was back again on the 18th. + +But where was Booth? where Herold? where Atzerodt? + +On the 20th, the Secretary of War applied the proper stimulus by issuing a +proclamation to the following effect: + + "$50,000 reward will be paid by this department for the apprehension + of the murderer of our late beloved President. + + "$25,000 reward for the apprehension of John H. Surratt, one of + Booth's accomplices. + + "$25,000 reward for the apprehension of Herold, another of Booth's + accomplices. + + "Liberal rewards will be paid for any information that shall conduce + to the arrest of either of the above-named criminals or their + accomplices. + + "All persons harboring or secreting the said persons, or either of + them, or aiding or assisting in their concealment or escape, will be + treated as accomplices in the murder of the President and the + attempted assassination of the Secretary of State, and shall be + subject to trial before a military commission and the punishment of + death." + +What is noteworthy about this document is that Stanton had already made up +his mind as to the guilt of the persons named as accomplices of Booth; +that he needed only their arrest, being assured of their consequent +conviction; and that he had already determined that their trial and the +trial of all persons connected with the great crime, however remotely, +should be had before a military tribunal, and that the punishment to +follow conviction should be death. + +At four o'clock in the morning of the very day this proclamation was +issued, Atzerodt was apprehended at the house of his cousin in Montgomery +County, Md., about twenty-two miles northward of Washington, by a detail +of soldiers, to whom, by the way, notwithstanding the arrest preceded the +proclamation, $25,000 reward was subsequently paid. With Atzerodt his +cousin, Richter, was taken also. O'Laughlin, Payne, Arnold, Atzerodt and +Richter, as they were severally arrested, were put into the custody of the +Navy Department and confined on board the Monitor _Saugus_, which on the +morning of Saturday, when the President died, had been ordered to swing +out into the middle of the river opposite the Navy Yard, prepared to +receive at any hour, day or night, dead or alive, the arch-assassin. Each +of these prisoners was loaded with double irons and kept under a strong +guard. On the 23d, Atzerodt, by order of the Secretary of War, was +transferred to the Monitor _Montauk_, to separate him from his cousin, and +Payne, in addition to his double irons, had a ball and chain fastened to +each ankle by the direction of the same officer. On the next day Spangler, +who had hitherto been confined in the Old Capitol Prison, was transferred +to one of the Monitors and presumably subjected to the same treatment. On +the same day the following order was issued: + + "The Secretary of War requests that the prisoners on board iron-clads + belonging to this department for better security against conversation + shall have a canvass bag put over the head of each and tied around the + neck, with a hole for proper breathing and eating, but not seeing, and + that Payne be secured to prevent self-destruction." + +All of which was accordingly done. + +And still no Booth! It seems as though the Secretary were mad enough to +imagine that he could wring from Providence the arrest of the principal +assassin by heaping tortures on his supposed accomplices. + +At length, in the afternoon of the 26th--Wednesday, the second week after +the assassination--Col. Conger arrived with the news of the death of Booth +and the capture of Herold on the early morning of that day; bringing with +him the diary and other articles found on the person of Booth, which were +delivered to Secretary Stanton at his private residence. In the dead of +the ensuing night, the body of Booth, sewed up in an old army blanket, +arrived, attended by the dog-like Herold; and the living and the dead were +immediately transferred to the _Montauk_. Herold was double ironed, balled +and chained and hooded. The body of Booth was identified; an autopsy held; +the shattered bone of his neck taken out for preservation as a relic (it +now hangs from the ceiling of the Medical Museum into which Ford's Theatre +was converted, or did before the collapse); and then, with the utmost +secrecy and with all the mystery which could be fabricated, under the +direction of Col. Baker, the corpse was hurriedly taken from the vessel +into a small boat, rowed to the Arsenal grounds, and buried in a grave dug +in a large cellar-like apartment on the ground floor of the Old +Penitentiary; the door was locked, the key removed and delivered into the +hands of Secretary Stanton. No effort was spared to conceal the time, +place and circumstances of the burial. False stories were set afloat by +Baker in furtherance of such purpose. Stanton seemed to fear an escape or +rescue of the dead man's body; and vowed that no rebel or no rebel +sympathizer should have a chance to glory over the corpse, or a fragment +of the corpse, of the murderer of Lincoln. + + + + +CHAPTER II. + +THE BUREAU OF MILITARY (IN)JUSTICE. + + +Mingling with the varied emotions evoked by the capture and death of the +chief criminal was a feeling of deepest exasperation that the foul +assassin should after all have eluded the ignominious penalty of his +crime. Thence arose a savage disposition on the part of the governing +powers to wreak this baffled vengeance first, on his inanimate body; +secondly, on the lives of his associates held so securely in such close +custody; and thirdly, on all those in high places who might be presumed to +sympathize with his deeds. It was too horrible to imagine that the ghost +of the martyred Lincoln should walk unavenged. So stupendous a calamity +must of necessity be the outcome of as stupendous a conspiracy, and must +in the very justice of things be followed by as stupendous a retribution. +A sacrifice must be offered and the victims must be forthcoming. To employ +the parallel subsequently drawn by General Ewing on the trial of the +conspirators: On the funeral pyre of Patroclus must be immolated the +twelve Trojan captives. They were sure of Payne and of Herold. They held +Arnold and O'Laughlin and Atzerodt and Spangler and Doctor Mudd--all the +supposed satellites of Booth, save one. John H. Surratt could not be +found. Officers in company with Weichman and Holahan, boarders at his +mother's house, who in the terror of the moment had given themselves up on +the morning of the fifteenth, traced him to Canada, as has already been +noticed, but had there lost track of him. They had returned disappointed; +and now Weichman and Holahan were in solitary confinement. Notwithstanding +the large rewards out for his capture, as to him alone the all-powerful +government seemed to be baffled. One consolation there was, however--if +they could not find the son, they held the mother as a hostage for him, +and they clung to the cruel expectation that by putting her to the torture +of a trial and a sentence, they might force the son from his hiding place. + +In the meanwhile the Bureau of Military Justice, presided over by +Judge-Advocate-General Holt, had been unceasingly at work. General Baker +with his posse of soldiers and detectives scoured the country far and wide +for suspected persons and witnesses, hauled them to Washington and shut +them up in the prisons. Then the Bureau of Military Justice took them in +hand, and, when necessary, by promises, hopes of reward and threats of +punishment, squeezed out of them the testimony they wanted. Colonel Henry +L. Burnett, who had become an expert in such proceedings from having +recently conducted the trial of Milligan before a military tribunal at +Indianapolis, was brought on to help Judge Holt in the great and good +work. In the words of General Ewing in his plea for Dr. Mudd: + + "The very frenzy of madness ruled the hour. Reason was swallowed up in + patriotic passion, and a feverish and intense excitement prevailed + most unfavorable to a calm, correct hearing and faithful repetition of + what was said, especially by the suspected. Again, and again, and + again the accused was catechised by detectives, each of whom was + vieing with the other as to which should make the most important + discoveries, and each making the examination with a preconceived + opinion of guilt, and with an eager desire, if not determination, to + find in what might be said the proofs of guilt. Again, the witnesses + testified under the strong stimulus of a promised reward for + information leading to arrest and followed by convictions." + +The Bureau conducted the investigation on the preconceived theory, +adopted, as we have seen, by the Secretary of War, that the Confederate +Government was the source of the conspiracy; and, by lavishing promises +and rewards, it had no difficulty in finding witnesses who professed +themselves to have been spies on the rebel agents in Canada and who were +ready to implicate them and through them the President of the defunct +Confederacy in the assassination. Richard Montgomery and Sanford Conover, +who had been in personal communication with these agents during the past +year, were eagerly taken into the employ of the Bureau, and made frequent +trips to Canada, to return every time laden with fresh proofs of the +complicity of the rebels. + +To illustrate how the Bureau of Military Justice dealt with witnesses who +happened to have been connected more or less closely with Booth, and who +were either reluctant or unable to make satisfactory disclosures, here are +two extracts from the evidence given on the trial of John H. Surratt in +1867. + +The first is from the testimony of Lloyd, the besotted keeper of the +Surratt tavern: + + "I was first examined at Bryantown by Colonel Wells. I was next + examined by two different persons at the Carroll prison. I did not + know either of their names. One was a military officer. I think some + of the prisoners described him as Colonel Foster. I saw a man at the + conspiracy trial as one of the Judges who looked very much like him. * + * * I told him I had made a fuller statement to Colonel Wells than I + could possibly do to him under the circumstances, while things were + fresh in my memory. His reply was that it was not full enough, and + then commenced questioning me whether I had ever heard any person say + that something wonderful or something terrible was going to take + place. I told him I had never heard anyone say so. Said he I have seen + it in the newspapers. + + "He jumps up very quick off his seat, as if very mad, and asked me if + I knew what I was guilty of. I told him, under the circumstances I did + not. He said you are guilty as an accessory to a crime the punishment + of which is death. With that I went up stairs to my room." + +The next is from the testimony of Lewis J. Carland, to whom Weichman +confessed his remorse after the execution of Mrs. Surratt: + + "He [Weichman] said it would have been very different with Mrs. + Surratt if he had been let alone; that a statement had been prepared + for him, that it was written out for him, and that he was threatened + with prosecution as one of the conspirators if he did not swear to it. + He said that a detective had been put into Carroll prison with him, + and that this man had written out a statement which he said he had + made in his sleep, and that he had to swear to that statement." + +Let us add another; it is so short and yet so suggestive. It is from the +testimony of James J. Gifford, who was a witness for the prosecution on +both trials. + + "Q.--Do you know Mr. Weichman? + + "A.--I have seen him. + + "Q.--Were you in Carroll prison with him? + + "A.--Yes, sir. + + "Q.--Did he say in your presence that an officer of the government had + told him that unless he testified to more than he had already stated + they would hang him too? + + "A.--I heard the officer tell him so." + +After a fortnight of such wholesale processes of arrest, imprisonment, +inquisition, reward and intimidation, the Bureau of Military Justice +announced itself ready to prove the charges it had formulated. Thereupon +two proclamations were issued by President Johnson. One, dated May the +first, after stating that the Attorney General had given his opinion "that +all persons implicated in the murder of the late President, Abraham +Lincoln, and the attempted assassination of the Hon. William H. Seward, +Secretary of State, and in an alleged conspiracy to assassinate other +officers of the Federal Government at Washington City, and their aiders +and abettors, are subject to the jurisdiction of and legally triable +before a Military Commission," ordered 1st, "that the Assistant +Adjutant-General (W. A. Nichols) detail nine competent military officers +to serve as a Commission for the trial of said parties, and that the +Judge-Advocate-General proceed to prefer charges against said parties for +their alleged offences, and bring them to trial before said Military +Commission." 2d, "that Brevet Major-General Hartranft be assigned to duty +as Special Provost-Marshal-General for the purpose of said trial and +attendance upon said Commission, and the execution of its mandates." + +The other proclamation, dated May 2nd, after reciting that "it appears +from evidence in the Bureau of Military Justice, that the atrocious murder +of the late President, Abraham Lincoln, and the attempted assassination of +the Hon. William H. Seward, Secretary of State, were incited, concerted, +and procured by and between Jefferson Davis, late of Richmond, Va., and +Jacob Thompson, Clement C. Clay, Beverly Tucker, George N. Sanders, +William C. Cleary, and other rebels and traitors against the Government of +the United States, harbored in Canada," offered the following rewards: + + "$100,000 for the arrest of Jefferson Davis. + + "$25,000 for the arrest of Clement C. Clay. + + "$25,000 for the arrest of Jacob Thompson, late of Mississippi. + + "$25,000 for the arrest of Geo. N. Saunders. + + "$25,000 for the arrest of Beverly Tucker. + + "$10,000 for the arrest of Wm. C. Cleary, late clerk of Clement C. + Clay. + + "The Provost-Marshal-General of the United States is directed to cause + a description of said persons, with notice of the above rewards, to be + published." + +At this date the President of the defunct Confederacy was a fugitive, +without an army; and bands of U. S. Cavalry were already on the scout to +intercept his flight. Military Justice, however, was too impatient to +await the arrest of the prime object of its sword; and in obedience to the +first proclamation proceeded without delay to organize a court to try the +prisoners selected from the multitude undergoing confinement as the +fittest victims to appease the shade of the murdered President. Over some +of the "suspect" the Judge-Advocates for a time vacillated, whether to +include them in the indictment or to use them as witnesses; but, after a +season of rigid examinations, renewed and revised, they at last concluded +that such persons would be more available in the latter capacity. + +On the third day of May the funeral car, which, leaving Washington on the +twenty-first of April, had borne the body of the lamented Lincoln through +State after State, arrived at last at Springfield; and on the following +day the cherished remains were there consigned to the tomb. On the sixth, +by special order of the Adjutant-General, a Military Commission was +appointed to meet at Washington on Monday, the eighth day of May, or as +soon thereafter as practicable, "for the trial of David E. Herold, +George A. Atzerodt, Lewis Payne, Michael O'Laughlin, Edward Spangler, +Samuel Arnold, Mary E. Surratt, Samuel A. Mudd and such other prisoners as +may be brought before it, implicated in the murder of the late President +and in the attempted assassination of the Secretary of State and in an +alleged conspiracy to assassinate other officers of the Federal Government +at Washington City, and their aiders and abettors. By order of the +President of the United States." And so, all things being in readiness, +let the curtain rise. + + + + +PART I. + +THE MURDER. + + + + +CHAPTER I. + +THE OPENING OF THE COURT. + + +On the ninth day of May the Commission met but only to adjourn that the +prisoners might employ counsel. On the same day, two of its members, +General Cyrus B. Comstock and Colonel Horace Porter--names to be noted for +what may have been a heroic refusal--were relieved from the duty of +sitting upon the Commission, and two other officers substituted in their +stead. + +So that Tuesday, May 10th, 1865--twenty-six days after the assassination, +a period much too short for the intense excitement and wild desire for +vengeance to subside--may properly be designated as the first session of +the Court. On the early morning of that day--before daylight--Jefferson +Davis had been captured, and was immediately conducted, not to Washington +to stand trial for his alleged complicity in the assassination, but to +Fort Monroe. On the next day Clement C. Clay, also, surrendered himself to +the United States authorities, and was sent, not to Washington to meet the +awful charge formulated against him, but to the same military fortress. + +The room in which the Commission met was in the northeast corner of the +third story of the Old Penitentiary; a building standing in the U. S. +Arsenal Grounds at the junction of the Potomac with the Eastern Branch, in +a room on the ground floor of which the body of Booth had been secretly +buried. Its windows were guarded by iron gratings, and it communicated +with that part of the prison where the accused were now confined, by a +door in the western wall. The male prisoners had been removed some days +before from the Monitors to the Penitentiary, where Mrs. Surratt was +already incarcerated, and each of them, including the lady, was now +immured in a solitary cell under the surveillance of a special guard. + +Around a table near the eastern side of this room sat, resplendent in full +uniform, the members of the Court. At the head as President was +Major-General David Hunter--a stern, white-headed soldier, sixty-three +years old; a fierce radical; the first officer to organize the slaves into +battalions of war; the warm personal friend of Lincoln, at the head of +whose corpse he had grimly sat as it rested from place to place on the +triumphal progress to its burial, and from whose open grave he had +hurried, in no very judicial humor to say the least, to take his seat +among the Judges of the accused assassins. On his right sat Major-General +Lew Wallace, a lawyer by profession; afterwards the President of the +Court-Martial which tried and hung Henry Wirz; but now, by a sardonic +freak of destiny, known to all the world as the tender teller of "Ben Hur, +a Tale of the Christ." To the right of General Wallace sat Brevet +Brigadier-General James A. Ekin and Brevet Colonel Charles A. Tompkins; +about whom the only thing remarkable is that they had stepped into the +places of the two relieved officers, Colonel Tompkins being the only +regular army officer on the Board. On the left of General Hunter sat, +first, Brevet Major-General August V. Kautz, a native of Germany; next, +Brigadier-General Robert S. Foster, who may or may not have been the +"Colonel Foster" alluded to in the testimony of Lloyd quoted above, as +threatening the witness and as afterwards being seen by him on the +Commission--the presence of an officer, previously engaged by the +Government in collecting testimony against the accused, as one of the +judges to try him not being considered a violation of Military Justice. +Next sat Brigadier-General Thomas Mealey Harris, a West Virginian, and the +author of a book entitled "Calvinism Vindicated;" next, Brigadier-General +Albion P. Howe, and last, Lieutenant-Colonel David R. Clendenin. + +Not one of these nine men could have withstood the challenge which the +common law mercifully puts into the hands of the most abandoned culprit. +They had come together with one determined and unchangeable purpose--to +avenge the foul murder of their beloved Commander-in-Chief. They dreamt +not of acquittal. They were, necessarily, from the very nature of their +task, _organized to convict_. + +The accused were asked, it is true, whether they had any objections to any +member of the Court. But this was the emptiest of forms, as bias is no +cause of challenge in military procedure, and peremptory challenges are +unknown. + +Moreover, it was nothing but a cruel mockery to offer to that trembling +group of prisoners an opportunity, which, if any one of them had the +temerity to embrace, could only have resulted in barbing with the sting of +personal insult the hostile predisposition of the judges. + +At the foot of the table around which the Court sat--the table standing +parallel with the north side of the room--there was another, around which +were gathered the three prosecuting officers, who, according to military +procedure, were also members of the Commission. + +First, was Brigadier-General Joseph Holt, the Judge-Advocate of the U. S. +Army, and the Recorder of the Commission. During his past military career +he had distinguished himself on many a bloody court-martial. + +Second, designated by General Holt as First Assistant or Special +Judge-Advocate, was Hon. John A. Bingham, of Ohio--long a Representative +in Congress, then for a short interval a Military Judge-Advocate, now a +Representative in Congress again, and to become in the strange +vicissitudes of the near future, one of the managers of the impeachment of +President Johnson, whom he now cannot praise too highly. He was one of +those fierce and fiery western criminal lawyers, gifted with that sort of +vociferous oratory which tells upon jurors and on the stump, by nature and +training able to see but one side to a case and consequently merciless to +his victims. His special function was to cross-examine and brow-beat the +witnesses for the defense, a branch of his profession in which he was +proudly proficient, and, above all, by pathetic appeals to their +patriotism and loyalty, and by measureless denunciations of the murder of +their Commander-in-Chief and of the Rebellion, to keep up at a white heat +the already burning passions of the officers composing the tribunal. Next +to him came Colonel Henry L. Burnett; brought from Indiana where he had +won recent laurels in conducting the trial of Milligan for treason before +a Military Commission--laurels, alas! soon to be blasted by the decision +of the U. S. Supreme Court pronouncing that and all other Military +Commissions for the trial of citizens in places where the civil courts are +open illegal, and setting free the man this zealous public servant had +been instrumental in condemning to death. + +In the centre of the room was a witness-stand facing the Court. To the +left of the witness-stand a table for the official reporters. Along the +western side and directly opposite the Court was a platform about a foot +high and four feet broad, with a strong railing in front of it. This was +the prisoners' dock. The platform was divided near the left hand or +southern corner by the doorway which led to the cells. In front of the +southern end of the dock and behind the witness-stand was the table of the +prisoners' counsel. + +At the appointed hour the door in the western side opens and an impressive +and mournful procession appears. Six soldiers armed to the teeth are +interspersed among seven male prisoners and one woman. + +First walks Samuel Arnold, the young Baltimorean, who is to sit at the +extreme right (_i. e._, of the spectators), followed close by his armed +guard; next, Dr. Samuel T. Mudd and a soldier; next, Edward Spangler and a +soldier; next, Michael O'Laughlin, another Baltimorean, and his soldier; +next, George B. Atzerodt and a soldier; next, Lewis Payne, a tall +gladiator, though only twenty years old, and his soldier; and then David +E. Herold, looking like an insignificant boy, who is to sit next the door. +As they enter, their fetters clanking at every step, they turn to their +left and take seats on the platform in the order named, the six soldiers +being sandwiched here and there between two of the men. + +Each of these prisoners, during the entire trial, was loaded down with +irons made as massive and uncomfortable as possible. Their wrists were +bound with the heaviest hand-cuffs, connected by bars of iron ten inches +long (with the exception of Dr. Mudd, whose hand-cuffs were connected by a +chain), so that they could not join their hands. Their legs were weighed +down by shackles joined by chains made short enough to hamper their walk. +In addition to these fetters, common to all, Payne and Atzerodt had, +attached by chains to their legs, huge iron balls, which their guards had +to lift and carry after them whenever they entered or left the Court room. + +Last, there emerges from the dungeon-like darkness of the doorway the +single female prisoner, Mary E. Surratt. She, alone, turns to her right +and, consequently, when she is seated has the left hand corner of the +platform to herself. But she is separated from her companions in misery by +more than the narrow passage-way that divides the dock; for she is a lady +of fair social position, of unblemished character and of exemplary piety, +and, besides, she is a mother, a widow, and, in that room amongst all +those soldiers, lawyers, guards, judges and prisoners, the sole +representative of her sex. Her womanhood is her peculiar weakness, yet +still her only shield. + +Is she too ironed? + +The unanimous testimony of eye-witnesses published at the time of the +trial is, that, though not hand-cuffed, she was bound with iron "anklets" +on her feet. And this detail, thus universally proclaimed in the Northern +Press and by loyal writers, was mentioned not as conveying the slightest +hint of reprobation, but as constituting, like the case of the male +prisoners, a part of the appropriate treatment by the military of a person +suffering under such a charge. And, moreover, no contemporaneous denial of +this widespread circumstance was anywhere made, either by Provost-Marshal, +Counsel, Judge-Advocate or member of the Court. It passed unchallenged +into history, like many another deed of shame, over which it is a wonder +that any man could glory, but which characterized that period of frenzy. + +Eight years after, during the bitter controversy between Andrew Johnson +and Joseph Holt over the recommendation of mercy to Mrs. Surratt, General +Hartranft, the former Special Provost-Marshal in charge of the prisoners, +first broke silence and, coming to the aid of the sorely-tried +Ex-Judge-Advocate, sent him a vehement categorical denial that Mrs. +Surratt was ever manacled at any time, or that there was ever a thought of +manacling her in any one's mind. Now, what force should be given to such a +denial by so distinguished an officer, so long delayed and in the face of +such universal contemporaneous affirmation? + +No one knows how close and exclusive the charge of the prisoners by the +special Provost-Marshal was, nor how liable to interruption, interference +and supersession by the omnipotent Bureau of Military Justice, or by the +maddened Secretary of War and his obsequious henchmen. + +At the time the naked assertion was made, to heap indignities upon the +head of the only woman in the whole country whom the soldiery took for +granted was the one female fiend who helped to shed the blood of the +martyred President, was so consonant with the angry feeling, in military +circles, that an officer, having only a general superintendence over the +custody and treatment of what was called "a band of fiends," would be very +likely to overlook such a small matter as that the she-assassin was not +exempted, in one detail, from the contumelies and cruelties it was thought +patriotic to pile upon her co-conspirators. The only wonder ought to be +that they relieved her from the hand-cuffs. They appear to have +discriminated in the case of Dr. Mudd also, substituting a chain for an +inflexible bar so that he for one could move his hands. There may have +been some unmentioned physical reasons for both of these alleviations, but +we may rest assured that neither sex, in the one case, nor profession in +the other, was among them. + +General Hartranft (or any other General) never denied, or thought it +necessary to deny, that the seven male prisoners sat through the seven +weeks of the trial, loaded, nay tortured, with irons. And there is no +doubt that this unspeakable outrage, if thought of at all at the trial by +the soldiery--high or low--so far from being thought of as a matter of +reprobation, was a subject of grim merriment or stern congratulation. + +Eight years, however, passed away--eight years, in which a fund of +indignation at such brutality, above all to a woman, had been silently +accumulating, until at length to a soldier, whose beclouding passions of +the moment had in the meantime cooled down, its weight made every +loop-hole of escape an entrance for the very breath of life. + +The entire atmosphere had changed, and denials became the order of the +day. Memory is a most convenient faculty; and to forget what the lapse of +years has at last stamped with infamy is easy, when the event passed at +the time as a mere matter of course. Leaving these tardy repudiators of an +iniquity, the responsibility for which in the day of its first publication +they tacitly assumed with the utmost complacency, to settle the question +with posterity;--we insist that the preference is open to writers upon the +events of the year 1865 to rely upon the unprejudiced and unchallenged +statements of eye-witnesses; and, therefore, we do here reaffirm that Mary +E. Surratt walked into the court-room, and sat during her trial, with +shackles upon her limbs. + +At this late day it is a most natural supposition that these nine stalwart +military heroes, sitting comfortably around their table, arrayed in their +bright uniforms, with their own arms and their own legs unfettered, must +have felt at least a faint flush of mingled pity, shame and indignation, +as they looked across that room at that ironed row of human beings. + +Culprits arraigned before them, guarded by armed soldiery, without arms +themselves--why, in the name of justice, drag them into Court and force +them to sit through a long trial, bound with iron, hand and foot? Was it +to forestall a last possible effort of reckless and suicidal despair? + +These brave warriors could not have feared the naked arm of Payne, nor +have indulged the childish apprehension that seven unarmed men and one +unarmed woman might overpower six armed soldiers and nine gallant +officers, and effect their escape from the third story of a prison guarded +on all sides with bayonets and watched by detective police! And yet, so +far as appears, no single member of the Court, to whom such a desecration +of our common humanity was a daily sight for weeks, thought it deserving +of notice, much less of protest. + +There is but one explanation of this moral insensibility, and that applies +with the same force to the case of the woman as to those of the men. It +is, that the accused were _already doomed_. For them no humiliation could +be thought too deep, no indignity too vile, no hardship too severe, +because their guilt was predetermined to be clear. And the members of the +Military Commission, as they looked across the room at that sorry sight, +saw nothing incongruous with justice, or even with the most chivalrous +decorum, that the traitorous murderers of their beloved Commander-in-Chief +should wear the shackles which were the proper precursors of the death of +ignominy, they were resolved the outlaws should not escape. + +We, civilians, must ever humbly bear in mind that the rule of the common +law, that every person accused of crime is presumed to be innocent until +his guilt is established beyond a reasonable doubt--a rule the benignity +of which is often sneered at by soldiers as giving occasion for lawyers' +tricks and quibbles, and as an impediment to swift justice, is reversed in +military courts, where every person accused of crime is presumed to be +_guilty_ until he himself prove his innocence. + +After the prisoners had been seated, and the members of the Commission, +the Judge-Advocates and the official reporters sworn in, the accused were +severally arraigned. There was but one Charge against the whole eight. +Carefully formulated by the three Judge-Advocates upon the lines of the +theory adopted by the Secretary of War, and which Gen. Baker and the +Bureau of Military Justice had been moving heaven and earth to establish, +it was so contrived as to allege a crime of such unprecedented, +far-reaching and profound heinousness as to be an adequate cause of such +an unprecedented and profound calamity. + +The eight prisoners were jointly and severally charged with nothing less +than having, in aid of the Rebellion, "_traitorously_" conspired, +"together with one John H. Surratt, John Wilkes Booth, Jefferson Davis, +George N. Sanders, Beverley Tucker, Jacob Thompson, William C. Cleary, +Clement C. Clay, George Harper, George Young and others unknown, to kill +and murder" "Abraham Lincoln, late President of the United States and +Commander-in-Chief of the Army and Navy thereof, Andrew Johnson, then +Vice-President, Wm. H. Seward, Secretary of State, and Ulysses S. Grant, +Lieutenant-General;" and of having, in pursuance of such "traitorous +conspiracy," "together with John Wilkes Booth and John H. Surratt" +"traitorously" murdered Abraham Lincoln, "traitorously" assaulted with +intent to kill, William H. Seward, and lain in wait "traitorously" to +murder Andrew Johnson and Ulysses S. Grant. + +On this elastic comprehensive Charge, in which treason and murder are +vaguely commingled, every one of the men, and Mary E. Surratt, were +arraigned, plead not guilty, and were put upon trial. There is no doubt, +by the way, that the Secretary of War would have been included as one of +the contemplated victims, had not Edwin M. Stanton borne so prominent a +part in the prosecution; and it was for this reason, and not because of +any change in the evidence, that General Grant stood alone, as the mark +of O'Laughlin. + +To this single Charge there was, also, but a single Specification. This +document alleged that the design of all these traitorous conspirators was, +to deprive the Army and Navy of their Commander-in-Chief and the armies of +their Commander; to prevent a lawful election of President and +Vice-President; and by such means to aid and comfort the Rebellion and +overthrow the Constitution and laws. + +It then alleged the killing of Abraham Lincoln by Booth in the prosecution +of the conspiracy, and charged the murder to be the act of the prisoners, +as well as of Booth and John H. Surratt. It then alleged that Spangler, in +furtherance of the conspiracy, aided Booth in obtaining entrance to the +box of the theatre, in barring the door of the theatre box, and in +effecting his escape. Then, that Herold, in furtherance of the conspiracy, +aided and abetted Booth in the murder, and in effecting his escape. Then, +that Payne, in like furtherance, made the murderous assault on Seward and +also on his two sons and two attendants. Then, that Atzerodt, in like +furtherance, at the same hour of the night, lay in wait for Andrew Johnson +with intent to kill him. Then, that Michael O'Laughlin, in like +furtherance, on the nights of the 13th and 14th of April, lay in wait for +General Grant with like intent. Then, that Samuel Arnold, in prosecution +of the conspiracy, "did, on or before the 6th day of March, 1865, and on +divers other days and times between that day and the 15th day of April, +1865, combine, conspire with and counsel, abet, comfort and support" +Booth, Payne, Atzerodt, O'Laughlin and their confederates. Then, "that, in +prosecution of the conspiracy, Mary E. Surratt, on or before the 6th of +March, 1865, and on divers other days and times between that day and the +20th of April, 1865, received, entertained, harbored and concealed, aided +and assisted" Booth, Herold, Payne, John H. Surratt, O'Laughlin, Atzerodt, +Arnold and their confederates, "with the knowledge of the murderous and +traitorous conspiracy aforesaid, and with intent to aid, abet and assist +them in the execution thereof, and in escaping from justice." And, lastly, +that in prosecution of the conspiracy Samuel A. Mudd did from on or before +the 6th day of March, to the 20th of April "advise, encourage, receive, +entertain, harbor and conceal, aid and assist" Booth, Herold, Payne, John +H. Surratt, O'Laughlin, Atzerodt, Mary E. Surratt, Arnold and their +confederates, in its execution and their escape. + +After the prisoners, who as yet had no counsel, had pleaded not guilty to +the Charge and Specification, the Court adopted rules of proceeding--one +of which was that the sessions of the Court should be secret, and no one +but the sworn officers and the counsel for the prisoners, also sworn to +secrecy, should be admitted, except by permit of the President of the +Commission; and that only such portions of the testimony as the +Judge-Advocate should designate should be made public. + +On the next day (Thursday, May 11th), Mr. Thomas Ewing, Jr. and Mr. +Frederick Stone appeared as counsel for Dr. Mudd, and Mr. Frederick A. +Aiken and Mr. John W. Clampitt for Mrs. Surratt; and on the succeeding day +(12th), Mr. Frederick Stone appeared for Herold "at the earnest request of +his widowed mother and estimable sisters;" General Ewing for Arnold (and +on Monday, the 15th, for Spangler); Mr. Walter S. Cox for O'Laughlin, and +Mr. William E. Doster for Payne and Atzerodt. + +By the rules of the Commission no counsel could appear for the prisoners +unless he took the "iron-clad oath" or filed evidence of having taken it. +So supersensitive was the loyalty of the Court that it could not brook the +presence of a "sympathizer with the South," even in such a confidential +relation as counsel for accused conspirators in aid of the Rebellion. + +The demeanor of the Court towards the counsel for the defense, reflecting +as in a mirror the humor of the Judge-Advocates, was highly +characteristic. Sometimes they were treated with haughty indifference, +sometimes with ironical condescension, often with contumely, generally +with contempt. Their objections were invariably overruled, unless acceded +to by the Judge-Advocate. The Commission could not conceal its secret +opinion that they were engaged in a disreputable and disloyal employment. + +This statement must be somewhat qualified, however, so far as it relates +to General Ewing. He was, or had been recently, of equal rank in the army +of the Union with the members of the Court. He was a brother-in-law of +General Sherman, and he had acquired a high reputation for gallantry and +skill, as well as loyalty, during the war. That such a distinguished +fellow-soldier should appear to defend the fiendish murderers of their +beloved Commander-in-Chief--outlaws they were detailed as a Court to +hang--evidently perplexed and disconcerted these military Judges and +tended in some degree to curb the over-bearing insolence of the Special +Judge-Advocate. Thus, this able lawyer and gallant officer and noble man +was enabled to be "the leading spirit of the defense;" and, as we shall +see, he wrought the miracle of plucking from the deadly clutches of the +Judge-Advocates the lives of every one of the men he defended. But this +instance was a most notable exception. As a rule, even the silent presence +of the counsel for the accused jarred upon the feelings of the Court, and +their vocal interference provoked, at intervals, its outspoken +animadversion. A trifling incident will serve to illustrate. + +The witnesses, while giving their testimony, were required to face the +Court, so that they necessarily turned their backs on the counsel for the +prisoners who were placed some distance behind the witness-stand. These +counsel were also forced to cross-examine the witnesses for the +prosecution, and interrogate their own, without seeing their faces; and as +often as a witness in instinctive obedience to the dictates of good +manners would turn round to answer a question, the President of the Court +would check him by a "sharp reprimand" and the stern admonition: "Face the +Court!" The confusion of a witness, especially for the defense, when +thundered at in this way by General Hunter, and the reiterated humiliation +of counsel implied in the order, seem to have only called forth the wonder +that witnesses "would persist in turning towards the prisoners' counsel!" + +Clearly these lawyers were an unmeaning, an impeding, an offensive, though +unavoidable, superfluity. + + + + +CHAPTER II. + +ANIMUS OF THE JUDGES. + + +On Saturday, the 13th of May, an incident occurred which throws much light +upon the judicial temper of the Court at the very beginning of the trial. +On that day Reverdy Johnson appeared as counsel for Mrs. Surratt. Admitted +to the bar in 1815, Senator of the United States as far back as 1845, +Attorney-General of the United States as long ago as 1849, and holding the +position of Senator of the United States again at that very moment; having +taken the constitutional oath in all the Courts including the Supreme +Court of the United States at whose bar he was one of the most eminent +advocates; three years after this time to be Minister Plenipotentiary to +England; as he stood there, venerable both in years and in honors, +appearing at great personal and professional sacrifice, gratuitously, for +a woman in peril of her life, one would have thought him secure at least +from insult. Yet no sooner did he announce his intention, if the Court +would permit him at any time to attend to his imperative duties elsewhere, +to act as counsel, than the President of the Commission read aloud a note +he had received from one of his colleagues objecting "to the admission of +Reverdy Johnson as a counsel before this Court on the ground that he does +not recognize the moral obligation of an oath that is designed as a test +of loyalty;" and, in support of the objection, referring to Mr. Johnson's +letter to the people of Maryland pending the adoption of the new +constitution of 1864. + +The following colloquy then took place: + + "Mr. Johnson.--May I ask who the member of the Court is that makes + that objection? + + "The President.--Yes, sir, it is General Harris, and, if he had not + made it, I should have made it myself. + + "Mr. Johnson.--I do not object to it at all. The Court will decide if + I am to be tried. + + "The President.--The Court will be cleared. + + "Mr. Johnson.--I hope I shall be heard. + + "General Ekin.--I think it can be decided without clearing the Court. + + "General Wallace.--I move that Mr. Johnson be heard. + + "The President and others.--Certainly. + + "Mr. Johnson.--Is the opinion here to which the objection refers? + + "The President.--I think it is not." + +It was discovered, farther on, that General Harris by his own admissions +had not even seen the opinion since he had read it a year ago, and that +his objection, involving so grave an attack upon the moral character of so +distinguished a man, was based upon a mere recollection of its contents +after that lapse of time. + +Naturally, the gray-haired statesman and lawyer was indignant at this +premeditated insult. In his address to the Court he repudiated with scorn +the interpretation put upon his letter by his accuser. He explained the +circumstances under which the opinion was delivered; that the Maryland +Convention had prescribed an oath to the voter which they had no right to +exact; "and all that the opinion said, or was intended to say, was, that +to take the oath voluntarily was not a craven submission to usurped +authority, but was necessary in order to enable the citizen to protect his +rights under the then constitution; and that there was no moral harm in +taking an oath which the Convention had no authority to impose." + +Among other things he said: + + "There is no member of this Court, including the President, and the + member that objects, who recognizes the obligation of an oath more + absolutely than I do; and there is nothing in my life, from its + commencement to the present time, which would induce me for a moment + to avoid a comparison in all moral respects between myself and any + member of this Court. + + "If such an objection was made in the Senate of the United States, + where I am known, I forbear to say how it would be treated. + + "I have lived too long, gone through too many trials, rendered the + country such services as my abilities enabled me, and the confidence + of the people in whose midst I am has given me the opportunity, to + tolerate for a moment--come from whom it may--such an aspersion upon + my moral character. I am glad it is made now, when I have arrived at + that period of life when it would be unfit to notice it in any other + way. + + "I am here at the instance of that lady (pointing to Mrs. Surratt) + whom I never saw until yesterday, and never heard of, she being a + Maryland lady; and thinking that I could be of service to her, and + protesting as she has done her innocence to me--of the facts I know + nothing--because I deemed it right, I deemed it due to the character + of the profession to which I belong, and which is not inferior to the + noble profession of which you are members, that she should not go + undefended. I knew I was to do it voluntarily, without compensation; + the law prohibits me from receiving compensation; but if it did not, + understanding her condition, I should never have dreamed of refusing + upon the ground of her inability to make compensation." + +General Harris, in reply, insisted that the remarks of Mr. Johnson, +explanatory of the letter, corroborated his construction. "I understand +him to say that the doctrine which he taught the people of his state was, +that because the Convention had framed an oath, which was unconstitutional +and illegal in his opinion, therefore it had no moral binding force, and +that people might take it and then go and vote without any regard to the +subject matter, of the oath." + +Mr. Johnson, interrupting, denied having said any such thing. General +Hunter, thereupon, to help his colleague out, had the remarks read from +the record. Mr. Johnson assenting to the correctness of the report, +General Harris continued: "If that language does not justify my +conclusion, I confess I am unable to understand the English language;" and +then repeated his construction of the letter. + +After he had concluded, Mr. Johnson endeavored to show the author of +"Calvinism Vindicated" that he did not understand the English language, by +pointing out the distinction between stating "there was no harm in taking +an oath, and telling the people of Maryland that there would be no harm in +breaking it after it was taken." Again repelling the misconstruction +attempted to be put upon his words, he proceeded to open a new line as +follows: + +"But, as a legal question, it is something new to me that the objection, +if it was well founded in fact is well founded in law. Who gives to the +Court the jurisdiction to decide upon the moral character of the counsel +who may appear before them? Who makes them the arbiters of the public +morality and professional morality? What authority have they, under their +commission, to rule me out, or to rule any other counsel out, upon the +ground, above all, that he does not recognize the validity of an oath, +even if they believed it?" + +General Harris, in rejoinder, stated that under the rules adopted by the +Commission gentlemen appearing as counsel for the accused must either +produce a certificate of having taken the oath of loyalty or take it +before the Court, and that therefore the Court had a right to inquire +whether counsel held such opinions as to be incompetent to take the oath. +He then expressed his gladness "to give the gentleman the benefit of his +disclaimer. It is satisfactory to me, but it is, I must insist, a tacit +admission that there was some ground for the view upon which my objection +was founded." + +Mr. Johnson closed this irritating discussion by saying: + + "The order under which you are assembled gives you no authority to + refuse me admission because you have no authority to administer the + oath to me. I have taken the oath in the Senate of the United + States--the very oath that you are administering; I have taken it in + the Circuit Court of the United States; I have taken it in the Supreme + Court of the United States; and I am a practitioner in all the Courts + of the United States in nearly all the States; and it would be a + little singular if one who has a right to appear before the supreme + judicial tribunal of the land, and who has a right to appear before + one of the Legislative departments of the Government whose law creates + armies, and creates judges and courts-martial, should not have a right + to appear before a court-martial. I have said all that I proposed to + say." + +The President of the Court, who had already made himself a party to this +gross insult to a distinguished counsel--as if disappointed that the +affair was about to end so smoothly--here burst out: + + "Mr. Johnson has made an intimation in regard to holding members of + this Court personally responsible for their action. + + "Mr. Johnson.--I made no such intimation; did not intend it. + + "The President.--Then I shall say nothing more, sir. + + "Mr. Johnson.--I had no idea of it. I said I was too old to feel such + things, if I even would. + + "The President.--I was going to say that I hoped the day had passed + when freemen from the North were to be bullied and insulted by the + humbug chivalry; and that, for my own part, I hold myself personally + responsible for everything I do here. The Court will be cleared." + +On reopening, the Judge-Advocate read a paper from General Harris +withdrawing his objection because of Mr. Johnson's disclaimer. General +Wallace remarked that it must be known to every member of the Commission +that Mr. Senator Johnson had taken the oath in the Senate of the United +States. He therefore suggested that the requirement of his taking the oath +be dispensed with. + + "The suggestion was acquiesced in, _nem. con._ + + "Mr. Johnson.--I appear, then, as counsel for Mrs. Surratt." + +In reviewing, at this distance of time, the foregoing scene, it is +scarcely possible to realize the state of mind of a member of a tribunal +claiming at least to be a court of justice, that could prompt such an +onslaught--so shocking to the universal expectation of dignity and +decorum, not to say absolute impartiality, in a judge. + +The interpretation put upon the letter of Reverdy Johnson to his +constituents by Generals Harris and Hunter was the ordinary, +ill-considered, second-hand version circulated by blind party hostility. +This is clearly shown by the fact that the objection of General Harris was +not founded upon a recent perusal of the letter, but upon his own +recollection of the impression it made in his own party circles the year +before. + +When, on the next Wednesday, General Harris, having in the meantime looked +it up, presented a copy of the incriminated opinion, prefacing a request +that it be made a part of the record by the sneering remark that "the +Honorable gentleman ought to be very thankful to me for having made an +occasion for him to disclaim before the country any obliquity of intention +in writing that letter;" and, on the suggestion of General Hunter, the +letter was read; every fair minded man ought to have been convinced that +it was open to such a malign misconstruction only by an unscrupulous +political enemy. + +But suppose for a moment that their own hasty and uncharitable +construction was correct, what right--what color of justification--did +that give these two military Judges to make that letter of the year before +the pretext for a sudden attack in open court upon such a man as Reverdy +Johnson, and on the consecrated occasion of his appearing as counsel for a +lady on trial for her life? + +As to General Harris' argument that the requirement of an oath gave the +Commission a right to inquire whether the written opinions of a counsel +chosen for a defendant, previously delivered as a party leader, were of +such a character as to render him incompetent to take an oath which the +Supreme Court of the United States and the Senate of the United States had +recognized his competency to take; why, it is charitable to suppose--and +his subsequent claim would have been scouted as preposterous in any +law-court in the world. + +With regard to General Hunter, his ferocious personal defiance, hurled +from the very Bench, demonstrated in a flash his preeminent unfitness for +any function that is judicial even in a military sense. It is manifest +that this whole attack, whether concerted or not, was not made from any +conscientious regard for the sanctity of an oath, nor from any sensitive +fear that Reverdy Johnson, as an oath-breaker, might contaminate the +tribunal; but it was either a mere empty ebullition of party spleen, or of +party hatred towards a distinguished democrat, or it was made with a +deliberate design to rob a poor woman of any probable advantage such +eminent counsel might procure for her. + +And whether the latter terrible suspicion be well founded or not, true it +is that this cruel result, notwithstanding the withdrawal of the +objection, did not fail of full accomplishment. + +Reverdy Johnson, though suffered to appear as counsel, was virtually out +of the case. He was present only at rare intervals during the trial, and +sent in his final argument to be read by one of his juniors. The Court had +put its brand upon him, and to any subsequent effort of his it turned an +indifferent countenance and a deaf ear. He, forsooth, had "sympathized" +with the Rebellion and that was enough! His appearance worked only harm to +his client, if harm could be done to one whom the Court believed to have +been also a sympathizer with rebellion, and who was already doomed to +suffer in the place of her uncaptured son. + +Another incident, occurring after the testimony on behalf of the prisoners +had begun, will illustrate still more clearly, if possible, the mental +attitude of the Court. + +Among the witnesses sworn on the first day of the trial in secret session +was one Von Steinacker, who, according to his own statement, had been in +the Confederate Army, on the staff of Major-General Edward Johnson. He +told the usual cock-and-bull story about seeing Booth in Virginia, in +1863, consorting with the rebel officers and concocting the assassination +of Lincoln. At the time of his examination he was a prisoner of war, but +after he had given his testimony he was discharged. The counsel for the +defense knowing nothing of the witness did not cross-examine him at all. +But, subsequently, they discovered that, after having once been convicted +of an attempt to desert, he had at last succeeded in deserting the Union +Army, and had entered the service of the Confederates; that he had been +convicted of theft by a court-martial; and that his whole story was a +fiction. Thereupon, as soon as possible, the counsel for Mrs. Surratt +applied for the recall of the witness for cross-examination, so as to lay +the basis for his contradiction and impeachment; and they embodied the +facts they were ready to prove in a paper which was signed by Reverdy +Johnson and the other counsel for Mrs. Surratt. This application seems to +have strangely disturbed the Judge-Advocates and aroused the ire of the +Court. The prosecuting officers professed to have no knowledge of the +whereabouts of the witness; and General Wallace, moved from his wonted +propriety, delivered himself as follows: + + "I, for my part, object to the appearance of any such paper on the + record, and wish to say now that I understand distinctly and hold in + supreme contempt, such practices as this. It is very discreditable to + the parties concerned, to the attorneys, and, if permitted, in my + judgment will be discreditable to the Court." + +Mr. Clampitt, with the most obsequious deference to the Court, deprecated +any such reflection upon the conduct of counsel and alluded to their duty +to their unfortunate clients. But this humble apology was declared not +satisfactory to the General or to the Court; and the application was not +only refused but the paper was not allowed to go upon the record. However, +this summary method of keeping facts out of sight availed nothing. Mrs. +Surratt's counsel had caused to be summoned as a witness, to contradict +and impeach Von Steinacker, Edward Johnson, the very Major-General on +whose staff the witness had sworn he had been. + +General Johnson, a distinguished officer in the Confederate Army, was +taken prisoner in 1864 and had been in confinement since, as such, at Fort +Warren. From thence he had been brought to attend before the Commission +in obedience to a subpoena issued by the Court. + +On the 30th of May, he was called as a witness and appeared upon the stand +to be sworn. As he stood there, in his faded uniform, bearing, doubtless, +traces of the six months' imprisonment from which he had come at the +command of the Court, facing the officers of the Army he had so often +encountered, and with his back turned upon the woman on whose behalf he +had been summoned; General Albion P. Howe deemed it his duty as an +impartial judge to make the following attack upon him. + +After stating that it was well known that "the person" before the Court +had been educated at the National Military Academy, and had since for many +years held a commission in the U. S. Army, and had therefore taken the +oath of allegiance, this gallant officer and upright judge proceeded: + + "In 1861, it became my duty as an officer to fire upon a rebel party, + of which this man was a member, and that party fired upon, struck + down, and killed loyal men that were in the service of the Government. + I understand that he is brought here now as a witness to testify + before this Court, and he comes here as a witness with his hands red + with the blood of his loyal countrymen, shed by him or by his + assistants, in violation of his solemn oath as a man and his faith as + an officer. I submit to this Court that he stands in the eye of the + law as an incompetent witness, because he is notoriously infamous. To + offer as a witness a man who stands with this character, who has + openly violated the obligations of his oath, and his faith as an + officer, and to administer the oath to him and present his testimony, + is but an insult to the Court and an outrage upon the administration + of justice. I move that this man, Edward Johnson, be ejected from the + Court as an incompetent witness on account of his notorious infamy on + the grounds I have stated." + +General Ekin welcomed the opportunity to distinguish himself by seconding +the motion and characterizing the appearance of the witness before the +Commission, "with such a character" as "the height of impertinence!" In +his haste to insult a fallen foe, he seems to have forgotten that the +witness had no alternative but to come. + +The counsel for the prisoner humbly reminded the Court that the +prosecution itself had sworn as its own witnesses men who had borne arms +against the Government. The Judge-Advocate saw that the members of the +Court had gone too far, and, after calling their attention to the familiar +rule that the record of conviction in a judicial proceeding was the only +basis of a total rejection of a witness, proceeded to provide a channel +for the relief of the Court by suggesting that they could discredit the +witness upon the ground stated, although they could not declare him +incompetent to testify. + +The assertion is confidently made that in the whole annals of English +criminal jurisprudence, full as they are of instances of the grossest +unfairness to persons on trial, no such outrage upon the administration of +justice as the foregoing can be found. To find its parallel you must go to +the records of the French Revolutionary Tribunal. What are we to think of +the complaint of a Union General, that "a rebel party" fired (first? No! +but that when "it became his duty as an officer to fire upon a rebel +party" the rebel party fired) back? What in Mars' name did this warrior +expect? Would he have had kinder feelings towards his brave adversary if, +in response to his own volley, the Confederate General had tamely laid +down his arms, or played the coward and run? + +Nowadays, when the blue and the gray meet, charges of infamy are no longer +heard, but the more deadly the past warfare, the greater the reciprocal +respect. + +However, this unprovoked assault upon an unoffending officer, powerless to +repel it, although it did not result in his ejection from the Court, +effectually disposed of General Johnson as a witness. + +In answer to the questions of counsel he calmly gave his testimony, which +exploded both Von-Steinacker and his story. Judge Bingham confined his +cross-examination to eliciting the facts, that the witness had graduated +from West Point, served in the U. S. Army until 1861, resigned, and joined +the Confederate Army. The Court paid no attention to his direct testimony +because he had fired upon Union men when they had fired upon him. + +The foregoing incidents conclusively show (were any such demonstration +necessary) that a Board of nine military officers, fresh from service in +the field in a bloody civil war, with all the fierce prejudices naturally +bred by such a conflict hot within their bosoms, was the most unfit +tribunal possible to administer impartial justice to eight persons charged +with the murder of the Commander-in-Chief of the Army to which every +member of the Court belonged, committed in aid of that Rebellion which +during four years of hard fighting they had helped to suppress. + + + + +CHAPTER III. + +THE CONDUCT OF THE TRIAL. + + +The whole conduct of the trial emphasizes this conclusion. The Court, in +weighing the evidence, adopted and acted upon the following proposition; +that any witness, sworn for any of the prisoners, who had enlisted in the +Confederate service, or had at any time expressed secession sentiments, or +sympathized in any way with the South, was totally unworthy of credit. The +Court went a step farther, and adopted the monstrous rule that +participation in the Rebellion was evidence of participation in the +assassination! This assertion now seems incredible, but it is fully +attested by the record. At one stage of the trial, the Judge-Advocate +asked a witness whether or not the prisoner Arnold had been in the +military service of the rebels. General Ewing, his counsel, strenuously +objected to this question on the ground, that it tended to prove the +prisoner guilty of another crime than the one for which he was on trial, +and thus to prejudice him in the eyes of the Court. + +Judge Holt remarked: "How kindred to each other are the crimes of treason +against a nation and assassination of its chief magistrate. + +"The murder of the President * * * was preeminently a political +assassination. + +"When, therefore, we shall show, on the part of the accused, acts of +intense disloyalty, bearing arms in the field against the Government, we +show with him the presence of an animus towards the Government which +relieves this accusation of much, if not all, of its improbability." + +He asserted that such a course of proof was constantly resorted to in +criminal courts; and when General Ewing challenged him (as well he might) +to produce any authorities for such a position, he called upon the +indomitable Bingham to state them. + +The Special Judge-Advocate responded, but he courteously, but +unmistakably, shied away from his colleague's position and put the +competency of the testimony upon another ground, viz.: that where the +intent with which a thing was done is in issue, other acts of the prisoner +which tend to prove the intent may be given in evidence. Here he was +dealing with a familiar principle, and could cite any number of cases. He +then proceeded to apply his good law. How? By claiming that conspiracy to +murder having been laid in the charge, "_with the intent to aid the +Rebellion_," that was the intent in issue here, and therefore to prove +that a man was in the Rebellion went to prove that intent. + +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. + +In a word, the judgment of the prosecuting officer--the retained counsel +for the Government, the plaintiff in the action--ruled with absolute sway, +both on the law and on the facts, the judgment of the Commission; the +members of which, for that matter, were also in the pay of the Government. + +It may, therefore, be readily anticipated with how little impartiality the +trial was conducted. + +Mrs. Surratt (as did the rest of the accused) plead to the jurisdiction of +the Commission on the grounds (1) that she was not and had not been in the +military service of the United States, and (2) that when the crimes +charged were committed the civil courts were open in Washington; both of +which allegations were admitted and were notoriously true. Whatever might +be the indifference with which the rights of the men to a constitutional +trial may have been viewed, it was so utterly incongruous with the spirit +of military jurisprudence and so unprecedented in practice to try a woman +by court-martial, that had Mrs. Surratt been alone before that Commission +we venture to say those nine soldiers could not have brought themselves, +or allowed the Judge-Advocate to bring them, to the overruling of her +plea. As it was, however, the court-room was cleared of all save the +members of the Commission and the three Judge-Advocates; and after a +season of what is called "deliberation" (which meant the further +enforcement of the opinion of the prosecuting officers upon the point +under discussion, where necessary), the court reopened and "the +Judge-Advocate announced that the pleas * * * had been overruled by the +Commission." + +Mrs. Surratt (as did the other prisoners) then asked for a separate trial; +a right guaranteed to her in all the civil courts of the vicinage. It was +denied to her, without discussion, as a matter of course. + +And yet no one now can fail to recognize the grievous disadvantage under +which this one woman labored, coupled in a single trial with such culprits +as Payne who confessed his guilt, and Herold who was captured with Booth. + +In fact, the scheme of trial contrived by the Judge-Advocates on a scale +comprehensive enough to embrace the prisoners, the Canadian exiles and the +Confederate Cabinet, would not work on a trial of Mrs. Surratt alone. Of +this pet plan they were highly proud and greatly enamoured. To it, +everything--the rights of woman as well as man; considerations of equity +and of common fairness--must be made to give way. + +To the maintenance of this scheme in its integrity, they had marshalled +the witnesses, and they guided the Commission with a firm hand so that not +a jot or tittle of its symmetry should be marred. + +This determined purpose is indicated by the starting-point they chose for +the testimony. + +On Friday, the twelfth, the first witness was sworn, and his name was +Richard Montgomery. His testimony, as well as that of the other witnesses +sworn that day, was taken in secret session, and no portion of it was +allowed to reach the public until long after the trial. It was all +directed to establish the complicity of the rebel agents in Canada and +through them the complicity of Jefferson Davis and other officers of the +"Confederacy" in the assassination. In other words, this testimony was +given to prove the guilt, not of the men much less of the woman on trial, +but of the men included in the charge but not on trial; and whom, as it +now appears, the United States never intended to try. + +To connect the defunct Confederacy in the person of its captive Chief with +the murder of the President would throw a halo of romantic wickedness +about the crime, and chime in with the prevalent hatred towards every +human being in any way connected with the Rebellion. + +This class of testimony continued to be introduced every now and then +during the trial--whenever most convenient to the prosecution--and as +often as it was given the court-room was cleared of spectators and the +session secret; the isolated counsel for Mrs. Surratt, utterly at a loss +to imagine the connection of such testimony, given under such solemn +precautions, with their own client, and knowing nothing whatever of the +witnesses themselves, must have looked on in bewildered amazement, and had +no motive for cross-examination. + +The chief witnesses who gave this carefully suppressed evidence were spies +upon the rebel agents in Canada paid by the United States, and, at the +same time, spies upon the United States paid by the rebel agents. + +They were, of course, ready to swear to as many conversations with these +agents, both before and after the assassination, in which those agents +implicated themselves and the heads of government at Richmond in the most +reckless manner, as the Judge-Advocates thought necessary or advisable. + +The head, parent and tutor of this band of witnesses was a man called +Sanford Conover. After giving his testimony before the Commission, he went +to Canada and again resumed his simulated intimacy with the Confederates +there, passing under the name of James W. Wallace. An unauthorized version +of his testimony having leaked out and appearing in the newspapers, he was +called to account for it by his Canadian friends. He then made and +published an affidavit that the person who had given testimony before the +Commission was not himself but an imposter, and at the same time also +published an offer of $500 reward for the arrest of "the infamous and +perjured scoundrel who secretly personated me under name of Sanford +Conover, and deposed to a tissue of falsehood before the military +Commission at Washington." + +Being reclaimed by the government from his Canadian perils, he appeared +again before the Court after the testimony had been closed and the summing +up of all the prisoners' counsel had been completed (June 27th); when he +testified that his affidavit had been extorted from him by the +Confederates in Canada by threats of death at the point of a pistol. This +man Conover was subsequently (in 1867) tried and convicted of perjury and +sent to the penitentiary; and with him the whole structure of perjured +testimony, fabricated for reward by him and Montgomery and their co-spies, +fell to the ground. Secretary Seward testified before the Judiciary +Committee of the House of Representatives, in 1867, that, "the testimony +of these witnesses was discredited and destroyed by transactions in which +Sanford Conover appeared and the evidence of the alleged complicity of +Jefferson Davis thereupon failed." + +But, at the period of the trial, when the passionate desire for vengeance +was at its height, any plausible scoundrel, whose livelihood depended on +the rewards for wholesale perjury, and who was sure to be attracted to +Washington by the scent of his favorite game, was thrice welcome to the +Bureau of Military Justice. Any story, no matter how absurd or incredible, +provided it brought Jefferson Davis within conjectural fore-knowledge of +the assassination, was greedily swallowed, and, moreover, was rewarded +with money and employment. These harpies flocked, like buzzards, around +the doors of the old Penitentiary, and all--black and white, from +Richmond, from Washington and from Montreal--were eager, for a +consideration, to swear that Davis and Benjamin were the instigators of +Booth and Surratt. And such testimony as it was! For the most part the +sheerest hearsay! The private impressions of the witness! In one instance, +his recollection of the contents of a letter the witness had heard read or +talked about, the signature of which, although he did not see it himself, +he heard was the signature of Jefferson Davis!! Testimony wholly +inadmissible under the most elementary rules of evidence, but swept before +the Commission in the absence of counsel for the parties implicated and +under the immunity of a secret session. + +For example: a blind man, who had been, at an undated period during the +war, a hanger-on around the camp at Richmond, being asked whether he had +heard any conversations among the rebel officers in regard to the +contemplated assassination, answered: + + "In a general way, I have heard sums offered, to be paid with a + Confederate sum, for any person or persons to go North and assassinate + the President." + +Being pressed to name the amount and by what officers, he answered: + + "At this moment, I cannot tell you the particular names of + shoulder-straps, &c. + + "Q.--Do you remember any occasion--some dinner occasion? + + "A.--I can tell you this: I heard a citizen make the remark once, that + he would give from his private purse $10,000, in addition to the + Confederate amount, to have the President assassinated; to bring him + to Richmond dead or alive, for proof. + + "Q.--I understood you to say that it was a subject of general + conversation among the rebel officers? + + "A.--It was. The rebel officers, as they would be sitting around their + tent doors, would be conversing on such a subject a great deal. They + would be saying they would like to see his head brought there, dead or + alive, and they should think it could be done; and I have heard such + things stated as that they had certain persons undertaking it." + +In the introduction of evidence against Mrs. Surratt, as well as the +others on trial, the Judge-Advocates allowed themselves the most unlimited +range. + +Narrations of all sorts of events connected with the progress of the +War--historical, problematical or fabulous--having no relevancy to the +particular charge against her, or them, but deadly in their tendency to +steel the minds of the Court against her, were admitted without scruple or +hesitation. + +Seven soldiers who had been prisoners of war at Libby Prison, Belle Island +or Andersonville were called and testified, in all its ghastly details, to +the terrible treatment they and their fellow-prisoners had undergone. +Three witnesses were sworn to prove that the rebel government buried a +torpedo under the centre of Libby Prison, to be fired if the U. S. troops +entered Richmond. Letters found in the Richmond Archives were read, +offering to rid the world of the Confederacy's deadliest enemies, and +projecting wholesale destruction to property in the North. Testimony was +allowed to be given of the burning of U. S. transports and bridges by men +in the Confederate service; of the raids from Canada into the United +States; of the alleged plot in all its horrible features to introduce the +yellow-fever into Northern cities by infected clothing, testified to by +the villain who swore he did it for money. It is scarcely to be credited, +yet it is a fact, that the confession of Robert Kennedy, hung in March +previous for attempting to burn the City of New York, was read in +evidence; as was also a letter from a Confederate soldier, detailing the +blowing up of vessels by a torpedo and the killing of Union men at City +Point, indorsed by a recommendation of the operator to favor. + +On June 27th, after the testimony had been closed and the summing up of +counsel for the defense ended, the case was reopened and there was +introduced an advertisement clipped from the "Selma Dispatch" of December +1st, 1864, wherein some anonymous lunatic offered, if furnished +$1,000,000, to cause the lives of Lincoln, Seward and Johnson to be taken +before the first of March. + +The prosecution closed its direct testimony on May 25th, reserving the +right (of which we have seen they availed themselves from time to time) +thereafter to call further witnesses on the character of the Rebellion and +the complicity of its leaders in the assassination. + +Out of about one hundred and fifty witnesses sixty-six gave testimony of +that kind. Of the remaining eighty-four about fifty testified to the +circumstances attending the assassination, the pursuit and capture of +Booth and Herold, and the terrific assault of Payne on William H. Seward +and his household. Of the remaining thirty-four there were nine whose +testimony was directed to the incrimination of Mrs. Surratt. + +The important witnesses against her were three soldiers testifying under +the eye of their superior officers as to her non-recognition of Payne, and +two informers who had turned state's evidence to save their own necks, who +connected her with Booth. + +The witnesses for the defense, for the most part, were treated by the +Special Judge-Advocate as virtual accomplices of the accused; and, as soon +as, by a searching cross-examination, he had extorted from them a +reluctant admission of the slightest sympathy with the South (as in almost +every case he was able to do), he swept them aside as impeached, and their +testimony as unworthy of a moment's consideration. A former slave, who +announced himself or herself as ready to give evidence against his or her +former master, was a delicious morsel for the Bureau of Military Justice; +and several such were sworn for the prosecution. While, on the other hand, +nothing so exasperated the loyal Bingham or so astonished the Court as the +apparition of an old slave-woman, summoned by the defense, eagerly +endeavoring to exculpate her former master. + +Several priests testified as to the good character of Mrs. Surratt as a +lady and a christian, but the effect of their testimony was immediately +demolished in the eyes of the Court, when, on cross-examination, although +they refused to substantiate what the Judge-Advocate called "her notorious +intense disloyalty," they could not remember that they had ever heard her +"utter one loyal sentiment." + + + + +Chapter IV. + +ARGUMENTS FOR THE DEFENSE. + + +The testimony for the several defenses of the eight accused closed on the +7th of June, and the testimony in rebuttal ended on the 14th, with the +evidence of the physicians on the sanity of Payne. + +Thereupon, General Ewing endeavored to extract from the Judge-Advocate an +answer to the two following questions: First.--Whether his clients were on +trial for but one crime, viz.: Conspiracy, or four crimes, viz.: +Conspiracy, Murder, Attempt at murder, Lying in wait? and + +Second.--By what statute or code of laws the crimes of "traitorously" +murdering, or "traitorously" assaulting with intent to kill, or +"traitorously" lying in wait, were defined, and what was the punishment +affixed? + +The Judge-Advocate's reply to the first question was, in substance, that +all the accused were charged with conspiring to assassinate the President +and the other members of the Government named, and further, with having +executed that conspiracy so far as the assassination of the President and +the assault on the Secretary of State were concerned, and "to have +attempted its execution so far as concerns the lying in wait and other +matters." + +Assistant Judge-Advocate Bingham added: + + "The act of any one of the parties to a conspiracy in its execution is + the act of every party to that conspiracy; and therefore the charge + and specification that the President was murdered in pursuance of it + by the hand of Booth, is a direct and unequivocal charge that he was + murdered by every one of the parties to this conspiracy, naming the + defendants by name. + + "Mr. Ewing.--I understand * * * but I renew my inquiry, whether these + persons are charged with the crime of conspiracy alone, and that these + acts of murdering, assaulting, and lying in wait, were merely acts + done in execution of that conspiracy. + + "Mr. Bingham (interrupting).--And not crimes? + + "Mr. Ewing.--Or whether they are charged with four distinct crimes in + this one charge? + + "Mr. Bingham.--'Where parties are indicted for a conspiracy, and the + execution thereof, it is but one crime at the common law. And that as + many * * * overt acts in the execution of the conspiracy as they are + guilty of, may be laid in the same count.' + + "Mr. Ewing.--It is then, I understand, one crime with which they are + charged. + + "Mr. Bingham.--One crime all round, with various parts performed. + + "Mr. Ewing.--The crime of conspiracy. + + "Mr. Bingham.--It is the crime of murder as well. It is not simply + conspiring but executing the conspiracy treasonably and in aid of the + Rebellion. + + "Mr. Ewing.--I should like an answer to my question, if it is to be + given: How many crimes are my clients charged with and being tried + for? I cannot tell. + + "Mr. Bingham.--We have told you, it is all one transaction." + +General Ewing, not being able to get an answer intelligible to himself to +the first question, then respectfully asked an answer to the second: By +what code or statute the crime was defined and the punishment provided? + + "The Judge-Advocate.--I think the common law of war will reach that + case. This is a crime which has been committed in the midst of a great + civil war, in the capital of the country, in the camp of the + Commander-in-Chief of our armies, and if the common law of war cannot + be enforced against criminals of that character, then I think such a + code is in vain in the world. + + "Mr. Ewing.--Do you base it, then, only on the law of nations? + + "The Judge-Advocate.--The common law of war. + + "Mr. Ewing.--Is that all the answer to the question? + + "The Judge-Advocate.--It is the one I regard as perfectly appropriate + to give. + + "Mr. Ewing.--I am as much in the dark now as to that as I was in + reference to the other inquiry." + +It is significant that the ready Special Judge-Advocate rendered no aid to +his colleague on the latter branch of the inquiry. + +According to the theory of the prosecution, then, Mary E. Surratt was +tried, as a co-conspirator of Jefferson Davis and seven of his agents, of +the seven men tried with her, and of Booth and her own son, for the crime +of "traitorous conspiracy" to murder the President, Vice-President, +Secretary of State and Lieutenant-General, of the United States; and for +the following crimes committed in pursuance thereof: + +1. Assassination of the President, with Booth. + +2. Attempt to murder the Secretary of State, his two sons and two +attendants (five crimes instead of one), with Payne. + +7. Lying in wait to kill the Vice-President, with Atzerodt. + +8. Lying in wait to kill the Lieutenant-General, with O'Laughlin. + +Eight separate species of crimes, beside the generic one of "traitorous +conspiracy." And she, a citizen, a non-combatant, a woman, was tried on +this nine-fold, omnibus charge, jointly with seven men, under "the common +law of war"! + + * * * * * + +On the 16th of June (Friday), Mr. Clampitt read the argument of Reverdy +Johnson against the jurisdiction of the Commission--one of the most cogent +and convincing ever delivered in a court of justice. + +The Supreme Court of the United States, subsequently (December, 1866), in +deciding the Milligan case, did but little more than reiterate the +propositions maintained by this great lawyer. + +He opened his address by reminding the Court that the question of their +jurisdiction to try and sentence the accused was for the Court alone to +decide, and that no mandate of the President, if in fact and in law the +Constitution did not tolerate such tribunals in such cases, could protect +any member of the Commission from the consequences of his illegal acts. He +then advanced and proved the following propositions: that none but +military offenses are subject to the jurisdiction of military courts, and +that the offenders when they commit such offenses must be subject to +military jurisdiction--in other words, must belong to the army or navy; +that the President himself had no right to constitute military courts of +his own motion, but that such power must first be exercised by Congress +under the constitutional grant to that body to make rules for the +government and regulation of the land and naval forces; that, by the fifth +and sixth amendments of the constitution, every person, except those +belonging to the land or naval forces or to the militia in active service +in time of war, and, being such, committing a military or naval crime, is +guaranteed an investigation by a grand jury as a preliminary to trial, and +a speedy and public trial by an impartial jury. He then took up and +examined the grounds on which the jurisdiction of the Commission was +sought to be maintained. Calling the Court's attention to the +constitutional provision that, if the institution of such Commission was +an incident to the war power, that power was lodged exclusively in +Congress and not at all in the President, and, therefore, Congress only +could authorize such tribunals, he showed that, neither by the articles of +war nor by the two acts, relied on, passed during the Rebellion, had +Congress ever authorized any such tribunal; and that a military commission +like the present and under present circumstances "is not to be found +sanctioned, or the most remotely recognized, or even alluded to, by any +writer on military law in England or the United States, or in any +legislation of either country." + +And, in this connection, he pronounced the suggestion that the civil +courts and juries of the District of Columbia could not safely be relied +upon for the trial of these cases, "an unjust reflection upon the judges, +upon the people, upon the marshal, an appointee of the President, by whom +the juries were summoned, and upon our civil institutions themselves;" and +he closed his remarks upon this branch of his subject by saying that the +foregoing suggestion, + + "upon another ground, is equally without force. It rests on the idea + that the guilty only are ever brought to trial; that the only object + of the Constitution and laws in this regard is to afford the means to + establish alleged guilt; that accusation, however made, is to be + esteemed _prima facie_ evidence of guilt, and that the Executive + should be armed, without other restriction than his own discretion, + with all the appliances deemed by him necessary to make the + presumption from such evidence conclusive. Never was there a more + dangerous theory. The peril to the citizen from a prosecution so + conducted, as illustrated in all history, is so great that the very + elementary principles of constitutional liberty, the spirit and letter + of the Constitution itself repudiated it." + +After depicting the peril to the rights of the citizen of confiding to the +option of the Executive the power of substituting a secret for a public +tribunal for the trial of offenses, he established the following +propositions: That the creation of a Court is an exclusively legislative +function; that constitutional guarantees are designed for times of war as +well as times of peace; that the power to suspend the writ of Habeas +Corpus carries with it only the temporary suspension of the right to +inquire into the cause of the arrest, and does not extend in any way over +the other rights of the accused. The distinguished advocate then further +maintained that, conceding the articles of war provide for a military +court like this, yet the offense charged in the present case being nothing +less than treason could not under the provision of the constitution, +regulating the trial of treason, be tried by a military commission; and, +also, that under the articles of war persons who were not and never had +been in the army were not subject to military law. And, in order to +illustrate this branch of his argument as forcibly as possible, passing in +review the guaranteed and historic rights of accused persons on trials +before civil courts, he arrayed the open and flagrant violations of these +rights which had been permitted by the Commission on the present trial: +First, in the character of the pleadings, which for indefiniteness and +duplicity would not have been tolerated by any civil tribunal. Second, as +to the rules of evidence, which, according to the Judge-Advocate, allowed +proof of separate and distinct offenses alleged to have been committed, +not only by the parties on trial, but by other persons, and which the +accused, however innocent, could not be supposed able to meet. Third, he +quoted Lord Holt to show that in a civil court "these parties could not +have been legally fettered during their trial." Referring to the row of +miserable beings weighed down with shackles as they had entered the +court-room, as they confronted their epauletted judges, and as they +departed to their solitary cells, day by day, for more than a month, he +repeated the words of the great jurist, then 200 years old: + + "Hearing the clanking of chains, though no complaint was made to him, + he said, 'I should like to know why the prisoner is brought in ironed. + Let them be instantly knocked off. When prisoners are tried they + should stand at their ease.'" + +Then, characterizing the claim, that martial law prevailing in the +District of Columbia therefore warranted the Commission, as alike +indefensible and dangerous, and at the same time irrelevant because +martial law had never been proclaimed and the civil courts were in the +full and undisturbed exercise of all their functions, the counsel drove +this point home as follows: + + "We learn, and the fact is doubtless true, that one of the parties, + the very chief of the alleged conspiracy, has been indicted, and is + about to be tried before one of those courts. If he, the alleged head + and front of the conspiracy, is to be and can be so tried, upon what + ground of right, of fairness or of policy, can the parties who are + charged to have been his mere instruments be deprived of the same mode + of trial?" + +At the close of his speech he recurs to the warning that the President's +command can furnish no justification to the members of the tribunal. If +their function were only to act as aides to the President to enable him to +discharge his prerogative of punishment, and is to that extent legal, then +it is only so because the President might have dispensed with the Court +altogether, and ordered the punishment of the culprits without any formal +trial. + +No, he warned them, in the most courtly and courteous manner, they could +not shield themselves behind the President. + + "Responsibility to personal danger can never alarm soldiers who have + faced * * * death on the battle-field. But there is a responsibility + that every gentleman, be he soldier or citizen, will constantly hold + before him and make him ponder--responsibility to the constitution and + laws of his country and an intelligent public opinion--and prevent his + doing anything knowingly that can justly subject him to the censure of + either. I have said that your responsibility is great. If the + Commission under which you act is void and confers no authority, + whatever you may do may involve the most serious personal liability." + +He then cited the case of Governor Wall, hung in London in 1802 for +murder--a soldier, under his government in the island of Goree, having +been whipped to death by sentence of a regimental court-martial, twenty +years before. + + "In that instance want of jurisdiction in the court-martial was held + to be fatal to its judgment as a defense for the death that ensued + under it. In this, if the Commission has no jurisdiction, its judgment + for the same reason will be of no avail, either to Judges, Secretary + of War, or President, if either shall be called to a responsibility + for what may be done under it." + +The learned counsel then added: + + "The opinion I have endeavored to maintain is believed to be the + almost unanimous opinion of the profession and certainly is of every + judge or court who has expressed any." + +And he cited the then recent charge of Judge Bond to the grand jury at +Baltimore, in which the Judge declared in reference to such military +commissions as the present, that, + + "Such persons exercising such unlawful jurisdiction are liable to + indictment by you as well as responsible in civil actions to the + parties." + +And he quoted to the Court that portion of the charge of Judge Rufus W. +Peckham to a grand jury in New York City, delivered during the progress of +this very trial, wherein the right of a military commission to try was +denied: + + "A great crime has lately been committed that has shocked the + civilized world. Every right-minded man desires the punishment of the + criminals, but he desires that punishment to be administered according + to law, and through the judicial tribunals of the country. No + star-chamber court, no secret inquisition, in this nineteenth century, + can ever be made acceptable to the American mind. + + * * * * * + + "Grave doubts, to say the least, exist in the minds of intelligent + men, as to the constitutional right of the Military Commission at + Washington to sit in judgment upon the prisoners now on trial for + their lives before that tribunal. Thoughtful men feel aggrieved that + such a commission should be established in this free country, when the + war is over, and when the common law courts are open and accessible to + administer justice according to law, without fear or favor. * * * + + "The unanimity with which the leading press of our land has condemned + this mode of trial ought to be gratifying to every patriot." + +On the twenty-third, General Ewing, too, assailed the jurisdiction of the +Court in a short but powerful speech from which are taken the following +extracts: + + "The jurisdiction of the Commission has to be sought _dehors_ the + Constitution, and against its express prohibition. It is, therefore, + at least of doubtful validity. If that jurisdiction do not exist; if + the doubt be resolved against it by our judicial tribunals, when the + law shall again speak, the form of trial by this unauthorized + Commission cannot be pleaded in justification of the seizure of + property or the arrest of persons, much less the infliction of the + death penalty. In that event, however fully the recorded evidence may + sustain your findings, however moderate may seem your sentences, + however favorable to the accused your rulings on the evidence, your + sentence will be held in law no better than the rulings of Judge + Lynch's courts in the administration of lynch law. + + "Our judicial tribunals, at some future day * * * will be again in the + full exercise of their constitutional powers, and may think, as a + large proportion of the legal profession think now, that your + jurisdiction in these cases is an unwarranted assumption; and they may + treat the judgment which you pronounce and the sentence you cause to + be executed, as your own unauthorized acts. + + "Conviction may be easier and more certain in this Military + Commission, than in our constitutional courts. Inexperienced as most + of you are in judicial investigation, you can admit evidence which the + courts would reject, and reject what they would admit, and you may + convict and sentence on evidence which those courts would hold to be + wholly insufficient. Means, too, may be resorted to by detectives, + acting under promise or hope of reward, and operating on the fears or + the cupidity of witnesses, to obtain and introduce evidence, which + cannot be detected and exposed in this military trial, but could be + readily in the free, but guarded, course of investigation before our + regular judicial tribunals. The Judge-Advocate, with whom chiefly + rests the fate of these citizens, is learned in the law, but from his + position he can not be an impartial judge, unless he be more than a + man. He is the prosecutor in the most extended sense of the word. As + in duty bound, before this court was called, he received the reports + of detectives, pre-examined the witnesses, prepared and officially + signed the charges, and, as principal counsel for the Government, + controlled on the trial the presentation, admission and rejection of + evidence. In our courts of law, a lawyer who has heard his client's + story, if transferred from the bar to the bench, may not sit in the + trial of the cause, lest the ermine be sullied through the partiality + of counsel. This is no mere theoretical objection--for the union of + prosecutor and judge works practical injustice to the accused. The + Judge-Advocate controls the admission and rejection of evidence--knows + what will aid and what will injure the case of the prosecution, and + inclines favorably to the one and unfavorably to the other. The + defense is met with a bias of feeling and opinion on the part of the + judge who controls the proceedings of the Court, and on whom, in great + measure, the fate of the accused depends, which morals and law alike + reject." + +Whatsoever else may be pleaded in excuse or palliation of the acts of the +Commission, it can never be said that its members were driven on by an +overpowering sense of their duty as soldiers, in blind ignorance of the +Constitution and the law. Each and every officer was made fully aware of +his awful responsibility and apprised of the precarious footing of his +authority. + + + + +CHAPTER V. + +CHARGE OF JUDGE BINGHAM. + + +From the sixteenth to the twenty-seventh of June the time was consumed by +the summing up of the several counsel for the prisoners on the facts +disclosed by the evidence; and on the last mentioned day and the +succeeding one, Special Judge-Advocate Bingham delivered his address in +answer to all the foregoing pleas, both as to the jurisdiction of the +Court and also as to the merits of the case. + +This long, carefully prepared and yet impassioned speech may be fairly +considered as embodying the very proof-charge of the prosecution. Indeed, +under the rules of military procedure, it occupies the place and performs +the functions of the judge's charge in the common-law courts. As such, it +deserves a closer analysis and a more extended examination than can be +given to it here. The briefest and most cursory review, however, will +suffice to show its tone and temper. + +After a solemn asseveration of his desire to be just to the accused, and a +warning to the Court that "a wrongful and illegal conviction or a wrongful +and illegal acquittal * * * would impair somewhat the security of every +man's life and shake the stability of the Republic," the learned advocate +specifically declares, that the charge "is not simply the crime of +murdering a human being" but a "combination of atrocities," committed as +charged upon the record, "in pursuance of a treasonable conspiracy entered +into by the accused with one John Wilkes Booth, and John H. Surratt, upon +the instigation of Jefferson Davis, Jacob Thompson, George N. Sanders and +others, with intent thereby to aid the existing rebellion and subvert the +constitution and laws of the United States." + +A denunciation of the Rebellion as "itself simply a criminal conspiracy +and a gigantic assassination"; the following glowing period--"Now that +their battalions of treason are broken and flying before the victorious +legions of the republic, the chief traitors in this great crime against +your government secretly conspire with their hired confederates to achieve +by assassination what they in vain attempt by wager of battle";--and the +unequivocal announcement that "it is for this secret conspiracy in the +interest of the rebellion, formed at the instigation of the chief in that +rebellion, and in pursuance of which the acts charged and specified are +alleged to have been done, and with the intent laid, that the accused are +upon trial": finish the exordium. + +The speaker then tackles the question of jurisdiction, which, he remarks +by the way, "as the Court has already overruled the plea," he would pass +over in silence, "but for the fact that a grave and elaborate argument +has been made by the counsel for the accused, not only to show want of +jurisdiction, but to arraign the President of the United States before the +country and the world as a usurper of power over the lives and the +liberties of the prisoners." + +He dexterously evades the force of the argument that the civil courts of +the District were open when the crime was committed, by asserting that +"they were only open * * * and are only open at this hour by force of the +bayonet;" and he claims that the President acting by a military force had +as much right to try the co-conspirators of Booth, as to pursue, capture +and kill the chief criminal himself; which, if true, leads us into the +maintenance of the monstrous doctrine that the President by a summary +order might have strung up the culprits without the interposition of any +court. He then enters upon an argument to show that the Commission, from +the very nature of its organization, cannot decide that it is no Court, +and he ridicules the idea that these nine subordinate military officers +could question the authority of their Commander-in-Chief. + +In this connection, he gently rebukes Mr. Ewing for his bold statement to +the Commission: "You, gentlemen, are no court under the Constitution!" +reminding him that "not many months since he was a general in the service +of the country and as such in his department in the West proclaimed and +enforced martial law;" and asks him whether he is "quite sure he will not +have to answer for more of these alleged violations of the rights of +citizens than any of the members of the Court?" + +He professes his high regard for General Ewing as a military commander who +has made a "liberal exercise of this power," and facetiously wishes "to +know whether he proposes, by his proclamation of the personal +responsibility awaiting all such usurptions," that he himself shall be +"drawn and quartered." + +After disposing of General Ewing in this gingerly manner, he compensates +himself for the slight restraint by pouring the vials of his unstinted +wrath upon Reverdy Johnson; representing him as "denouncing the murdered +President and his successor," as making "a political harangue, a partisan +speech against his government and country, thereby swelling the cry of the +armed legions of sedition and rebellion that but yesterday shook the +heavens." He characterizes one of the most temperate and dignified of +arguments as "a plea in behalf of an expiring and shattered rebellion," +and "a fit subject for public condemnation." + +He calls upon the people to note, + + "That while the learned gentleman [Mr. Johnson], as a volunteer, + without pay, thus condemns as a usurpation the means employed so + effectually to suppress this gigantic insurrection, the New York News, + whose proprietor, Benjamin Wood, is shown by the testimony upon your + record to have received from the agents of the rebellion $25,000, + rushes into the lists to champion the cause of the rebellion, its + aiders and abettors, by following to the letter his colleague [Mr. + Johnson], and with greater plainness of speech, and a fervor + intensified doubtless by the $25,000 received, and the hope of more, + denounces the Court as a usurpation and threatens the members with the + consequences." + +And he interrupts his tirade against one of the greatest men this country +has produced to burst forth into the following grandiloquent apostrophe: + + "Youngest born of the Nations! Is she not immortal by all the dread + memories of the past--by that sublime and voluntary sacrifice of the + present, in which the bravest and noblest of her sons have laid down + their lives that she might live, giving their serene brows to the dust + of the grave, and lifting their hands for the last time amidst the + consuming fires of battle!" + +After a brief defense of the secret sessions of the Commission, the +learned advocate enters upon his circumstantial reply to the argument of +Mr. Johnson, into which it is not worth while to follow him, as the main +points of his contention have been rendered obsolete by the Supreme Court +of the United States. + +Suffice it to say, he holds that the President of the United States has +the power, of his own motion, to declare martial law in time of war, over +the whole United States, whether the States are within the theatre of the +war or not; and that President Lincoln exercised this power by his +proclamation of September, 1862, by virtue of which martial law prevailed +over the whole North, including, of course, the District of Columbia, on +the day of the assassination; and, farther, that certain subsequent acts +of Congress, though not in express terms yet by fair implication, had +ratified the proclamation. + +He contends, in consequence, that "nothing can be clearer than that +citizen and soldier alike, in time of civil or foreign war, are triable by +military tribunals for all offences of which they may be guilty, in the +interest of, or in concert with the enemy;" and that "these provisions, +therefore, of your Constitution for indictment and trial by jury in civil +courts of _all crimes_ are * * * silent and inoperative in time of war +when the public safety requires it." + +Listen to this judicial expounder of constitutional law! + + "Here is a conspiracy organized and prosecuted by armed traitors and + hired assassins, receiving the moral support of thousands in every + State and district, who pronounced the war for the Union a failure, + and your now murdered but immortal Commander-in-Chief a tyrant. + + "It is in evidence that Davis, Thompson, and others * * * agreed and + conspired with others to poison the fountains of water which supply + your commercial metropolis, and thereby murder its inhabitants; to + secretly deposit in the habitation of the people and in the ships in + your harbor inflammable materials, and thereby destroy them by fire; + to murder by the slow and consuming torture of famine your soldiers, + captives in their hands; to import pestilence in infected clothes to + be distributed in your capital and camps, and thereby murder the + surviving heroes and defenders of the Republic. + + "I claim that the Constitution itself * * * by express terms, has + declared whatever is necessary to make the prosecution of the war + successful, may be done, and ought to be done, and is therefore + constitutionally lawful. + + "Who will dare to say that in the 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 and sacred in it; it is, however, only the law of peace, not + of war. + + "In time of war the civil tribunals of justice are wholly or partially + silent, as the public safety may require; * * * the limitations and + provisions of the Constitution in favor of life, liberty and property + are therefore wholly or partially suspended." + +He makes allusion to the recent re-election of President Lincoln, as +ratifying any doubtful exercise of power by him: + + "The voice of the people, thus solemnly proclaimed, by the omnipotence + of the ballot * * * ought to be accepted, and will be accepted, I + trust, by all just men, as the voice of God." + +He concludes his plea in favor of the jurisdiction of the Commission, by +declaring that for what he had uttered in its favor "he will neither ask +pardon nor offer apology," and by quoting Lord Brougham's speech in +defence of a bill before the House of Lords empowering the Viceroy of +Ireland to apprehend and detain all Irishmen _suspect_ of conspiracy. + +The Special Judge-Advocate then proceeds to sum up the evidence, in doing +which he leaves nothing to the free agency of the Court. He, first, by a +review of the testimony of the Montgomeries and Conovers, proves to his +own and, presumably, to the Court's satisfaction, that "Davis, Thompson, +Cleary, Tucker, Clay, Young, Harper, Booth and John H. Surratt did combine +and conspire together in Canada to kill and murder Abraham Lincoln, +Andrew Johnson, Wm. H. Seward and Ulysses S. Grant." + + "Surely no word further need be spoken to show that John Wilkes Booth + was in this conspiracy; that John H. Surratt was in this conspiracy; + and that Jefferson Davis, and his several agents named, in Canada, + were in this conspiracy. + + "Whatever may be the conviction of others, my own conviction is that + Jefferson Davis is as clearly proven guilty of this conspiracy as is + John Wilkes Booth, by whose hand Jefferson Davis inflicted the mortal + wound upon Abraham Lincoln." + +After such utterances as these, it is hardly necessary to state that this +impartial Judge declares every single person on trial, as well as John H. +Surratt, guilty beyond the shadow of a doubt. + + "That John H. Surratt, George A. Atzerodt, Mary E. Surratt, David E. + Herold, and Louis Payne entered into this conspiracy with Booth, is so + very clear upon the testimony, that little time need be occupied in + bringing again before the Court the evidence which establishes it. + + "It is almost imposing upon the patience of the Court to consume time + in demonstrating the fact, which none conversant with the testimony of + this case can for a moment doubt, that John H. Surratt and Mary E. + Surratt were as surely in the conspiracy to murder the President as + was John Wilkes Booth himself." + +He lets out the secret that the mother is on trial as a substitute for her +son, whom the Secretary of War and the Bureau of Military Justice had +failed to capture, by saying: + + "Nothing but his conscious coward guilt could possibly induce him to + absent himself from his mother, as he does, upon her trial." + +After having reiterated over and over again, with all the authority of his +office, what he had for hours endeavoured to enforce by all the resources +of his intellect, that the guilt "of all these parties, both present and +absent" is proved "beyond any doubt whatever," and "is no longer an open +question;" he closes by formally, and with a very cheap show of +magnanimity, leaving "the decision of this dread issue" to the Court. + + + + +CHAPTER VI. + +THE VERDICT, SENTENCE AND PETITION. + + +With the loud and repeated denunciations of this elaborate and vindictive +harangue, full as it was of rhetorical appeals to the members of the +Commission to avenge the murder of "their beloved Commander-in-Chief," and +of repeated and most emphatic assurances of the undoubted guilt of each +and every one of the prisoners, as well as of all their alleged +accomplices, still ringing in the ear of the Court; the room is for the +last time cleared of spectators, counsel for the prisoners and reporters; +the mournful procession of the accused marches for the last time from the +dock to their solitary cells, their fetters clanking as they go; and the +Commission meets to deliberate upon its verdict. But who remains in the +room, meets with the Court and participates in its secret and solemn +deliberations? Who but Colonel Burnett, the officer who had so zealously +conducted the preliminary examinations of the witnesses and marshalled the +evidence for the prosecution? Who but Recorder Joseph Holt, the head of +the Bureau of Military Justice, the left hand of Stanton as Baker was his +right? Who but John A. Bingham, the Special Judge-Advocate, who had so +mercilessly conducted the trial, assailing counsel, browbeating witnesses +for the defense, declaring that all participants in the rebellion were +virtually guilty of the assassination, and who had just closed his long +speech, in which he had done his utmost to stir up the Commission to the +highest pitch of loyalty, unreasoning passion and insatiable desire for +vengeance? + +Where can we look in the history of the world for a parallel to such a +spectacle? A woman of refinement and education, thrown together in one +mass with seven men, to be tried by nine soldiers, for the crime of +conspiring with Jefferson Davis, the arch-enemy of every member of the +tribunal, to kill, and killing, the beloved Commander-in-Chief of every +member of the tribunal; three experienced criminal lawyers eagerly +engaging in the task of proving her guilty; pursuing it for days and weeks +with the unrelenting vigor of sleuth-hounds; winding up by reiterating in +the most solemn manner their overwhelming conviction of her guilt; and +then all three being closeted with the Court to take part in making up the +doom of death! + +And here let us pause to consider one feature of the trial and of the +summing up of Judge Bingham, which has not yet been noticed because it +deserves special and prominent remark. + +It appeared from the testimony on the part of the prosecution, +unmistakably, that, during the fall of 1864 and the winter of 1864-5, +Booth was brooding over a wild plot for the capture of the President +(either on one of his drives, or in the theatre, where the lights were to +be turned off), then hurrying off the captive to lower Maryland, thence +across the Potomac, and thence to Richmond; thereby to force an exchange +of prisoners, if not, possibly, a cessation of the war. It was a plot of +the kind to emanate from the disordered brain of a young, spoiled, +dissipated and disappointed actor. During this period, Booth made some +trifling and miserably inadequate preparations, and endeavored to enlist +some of his associates in its execution; and, by his personal ascendency +over them, he did in fact entangle, in a more or less vague adhesion to +the plot, Arnold, O'Laughlin, Atzerodt, Payne, Herold, John H. Surratt, +Lloyd, and, possibly, Dr. Mudd and Weichman. + +On the fall of Richmond, and the surrender of Lee, this any-how +impracticable scheme was necessarily abandoned. Indeed, the proof showed +that Arnold and O'Laughlin had deserted their leader some time before. + +It further appeared in the testimony that it was not until after the +forced abandonment of this plot and the desertion of most of his +adherents, that Booth, plunged as he was into the depths of chagrin and +despair because of the collapse of the rebellion, suddenly, as a mere +after-thought, the offspring of a spirit of impotent revenge, seized upon +the idea of murder, which was not in fact brought to the birth until the +afternoon of the fourteenth, when he was first informed of the promised +attendance of President Lincoln and General Grant at the theatre. Now, the +existence of the plot to capture, although it looked forth from the +evidence steadily into their faces, the Judge-Advocates bound themselves +not to recognize. In the first place, such a concession would forever +demolish the preconceived theory of the Secretary of War, Colonel Baker +and the Bureau of Military Justice, that the conspiracy to murder emanated +from the Confederate Government through its Canadian agents, by pointing +directly to another plot than the one to kill as that in which these +agents had been interested. The horrid monster of a widespread, +treasonable conspiracy to overthrow the government, which had been +conjured up in the imagination of the Secretary of War and then cherished +in the secret recesses of the Bureau of Military Justice, would have +immediately shrunk into the comparatively simple case of an assassination +of the President and an attempted assassination of the Secretary of State, +by two worthless villains suddenly seizing opportunity by the forelock to +accomplish their murderous purpose. And, in the next place, the concession +of such a plot as a fact would go far to establish the innocence of Mrs. +Surratt, Arnold, O'Laughlin and Mudd, as well as that of John H. Surratt, +by explaining such suspicious circumstances as the frequent rendezvous of +Booth, Payne and others at Mrs. Surratt's house, which practice, as it +was proved, ceased altogether on the fall of Richmond and the immediate +departure of the son to Canada. To the Judge-Advocates, if not to the +Court, any evidence looking towards innocence was most distasteful and +unwelcome. They were in no mood to reconcile what they considered the +damning proofs of a conspiracy to kill their "beloved Commander-in-Chief" +with the innocence of the fettered culprits before them, by admitting a +plot to capture, into which nevertheless those same proofs fitted with +surprising consistency. Besides, in the eyes of Bingham and Holt, +complicity in a plot to capture, although unexecuted, was proof of +complicity in the plot to murder, and also of itself deserved death. In +this direction, therefore, the Judge-Advocates were mole-eyed. On the +contrary, they hailed the slightest indication of guilt with a glow of +triumph. In the direction of guilt, they were lynx-eyed. + +Consequently, they bent every energy to identify the plot to capture with +the plot to kill. They introduced anonymous letters, dropped letters; a +letter mailed nearly a month after the assassination directed to J. W. B.; +a letter in cipher, purporting to be dated the day after the +assassination, addressed to John W. Wise, signed "No Five," found floating +in the water at Morehead City, North Carolina, as late as the first of +May; this last, the most flagrant violation and cynical disregard of the +law of evidence on record. + +They did more. They labored to keep out all reference to the plot to +capture. And it was for this reason, that the Judge-Advocates deliberately +suppressed the diary found on the body of Booth. Its contents demonstrated +the existence of the plot to capture. + +Instead of allowing the officer who testified to the articles taken from +the dead body of Booth to make a detailed statement in response to one +general question as to what they were, the examining counsel shows him +first the knife, then the pistols, then the belt and holster, then a file +with a cork at one end, then a spur, then the carbine, then the bills of +exchange, then the pocket-compass; following the exhibition of every +article with the interrogatory, "Did you take this from the corpse of the +actor?" But no diary was exhibited or even spoken of, although, as has +been mentioned, it was carried by this same officer and Colonel Baker to +Secretary Stanton on the night following the capture. That these +Judge-Advocates had carefully searched through the diary for items they +could use against the prisoners, is shown by their calling one of the +proprietors of the "National Intelligencer," as a witness, to contradict +the statement that Booth had left a written article, setting forth the +reasons for his crime, for publication in that paper--a statement found +only in the diary whose very existence they kept secret. + +Therefore, when Judge Bingham came to review the evidence, he utterly +refused to recognize in the testimony any such thing as a plot to +capture; he shut his eyes to it and obstinately ignored it; he scornfully +swept it aside as an absurdity it would be waste of time to combat; and he +twisted every circumstance which looked to a connection, however remote, +with an abandoned plot to kidnap, into a proof, solid and substantial, of +complicity in the plot to murder. + +And, therefore, when this same thorough-going advocate, with his two +emulous associates, proceeded in secret conclave with the members of the +Commission to go over the testimony for the purpose of making up their +verdict and sentence, he summarily stifled any hint as to the possibility +of a plot to capture; he banished from the minds of the Court, if they +ever entertained such a purpose, any attempt to reconcile the +circumstantial evidence with the existence of such a plot; and, besides, +he held it up to the condemnation of those military men as equally heinous +and as deserving the same punishment as the actual assassination. + +Thus, the presence of these prosecutors during the deliberations of the +Court must have exerted a deadly influence (if any influence were +necessary) against the prisoners, and benumbed any impartiality and +freedom of judgment which might otherwise have lodged in the members of +the Commission. + +The Commission, with its three attending prosecuting officers, held two +secret sessions--Thursday and Friday, the 29th and 30th of June; on the +first day from 10 o'clock in the morning until 6 o'clock in the evening, +on the second day, probably, during the morning only. The record of the +proceedings is meagre, but contains enough to show the lines of the +discussion which, in such an unexpected manner through one whole day, +prolonged the deliberations of a tribunal organized solely to obey the +predetermination of a higher power, and even made necessary an adjournment +over night. + +There was no difficulty with the verdicts, except in the case of Spangler, +over the degree of whose guilt a majority of the Commission presumed for +the first time to differ with the Judge-Advocates. They would unite in a +conviction of the crime of assisting Booth to escape from the theatre with +knowledge of the assassination, but they would go no farther. They would +not find him a participant in the "traitorous conspiracy." This poor +fellow, as we can see _now_, was clearly innocent of the main charge; but +that was no reason, _then_, why the Commission should find him so. There +was more testimony pointing to his complicity with Booth on the fatal +night than there was against Arnold or O'Laughlin or even Mrs. Surratt; +and Judge Bingham, the guardian and guide of the Court, had pronounced it +"Conclusive and brief." The testimony of the defense, however, appears +overwhelmingly convincing, and, moreover, his case was admirably managed +by General Ewing. + +For all the rest there was no mercy in the verdict. Every one was found +guilty of the charge as formulated (eliminating Spangler); that is, in the +judgment of the Commission, they had, each and all, been engaged in a +treasonable conspiracy with Jefferson Davis, John H. Surratt, John Wilkes +Booth and the others named, to kill Abraham Lincoln, President, Andrew +Johnson, Vice-President, Wm. H. Seward, Secretary of State, U. S. Grant, +Lieutenant-General; and that in pursuance of such conspiracy they (the +prisoners) together with John H. Surratt and J. Wilkes Booth, had murdered +Abraham Lincoln, assaulted with intent to kill W. H. Seward, and lain in +wait with intent to kill Andrew Johnson and U. S. Grant. + +This was the deliberate judgment of the Commission as guided by +Judge-Advocates Holt, Burnett and Bingham. With the same breath with which +they pronounced the guilt of Mrs. Surratt, they pronounced also the guilt +of her son, of Jefferson Davis, of Clement C. Clay, of George H. Sanders, +of Beverly Tucker. And there can be no doubt that if these men had also +been upon trial, they all would have been visited with the same +condemnation and would have met the same doom. + +The Commission, further, found Herold, Atzerodt, Payne and Arnold guilty +of the Specification as formulated (eliminating Spangler); Mrs. Surratt +guilty, except that she had not harbored and concealed Arnold or +O'Laughlin; Dr. Mudd guilty, except that he had not harbored or concealed +Payne, John H. Surratt, O'Laughlin, Atzerodt or Mrs. Surratt; and, +strangest of all, they found O'Laughlin guilty of the Specification, +_except that he had not lain in wait for General Grant with intent to kill +him_, which was the very part in the conspiracy he was charged in the +Specification with having undertaken. It should be recollected that, in +the first moments of the panic succeeding the assassination, Stanton and +his subordinates had included among the objects of the conspiracy, as if +to complete its symmetry, the murder of the Secretary of War, himself. +Afterwards, probably because of the attitude of Stanton relative to the +prosecution, Grant was substituted as the victim of O'Laughlin and not of +Booth; Stanton's son having discovered a resemblance of the captured +O'Laughlin to the mysterious visitor at his father's house during the +serenade on the night of the 13th of April, when General Grant was also +present. This pretty romance, the testimony on behalf of O'Laughlin +effectually dissipated on the trial, but the indomitable Bingham still +insisted on holding the prisoner to a general complicity with the plot. In +this instance, as well as in that of Spangler, there may have been some +dissension between a majority of the officers and the Judge-Advocates, +but, taken altogether, the eight verdicts could not have cost the +Commission much time. It was organized to convict, and it did convict. + +So that it was not until the Court, having made up its verdicts, proceeded +to affix its sentences, that the three advocates, still assisting at the +work of death, encountered the unforeseen difficulties which compelled a +prolongation of the session. The crime or crimes of which the prisoners +were all pronounced guilty (with the possible exception of Spangler's) +were capital, and the Secretary of War, on the eve of the assembling of +the Commission, had already denounced against such offenses (not excepting +Spangler's) the punishment of death. + +The sentence, however, under the rules governing military commissions, was +wholly within the power of the Court, which, no matter what the nature of +the verdict, could affix any punishment it saw fit, from a short +imprisonment up to the gallows. Its two-fold function was, like a jury to +find a verdict, not only, but, like the judge in a common-law court, to +pronounce sentence; and, unlike such a judge, in pronouncing sentence, the +Commission was confined within certain limits by no statute. Although the +whole proceedings of the Court must be subjected to the final approval of +the President, yet its members were clothed alike with the full +prerogative of justice and the full prerogative of clemency. There was one +limit, however. While a majority could find the verdict and prescribe +every other punishment, it required two-thirds of the Commission to +inflict the penalty of death. Four officers, therefore, could block the +way to the scaffold, and five could mitigate any sentence, to any degree, +and for any, or for no reason. + +The Commission must have taken up the cases for sentence in the order +adopted in the formal Charge. As to the first three--Herold, Atzerodt and +Payne--there could have been no dissent or hesitation. The Commission, +with hardly a moment's deliberation, must have ratified the judgment of +the Judge-Advocates and condemned the prisoners to be hung by the neck +until dead. The sentences of death formally declare in every instance that +two-thirds of the Commission concur therein, but, as to these three, we +can scarcely be in error in stating the Court was unanimous. It was not +until the cases of the next three--O'Laughlin, Spangler and Arnold--were +reached, that symptoms of dissatisfaction with the sweeping doom of death, +so confidently pronounced by Judge Bingham in his charge, first began to +show themselves amongst the members of the Court. It seems that now, after +having joined with the counsel in pronouncing capital punishment upon the +three most prominent culprits, the majority could no longer whet their +appetite for blood so as to keep it up to the same fierce edge as that of +the Judge-Advocates. + +The deviations from the Charge and Specification, the Court had finally +prescribed in the verdicts against O'Laughlin and Spangler, were not +thought by the prosecutors to be of such importance as to warrant a +softening of the sentence. But here the loyalty of some members of the +Commission began to falter, and refuse to bear the strain. They had found +O'Laughlin guilty of the "traitorous conspiracy," and Spangler guilty of +aiding Booth to escape, and Arnold guilty in the same degree as Herold, +Atzerodt and Payne, but in none of these cases could the attending +advocates extort a two-thirds vote for death. In the case of Spangler, +owing, it is said, to the impression made by General Ewing and the +influence of General Wallace, they were compelled to allow a sentence of +but six years imprisonment. And in the case of the two others--convicted +co-conspirators with Booth and Davis though they were--these prosecuting +officers had to rest satisfied with but life-long imprisonment. + +It was too evident that five members of the Commission had slipped the +bloody rein. Three lives had they taken. Henceforth they would stop just +this side the grave. + +At this point--when the Commission had sentenced to death three men and +had just declined to sentence to death two more whom it had pronounced +guilty of the same crime--at this point it was, that the sentence of Mary +E. Surratt came up for determination. + +Now, the crimes of which Arnold had been found guilty were both in law and +in fact the same of which she had been found guilty. Even the particular +allegation in the Specification is the same in both cases, except some +immaterial variance in the verbiage and in the names of co-conspirators. + +Of course, it will be presumed that the Commission had found the woman +guilty without being pressed. But, equally of course, it will not be +doubted that, in determining the sentence which should follow the verdict, +the question of exercising the same mercy as the Commission had just +exercised in the case of a man convicted of the same crime, must have +arisen in the case of the woman. And, the question once having arisen, the +first impulse of the majority, if inclined still to mercy, must have been +to exert their own unquestioned function, and, as in the other cases, +mitigate the sentence themselves. They would have, originally, no motive +to thrust upon the President, who was to know comparatively nothing of the +evidence, the responsibility of doing that thing, which they themselves +who had heard the whole case thought ought to be done, and which in a +parallel case they had just done. Even if they believed the woman's crime +had a deeper tinge of iniquity than either Arnold's or Mudd's (of which +the respective verdicts, however, give no hint), but that nevertheless her +age and sex ought to save her from the scaffold, they need not have turned +to the President for mercy on such a ground. The woman clothed upon by her +age and sex had sat for weeks bodily before them. This very mitigation was +what a majority of the Court had power to administer. The reason of the +mitigation was a matter of no moment. The Court could commute for "age +and sex" as well as the President, and, for that matter, could state the +reason for the milder penalty in the sentence itself. + +Therefore, it may be taken for granted that here the Judge-Advocates again +found that two-thirds of the Court would not concur in the infliction of +the death penalty. Nay, that even a majority could not be obtained. Five +out of the nine officers announced themselves in favor of imprisonment for +life. + +Here, indeed, was a coil! The prosecutors were at their wits' ends. And +lo! when they passed on to consider the last case, that of Dr. Mudd, the +same incomprehensible reluctance to shed more blood did but add to their +discomfiture. The verdict indeed had been easily obtainable, but the +coveted death-sentence would not follow. The whole day had been spent in +these debatings. The expedient of adjourning over to the next day, +perhaps, was now tried; and the dismayed Judge-Advocates, with but three +out of the eight heads they had made so sure of, and their "female fiend" +likely to slip the halter, hurry away to consult with their Chief. + +Edwin M. Stanton, as he had presided over the whole preparatory process, +so too had kept watch over the daily progress of the trial from afar. +Every evening his zealous aide-de-camps made report for the day and took +their orders for the morrow. + +After the death of Booth and the escape of John H. Surratt, the +condemnation to death of the mother of the fugitive had become his one +supreme aim. + +The condemnation of the other prisoners was to him either a matter of no +doubt or was a minor affair. Three heads of the band of assassins stood +out in bloody prominence--Booth, John H. Surratt and Payne. The first had +been snatched from his clutches by a death too easy. Payne, with +hand-cuffs and fetters and chains and ball and hood, he might be +confident, could not evade his proper doom. Surratt, by the aid of some +inscrutable, malignant power, had contrived to baffle all the efforts of +his widespread and mighty machinery of military and detective police. But +he had the mother, the friend of Booth and the entertainer of Payne; and +she, the relentless Secretary with his accordant lackeys had sworn, should +not fail to suffer in default of the self-surrender of her son. She, +moreover, was to be made an example and a warning to the women of the +South, who, in the judgment of these three patterns of heroism, had +"unsexed" themselves by cherishing and cheering fathers, brothers, +husbands and sons on the tented field. + +In the conclave which Stanton and his two co-adjutors held, either during +the recesses of the prolonged session of the first day, or most likely +during the night of the adjournment, it was resolved, that if the manly +reluctance of five soldiers to doom a woman to the scaffold could be +overcome in no other way, to employ as a last resort the "_suggestion_," +that the Court formally condemn her to death, and then, as a compromise, +the soft-hearted five petition the President to commute--the three +plotters trusting to the chances of the future, with the petition in their +custody and the President under their dominion, to render ineffectual this +forced concession to what they scorned as a weak sentimentalism. This +suggestion of what was in truth a most extraordinary device--a petition to +the President to do what the Court could do itself--could not have +emanated from the merciful majority of the Court, which subsequently did +sign the fatal document. _They_, at least, were sincere, and, if let +alone, would have proceeded immediately to embody their own clemency in a +formal sentence, as they had done with O'Laughlin and Arnold, and as they +were about to do with Mudd. Had there been but one, or two, or three +dissentients, so that they were powerless in the face of two-thirds of the +Commission; or even had there been four--a number sufficient to block a +death-sentence but not sufficient to dictate the action of the Court, +then, indeed, recourse to the clemency of the Executive might have been a +natural proceeding. But a clear majority had no need to look elsewhere for +a power of commutation which they themselves possessed in full vigor, and +which, in all probability, after the first three death-penalties, they had +determined to apply in every one of the other cases. Neither could the +suggestion have been made by one of the minority, because none of them +signed the petition to the last. The four must have been steadfast and +uncompromising for blood. The whole scheme proceeded from a quarter +outside the Court--a quarter which, on the one hand, was possessed by an +overmastering revengeful passion, such as was required to point the five +officers to a seeming source of mercy to which they might appeal and thus +avoid the exercise of their own prerogative in antagonism to their four +brethren, and, on the other hand, harbored some secret knowledge or malign +intent that the petition would or should be, in fact, an empty form; from +a quarter, in short, where the desire for the condemnation to death of +Mrs. Surratt was all-controlling and where the condition of the President +was well known. They, who suggested the death-sentence and the petition as +a substitute for the milder penalty, were surely all on the side of death, +and hoped, if they did not believe, that the prayer of the petition would +be of no avail; else they would not have adopted such a circuitous method +to do what the five officers could immediately have accomplished +themselves. In one word, the contrivers of the device of petition were not +those who desired to save the bare life of the convicted she-conspirator, +but were those who would be satisfied with nothing less than her death on +the scaffold. The suggestion was wholly sinister and malevolent. On the +other hand, the majority of the Court did really desire that her +punishment should not exceed that of Arnold, O'Laughlin and Mudd, and +they certainly would never have had recourse to a petition to the +President, had they not been cheated into believing that that method of +proceeding was likely to effectuate what they had full power to do. Never +would these five soldiers, or any two of them, have given their voices for +the death of this woman, had they dreamed for a moment that their signing +of the petition was, and was meant to be, but a farce. They would not have +played such a ghastly trick under the shadow of the gibbet. + +Accordingly, when the Commission reassembled, either after recess or +adjournment, the reinvigorated counsellors immediately unfolded their +plan. We can almost hear their voices, in that upper room of the Old +Penitentiary, as they alternately urge on the Court. Holt, making a merit +of yielding in the cases of Spangler, of O'Laughlin, of Arnold and of +Mudd, denounces the universal disloyalty of the women of the South, and +pleads the necessity of an example. + +Bingham, holding up both mother and son as equally deep-dyed in blood with +Booth and Payne, both insinuates and threatens at the same time, that, if +"_tenderness_," forsooth, is to be shown because of the age and sex of +such a she-assassin, then, for the sake of the blood of their murdered +Commander-in-Chief, do not his own soldiers show it, but let his successor +take the fearful responsibility. + +One of the five gives way, and now there is a majority for death. One more +appeal! The life of the woman trembles in the balance. Once more to the +breach! The supreme reserve is at last brought forward--an argument much +in use with Judge-Advocates in cases of refractory courts-martial, as a +last resort--that the President will not allow a hair of her head to be +harmed, but that _terror_, TERROR, is necessary; in this instance, to +force the son to quit his hiding place, the life of the mother must be the +bait held out to catch the unsurrendering son. We will hang him and then +free the woman's neck. + +Another vote comes over. Two-thirds at last concur, and her doom is +sealed. They sentence "Mary E. Surratt to be hanged by the neck until she +be dead." Judge Bingham sits down and embodies the memorable "suggestion" +in writing as follows: + + [It is without address.] + + "The undersigned, members of the Military Commission detailed to try + Mary E. Surratt and others for the conspiracy and the murder of + Abraham Lincoln, late President of the United States, &c., + respectfully pray the President, in consideration of the sex and age + of the said Mary E. Surratt, if he can, upon all the facts in the + case, find it consistent with his sense of duty to the country, to + commute the sentence of death, which the Court have been constrained + to pronounce, to imprisonment in the penitentiary for life. + + Respectfully submitted." + +General Ekin copies it on a half-sheet of legal-cap paper, and the five +officers, viz.: Generals Hunter, Kautz, Foster and Ekin, and Colonel +Tompkins, sign the copy; General Ekin keeping the draft of Bingham as a +memento of so gentle an executioner. + +The Commission then proceeds to the next and last case, and, again +exercising its prerogative of clemency, sentences Dr. Mudd to imprisonment +for life. It is now Friday noon. The result of the two-days' secret +session, consisting of a succinct statement of the verdict and sentence in +every case, in the foregoing order, is redacted into a record. The +presiding officer signs, and the Recorder countersigns it. It is placed in +the hands of the Judge-Advocate, together with the petition to the +President. There is an adjournment without day. The members disperse, and +the work of the Military Commission is over. + + + + +CHAPTER VII. + +THE DEATH WARRANT AND THE EXECUTION. + + +From Friday afternoon, the thirtieth of June, through Saturday, Sunday, +Monday and Tuesday, the first four days of July, the record of the +findings and sentences remained under the seal of sworn secrecy in the +custody of the Judge-Advocate-General. To consummate the work of the +Commission, the signature of the President to a warrant approving its +action and directing the execution of its judgment was necessary. But, +during this interval, as it was given out from the White House, President +Johnson was too ill to attend to public business. In the meantime, the +city, and even the whole country to its very borders, were agitated by the +question: What is to be the fate of Mrs. Surratt? The doom of the male +culprits was for the moment forgotten in the intense anxiety over hers. + +Despite the seven-fold seal of secrecy which covered the proceedings of +the secret sessions, whispers of a recommendation of mercy filled the air. +In the War Department, the main source of anxiety, at the same time, must +have been this superfluous paper--the distressing outcome of an +unsuspected sentimental weakness in five of our chosen men. After the +final adjournment of the Commission, the unobtrusive, unaddressed +half-sheet had been fastened to the record of the sentences by the same +narrow yellow silk ribbon which held its own sheets together, and to which +it now dangled as a last leaf, or back. A safety-valve to the misplaced +chivalry of the Court--it had served its purpose, and was henceforth +useless. That it should now turn itself into an implement of evil, +minister to the cause of rebellion and assassination, cause "Our Own Andy" +to flinch at last and thus the she-fiend of the Bureau escape her doom! It +would be treason to suffer it. Upon that resolve, the Triumvirate of +Stanton, Holt and Bingham had once for all determined. Indestructible, +inconcealable, omnipotent, indeed, must that paper be, which could thwart +their united purpose. + +At length, on the morning of Wednesday, the fifth, Preston King, who, in +those days, was a favored guest at the White House, announced in the +Judge-Advocate's office that the President was so much better as to be +able to sit up; and at a later hour in the day, General Holt, in pursuance +of an appointment, started on his solemn errand. The volumes of testimony +taken before the Commission by official stenographers, daily reports of +which had been furnished, he, of course, did not carry with him. In the +interview that was to come, there would be no time and no inclination to +read over bulky rolls of examinations and cross-examinations of witnesses. +From aught that appears, the President was not expected to read over the +evidence, nor was it customary in such cases. It may have been the duty of +the Secretary of War or the Attorney-General to scrutinize the testimony, +either from day to day or at the close of the trial. But all that the +President was supposed to know about the merits of the case appears to +have been derived from what any of his Cabinet saw fit to inform him, from +what he himself casually and unofficially read, but, especially and +principally, from what the Judge-Advocate was now coming to tell him. As +to the guilt of the accused, and especially of Mrs. Surratt, his mind had +long ago been made up for him by his imperious War Minister, from whose +despotic sway he had not as yet recovered energy enough to free himself. +He was still in that brief introductory period of his Presidency which may +be called his Stanton Apprenticeship; still eager "to make treason +odious;" full of threatenings to hang Davis and other Southern leaders. He +had not yet awakened from the state of semi-stupefaction into which his +sudden and awful elevation seems to have thrown him; and, in this state, +he must have been extremely averse to dwelling on any of the circumstances +of the assassination to which he owed his high place. The idea of clemency +to any one of the band of assassins, male or female, which his +War-Secretary's court might convict, would have been intolerable to his +imagination and sickening to his sense of security. What Andrew Johnson, +at this moment, wanted was to push away from his mind all thoughts of the +tragic end of his predecessor, and to allow retributive vengeance to take +the most summary course with the least possible knowledge and trouble to +himself. And this mood of the presidential mind was well known to the +Judge-Advocate-General, as he entered the President's room. He brought +with him so much of the record of the proceedings of the Commission as was +necessary to the accomplishment of his errand--viz.: the record of the +findings and sentences, which the President was to endorse. This document +consisted of a few sheets of legal-cap paper fastened together at the top, +written on both sides in the fashion of legal papers, _i. e._, beginning +at the top of the first page and, on reaching the bottom, turning up the +paper and writing on the back from the bottom to top. It was a document +complete in itself, the written record ending on the first page of the +last half-sheet--thus leaving blank the remainder of that page and the +whole of the obverse side; ample room for the death-warrant. To this +record, but forming no part of it, the Petition, as we have said, had been +affixed, but in such a manner as to be easily separable without +mutilation. He must also have brought with him his official report of the +trial--styled "The formal brief review of the case," which was +subsequently appended to the regular Report of the Judge-Advocate-General +to the Secretary of War and transmitted to the Congress in December +following--because it is addressed "To the President," is dated "_July 5, +1865_," and is signed "J. Holt." It recites the verdicts and sentences; +justifies its brevity by referring to "the full and exhaustive" argument +of Judge Bingham; certifies to the regularity and fairness of the +proceedings; and recommends the execution of the sentences; _but it makes +no mention of the Petition, or any "suggestion" of mercy_. + +The Judge-Advocate could have anticipated no difficulty in obtaining the +approval of the President, conscious as he was that the grounds of such +approval were to be furnished to the President by himself. The approval +being had, the fixing of the day of execution could cause no disagreement. +His only possible source of embarrassment was the petition for +commutation. But it would be strange, indeed, if a few apt words could not +further emasculate the mild, hypothetical language in which his colleague, +Bingham, had seen fit to clothe that paper. + +He found the President "alone," and (as he himself says) "waiting for" +him, "very pale, as if just recovered from a severe illness." + +"Without delay" he "proceeded to discharge the duty which brought" him +"into his presence." What took place at this "confidential interview" (as +Holt calls it) can never be precisely known; the distinguished +interlocutors having subsequently risen into unappeasable quarrel over +the presence or absence of the petition, and given contradictory versions. +Whatever the truth may be, it is evident that everything went smoothly at +the moment. The Judge-Advocate was not disappointed. No difficulty was +encountered. What was done was done quickly and at once. The record may +have been read over; but this was hardly necessary, as the bare mention of +the several sentences would convey a correct summary of its contents. He +may have read the "brief review of the case" he had prepared. As Judge +Holt relates, he said to the President, "frankly, as it was his official +duty to do," that in his judgment "the proceedings of the Court were +regular, and its findings and sentences justified by the evidence, and +that the sentences should be enforced." And this was what he had written +in his "Brief Review." What more could the successor of the murdered +Lincoln want? His approval must have been spontaneous and immediate. As +Holt says, "at that time Mr. Johnson needed no urging." Mention may have +been made of the curious weakness infecting some members of "our Court" +towards the wicked woman, who, as Johnson seems then to have thought, "had +kept the nest that hatched the egg;" but only to be scouted by both +Judge-Advocate and President as most reprehensible and actually +_disloyal_. + +Their unanimity over the salutary effect of the hanging of this one woman +on the female rebels was more than fraternal. And it is probable that no +more explicit mention of an actual petition was made by Judge Holt in his +conversation with the President than was made in his written report to the +President, dated the same day, and which he had with him at the time. + +The day of execution was fixed upon with the same alacrity. "Make it as +soon as possible, so that the disagreeable business may be over; say the +day after to-morrow--Friday, the seventh." And, thereupon, everything +being agreed upon, Judge Holt turns over the papers to the last page of +the record and spreads it upon the table. Beginning, a few lines below the +signature of "D. Hunter, President" which closes the record, with the +date, + + "Executive Mansion, July 5th, 1865," + +"with his own hand" he writes out the death warrant. As this includes the +approval of the sentences, the appointment of the day and hour of +execution, and the designation of the place of confinement of those +condemned to imprisonment, the bottom of the page is reached before he +completes his task. If he had turned up the page and continued his writing +on the obverse side from the bottom down, as all the foregoing had been +written, then the petition of mercy, unaddressed as it was, would have +been, if still attached, directly beneath the eye of the President as he +signed the death-warrant. But, as now appears from the record itself, the +careful Judge-Advocate did not turn up the page from the bottom. On the +contrary, reverting to the layman's way of writing papers, he whisks the +whole record over, and continues the writing of the death-warrant on the +back of the last half-sheet of the record _from the top to the bottom_--by +this change of method, either throwing the petition under the leaves of +the record, or, if disengaged, leaving it _upside down_. + +When he has thus finished his draft he shoves it over to the President. +The President signs it with tremulous hand. The "confidential interview" +is at an end; and the Judge-Advocate, taking up the papers, hurries out +and over to the Department of War. + +At this moment the petition disappears from view. We hear no more of it. +Thrust as a convenient succedaneum into the hands of the majority of the +Commission, ignored, suppressed or slurred over when before the President, +it had served its pitiful purpose. Neither the Adjutant-General nor any of +his clerks, appear to have noticed it, although the record must have been +copied more than once in his office. It seems to have sunk suddenly into +oblivion; its very existence became the subject of dispute. It was omitted +from the authorized published proceedings of the Commission. It was +omitted from the annual report of the Judge-Advocate. The disloyal paper +must have been laid alongside the suppressed "Diary," there to repose +unseen until the Impeachment of Johnson and the Trial of Surratt summoned +them together into the light of day. + + * * * * * + +On the morning of Thursday, the sixth day of July, the six days ominous +silence of the War-Department is broken. An order issues from the +Adjutant-General's office which, bearing date the day before and reciting +the findings and death-sentences of the Commission and the death-warrant +of the President, commands Major-General Hancock to see execution done, on +the seventh, between the hours of ten and two. + +This order was read to Mrs. Surratt at noon. She had all along been +encouraged to hope. She, herself, had never been able to realize the +possibility of a capital condemnation in her own case. And, here, +suddenly, was Death, with violence and shame, within twenty-four hours. +She sank down under the blow. In faltering accents she protested that she +had no hand in the murder of the President, and pleaded for a few days +more time to prepare for death. During the remainder of the day and +throughout the night, she was so prostrated by physical weakness and +mental derangement as to necessitate medical aid to keep her alive and +sane. The cries of her daughter could be heard in the still darkness +outside the prison. At five o'clock in the morning, the mother (with the +three condemned men), was removed to a solitary cell on the first floor, +preparatory to the execution. + +In the meantime, when it first became known that, by the sentence of the +Commission and the direction of the President, Mrs. Surratt was to die by +the rope on the same scaffold with Payne, Herold and Atzerodt within +twenty-four hours, a chill of despairing terror froze the blood of her +relatives and friends, a thrill of consternation swept over the body of +the citizens, and dark misgivings disturbed even the most loyal breasts. A +stream of supplicants at once set in towards the Executive Mansion--not +only friends and acquaintances of the condemned woman, but strangers, +high-placed men, and women too, who were haunted by doubts of her guilt +and could in some degree realize her agony. + +But even this expiring effort of sympathy, the powers behind the President +had anticipated. Apprehensive that Andrew Johnson, at the last moment, +might yield to distressing importunities for more time, they had already +taken measures that their sick man's wish to hear nothing till all was +over should be scrupulously respected. Preston King and General James Lane +undertook to keep the door and bar all access to the President during the +dreadful interval between the promulgation of the sentence and its +execution. It was rumored that they, with a congenial crew, held high +revelry around their passive Chief in his private apartments. Be this as +it may, no supplicant--friend, acquaintance or stranger--was allowed to +gain access to the President. + +The priests, who had attested upon her trial the good character, the piety +and the general worth of their parishioner, instinctively turned their +steps to the White House to beg for clemency, or, at least, a respite. +They were repulsed from its door. In ghastly mockery, they were told to go +to ---- Judge Holt. + +At last, the daughter of the victim made her way to the very threshold of +the President's room. Frenzied with grief she assailed the portal with her +cries for admission to plead for her dying mother. She was denied +admittance. In the extremity of her despair she lay down upon the steps, +and, in the name of God, appealed to the President and to the wardens, +only to listen to her prayer. The grim guardians of the door held it shut +in her face. + +Denied, thus, even an appeal to Executive clemency, the friends of the +poor woman, as a last most desperate resort, invoked the Constitution of +their and her country through the historic writ of Habeas Corpus. On the +morning of the day of the execution, they found a judge (Judge Wylie; all +honor to his memory!) who had the independence and courage to grant the +writ. At half-past eleven, General Hancock appeared before the Judge and +made return that by order of the President the Habeas Corpus was suspended +and therefore he did not produce the body. The order of the President +dated ten o'clock, same morning, was annexed to the return and directed +the General to proceed with the execution. + +No sooner had the guarantees of the Constitution been, thus, finally set +at naught, than the cell-doors were thrown open and the prisoners summoned +to their doom. As the enfeebled widow raised her trembling limbs from off +the coarse mattress which alone separated her body from the stone floor of +her dungeon, she strove, in broken words, to assure the soldiers, who had +come to bind her arms behind her back and tie cords around her skirts +above and below the knee, of her utter, yet helpless innocence. Her +confessor, who stood by her until the last, gently pointed out to her the +uselessness of such appeals, at such a moment, and directed her hopes +towards Heaven. + +Amid the tolling of the bells, sending a shudder through the silent +population of the city, and heralded by the tramp of armed men, the +death-march of the doomed woman and the doomed men begins. The still +breathing men and still breathing woman are clothed already in their +shrouds. As she totters first along the corridor, accompanied by her +priest and requiring two soldiers to hold her erect, the very extremity of +her helplessness and woe bears witness in her favor. Even the bloody +Payne, who walks next behind her, has broken through that stolid +indifference to his own fate, so remarkable as to indicate insanity, to +clear her from all complicity with the assassination. Herold and Atzerodt, +who follow, though themselves speechless with terror, seem to wave her +mute acquittal, as they stumble along into the swift-coming Darkness. +They reach the prison-yard. They mount the high scaffold. They are seated +in four chairs facing the four dangling nooses, while the death-warrant is +once more read. Their graves, already dug, are in full sight close by. +Their coffins stand by the side of the open graves. They are raised up and +pushed forward upon the two drops, Herold and Atzerodt on one, Mrs. +Surratt and Payne on the other; the half-conscious woman still supported +by the two guards. The ropes are adjusted. The hoods drawn over the face. +The signal is given. The two drops fall. Surrounded by the unpitying +soldiery, headed by the unpitying Hartranft, the woman and the men hang +writhing in the agonies of an ignominious death. When pronounced dead, the +bodies are cut down. They are laid out on the top of the coffins. A +hurried post-mortem examination is made. And, then, at four o'clock in the +afternoon, they are inclosed in the coffins and buried side by side. The +soldiers depart with flourish of trumpet and beat of drum. Silence +descends on the grounds of the old Arsenal; broken only by the pace of the +sentinel set to guard the four corpses. + +The daughter may beg the stern Secretary to yield up the body of her +murdered mother, that she may place it in consecrated ground. But she will +beg in vain. + +And so ended the fell tragedy. And so did brave soldiers avenge the murder +of their "beloved Commander-in-Chief." Methinks their beloved +Commander-in-Chief, could his freed spirit have found a mortal voice, +would have spurned, with indignant horror, the savage sacrifice of a +defenseless woman to appease his gentle shade. + + + + +CHAPTER VIII. + +WAS IT NOT MURDER? + + +And now what shall be said as to this taking of human life? + +Maintaining the most rigorous allegiance to the simple unadulterated +truth, what can be said? Arraigned at the bar of the common law as +expounded by the precedents of centuries, and confronted by plain +provisions of the Constitution of the United States, which need no +exposition and yet have been luminously expounded; but one thing can be +said. + +Had Mary E. Surratt the right guaranteed by the Constitution to a trial +singly and alone, in a regularly constituted civil court, and by a jury of +the vicinage, the individuals of which she might select by challenge, both +for cause, in all cases, and without cause to a certain number, before she +could be legally convicted of any crime whatever, or be lawfully punished +by the most trivial loss of property or the minutest injury to limb, to +say nothing of the brutal crushing out of her life? That's the unevadable +question which the ages put and will continue to put. And upon its +precisely truthful answer, depend the character and color of the acts of +every person who had lot or part in the execution of this woman. + + * * * * * + +On the 21st day of October, 1864--while the war was still raging--Lambdin +P. Milligan, a citizen of the United States and a resident of Indiana, was +arraigned before a Military Commission convened by the commanding General +of that Military District, at Indianapolis, on the following charges +preferred against him by Henry L. Burnett, Judge-Advocate of the +Department of the West: + +1. Conspiracy against the Government of the United States. + +2. Affording aid and comfort to the rebels. + +3. Inciting insurrection. + +4. Disloyal practices. + +5. Violation of the laws of war. + +There were also specifications, the substance of which was that Milligan +had joined and aided a secret society, known as the Order of American +Knights or Sons of Liberty, for the purpose of overthrowing the Government +and authorities of the United States; had communicated with the enemy; +conspired to seize munitions of war in the arsenals, and to liberate +prisoners; resisted and encouraged resistance to the draft: at or near +Indianapolis, in Indiana, "a State within the military lines of the Army +of the United States, and the theatre of military operations, and which +had been and was constantly threatened to be invaded by the enemy." + +On these charges and specifications, Milligan was subjected to a lengthy +trial by this Military Commission which finally found him guilty on all +the charges and sentenced him to be hanged. The record was approved by the +Commanding General, and then transmitted to President Lincoln, who held it +long under advisement, and was so holding it when he was killed. His +successor, at about the same time that he summoned the Commission to try +Mrs. Surratt, at length approved the findings and ordered the sentence to +be executed on Friday, the 19th day of May, 1865. + +But this object-lesson to the Commission sitting at that date in the old +Penitentiary was intercepted. On the 10th of May, Milligan brought the +record before the United States Circuit Court by a petition for his +discharge, and, the two judges differing upon the main question of the +jurisdiction of the Commission, the cause was certified under the statute +to the Supreme Court of the United States; in deference to which action +the President suspended the execution. The argument before that high +tribunal coming on in the winter of 1865-66, a great array of counsel +appeared upon both sides; David D. Field, James A. Garfield and Jeremiah +S. Black for the prisoner, and Attorney-General Speed and Benjamin F. +Butler for the United States. The counsel for the Government followed the +same line as did Judge Bingham in his argument on the "Conspiracy Trial;" +the counsel for the prisoner on their side, only enlarging, emphasizing +and enforcing the argument of Reverdy Johnson. At the close of the term +the Court unanimously decided that the Military Commission had no +jurisdiction to try Milligan; that its verdict and sentence were void; and +ordered the defendant discharged. + +At the next term, the Court handed down two opinions--one the opinion of +the Court, read by Judge Davis, in which four of his colleagues concurred, +and one by Chief-Justice Chase, in which three of his colleagues +concurred. The two opinions agreed that, as matter of law, the President +could not of his own motion authorize such a Commission, and that, as +matter of fact, the Congress had not authorized such a Commission; and +therefore they were at one in their conclusion. But they differed in this; +that, whereas the majority of the Court held that not even the Congress +could authorize such a Court, the minority, while agreeing that the +Congress had not exercised such a power, were of opinion that such a power +was lodged in that branch of the Government. + +The attempt has often been made to distinguish the case of Mrs. Surratt +from that of Milligan by alleging that Washington at the time of the +assassination was within the theatre of military operations, and actually +under martial law, whereas Indiana at the time of the Commission of +Milligan's alleged offenses was not. + +Now, it must be admitted that at the time of the murder of President +Lincoln the war had swept far away from the vicinity of the Capital. +There had been no Confederate troops near it since Early's raid in the +summer of 1864, and no enemy even in the Shenandoah Valley since October. +It must also be admitted, and was, in fact, proved on the trial, that the +civil courts were open and in full and unobstructed discharge of their +functions. As for the reiterated affirmation of Judge Bingham that the +courts were only kept open by the protection of the bayonet; that is +precisely what was affirmed by General Butler, in his argument before the +Supreme Court, to have been the fact in Indiana. + +None of the counsel in the Milligan case claimed that a Military +Commission could possibly have jurisdiction to try a simple citizen in a +State where there was no war or rumors of war. + + "We do fully agree, that if at the time of these occurrences there + were no military operations in Indiana, if there was no army there, if + there was no necessity of armed forces there, * * * then this + Commission had no jurisdiction to deal with the relator, and the + question proposed may as well at once be answered in the negative." + +They contended, as the very basis of their case, that the acts of Milligan +"took place in the theatre of military operations, within the lines of the +army, in a State which had been, and then was constantly threatened with +invasion." + +And, in fact, the record in so many words so stated, and the statement was +uncontroverted by the relator. + +General Butler with great earnestness put the question: + + "If the Court takes judicial notice that the courts are open, must it + not also take judicial notice how, and by whose protection, and by + whose permission they were so open? that they were open because the + strong arm of the military upheld them; because by that power these + Sons of Liberty and Knights of the American Circle, who would have + driven them away, were arrested, tried and punished. + + "If the soldiery of the United States, by their arms, had not held the + State from intestine domestic foes within, and the attacks of traitors + without; had not kept the ten thousand rebel prisoners of war confined + in the neighborhood from being released by these Knights and men of + the Order of the Sons of Liberty; there would have been no courts in + Indiana, no place in which the Circuit Judge of the United States + could sit in peace to administer the laws." + +Moreover, the opinion of the minority Judges bases their contention that +Congress had the power, if it had chosen to exercise it, to authorize such +a Military Commission, upon this very fact. + + "In Indiana, for example, at the time of the arrest of Milligan and + his co conspirators, it is established by the papers in the record, + that the State was a military district; was the theatre of military + operations, had been actually invaded, and was constantly threatened + with invasion. It appears, also, that a powerful secret association, + composed of citizens and others, existed within the State, under + military organization, conspiring against the draft, and plotting + insurrection, the liberation of the prisoners of war at various + depots, the seizure of the State and national arsenals, armed + co-operation with the enemy, and war against the national government." + +Not one of which circumstances (except that it was a military district) +can be truthfully predicated of the District of Columbia at the time of +the assassination. + +As for actual martial law, there was no declaration of martial law claimed +for the City of Washington, other than the proclamation of the President +which applied as well to Indiana, and, indeed, to the whole North. + +We are justified, therefore, in saying, that the Supreme Court of the +United States, in this case of Milligan, pronounced the final condemnation +of the whole proceedings of the Military Commission which tried and +condemned Mary E. Surratt; declaring, with all the solemn force of a +determination of the highest judicial tribunal known to this nation, that +every one of its acts, from its creation by the President to its +transmission of its record of doom to the President, was in direct +contravention of the Constitution of the United States and absolutely null +and void. + +That illustrious Court, speaking by Judge David Davis, thus enunciates the +law: + + "The Constitution of the United States is a law for rulers and people, + equally in war and in peace, and covers with the shield of its + protection all classes of men, at all times, and under all + circumstances. No doctrine, involving more pernicious consequences, + was ever invented by the wit of man than that any of its provisions + can be suspended during any of the great exigencies of government. + Such a doctrine leads directly to anarchy or despotism." + + "From what source did the Military Commission * * derive their + authority?" + + "It is not pretended that the commission was a court ordained or + established by Congress." + + "They cannot justify on the mandate of the President; because he is + controlled by law and has his appropriate sphere of duty, which is to + execute not to make the law; and there is no unwritten criminal code + to which resort may be had as a source of jurisdiction." + + "The laws and usages of war can never be applied to citizens in states + which have upheld the authority of the government and where the courts + are open and their processes unobstructed. And no usage of war could + sanction a military trial there for any offence whatever of a citizen + in civil life, in nowise connected with the military service. Congress + could grant no such power; and to the honor of our national + legislature be it said it has never been provoked by the state of the + country even to attempt its exercise." + + "All other persons," (_i. e._, all other than those in the military + and naval service) "citizens of states where the courts are open, if + charged with crime, are guaranteed the inestimable privilege of trial + by jury. This privilege is a vital principle, underlying the whole + administration of criminal justice; it is not held by sufferance, and + cannot be frittered away on any plea of state or political necessity." + + "It is claimed that martial law covers with its broad mantle the + proceedings of this Military Commission." + + "Martial law cannot arise from a threatened invasion. The necessity + must be actual and present; the invasion real, such as effectually + closes the courts and deposes the civil administration." + + "Martial law can never exist where the courts are open, and in the + proper and unmolested exercise of their jurisdiction. It is also + confined to the locality of actual war." + +Had the swift process by which this unfortunate woman was hurried to the +scaffold been interrupted by a stay to allow a review by the same high +tribunal which rescued Milligan from the jaws of death, it cannot be +doubted that in her case, as in his, the same conclusions would have been +reached, viz.: + + 1st. "One of the plainest constitutional provisions was, therefore, + infringed when" (Mary E. Surratt) "was tried by a court not ordained + and established by Congress, and not composed of judges appointed + during good behavior." + + 2nd. "Another guarantee of freedom was broken when" (Mary E. Surratt) + "was denied a trial by jury;" + +that, in her case, as in his, the Court would have set the prisoner free; +there would have been no hanging, no felon's grave, and not even an +ulterior attempt at a constitutional trial. + +For it is remarkable that although the Military tribunal which tried +Milligan pronounced him guilty of crimes deserving a traitor's death; the +seeming strength of the evidence must have melted away, strangely enough, +when subjected to the prospective investigation of constitutional courts, +as there was not even a subsequent effort on the part of the Government to +call him to account. + +Let us add, as a final corollary to this exposition of the Constitution by +the Supreme Court, the following remark: that the ground and argument +employed by Attorney General Speed in his opinion upon the right of the +President to order the trial of the alleged assassins by Military +Commission, and by Judge-Advocate Bingham in his address to that +Commission, involve a _reductio ad absurdum_, or, rather, a _reductio ad +monstrosum_, that is, a _Reductio ad absurdum quia monstrosum_. + +For, that ground and that argument, invoked to uphold and sanction the +trial of civilians by military commissions, necessarily and inevitably go +farther, and proclaim the right of President Johnson, alone, of his own +motion and without the interposition of a formal court, whether military +commission or drum-head court-martial, to have commanded the immediate +execution of every person whom he might believe to be guilty of +participation in the assassination of his predecessor or in the presumed +attempt upon himself. + +The conclusion forced upon us, therefore,--the one only thing to be +said--is, that the hanging of Mary E. Surratt was nothing less than the +crime of murder. + +Murder, not only in the case of the private soldiers who dragged her to +the scaffold and put the rope about her neck; they, at least can plead the +almost irresistible force of military discipline. + +But murder, also, in the case of the Major-General whose sword gave the +signal for the drop to fall. General and soldiers are in the precise +position, before the law, of a mob of Lynchers carrying out the judgment +of a Lynch court. + +Murder, not only in the case of the one military officer who superintended +the details of the execution. He, too, though with much less force, can +plead that he was the mere bailiff of what he believed to be a competent +Court. + +But murder, also, on the part of the nine military officers and the three +advocates who tried and sentenced this woman to death. These men, in the +forum of the law, stand in the precise position of any nine policemen +steered by any three police attorneys in the city of New York, who should +dare to try, convict and sentence to death a citizen of that city. + +Murder, not only on the part of the Commission and its lawyers; they too +might, possibly, plead--though with still diminishing force--that, +although they were warned and took the awful responsibility, still they +believed in their competency. + +But murder, also, in the President of the United States, who appointed the +court, approved its findings, and commanded the execution of its sentence. +He stands before the law in the same position as though, sweeping aside +all empty forms, he had seized a sword and with his own hand cut off the +head of the woman, without the mockery of a trial. In our frame of +government, there is surely no room for such a twi-formed +barbarian-despot, as a President having the power to pick out from the +army, of which he is the commander-in-chief, the members of a court to try +and punish with death, at his option, any one of the citizens, for an +abortive attempt on his own life. + +And it was murder, not only in the case of the President; he, too, but +with scarcely audible voice, might plead the coercion of his +situation--sitting as he did in the seat of the murdered Lincoln. + +But it was murder, also, in the Secretary of War, who initiated the +iniquitous process, pushed on the relentless prosecution, shut his own +ears and the ears of the President to all pleas for mercy, presided like a +Moloch over the scaffold, and kept the key of the charnel-house, where, +beside the unpitied carcasses of the reputed ruffians forced upon her in +her ordeal of torture and in the hour of death, the slaughtered lady lay +mouldering in her shroud. Here, at least, the plea of mitigation exhales +in a cry like that of Payne, "I was mad!" + +Weigh the extenuating circumstances in whatever scale you may; extend as +much mercy as possible to those who showed no mercy in their day of +power--still, the offense of every one and all, who had hand, part or lot +in this work of death, contains every element which, under the most +rigorous definition of the law, makes up the Crime of Murder. The killing +was there. The unlawful killing was there. The premeditated design to +effect death was there. The belief of the perpetrators, that they had a +right to kill, or that they were commanded to kill by an overruling power, +before a court of law avails not a whit. Ignorance of the constitution as +well as the law excuses no man, be he civilian or soldier, President or +assassin, War-Minister or Payne. + +Murder it essentially was, and as such it should be denounced to the +present and future generations. + +Garrett Davis told no more than the exact truth when he declared in his +place in the Senate of the United States: + + "There is no power in the United States, in time of war or peace, that + can legitimately and constitutionally try a civilian who is not in the + naval or military service of the United States, or in the militia of a + State in the actual service of the United States, by a court-martial + or by a military commission. It is a usurpation, and a flagitious + usurpation of power for any military court to try a civilian, and if + any military court tries a civilian and sentences him to death and he + is executed under the sentence, the whole court are nothing but + murderers, and they may be indicted in the State courts where such + military murders are perpetrated; and if the laws were enforced firmly + and impartially every member of such a court would be convicted, + sentenced and punished as a murderer." + +Although the actual guilt of any of the victims constitutes no legal +defense to this fearful charge, yet as the unquestioning obedience which +the soldier yields, as a matter of course, to the commands of his superior +officer must alleviate, if it do not wipe away, the guilt of the members +of the Commission, in the forum of morals; so the ascertainment that the +sufferers on the scaffold and in prison, in fact, deserved their doom, +cannot but blunt the edge of our condemnation of the iniquity of the +trial, as well as weaken our pity for the condemned and our sense of shame +over the tyrannous acts of the government. + +A word or two, therefore, will be appropriate in respect to the +sufficiency of the testimony to establish the guilt of the accused. + +I. As to Arnold and O'Laughlin, it may be said in one emphatic word, that +there was no evidence at all against them of complicity in the plot to +kill. The letter of Arnold to Booth shows, when fairly construed, that, if +the writer had conspired with the actor, he conspired to abduct; and, +also, for the time being, even that conspiracy he had abandoned. He was at +Fort Monroe for the two weeks prior to the assassination. His confession, +used on the trial against himself not only but also against O'Laughlin +because he was mentioned in it as present at a meeting of the +conspirators, was a confession only of a conspiracy to abduct which had +been given up. The condemnation of these two men was brought about by the +conduct of Judge Bingham, to which we have drawn attention, in +systematically shutting his eyes to the existence of any conspiracy to +capture, and employing the letter and confession as proof that both these +men were guilty of conspiracy to murder. + +II. As to Dr. Mudd, the evidence leaves it doubtful whether or not he +recognized Booth under his disguise on the night he set his broken leg, +and therefore whether he may have been an accessory after the fact or not; +but the testimony of the informer Weichman, by which chiefly if not solely +the prosecution sought to implicate the doctor in the conspiracy to +murder, was greatly damaged, if not completely broken down, by the proof +on the part of the defense that Dr. Mudd had not been in Washington from +November or December, 1864, until after the assassination. + +III. As to Payne, his guilt of the assault on Seward in complicity with +Booth was clear, and confessed by himself. He was but twenty years of age, +of weak mind, entirely dominated by the superior intellect and will of +Booth. He claimed he acted under the command of his captain. He was so +stolidly indifferent during the trial as to raise suspicion of his sanity, +and he repeatedly expressed his wish for the termination of the trial so +that he might cease to live. + +IV. As to the boy Herold, it was manifest that, as the mere tool and +puppet of Booth, he was acquainted beforehand with the design of his +master to kill the President, but there is no evidence that he aided or +abetted Booth in the actual assassination in any way except to participate +in his flight after he had got out of Washington. + +V. As to Atzerodt, for whom there appears to have been no pity or sign of +relenting, it is nevertheless a fact, that the testimony to his lying in +wait for Andrew Johnson is so feeble as to be almost farcical. The poor +German was a coward and never went near Johnson. There is no circumstance +in the evidence inconsistent with his own confession, that he was in the +plot to capture, knew nothing of the design to murder until 8 o'clock on +the evening of the 14th, and then refused to enact the part assigned him +by Booth. + +Indeed, it would appear as if the Commission, by a sort of proleptic +vision of the future course of the President in his desperate struggle +with the Congress, in grim irony actually hung Atzerodt because he did +_not_ kill Andrew Johnson. + +VI. And as to Mrs. Surratt, the only witnesses of importance against her +are Weichman and Lloyd. Without their testimony the case for the +prosecution could not stand for a moment. Weichman, a boarder and intimate +in her house, the college chum of her son, and, equally with him, the +associate of Payne, Atzerodt, Herold and Booth, who, frightened almost to +death at the outlook, was swearing, under a desperate strain, to clear his +own skirts from the conspiracy and thus save his threatened +neck:--Weichman's testimony before the Commission, even at such a pass, is +for some reason quite vague and indefinite, and only becomes deadly when +supplemented by Lloyd's. This man Lloyd it was who, in fact, furnished the +only bit of evidence directly connecting Mrs. Surratt with the crime. He +testifies to two conversations he had with her--one on the 11th and the +other on the 14th of April--when she alluded to the weapons left weeks +before at the hotel at Surrattsville owned by her and kept by Lloyd--on +the 11th, that the "shooting-irons" would be wanted soon; on the 14th, +that they would be called for that night. Lloyd, himself, however, admits, +and it is otherwise clearly shown, that on the 14th he was so drunk as +hardly to be able to stand up. Lloyd, also, was deeply implicated in the +conspiracy to capture if not to assassinate. He had aided the fugitive +assassins to escape, had kept their weapons hidden in his house, and he +had, for two days after his arrest, denied all knowledge of Booth and +Herold's stopping at his hotel at midnight after the murder. He had been +placed in solitary confinement and threatened with death. His nervous +system, undermined by debauchery, gave way; his terrors were startling to +witness and drove him well-nigh mad, and, at last, in a moment of +distraction, he turned against Mrs. Surratt and her son. Like Weichman's, +his, also, was the frenzied effort of a terror-stricken wretch to avoid +impending death by pushing someone forward to take his place. Reverdy +Johnson, at the close of his plea to the jurisdiction of the court, let +fall the following words, no less weighty for their truth than their +force: + + "This conclusion in regard to these witnesses must be, in the minds of + the Court, and is certainly strongly impressed upon my own, that, if + the facts which they themselves state as to their connection and + intimacy with Booth and Payne are true, their knowledge of the purpose + to commit the crimes and their participation in them, is much more + satisfactorily established than the alleged knowledge and + participation of Mrs. Surratt." + +Moreover, the testimony of both these witnesses, suborned as they were +alike by their terrors and their hopes, is perfectly reconcilable with the +alternative hypothesis, either that the woman in what she did was an +innocent dupe of the fascinating actor, or that she was unaware of the +sudden transformation of the long-pending plot to capture, of which she +might have been a tacit well-wisher, into an extemporaneous plot to kill. + +Much stress was laid by Mr. Bingham on her solemn denial of any prior +acquaintance with Payne when confronted with him on the night of her +arrest. But it is more than probable that the non-recognition was +unsimulated, because of the disguise and pitiable plight of the desperado, +who had been hidden in the mud of the suburbs three days and three nights, +and, also, because the non-recognition was shared with her by the other +ladies of the house. Besides, that a woman, caught in the toils in which +Booth and her own son had unwittingly involved her, under the terror of +recent arrest and imminent imprisonment, should have shrunk from any +acknowledgment of this midnight intruder, even to the extent of falsehood, +certainly is in no wise incompatible with innocence. + +These are the only circumstances by which Mrs. Surratt is brought nearer +than conjectural connection with the assassination, and the force of these +is greatly weakened by the testimony in her defense. + +It is neither necessary, nor relevant to this exposition, to enter into a +lengthy discussion upon the _pros_ and _cons_ of her case. Her innocence +has been demonstrated in a more decisive manner by subsequent events, and +stands tacitly admitted by the acts of the officers of the government. Few +impartial hearers would have said then, and no impartial readers will say +now, that the testimony against her is so strong as to render her +innocence a mere fanciful or even an improbable hypothesis. No one can say +that a jury, to a trial by which she was entitled under the Constitution, +would have pronounced her guilty, and every one will admit that had her +sentence been commuted to imprisonment for life, as five of her judges +recommended, she would have been pardoned with Arnold, Spangler and Mudd, +and might have been living with her daughter to-day. The circumstances of +the whole tragedy warrant the assertion that, had John H. Surratt been +caught as were the other prisoners, he, and not she, would have been put +upon trial; he, and not she, would have been condemned to death; he, and +not she, would have died by the rope. If he was innocent, then much more +was she. Mary E. Surratt, I repeat, suffered the death of shame, not for +any guilt of her own, but as a vicarious sacrifice for the presumed guilt +of her fugitive son. + + + + +PART II. + +THE VINDICATION. + + + + +CHAPTER I. + +SETTING ASIDE THE VERDICT. + + +When the President of the United States, the Secretary of War, the +Military Commission, the Judge-Advocates, and the Executioner-General had +buried the woman against whose life the whole military power of the +Government, fresh from its triumph over a gigantic rebellion, had been +levelled;--buried her broken body deep beneath the soil of the +prison-yard, in close contact with the bodies of confessed felons; +flattened the earth over her grave, replaced the pavement of stone, locked +the door of entrance to the charnel-house and placed the key in the +keeping of the stern Secretary;--they may have imagined that the iniquity +of the whole proceeding was hidden forever. + +But, _horribile dictu!_ the ghost of Mary E. Surratt would not down. It +troubled the breast of the witness Weichman. It haunted the precincts of +the Bureau of Military Justice. It pursued Bingham into the House of +Representatives. It blanched the laurels of the great War Minister. +Politics, history and the very vicissitudes of human events seemed +subservient to the vindication of this humble victim. + +Hardly had the delivery of the prisons of Washington, which followed the +close of the trial, taken place, before the man who, as he himself swore, +always had been treated as a son by the woman he betrayed, began to make +advances to her sorrowing friends. He pretended to make confession of his +perjury. He told a friend that his testimony would have been very much +more favorable had it not been dictated to him by the officers who had him +in charge; that the meeting of Lloyd and Mrs. Surratt was accidental, as +she and he (Weichman) had already started for home before Lloyd returned, +and only turned back because the buggy was discovered to be broken. The +traitor soon discovered that he made no headway by such disclosures, but +only met with a sterner repulse and a deeper loathing. His troubled soul +then turned to another quarter. It has been stated that his testimony on +the trial was somewhat indefinite and inconclusive. Complaints had been +uttered by the officers conducting the prosecution. It was proved upon a +subsequent occasion that one of these officers had actually threatened the +witness that he would hang as an accomplice in the assassination did he +not make his evidence more satisfactory. It appeared, also, that the +Secretary of War had promised to protect and take care of him. Driven back +by Mrs. Surratt's friends from his attempt at propitiation, Weichman +resolved that he would yet earn his reward by retouching his former +testimony so as to make it more definite and telling. He saw, at last, +that to save himself from everlasting ignominy he must, as far as in him +lay, make sure of the guilt of his victim. Actuated by these or similar +motives, he, on the 11th day of August, 1865, wrote out, and swore to, a +statement in which he, by a suspicious exercise of memory, detailed +conversations with Mrs. Surratt and significant incidents, all pointing to +complicity with Booth, no mention of which had been made on the trial, and +which this candid witness stated "_had come to my_ (his) _recollection +since the rendition of my_ (his) _testimony_." + +This affidavit, containing (if true) more evidence of the guilt of Mrs. +Surratt than his whole testimony on the trial, but, on the other hand, +drawn up to suit himself without fear of cross-examination--he transmitted +to Colonel Burnett, who, as though he, too, distrusted the sufficiency of +the evidence against the dead woman as it had been actually given on the +trial, was careful to append the _ex parte_ statement to the published +report. + +Weichman, at length, gets his reward in the shape of a clerkship in the +Custom House at Philadelphia. + +But the final breaking down of the fabric of testimony against the leaders +of the rebellion, as instigators of the assassination, threw consternation +into the Bureau of Military Justice and the Cabinet. Jefferson Davis was +still confined in Fort Monroe, and two companies of United States +soldiers, who had fought and shed each other's blood in their eagerness to +be the first to seize the fugitive, were already quarreling over the +$100,000 reward for his arrest as an accomplice of Booth. Clement C. Clay, +for whose arrest $25,000 reward had been offered, as another accomplice, +was also still in the hands of the authorities. Jacob Thompson, George N. +Sanders and Beverly Tucker, for the arrest of each of whom $25,000 had +been offered, were still at large. Every one of these men, it should be +borne in mind, had been pronounced guilty by the military board which had +condemned Mrs. Surratt. John H. Surratt, her son, for whose capture an +enormous reward had been offered both by the Government and by the City of +Washington, and whom the Military Commission had condemned as the +go-between of the President of the Confederacy and his agents in Canada in +the instigation of the murderous conspiracy, and also as the active aider +and abettor of both Booth and Payne in the perpetration of their bloody +crimes; he, too, had so far eluded all efforts to find even his +whereabouts. It is only fair to presume that the astute lawyers connected +with the Bureau of Military Justice must have had serious misgivings from +the first, concerning the testimony of the spies, Montgomery, Conover and +others, going to implicate Davis and the Canadian Rebels in the +assassination. Such testimony was hearsay or secondary evidence at best; +and they could have cherished no hope that such loose talk and the +fragmentary repetition of letters heard read would ever be allowed to pass +muster by an impartial judge in a civil court. And they had reason to +believe that public opinion would not tolerate the experiment of another +military commission. As early as July, 1865, an attempt was made to buy +the papers of Jacob Thompson, among which it was supposed were the +criminatory letters of Davis; and Attorney-General Speed was dispatched +with $10,000 government money to effect the purchase. William C. Cleary, +for whom $10,000 reward had been offered as one of the conspirators, and +who had just been found guilty by the Military Commission, was to deliver +the letters and receive the money. Speed met Cleary at the Clifton House, +but the latter, in the meanwhile, had seen in a newspaper a portion of the +testimony before the Military Commission implicating him, and he utterly +refused to give up the papers, as he had to rely upon them, as he said, to +vindicate himself. The shadows thus began to darken over the credibility +of the corps of spies that the Bureau had employed. Indictments for +perjury against Montgomery, Conover and other paid witnesses began to be +talked of. Friends, and enemies as well, of the imprisoned ex-President +began to clamor for his trial or release. Even the implicated agents in +Canada showed a bold front, and professed a willingness to meet the +terrible charge if guaranteed a trial by jury. A jury! A jury of twelve +men! Trial by jury! If there was anything that could shake the souls of +the members of the Bureau of Military Justice, it was to hear of trial by +jury. It was a damnable institution. It impeded justice. It screened the +guilty. It was beyond control. It could not be relied on to convict. And +yet it was to this tribunal they foresaw they must come. + +In September, 1865, embarrassing news arrived at the Department of State. +The consul at Liverpool informed the American Minister at London that John +H. Surratt was in England and could be extradited at any time. Here was +the villain who was, with Booth, the prime mover of the conspiracy and the +active accomplice of Booth and Payne in their work of blood. At least, so +the Military Commission found, who hung his mother in his stead. And yet +the United States Government informed Mr. Adams, and Mr. Adams so informed +the consul, that the Government did not intend to prosecute. On the 24th +of November ensuing, the War Department, by general order, revoked the +"rewards offered for the arrest of Jacob Thompson, Beverly Tucker, George +N. Sanders, William S. Cleary and John H. Surratt." Where now was the +redoubtable Bingham who, over and over again, had assured the Commission +he guided of the unmistakable guilt of all these persons? The whole theory +of the Secretary of War, which he had preconceived in the midst of the +panic following the assassination, that the murder of the President was +the outcome of a deep-laid and widespread conspiracy, of which Jefferson +Davis was the head and Booth and Payne the bloody hands--this theory, +which the Bureau of Military Justice, aided by Baker and his detectives, +had so sedulously labored to establish, and which Judge Bingham had so +persistently pressed upon the nine military men who composed the Court, to +the exclusion of any such hypothesis as a plot to capture--this +preconceived theory all at once fell to the ground. The perjured spies, +who had been the willing and paid tools to build it up, were about to be +unmasked and their poisoned fangs drawn. After no great interval, Conover +was, in fact, convicted of perjury in another case, and sentenced to +imprisonment in the Albany penitentiary. The whole prosecution of the +so-called conspirators, from its inception to its tragic close, turned out +to have been founded on an enormous blunder. The findings of the +Commission were falsified. Whatever the guilt of the doomed victims, they +were not guilty of the crime of which they were convicted. The terrible +conspiracy, stretching from Richmond to Canada, and from Canada back to +Washington, involving statesmen and generals, and crowning the wickedness +of rebellion with the Medusa-head of assassination, shrank into the +comparatively common-place and isolated offense of the murder of Lincoln +and the assault upon Seward, suddenly concocted by Booth, on the afternoon +of the 14th of April, in wild despair over the collapse of the rebellion. +In such a predicament, the hanging of Mrs. Surratt could not have been a +pleasing reminiscence to the Secretary of War, to Judge-Advocate Holt, or +to the hangers-on of the Bureau of Military Justice. At such a moment they +certainly had no use for her son John. + +On the 12th of November, Preston King, who held one side of the door of +the White House while the daughter of Mrs. Surratt pleaded for admission, +walked off a ferry-boat into the Hudson River, with two bags of shot in +the pockets of his overcoat, and was seen no more. This event might have +passed as a startling coincidence, to be interpreted according to the +feelings of the hearer, had it not been followed by the suicide of Senator +James S. Lane, who held the other side of the door, and who, on the 11th +day of July, 1866, blew his brains out on the plains of Kansas. That these +two men had together stood between the President and the filial suppliant +for mercy, in a case of life and death, and that, then, within a year, +both had perished by their own hands, aroused whispers in the air, caused +a holding of the breath and a listening, as if to catch the faint but +increasing cry of innocent blood, coming up from the ground. + +When the Congress met in December, 1865, the leaders of the dominant party +were in a fierce and bitter humor. The Rebellion had been suppressed, the +South subjugated and its chiefs captured, yet no one--not even the +arch-traitor Davis--had been hung. And, more deeply exasperating still, +the man they had elected Vice-President, and who had thus succeeded the +martyred Lincoln, upon whom their hopes had been fixed to make treason +odious, to hang the leaders higher than Haman, and to set aside the humane +policy of reconstruction his predecessor had already outlined and +substitute a more radical and retributive method--this man, whose precious +life had been providentially spared from the pistol of the assassin to be +the Moses of the colored people, and for harboring any such blasphemous +purpose as lying in wait for him, a Court, appointed by himself and whose +sentence he himself had approved, had hung a bewildered German--why this +man had already shown himself a renegade, was bent on a general amnesty, +appeared to have forgotten the assassination, was already hobnobbing with +southern traitors, and was attempting to carry out a policy of +reconstruction in the South, the result of which could be nothing less +than the dethronement of the party who had brought the war for the Union +to a triumphant end. These men resolved that such treachery should be +balked at whatever cost. Ignorant as yet of the tainted character and of +the break-down of the evidence adduced to show Confederate complicity in +the assassination, the House of Representatives passed resolutions calling +for the trial of Jefferson Davis for treason and for the other crimes with +which he was charged; the ill-starred Bingham, once again in the House, +insisting that the Confederate Chief should be put upon trial before a +military tribunal for the same offense of which his former court had found +him guilty in his absence. The House appointed a committee to investigate +the complicity of Davis and others in the assassination, and in July, +1866, through its chairman, Mr. Boutwell, made a report, followed by a +resolution, "that it is the duty of the executive department of the +Government to proceed with the investigation of the facts connected with +the assassination of the late President without unnecessary delay, that +Jefferson Davis and others named in the proclamation of President Johnson +of May 2d, 1865, may be put upon trial," which was adopted _nem. con._ In +this action, little as they reeked, these radical politicians were the +unconscious tools of that Nemesis which stalks after lawlessness and +triumphant crime. This resolution, and the news that John H. Surratt had +been betrayed by one of his comrades in the Papal Zouaves into the hands +of the Roman authorities, who had detained him to await the order of the +American Government, and that the prisoner had escaped from his guard and +fled to Malta, forced the Department of War to revoke the order of +November, 1865, withdrawing the reward for the arrest of the fugitive. + +Meanwhile the great contest over the reconstruction of the South waxed +fiercer and fiercer. Congress, during this session, became farther and +farther alienated from the President, so that when that body met in +December, 1866, the reckless majority in both Houses united in the resolve +to get rid of Andrew Johnson, not indeed by the bloody method employed by +Booth, but by the no less efficient, though more insidious and less bold, +expedient of impeachment by the House and conviction by the Senate. No +sooner had Congress convened than Mr. Boutwell made an attack upon the +Executive for its dilatory action in the arrest of John H. Surratt, +stating that he had reason to believe that the Government knew where the +assassin was the May before. A committee appointed to investigate the +matter made a report just at the close of the session obliquely censuring +the Executive Department for its lack of diligence in effecting the +arrest. On January 7th, 1867, the famous Ashley introduced his resolutions +impeaching Andrew Johnson. The Judiciary Committee, to which they were +referred, took testimony during the winter and made a report at the close +of the session that it was unable to complete the investigation, and +handed it over to the Fortieth Congress. That Congress met immediately at +the close of the Thirty-ninth, and the testimony already taken was +referred to the Judiciary Committee of its House, which proceeded with the +matter during the spring and summer, and in November, 1867, after the +recess; with the final result of a failure to pass the resolution of +impeachment reported by a bare majority of the committee. + +In process of this investigation all sorts of accusations and charges were +made against the President. His enemies now employed the very same weapons +against him which had been employed to convict the alleged assassins of +his predecessor and the alleged conspirators against his own life. General +Baker and his detectives, Conover and his allies, appear once more upon +the scene. They actually invaded the privileged quarters of the White +House and stationed spies in the very private apartments of the President. +This time, however, they are ready to swear, and in fact do swear, not to +having seen letters from Jefferson Davis to his agents in Canada advising +assassination, but letters from Andrew Johnson to Davis squinting in that +direction. They actually charged the President with being an accomplice in +the assassination of Abraham Lincoln. Forgetting that a human being had +been hung for lying in wait to kill Andrew Johnson as a part of a general +conspiracy to murder the heads of the Government, these desperate men +propose to impeach the President for being an accomplice in his own +attempted murder. Ashley openly denounced him, in the House of +Representatives on the 7th of March, 1867, as "the man who came into the +Presidency through the door of assassination," and alluded to the "dark +suspicion which crept over the minds of men as to his complicity in the +assassination plot," and "the mysterious connection between death and +treachery which this case presents." Ashley had private interviews in the +jail with Conover and Cleaver, who were confined there for their crimes, +and they assured him of the guilt of Andrew Johnson. They furnished him +with memoranda and letters purporting to show that Andrew Johnson and +Booth were in communication with each other before the murder of Lincoln, +and that Booth had said before his death that if Andrew Johnson dared go +back on him he would have him hung higher than Haman. To such preposterous +stuff, from professional perjurers, did the zealous Ashley seriously +incline. + +It was during this investigation that the evidence given by Secretaries +Seward and Stanton and by Attorney-Generals Speed and Stansbery, +demonstrated the utter futility of an attempt to establish complicity in +the assassination on the part of Davis, Thompson and the rest, by +witnesses who had been shown, in other cases, to be unworthy of a +moment's belief. + +While the impeachers were in the very act of pursuing the President as an +accomplice in the murder of Abraham Lincoln, while the mighty Bingham, who +had so eloquently defended President Johnson before the Military +Commission against the charge of usurpation of power, and so bitterly +denounced Jefferson Davis for alluding to Johnson as "The Beast," now, +with a complete change of tune, was clamoring for the impeachment of "his +beloved Commander-in-Chief;"--Jefferson Davis, himself, is brought, by +direction of the Secretary of War, in obedience to a writ of habeas +corpus, before the United States Court at Richmond; there, without a word +of remonstrance, transferred to the custody of the civil authority; and +forthwith discharged on bail, Horace Greeley, who had never seen him +before, becoming one of his bondsmen. Since that day in May, 1867, no +attempt has ever been made to call the ex-President of the Southern +Confederacy to account as one of the conspirators in the murder of +Lincoln. Clay had been let go on parole as long before as April 19th, +1866; his property was restored to him in February, 1867; and proceedings +under an indictment found against him for treason and conspiracy, +indefinitely suspended on the 26th of March of the same year. Thompson and +Sanders and Tucker returned to their country and appeared unmolested +amongst us. Jefferson Davis died recently full of years and honors. At +the death of Thompson, the flags of the Interior Department were lowered +half-mast. Tucker was appointed to office not long ago by President +Harrison. And all this, notwithstanding the Judge-Advocate had assured the +Military Commission that the guilt of these men was as clear as the guilt +of Booth or of Surratt, notwithstanding the Military Commission under his +guidance so found, and, had these men been present before that tribunal, +would doubtless have hung them on the same scaffold with Mrs. Surratt. + +It was during this same investigation, that the diary of Booth, which had +been so carefully concealed by the War Department and the Bureau of +Military Justice from the Military Commission, was unearthed. Its +publication produced a profound sensation, as it made clear the reality of +a plan to capture the President; a plan, which had been blasted by the +collapse of the Rebellion and, only at the last moment and without +consultation, arbitrarily superseded by a hurried resolution to kill. When +produced by Judge Holt before the committee, its mutilated condition gave +rise to a terrible suspicion. Holt, himself, and Stanton were confident +the book was in the same condition as when they first saw it. Colonel +Conger, also, though not positive, thought it was unchanged since he took +it from the dead body of Booth. But, to the great wonder of everybody, the +distinguished detective, General Baker, testified, and stuck to it with +emphasis when recalled, that, when he first examined the diary before it +was lodged with the Secretary of War, there were no leaves missing and no +stubs, although the diary, as exhibited to the committee, showed by means +of the stubs remaining that sixteen or twenty leaves had been cut or torn +out. The disclosures made by the production of the diary, together with +the fact of its suppression, stirred the soul of General Butler; and, in +this way, it came about that the ghost of Mrs. Surratt stalked one day +into the House of Representatives. Judge Bingham, in his rollicking way, +was upbraiding General Butler for having voted for Jefferson Davis fifty +times as his candidate for President, and slurring his war record by +calling him "the hero of Fort Fisher;" when, suddenly, at the petrific +retort of his adversary that "the only victim of the gentleman's prowess +was an innocent woman hung upon the scaffold!" the spectre stood before +him, forcing, as from "white lips and chattering teeth," the exclamation +of Macbeth: "Thou canst not say I did it!" + +"Look to the true and brave and honorable men who found the facts upon +their oaths and pronounced the judgment!" he retorted, clutching at the +self-soothing sophistry of the murderer of Banquo, ignoring the fact that +he himself was a part of the tribunal and virtually dictated the +judgment. + +Another discovery was made by the Judiciary Committee in the "Article" +which, as recorded in his diary, Booth had left behind him for publication +in the National Intelligencer. John Matthews, a fellow actor and an +intimate friend of the assassin, testified that on the afternoon of the +14th of April Booth had met him in the street and left with him a letter +directed to that newspaper, to be delivered in the morning. The witness +was on the stage of the theatre that night at the time the fatal shot was +fired, and, in the confusion that followed, he called to mind the +communication. Hurrying to his lodgings he opened the envelope, read the +letter, and, fearing to be compromised by the possession of such a +document, burnt it up. The substance of the letter, as near as Matthews +could recollect, was that for a long time he (Booth) had devoted his +money, time and energies to the accomplishment of an end, but had been +baffled. "The moment has at length arrived when my plans must be changed. +The world may censure me for what I do; but I am sure that posterity will +justify me." And the communication was signed (all the names being in the +hand-writing of Booth): "Men who love their country better than gold or +life. J. W. Booth, ---- Payne, ---- Atzerodt, ---- Herold." + +The significance of this piece of testimony was negative. The name of +Surratt was not there. + +One suggestive circumstance was called out in the testimony of Secretary +Seward and General Eckert. It appeared that Payne before his trial had +talked with General Eckert about his motives and movements in the assault +upon the disabled Secretary of State, the particulars of which +conversation Eckert had related to Seward, after the recovery of the +latter from his wound, and had promised to reduce to writing. Among other +things, Payne had said that he and Booth were in the grounds in front of +the White House on the night of Tuesday, the 11th of April, when Abraham +Lincoln made his speech of congratulation on the fall of Richmond and the +surrender of Lee; and that on that occasion Booth tried to persuade him to +shoot the President as he stood in the window, but that he would take no +such risk; and that Booth, turning away, remarked: "That is the last +speech he will ever make." + +Such an incident is consistent only with the theory that the assassination +plot was concocted at the last moment as a forlorn hope, and that, if +there had been any conspiracy, it was a conspiracy to capture. It is easy +to see why the Bureau of Military Justice suppressed this testimony also, +because, although it bears hard upon Payne himself, and Herold, and +possibly John Surratt, it renders it highly improbable that Mrs. Surratt +was aware of any design to kill. + +Even such a fragmentary review, as the foregoing, of the public history of +the two years succeeding the execution--which any reader may complete, as +well as test, for himself by referring to the Congressional Globe of that +period, to the printed reports of the Committee, and to the leading +newspapers of the day--is sufficient to indicate how the general tendency +of events, and every event in its place, appear to have conspired to the +accomplishment of one result,--the setting aside, in the public mind, of +the verdict of the Military Commission in the case of Mrs. Surratt. + +This was not done by a direct assault upon that tribunal, or upon its mode +of procedure; not even upon the character of the witnesses against the +particular culprit, nor upon the weakness of the case made against her. +These points of attack were all passed by, and the verdict was taken on +the flank. + +The condemnation of the woman was subverted by the _wind_, so to speak, of +passing events. + +The irrepressible conflict between the President and the Congress; the +consequent schism in the very ranks of the triumphant conquerors; the +insane charge against Andrew Johnson of complicity in a conspiracy against +his own life, supported by the incredible statements of the very witnesses +who were responsible for the charge of complicity against Jefferson Davis +and others; the final and complete exposure of the fiction of a conspiracy +to assassinate, either by the Confederate authorities, or anybody else; +and the true, historical character of the Assassination of Abraham +Lincoln;--all combined to shake the edifice of guilt, which the Bureau of +Military Justice had so carefully built up around their helpless victim, +upon such an aerial foundation. Whilst the gradual abatement of that +furious uncharitableness, which in the hey-day of the war could find +nothing not damnable in the Southern people, and no secessionist who was +not morally capable either of murder or of perjury in its defense or +concealment, was, surely but imperceptibly, clearing up the general +atmosphere of public opinion, and thus preparing for the cordial reception +of such a measure of retributive justice, as Time, with his sure revenges, +was daily disclosing to be more and more inevitable. + +The Milligan decision dissipated the technical jurisdiction of the +Commission. But lawyers could still distinguish, and the hyperloyal could +still maintain the essential rightfulness of the verdict. + +But the explosion of the great assassination conspiracy; the nol-pros. of +the awful charge against Jefferson Davis, Clement C. Clay, Jacob Thompson, +and their followers--a crime, which, if capable of proof, no government on +earth would have dared to condone--discredited forever the judgment of the +Military Commission, reopened wide all questions of testimony, of +character, of guilt or innocence, and summoned the silent and dishonored +dead to a new and benignant trial. + + + + +CHAPTER II. + +REVERSAL UPON THE MERITS. + + +The new trial was in fact at hand. In the summer of the year 1867, the +interest excited by the investigation of the Judiciary Committee of the +House of Representatives, referred to in the last chapter, suddenly became +merged into the intenser and more widespread interest excited by the trial +of John H. Surratt in the Criminal Court of the District of Columbia. + +Surratt, after escaping from his captors in Italy by leaping down a +precipice, fled to Malta and thence to Alexandria, where, on the 21st of +December, 1866, he was recaptured and taken on board the United States +vessel "Swatara." In this vessel, bound hand and foot, the prisoner +arrived at Washington on the 21st of February following. Thus the radicals +in Congress, impelled by their growing enmity to the President over the +reconstruction contest, by scattering abroad sinister intimations that the +cause of his remissness in bringing to punishment the accomplices of the +convicted assassins was fear for himself of a full investigation of the +assassination, succeeded at last in forcing the Executive Department, +apprehensive, as it had good reason to be, of the shadows which any future +trial in the civil courts was likely to reflect back upon the Military +Commission, and aware of the breaking down of the case against the +Canadian confederates and Jefferson Davis, face to face with the necessity +of ratifying the conviction of the mother by securing the conviction of +the son. On the one hand, the radicals, in blind ignorance of the true +inwardness of affairs, clamored for the trial, in the hope that the guilt +of the prisoner's supposed accomplices, Davis and Company, and possibly of +the President himself, might be detected. On the other hand, the +administration, now that the man had been forced upon its hands, knowing +the futility of the hope of its enemies, pushed on the trial in the hope +that, with its powerful appliances, a result could be obtained which would +vindicate the verdict of the Military Commission. No one on either side, +however, so much as dreamed of renewing the iniquity of a trial by +court-martial. Amid the silence of the Holts and the Binghams and the +Stantons, Surratt was duly indicted by a grand jury for the murder of "one +Abraham Lincoln," and for conspiring with Booth, Payne, Atzerodt, Herold +and Mary E. Surratt to murder "one Abraham Lincoln," which conspiracy was +executed by Booth. There was no averment about the traitorous conspiracy +to murder the heads of Government, in aid of the rebellion; nor were the +names of Dr. Mudd, O'Laughlin, Arnold or Spangler, then undergoing +punishment on the Dry Tortugas, inserted as parties to the conspiracy; nor +was any mention made of Seward or Johnson or Grant, as among the +contemplated victims. All was precise and perspicacious, as is required in +pleadings in the civil courts. The loose, vague, indefinite and impalpable +charges permissible, seemingly, on military trials, gave place to plain +and simple allegations, such as an accused person might reasonably be +expected to be able to meet. On Monday, June 10, 1867, while the +investigation before the Judiciary Committee of the House was still going +on, while the sensation produced by the sight of Booth's diary and by +Matthews' disclosures was still fresh, while the echoes of the encounter +of Bingham and Butler still lingered in the air, the momentous trial came +on. Great and unprecedented preparations had been made by the prosecution. +Again the country was ransacked for witnesses, as in the palmy days of +Baker and his men. Again the Montgomeries and other Canada spies haunted +the precincts of the District Attorney's office, willing as ever to swear +to anything necessary to make out the case for the prosecution. Even the +voice of Conover was heard, _de profundis clamavi_, from his dungeon cell. +The Bureau of Military Justice started into active life, and Holt and his +satellites bestirred themselves as though fully conscious of the impending +crisis. Indeed, every one of these officials, from the President and the +Secretary of War down to the meanest informer and hired hangman, who had +had anything to do with the trial and execution of Mary E. Surratt, felt +as if he, too, was to be put on trial in the trial of her son. A Court +recognized in, and drawing its life and jurisdiction from, the +Constitution was to act as a court of appeal to review the process and +judgment of that extra-constitutional tribunal, which had, summarily and +without legal warrant, put a free American woman to a felon's death. A +Daniel in the shape of a jury--a common law jury--a jury of +civilians--unadorned by sword, epaulette or plume--a jury guaranteed by +the Bill of Rights--a Daniel had come to judgment! The Shylocks of the +days of arbitrary power dropped their sharpened knives and ejaculated, "Is +that the law?" + +Great, assuredly, must have been the flurry of the once omnipotent Bureau, +when it was ascertained that the tribunal before which it must come could +not be "organized to convict;" that there could be no soldiery around the +Court, no shackles on the prisoners or the witnesses for the defense, no +prosecuting officers in the jury room. Everything must be done decently +and in order, with the same calm dignity, unruffled composure, the same +presumption of the innocence of the accused, as though the murdered man +had been the humblest citizen of the land. One great advantage, however, +the prosecution managed to secure. A Judge was selected to preside whom +they could rely on, as "organized to convict." But this was the sole +reminiscence of the unbridled reign of the military only two years before. +A jury of twelve intelligent men, some of them the best citizens of the +District, was speedily obtained to the evident satisfaction of both the +people and the prisoner,--and the succeeding Monday, the 17th, the +struggle began. + +As we have given the names of the members of the Court which tried the +mother, we may be pardoned for giving the names of the jurors who tried +the son. Although there were no major-generals among them, they are +entitled to the honor of being within, and not without, the aegis of the +Constitution. + +The jurors were W. B. Todd, Robert Ball, J. Russell Barr, Thomas Berry, +George A. Bohrer, C. G. Schneider, James Y. Davis, Columbus Alexander, +William McLean, Benjamin Morsell, B. E. Gittings, W. W. Birth. + +They were thus spoken of by the District Attorney: + +"It is a matter of mutual congratulation that a jury has been selected +agreeable to both parties; the representatives of the wealth, the +intelligence, and the commercial and business character of this community; +gentlemen against whose character there cannot be a whisper of suspicion. +I would trust you with my life and my honor; and I will trust you with the +honor of my country." + +The scene which the court-room presented, when the Assistant District +Attorney arose to open the case for the United States, afforded a speaking +contrast to the scene presented at the opening of the Military Commission. +The Court was not held in a prison, and there was an entire absence of the +insignia of war. The doors of the court-room were wide open to the +entrance of the public, not locked up in sullen suspicion, and the keys in +the hands of the prosecuting officer. The counsel for the prisoner +confronted the jury and the witness-stand upon an equal line with the +counsel for the United States; and there was neither heard, seen, nor +surmised, in the words or bearing of Edwards Pierrepont, the leading +counsel for the prosecution, any of the insolence and supercilious +condescension shown in the words and bearing of John A. Bingham. + +As the prisoner entered the court and advanced to the bar, no clank of +fetters jarred upon the ear; and, as he sat at his ease by the side of his +counsel, like a man presumed to be innocent, the recollection of that wan +group of culprits, loaded down with iron, as they crouched before their +imperious doomsmen, must have aroused a righteous wrath over the barbarous +procedure of the military, in comparison with the benign rules of the +civil, tribunals. The atmosphere surrounding the court and the trial +seemed, also, to be free from passion and prejudice, when contrasted with +the tremendous excitement and the thirst for blood, which permeated the +surroundings of the Military Commission. Although the Bureau of Military +Justice had busied itself in the prosecution, and thrust its aid on the +office of the District Attorney; although the whole weight of the federal +administration was thrown in the same direction to vindicate, if possible, +the signature of the President to the death warrant of the victims of his +military court; and notwithstanding the presence upon the bench of a judge +"organized to convict:" still, so repellant to partial passion were the +precincts of what might fitly be styled a temple of justice, a neutral +spectator might feel reliance that in that chamber innocence was safe. + +But there was one sentiment hovering over the trial and dwelling in all +bosoms, which clothed the proceedings with a peculiar awfulness. All felt +that the dead mother was on trial with the living son. She had been +executed two years before for the same crime with which he was now +charged. And, as he stood in the flesh, with upraised hand, looking at the +jury which held his life in its hands, it required no great effort of +fancy to body forth the image of his mother, standing beside him, +murmuring from shadowy lips the plea of not guilty, amid the feeble +repetitions of which, to her priest, she had died upon the scaffold. To +convict her son, now, by the unanimous verdict of twelve men, and punish +him according to law, would go far to condone the unconstitutional trial +and illegal execution of the mother. Whereas, on the other hand, the +acquittal of her son of the same crime, by the constitutional tribunals +of the country, would forever brand the acts of the Military Commission as +murder under the forms of military rule. This dread alternative met the +prosecution at the threshold of the trial, oppressed them with its +increasing weight during its progress, and tarried with them even at its +close. It appeared in the indictment, where the name of the mother, as one +of the conspirators, was associated with the name of her son. It appeared +in the examination of the jurors, when Judge Pierrepont endeavored to +extract from them whether they had formed or expressed an opinion as to +the guilt or the innocence of the prisoner, not only, but also as to the +guilt or the innocence of his mother. It appeared during the taking of +testimony, where evidence bearing upon the guilt of Mrs. Surratt alone was +admitted at all times as evidence against her son. It appeared in the +argument of the District Attorney, when he compares the mother of the +prisoner to Herodias and Lucrezia Borgia, and "traces her connection with +the crime" and "leaves it to the jury to say whether she was guilty;" +where he pleads, like Antony, in behalf of the members of the Military +Commission that they were "all honorable men," and were not to be blamed +for obeying the orders of the President. It appeared in the arguments of +the counsel for the prisoner, when Mr. Merrick taunted the Government that +they were pressing for a verdict to "vindicate the fearful action they +had committed;" when he appealed to the jury to "deal fairly by this young +man," "even if the reputation of Joseph Holt should not have the +vindication of innocent blood;" when he invoked the spirit of Mrs. Surratt +as a witness for her son, and rebuked the prosecution for objecting to the +admission of her dying declaration when they were putting her again on +trial though dead; when Mr. Bradley charged that for four weeks and more +they had been trying Mrs. Surratt and not her son, and denounced Weichman +and Lloyd, avowing that "the proof against her was not sufficient to have +hung a dog" and was "rotten to the core." It appeared in the speech of +Judge Pierrepont, when he flourished the record of the Military Commission +before the jury, and asserted that the recommendation of Mrs. Surratt to +mercy was attached to it; in his avowal of his belief in her guilt; in his +extolling the jury as a tribunal far more fit for the trial of such crimes +than any military court; and in his covert threat that the people would +punish the City of Washington by the removal of the Capitol, if the jury, +by their verdict, did not come up to the high standard erected for them. +And, lastly, it appeared in the charge of the Judge, which is a model of +what a one-sided charge ought to be. It opens with the words of the Old +Testament: "Whoso sheddeth man's blood, by man shall his blood be shed." +Then follows a sneer at the "sentimental philosophers," who were opposed +to capital punishment. Then the Court inveighs against some imaginary +advocates, who argued that to kill a king was a greater crime than to kill +a president; and then casts an imputation upon the integrity of the +decision in the Milligan Case, as "predicated upon a misapprehension of +historic truth," and that therefore "we could not perhaps have looked for +a more rightful deduction," "all loyal hearts" being "unprepared for such +an announcement." The Judge, then, holds that the Court will take judicial +cognizance that the crime charged was the murder of the President of the +United States, and a more heinous offense than the murder of a simple +individual. He, then, complacently sets aside the rule of Sir Matthew +Hale, implicitly followed since, as he himself admits, by "writers and +judges seeming contented with his reasons or indisposed to depart from his +principles," as "not very satisfactory to my (the Judge's) mind;" and +accordingly he declares that, in felonies of such high grade, as in cases +of treason, there can be no accessories before the fact, but all are +principals; and, to support this conclusion, he then cites and details at +length two cases, apparently overruling Sir Matthew beforehand; (as he +says) "reported in that book of highest authority known among Christian +nations, decided by a judge from whose decision there can be no appeal and +before whose solemn tribunal all judges and jurors will in the great day +have their verdict and judgments passed in review." One, the case "of +Naboth and Ahab, contained in the 21st chapter of the First Book of +Kings," the other, "that of David and Uriah, recorded in the 11th chapter +of Second Samuel;" at the end of the statement of which case the Judge +remarks, "this judgment of the Lord was not that David was accessory +before the fact of this murder, but was guilty as the principal, because +he procured the murder to be done. It was a judgment to the effect that he +who does an act by another does it himself, whether it be a civil or a +criminal act." This extraordinary deliverance closes with an echo of Judge +Pierrepont's warning to the jury, to uphold by their verdict the District +of Columbia, as a place for "the public servants, commissioned by the +people of the nation, to do their work safe and sacred from the presence +of unpunished assassins within its borders." + +It would be foreign to our purpose, as well as tedious to the reader, to +examine in detail the testimony given on this trial. One conclusion--and +that is the important thing--is certain. It is true, beyond the shadow of +a doubt, that the prosecution made an incomparably stronger case against +Surratt than was made against his mother. They had but one culprit at whom +to direct their aim, and they made a far more desperate and thorough-going +effort to convict, because of the known unreliability of a jury to do what +the prosecution might tell them to do without the aid of proof. Before a +Military Commission, tossed about by the passions of its members and +steered by Judge-Advocates, the accusers could afford to be careless of +gaps in their scheme of proof, missing links in the chain of +circumstantial evidence. Not so now and here. Vehement affirmation without +evidence availed nothing. Curses against treason, traitors, disloyalty, +apostrophes to the imperiled Union, tears over the beloved +Commander-in-Chief, could fill no void in the testimony. Of course, there +was no such outrage against not only the elementary rules of evidence, but +against ordinary decent fairness, as an attempt to introduce testimony of +the horrors of Libby Prison and Andersonville; but the door looking in +that direction was opened as wide as possible by the eager Judge. All the +material testimony given upon the "Conspiracy Trial" against Mrs. Surratt, +not only, but also against Payne, Herold, Atzerodt, Arnold and O'Laughlin, +was reproduced here. The direct testimony on the part of the United States +occupied from June 17th to July 5th, and in that period eighty-five +witnesses were examined. On the Conspiracy Trial, the direct case consumed +the time from May 12th to May 25th, and about one hundred and thirty +witnesses were examined against the eight accused persons, not only, but +also against the eight accessories, headed by Jefferson Davis, included in +the charge, the testimony ranging over the whole rebellion and including +Libby, Andersonville, Canada, St. Albans, and projected raids on New York, +Washington and other cities. Every witness, whose testimony on the former +trial had the remotest bearing upon the question of the guilt or innocence +of Mrs. Surratt, once more showed his face and retold his story. + +Lloyd was there, compelled, despite his superstitious reluctance to speak +against a woman now she was dead, to rehearse the tale which his terrors +had evolved out of his drunken imagination. This time, however, his +sottish memory or failure of memory, his fright at the time of his arrest, +his repeated denials of the visit of Booth and Herold, his temptations and +bribes to accuse his landlady, were, under the keen cross-examination of +the counsel for the prisoner, fully exposed. + +Weichman "came also:" this time with his story carefully elaborated, +touched and retouched here and there, and written down beforehand. He had +been engaged for three or four months in aiding the prosecution, had +prepared a carefully detailed statement for the use of the Assistant +District Attorney, and now openly acknowledged that "his character was at +stake" in this trial, and that he "intended to do all he could to help the +prosecution." He had conned over and over again the report of his evidence +on the Conspiracy Trial, had corrected it to meet objections subsequently +made and to eliminate discrepancies and contradictions, and had thus +brought its several disjointed parts into some logical sequence; he then +had added to it the incidents and conversations disclosed for the first +time in the affidavit sent to Colonel Burnett, which was appended to the +published report of the trial, to which allusion has been made; and, now, +in the final delivery of his deadly charge, coolly averring that his +memory was much more distinct now than at the time of the former trial two +years ago, he, with a superadded concentrated venom, flavored his +narrative with a few damning incidents never heard of before--one, the +most poisonous of all, that on the evening of the fatal 14th, while Booth +was about his murderous work, Mrs. Surratt was pacing her parlor floor +begging her pious boarder "to pray for her intentions." This time, +however, the witness did not escape unscathed. When he emerged from the +skillful hands of Mr. Bradley, his malicious and sordid _animus_ laid +bare,--his self-contradictions, his studied revisions, his purposeful +additions to his testimony, exposed--his intimacy with the conspirators, +his terrified repentance, his abject self-surrender and his cowardly +eagerness to shift his peril upon the head of his protectress,--and then +his simulated remorse and his later recantation--all made clear--he was an +object of loathing to gentlemen; a stumbling block to the philanthropist; +to the indifferent, an enigma; and to the common man, a perpetual +provocation to a breach of the peace. + +Twelve witnesses testified that they saw John H. Surratt in Washington on +the 14th of April, only one of whom had testified to that effect on the +other trial. It is curious now to discern how the memory of the +witnesses, it may be unconsciously, swerved under pressure toward the mark +of identification. The witnesses for the defense established that the +prisoner was in Elmira on the afternoon of the 13th, made it more than +probable he was there on the 14th, and almost certain he was there on the +15th. The prosecution, under the force of this proof, suddenly conceded +his presence in Elmira on the 13th, and then, by the accident of a special +train and the testimony of a ferryman whom the notorious Montgomery +unearthed in the very crisis of the emergency, contrived with much +straining to land him in Washington at 10 o'clock on the morning of the +fatal day. Any calm observer, reading the account of the trial now, can +see plainly that the truth is, the prisoner had not been in Washington +since the 3rd of April. + +The production of Booth's diary by the prosecuting officers was forced +upon them by the popular indignation over its suppression before the +Military Commission; otherwise, it is clear they would not have been +guilty of such a mistake in tactics as its introduction as a part of the +case for the United States. Its opening sentences--"Until to-day nothing +was ever thought of sacrificing to our country's wrongs. For six months we +had worked to capture. But our cause being almost lost something decisive +and great must be done"--settled the question of a plot to kidnap suddenly +given up; and the testimony of Weichman indicated the hour of +abandonment. + +That every conceivable effort to obtain the conviction of the prisoner was +made, and that a most formidable array of circumstances was marshalled +against him, compared to which the two disconnected pieces of evidence +which were so magnified against his mother seem weak indeed, will be +controverted by no sane person. From June 10th to August 7th--nearly two +months--the contest went on. On the last-mentioned day, which was +Wednesday, Judge Fisher delivered his remarkable charge, and a little +before noon the jury retired. At one o'clock in the afternoon of Saturday, +the 10th, after a session of three days and three nights, a communication +was received from the jury to the effect that they stood as at first, +nearly equally divided, that they could not possibly agree, and the health +of several of their numbers was becoming seriously impaired. The Court, +notwithstanding the protest of the prisoner, discharged the jury, and the +prisoner was remanded to jail. + +There he did not long remain, however. Every one recognized the futility +of another trial. The strength of the proof of the prisoner's presence in +Elmira on the day of the assassination wrought a reaction of public +opinion in his favor. The administration was glad to escape with less than +an unequivocal condemnation. The Bureau of Military Justice was silent. +John H. Surratt was quietly let go. + +This obscure occurrence, the discharge of John H. Surratt, which caused +not a ripple on the surface of human affairs, nevertheless constituted a +cardinal event; for it worked a national estoppel. When that young man +stepped forth from the threshold of the prison, to which the United States +had brought him in irons from Egypt across the Mediterranean and the +Atlantic, not to follow his mother to the scaffold and a felon's grave, +but to walk the earth a living, free man,--the innocence of the mother was +finally and forever established by the universal acknowledgment of all +fair men. No condemnation of the Military Commission could be so heavy, +and at the same time so indubitably final, as the simultaneous conviction +arrived at by all men, that if the son had been tried by such a tribunal +he would assuredly have been put to death, and that if the mother had been +reserved to calmer times and the tribunal guaranteed by the Constitution +to every man and woman, she would now have been living with her daughter, +instead of lying, strangled to death, beneath the pavement of a prison. + + + + +CHAPTER III. + +THE RECOMMENDATION TO MERCY. + + +The worst was still behind. + +It was left to Time to disclose the astounding fact, that all the military +machinery of the War Department, its Bureaus, its Court, its +Judge-Advocates, its unconstitutional, anti-constitutional and +extra-constitutional processes, would not have compassed the death of this +helpless woman, had not the prosecutors, in the last extremity, called in +the help of Fraud. + +It has been narrated in the chronological order of events, how five +members of the Military Commission were, in all probability, beguiled into +the abdication of their own power of commutation and did, as matter of +fact, sign a paper "praying" the President, "if he could find it +consistent with his sense of duty to the country," to commute the death +sentence of Mrs. Surratt; how that the paper may have been carried to the +President by Judge Holt and have been present at the confidential +interview when the death warrant was composed; and how that Judge Holt, in +drafting the death warrant, went out of his way to so write it out, as in +fact, if not by design, to withdraw from the eye of the President, as he +signed it, this paper praying him to withhold his signature. + +But it should be borne in mind that all this was shrouded in the deepest +secrecy. That there had been any hesitation among the members of the +Commission in fixing the sentence of Mrs. Surratt--any more than in the +cases of Herold, Atzerodt and Payne--much more that it had been found +necessary to resort to a petition to the President, was entirely unknown +to the public at large. As to what had taken place in the sessions of the +Court when the sentences were made up, every member thereof and the three +Judge-Advocates were sworn to secrecy; and, outside these officers, the +knowledge of the petition was confined to the Secretary of War (possibly +the Attorney-General) and one or two subordinates in the War Department. +The record of the findings and sentences, to which the petition was +attached, was kept from the official reporters, and not a soul outside a +close coterie in the War Department was allowed to set eyes on it. + +In the recital of the death sentences in the order of the Adjutant-General +directing their execution, the sentence of the woman differed in no +respect from the three sentences of the men which preceded it. So far as +the public eye could discover, there was not a gleam of mercy for the +woman in the bosom of the Commission. + +It is true, that even before the execution there were rumors that the +Court had united in a recommendation to mercy, and it was stated in the +newspapers of the 6th and 7th of July that five members of the Commission +had signed such a recommendation and the whole Court concurred in it. It +is also certain, that almost immediately after the execution the story +sprang up that the President had never been allowed to see the +recommendation which the Court had addressed to him. + +But all these statements remained without corroboration from any authentic +source, and could not stand before the indubitable facts of the sentence, +its approval by the President, and its summary execution. The single +indication that in all these reports the paper is miscalled "a +recommendation to mercy" shows of itself that the real nature of the +secret was well kept. + +In November, 1865, there appeared a volume compiled by Benn Pitman styled +"The Recorder to the Commission," claiming to be "An authentic record of +the trial of the assassins of the late President," to which was prefixed a +certificate "to its faithfulness and accuracy" by Colonel Burnett, who had +been assigned by Judge Holt to superintend the compilation and "made +responsible for its strict accuracy." This work, so authenticated, was on +its face intended by its compiler to be a complete history "for future use +and reference" of the proceedings of the Commission, from the order of +the President convening it to the approval of the President of its +findings and sentences. It had for frontispiece portraits of the +conspirators and a map of portions of Maryland and Virginia showing the +route of Booth, and for afterpiece a diagram of the stage of Ford's +theatre and a diagram of the streets in its vicinity. Beside matter +strictly of record, such as the testimony and the findings and sentences, +it included the arguments of all the counsel, the approval of the +President, the order changing the place of imprisonment from Albany to the +Dry Tortugas, the proceedings under the writ of habeas corpus in the case +of Mrs. Surratt; and (in the appendix) the opinion of Attorney-General +Speed; army instructions in ten sections; a proclamation of President +Lincoln; a poisonous affidavit of Weichman, inclosed in a letter to +Colonel Burnett; and an affidavit of Captain Dutton, who took Dr. Mudd to +the Dry Tortugas, giving the confessions the Captain swears the Doctor +made on the way, sent to General Holt in obedience to his request for such +information. Nevertheless, amid all this wealth of illustration, there is +not the faintest allusion to any such thing as a recommendation to mercy, +in the volume. On the one hand, Pittman may not have seen the paper. His +findings and sentences are obviously taken from the order of the +Adjutant-General, and not from the original record, as he puts them in the +same order, which is not the order of the record. But, if he never saw the +paper, it must have been purposely kept from his knowledge, and thus from +the knowledge of the public, by some person interested in its suppression. +And Colonel Burnett, who had himself attached the paper "at the end" of +the record, instead of certifying to the "faithfulness and accuracy" of a +compilation omitting it, ought rather to have insisted that so important +and interesting a document, about the existence of which so much talk had +arisen, be at last given to the world. + +On the other hand, if Pitman knew of the paper, he certainly would not +have voluntarily left it out of his book for the reason, he himself felt +constrained afterwards to assign, that "it formed no part of the +proceedings, was not mentioned in open session;" since he had given room +to so much matter, not of record, solely for the purpose of adding +interest and completeness to his work, and this critical document could +add so much to the one and its absence detract so much from the other. + +Moreover, in December, the report of the Judge-Advocate-General to the +Secretary of War appeared, in which the trial was reviewed, and to which +the report to the President, dated July 5th, 1865, was appended. But in +both the existence of the petition was ignored. + +Whatever may have been the true inwardness of these significant omissions, +their inevitable effect was to convince the mass of the people of the +non-existence of a recommendation to mercy; and the petition of the five +officers might have reposed in silence in the secret archives of the War +Department, had it not been for the alienation of the President from the +party which had elected him, his gradual gravitation towards his own +section, and finally his revolt from the sway of Stanton. During this +period, the rumors that the Court had recommended Mrs. Surratt to the +clemency of the Executive and that the paper had never reached the +Executive, coupled with stories that from the close of the trial to the +hour of the execution the President had been kept under confinement and in +a state of semi-stupefaction by a band of reckless partisans who were +bound there should be no clemency, grew louder and louder. But they were +never traceable to any reliable source. In fact, the coolness which had +been for a long time growing between Andrew Johnson and Edwin M. Stanton +did not break out into an open rupture until as late as the month of +March, 1867. The other members of the Cabinet, which Johnson had inherited +from Lincoln, who disagreed with Johnson on the question of +Reconstruction, Harlan, Dennison and Speed, resigned, on account of that +disagreement, in the summer of 1866; but Stanton stayed on. When the +Tenure of Office bill was passed by the Congress in February, 1867, the +Secretary of War was still so much in accord with the President as to +unite with the other members of the reconstructed Cabinet in an emphatic +condemnation of the bill as unconstitutional, and to be asked by the +President to draft his veto message. + +But, on the passage of that Act over the veto, Stanton, thinking his +tenure of office secure, at last threw off the double-faced mask he seems +to have worn in every Cabinet to which he ever had the honor to belong. +From that time he stood alone in the Cabinet, irreconcilable in his +hostility to every move of his Chief, in open league with his Chief's +active enemies, and determined to remain where he was not wanted and could +only act as a hindrance and a spy. In this perilous state of affairs, a +secret like that of the petition of the five officers burned towards +disclosure. Yet, so far as is at present ascertainable, no authoritative +affirmation of the existence of such a paper, on the one hand, and no +authoritative denial that it had been presented to the President, on the +other, had yet been made. + +Upon such an arrangement of combustible material, the trial of John H. +Surratt acted like a spark of fire. + +On the second day (June 11th, 1867), during the impanelling of the jury, +Mr. Pierrepont, the leading counsel for the United States, alluding to the +rumors then flying about, took occasion to predict that the Government on +that trial would set all these false stories at rest. + +Among other things he said: + + "It has likewise been circulated through all the public journals that + after the former convictions, when an effort was made to go to the + President for pardon, men active here at the seat of government + prevented any attempt being made or the President being even reached + for the purpose of seeing whether he would not exercise clemency; + whereas the truth, and the truth of the record which will be presented + in this court, is that all this matter was brought before the + President and presented to a full Cabinet meeting, where it was + thoroughly discussed; and after such discussion, condemnation and + execution received not only the sanction of the President but that of + every member of his Cabinet." + +The testimony in the case closed, however, and the summing up began, and +there had been no attempt at a fulfillment of this prediction. + +On Thursday afternoon, August 1st, Mr. Merrick, the junior counsel for the +prisoner, then nearing the close of his address, twitted the prosecution +with this breach of its promise in these words: + + "Where is your record? Why didn't you bring it in? Did you find at the + end of the record a recommendation to mercy in the case of Mrs. + Surratt that the President never saw? You had the record here in + Court. + + "Mr. Bradley: And offered it once and withdrew it? + + "Mr. Merrick: Yes, sir; offered it and then withdrew it. + + "Did you find anything at the close of it that you did not like? Why + didn't you put that record in evidence, and let us have it here?" + +Stung by the necessity of making some answer to this defiant challenge, +Mr. Pierrepont on the moment sent for the record. And in response to the +summons, Judge-Advocate Holt, who naturally must have followed the +prosecution and trial with the most absorbing anxiety, on that very +afternoon brought the record "with his own hand," "with his own voice" +told its history, in the presence of "three gentlemen," to Mr. Pierrepont, +and then left the papers with him. + +On the succeeding day, August 2nd, Mr. Bradley, the senior counsel of the +prisoner, renewed the attack: + + "It was boastfully said in the opening of this case that they would + vindicate the conduct of the law officers of the Government engaged in + the conspiracy trials. They would produce Booth's diary; they would + show that the judgment of the court was submitted to the Cabinet and + fully approved; that no recommendation for mercy for Mrs. + Surratt--that no petition for pardon to the Government--had been + withheld from the President. Is it so?" + +The next morning, Saturday, August 3d, Mr. Pierrepont began his address to +the jury. Having kept possession of the record since Thursday afternoon, +and having been made acquainted with its history by Judge-Advocate Holt in +such an impressive manner, he, thus, in his exordium, at last, redeemed +the promise of the prosecution: + + "The counsel certainly knew when they were talking about that + tribunal" (_i. e._ the Military Commission), "and when they were thus + denouncing it, that President Johnson * * * ordered it with his own + hand, that President Johnson * * * signed the warrant that directed + the execution, that President Johnson * * * when that record was + presented to him, laid it before his Cabinet, and that every single + member voted to confirm the sentence, and that the President with his + own hand wrote his confirmation of it, and with his own hand signed + the warrant. I hold in my hand the original record, and no other man + as it appears from that paper ordered it. No other one touched this + paper, and when it was suggested by some of the members of the + Commission that in consequence of the age and the sex of Mrs. Surratt, + it might possibly be well to change her sentence to imprisonment for + life, he signed the warrant for her death with the paper right before + his eyes--and there it is (handing the paper to Mr. Merrick). My + friend can read it for himself." + +This is the first appearance in public of the precious record. On +Wednesday, July 5th, 1865, Andrew Johnson put his name to the +death-warrant written on its back by Judge Holt. And, now, two years +after, emerging from its hiding-place, it is flung upon a table in a +court-room by the counsel for the United States. + +Even now it seems to be destined to a most unsatisfactory publication. For +the counsel of the prisoner decline to look at it, because (as Mr. Merrick +subsequently explained), "he mistrusted whatever came from the +Judge-Advocate-General's office;" because it "had been carefully withheld +until all opportunity had passed for taking evidence in relation to it;" +and because the official report of the trial contained no recommendation +of mercy. The mysterious roll of paper, consequently, lies there unopened, +until Judge Holt comes to reclaim it that same afternoon; and that officer +is careful, when receiving it back, to repeat over again, before other +witnesses, the same history of the document, he had told before to the +counsel for the prosecution, and which that counsel had just retold to the +jury. + +But that had been said and done which must blow away the atmosphere of +unwholesome secrecy which had so long enveloped this addendum to the +record. The explicit declaration of the counsel for the United States, +made in a crowded court-room on so celebrated a trial, with the "identical +paper" in his hand, that the President had laid the record before his +Cabinet and "every single member voted to confirm the sentence," and that +the President had signed the death-warrant with the "suggestion" of +commutation "right before his eyes," was immediately published far and +wide, and must have been read on Sunday, the 4th, or at latest on Monday, +the 5th, by the President himself. And the President was certainly +astounded. By a most singular providence, Judge Holt himself, in a letter +written to himself, at his request, by his chief clerk, and published by +him in 1873 for another purpose, has furnished independent proof that the +President was now for the first time startled into sending for the record. + +Here is what Chief Clerk Wright says: + + "On the 5th day of August, 1867, Mr. Stanton, the Secretary of War, + sent for me, and in the presence of General Grant asked me who was in + charge of the Bureau in your absence. I informed him Colonel Winthrop. + He requested I should send him over to him, which I did. The Colonel + returned and asked me for the findings and sentence of the conspiracy + trial, telling me he had to take it to the President. On taking the + portion of the record referred to from the bundle, I found, from the + frequent handling of it, several of the last leaves had torn loose + from the ribbon fastening, and to secure them I put the eyelet in one + corner of it." + +The Judge-Advocate-General, though in court on Saturday getting back the +record and retelling its history, was absent, it would appear, from his +office on Monday, or was considered absent by Stanton, who it also appears +was still Secretary of War and in communication with Johnson. It was +thought best to employ a deputy to carry the papers to the President. +Holt, probably, had no stomach for another "confidential interview," with +the identical record in his hand. + +Let Andrew Johnson himself tell what followed. The statement is from his +published reply to Holt in 1873, and was made with no reference to, and +apparently with no recollection of, the foregoing incidents of the John H. +Surratt trial: + + "Having heard that the petition had been attached to the record, I + sent for the papers on the 5th day of August, 1867, with a view of + examining, for the first time, the recommendation in the case of Mrs. + Surratt. + + "A careful scrutiny convinced me that it was not with the record when + submitted for my approval, and that I had neither before seen nor read + it." + +It may have been only a coincidence, but on this very day, Monday, August +5th, 1867, and necessarily after the sending for the record, because that +was done through the Secretary of War, the following interesting missive +was dispatched by the President to that member of his Cabinet: + + "Sir: Public considerations of a high character constrain me to say + that your resignation as Secretary of War will be accepted." + +Stanton immediately replied: + + "Public considerations of a high character constrain me not to resign + before the next meeting of Congress." + +And, on the 12th, he was suspended from office. + +But Andrew Johnson was not the only interested personage who read the +explicit declaration of Mr. Pierrepont. The statement that every member of +the Cabinet voted to confirm the sentence of Mrs. Surratt, with the +record, including, of course, the recommendation, before them, must have +been read also by William H. Seward, Edwin M. Stanton, Hugh McCulloch, and +Gideon Welles, the members of that "full Cabinet" who still remained in +office. They surely knew the truth of the statement, if it was true, or +its falsity, if it was false. If it was true, is it not perfectly +inconceivable that the President, conscious that these four of his +confidential advisers had seen the record and voted to deny the petition, +would have dared to enact the comedy of sending for the record, and then +brazenly assert that the petition had not been attached to it when before +him, and that he had neither seen nor read it? + +And if he had been guilty of so foolhardy a course of action, now was the +time for the Judge-Advocate to fortify the declaration which he had +inspired Mr. Pierrepont to make, by appealing to these members of the +Cabinet to confront their shameless chief with their united testimony, and +forever silence the "atrocious accusation." + +From his course of proceeding at a later day, it is not probable that he +made any such attempt. At all events, he got no help from Seward, from +McCulloch or from Welles. Nay, he got no help to sustain his history of +the record, even from Stanton. If help came from that quarter at all, it +was to shield him from the awakened wrath of the hood-winked Executive, by +drawing the fire upon the head of his department. + +But what the Judge-Advocate-General did do, in view of the crisis, is +sufficiently apparent. He took immediate measures to retract all that +portion of Mr. Pierrepont's declaration of Saturday, which expressed or +implied any knowledge on the part of the Cabinet of the disputed paper. + +The counsel for the United States had continued his speech to the jury all +day Monday, apparently unconscious of the tempestuous effect of his +statement of Saturday, and of the predicament in which it had involved his +informant. In the evening, he must have had a "confidential interview" +with Judge Holt. For, on rising to resume his speech on Tuesday morning, +the 6th of August, from no apparent logical cause arising from the course +of his argument, he saw fit to recur to the now absent record, and to +interpolate the following perfectly insulated and seemingly superfluous +piece of information: + + "You will recollect, gentlemen, when a call was made several days ago + by Mr. Merrick * * asking that we should produce the record of the + Conspiracy Trial, that I brought the original record here and handed + it to counsel. I then stated that as a part of that record was a + suggestion made by a part of the Court that tried the conspirators, + that, if the President thought it consistent with his public duty, + they would suggest, in consideration of the sex and age of one of + those condemned, that a change might be made in her sentence to + imprisonment for life. I stated that I had been informed that when + that record was before the President, and when he signed the warrant + of execution, that recommendation was then before him. I want no + misunderstanding about that, and I do not intend there shall be any. + That is a part of the original record which I here produced in Court. + It is in the hand-writing of one of the members of that Court, to wit, + General Ekin. The original of that is now in his possession and in the + hand-writing of Hon. John A. Bingham. When the counsel called for that + record, I sent the afternoon of that day to the + Judge-Advocate-General, in whose possession these records are. He + brought it to me with his own hand, and told me with his own voice, in + the presence of three other gentlemen, that that identical paper, then + a part of the record, was before the President when he signed the + warrant of execution, and that he had a conversation with the + President at that time on the subject. That is my authority. + Subsequently to this, having presented it here, the + Judge-Advocate-General called to receive it back, and reiterated in + the presence of other gentlemen the same thing. That is my knowledge + and that is my authority." + +Here we have, then, the final statement of his side of the case, made by +Judge Holt, through the mouth of counsel, revised and corrected under the +stress of the occurrences at the White House and the negatory attitude of +the members of the Cabinet present on the spot. Stripped of the allegation +that the record was laid before the Cabinet and voted upon by every +member of the Cabinet, its affirmations, carefully confined to "the +confidential interview" between the President and the Judge-Advocate, go +no farther than that "the identical paper" was "before the President," +when he signed the death warrant, and they had a conversation "on the +subject." + +"He wants no misunderstanding" and does "not intend there shall be any." +The counsel in great detail relates how he came by his facts. "That is my +knowledge and that is my authority." Of course it is open to everybody to +believe, if he choose, that the talk of the Cabinet meeting and of the +unanimous vote of its members against the petition, was a mere rhetorical +exaggeration of a simple narrative of Holt relating the incidents of an +interview between the President and himself, struck off by Judge +Pierrepont in the full fervor of his eloquence; but, nevertheless, it +remains true that the Judge-Advocate, until the catastrophe befell, was +satisfied it should stand, rhetoric and all; because he "reiterated the +same thing" on Saturday, _after_ the counsel had concluded his statement, +and on Monday the counsel continued his address all day without being +advised of the necessity for any retraction. + +Be this as it may, there is now, at the last, no appeal by the +Judge-Advocate to the members of the Cabinet, all of whom were living, as +witnesses to the President's knowledge of the petition of mercy. He +abandons hope of corroboration from members of the Cabinet, and he takes +his stand upon the single categorical affirmation, that the "identical +paper" formed part of the record when the record was before the President +in 1865. + +And, singular as it may appear, this is the very thing that the President +does not categorically deny; he only infers the contrary from the +appearance of the record in 1867. + +The single categorical negation of the President is that he neither saw +nor read the recommendation. And, singular as it may appear, this the +Judge-Advocate does not categorically affirm; he leaves it to be inferred +from his averment of the presence of the paper and a conversation on the +subject. + +In short, the statements of the two disputants are not contradictory. Both +may be true. And, when we recollect the feeble state of health of the +President at the time of the "confidential interview" and his mood of mind +towards the distasteful task forced upon him in a season of nervous +debility; when we recollect the mode and manner the Judge-Advocate adopted +of writing out the death warrant; it will seem extremely probable that +both statements _are_ true. The President made no "careful scrutiny" of +the record in 1865, or he would not have needed to do so in 1867. The +Judge-Advocate, inspired by his master, would not be too officious in +pointing out to the listless and uninquiring Executive the superfluous +little paper. He might do his whole duty, by conversing on the subject of +the commutation of the sentence of the one woman condemned, and, then, by +so placing the roll of papers for the President's signature to the death +warrant as to bring the modest "suggestion" of the five officers "_right +before his eyes_," though upside down. If the sick President did not +carefully scrutinize the papers, was that the Judge-Advocate's fault? Nay, +in writing out the death warrant in the inspired way he did, this zealous +patriot may have felt even a pious glow, in thus lending himself as an +instrument to ward off a frustration of Divine justice. Alas! one may +easily lose one's self in endeavoring to trace out the abnormal vagaries +of the "truly loyal" mind, at that period of hysterical patriotism. + + * * * * * + +After these incidents on the Surratt trial, and at the White House, there +could be no more mystery about the recommendation to mercy. It was +historically certain that such a document, or rather a "suggestion," did +in fact emanate from the Commission, and was at some time affixed to the +record. Left out of Pitman's official compilation, nevertheless it was +there. The only question about it which could any longer agitate the +people was, had it been suppressed? And this, unfortunately, was now +narrowed down to a mere question of veracity between the President and his +subordinate officer, as to what occurred at the Confidential Interview; +and which, moreover, threatened to resolve itself into a maze of special +pleading about the lack of attention, on the part of the Executive, and +the duty of thorough explanation, on the part of the Judge-Advocate, in +the delicate task of approving the judgment of a Military Commission. + +Whether this unsatisfactory and ticklish state of the issue was the cause +or not, nothing was done in consequence of these revelations of the +Surratt trial. The President, indeed, plunged as he was in the struggle to +get rid of Stanton, which finally led to his impeachment, and remembering +his own remissness in not scrutinizing the papers before he signed the +death-warrant, could have had but little inclination to provoke another +conflict, on such precarious grounds, by attempting the removal of the +incriminated subordinate of his rebellious Secretary. He kept possession +of the record, however, long enough to subject it to a thorough inspection +by himself and his advisers, for (as appears from the letter of the chief +clerk already quoted) it was not returned to the Judge-Advocate-General's +office until December, 1867. + +The Judge-Advocate, on his part, remained likewise passive and displayed +no eagerness for a vindication by a court of inquiry. + +He pleads in 1873, as excuse for his non-action, that "it would have been +the very madness of folly" for him "to expose his reputation to the perils +of a judicial proceeding in which his enemy and slanderer would play the +quadruple role of organizer of the court, accuser, witness and final +judge." Forgetting the "history" he had told Mr. Pierrepont, and then +withdrawn, in 1867, he actually claims that he "was not aware that any +member of Mr. Johnson's Cabinet knew of his having seen and considered the +recommendation," and that he "was kept in profound ignorance of" "this +important information" "_through the instrumentality of Mr. Stanton_"! + +But, were it credible that the Judge-Advocate "supposed," as he says, +"that this information was confined to" the President and himself, (not +even his master, Stanton, knowing anything of the petition), even in that +case the "perils" of an investigation, which he affects to dread, were all +on the side of his adversary. The necessity for the President of the +United States, himself, to come forward as the one sole witness to his own +accusation--especially when the charge involved an admission of his own +delinquency, and was to be met by the loud and defiant denial of his +arraigned subordinate--was enough, of itself, to deter the Chief +Magistrate of a great nation from descending into so humiliating a combat. + +But, to lay no stress upon this consideration, it must be manifest to any +one acquainted with the state of public feeling at the time, that the +single, uncorroborated testimony of the maligned, distrusted Andrew +Johnson, branded as a traitor by the triumphant republican party, on the +eve of impeachment, a hostile army under his nominal command, Stanton +harnessed on his back, unfriendly private secretaries pervading his +apartments, and detectives in his bed-chamber; in support of such a +"disloyal" charge, disclosing, as it was sure to be asserted, a latent +remorse for the righteous fate of the she-assassin; would have been hailed +in all military circles with derision. The popular, the eminently loyal, +the politically sound Judge-Advocate, backed by Stanton, Bingham and +Burnett, by his Bureau and his Court, by General Grant and the Army, had +certainly nothing to fear. + +But, though this hero of so many courts-martial appears to have had no +mind for a dose of his own favorite remedy, he began, in his +characteristic secret way, to collect testimony corroborative of his +version of the confidential interview. He writes no letter to a single +Cabinet officer. But, immediately after the close of the John H. Surratt +trial (August 24, 1867), he writes to General Ekin reminding him of an +interview, soon after the execution, in which he (Holt) mentioned that the +President had seen the petition; and he obtains from that officer the +information he sought. In January, 1868, he quietly procures from two +clerks in his office, letters testifying to the condition of the record +when it arrived from the Commission, when the Judge-Advocate took it to +carry to the President, and when he brought it back. It is needless to say +that, though these clerks state that the page, on which the petition was +written, and the page, on which the latter portion of the death-warrant +was written, are "directly face to face to each other;" they do not notice +that, when the death-warrant was signed, the page, on which the petition +was written, must have been, either under the other pages of the record, +or upside down. + +In this same month, the resolution of the Senate refusing to concur in the +suspension of Stanton was adopted (January 13th, 1868). General Grant, the +Secretary of War _ad interim_, in violation of his promise to the +President, as alleged by the latter, thereupon surrendered the office to +the favorite War-Minister, who thus forced himself back among the +confidential advisers of the President. + +On the 21st of February, the President, with one last desperate stroke, +removed him from office; and on the 24th, Andrew Johnson was impeached for +this "high crime." + +In the midst of his troubles, the President finds time to pardon Dr. Mudd +(Feb. 8th), who soon returns to his family and friends. + +The impeachment trial ends May 26th, the President escaping conviction by +but one vote; and Stanton at last lets go his hold on the War office. + +In December, 1868, the Judge-Advocate is privately seeking testimony from +the Rev. J. George Butler, of Washington, the minister who attended +Atzerodt in his last moments, whose letter of the 15th is most +satisfactory on Johnson's belief in the guilt of Mrs. Surratt, but most +unsatisfactory in regard to the petition of mercy. + +On the 1st of March, 1869, among the last acts of his stormy +administration, the President undid, as far as he could then undo, the +work of the Military Commission by setting Arnold and Spangler free; +O'Laughlin having died from the effects of the climate. Had the five +officers of the Military Commission been permitted to exercise their power +of mitigating the sentence of Mrs. Surratt, as they did in the cases of +these men, or had the Executive granted their prayer for clemency; the +President might have signalized the close of his term by a still more +memorable pardon, and the mother, rescued from death by mercy, would have +joined the son, rescued from death by justice. + +During the four years of the first administration of President Grant, +while Andrew Johnson was fighting his way back to his old place, among the +people of Tennessee, the story of the suppressed recommendation ever and +anon circulated anew with unquenchable vitality. The reappearance of Mudd, +Spangler and Arnold, as free men; the "doubtful" death of Stanton, "with +such maimed rites" of burial, as might "betoken + + The corse, they follow, did with desperate hand + Fordo its own life;" + +every incident connected in any way with the tragedy of the woman's trial +and death, and every prominent event in the career of the men who had +surrounded the illstarred successor of the murdered Lincoln in the awful +hour of his accession, revived the irrepressible question; and the friends +of Mrs. Surratt's memory, and the friends of Johnson, alike, each by their +own separate methods, on every such opportunity, appealed and re-appealed +to the public, asserting again and again the suppression of the plea for +mercy, propagating what General Holt brands as "the atrocious accusation," +or, as he elsewhere characterizes their actions, "for long years wantonly +and wickedly assailing" the ex-Judge-Advocate. And yet, during all these +years, the baited hero is silent. He lies low. As far as appears, he makes +no further efforts to secure testimony. His friend and old associate, +Bingham, is by his side, yet he makes no appeal to him. He keeps close by +him the letters he has already secured to substantiate his own version of +the confidential interview. But he seeks for no Cabinet testimony. His +stern master in the War Department, after the acquittal of the President, +lays down his sceptre, and then, though the deadliest enemy of Johnson, is +allowed to die in silence. Seward lives on and is asked to give no help. +The ex-Judge-Advocate still lies low. + +At length came the appointed time. + +William H. Seward died on the 12th day of October, 1872. + +On the 11th day of February, 1873, Gen. Holt makes his appeal for +testimony from the officers of Johnson's first Cabinet, by letter to John +A. Bingham, requesting him to furnish his recollections of the late +Stanton and the late Seward. On March 30th, 1873, he writes to James +Speed, Ex-Attorney-General, inclosing a copy of Bingham's reply. On May +21st, 1873, he writes to James Harlan, Ex-Secretary of the Interior, +inclosing a copy of Bingham's reply. In July, 1873, he writes to General +Mussey, once Johnson's private secretary; and, in August, armed with the +answers of these correspondents and with the letters he had gathered in +1867 and 1868, and unprovoked by any revivification of the old charge, he +rushes into the columns of the Washington Chronicle with his formidable +"Vindication." + + + + +CHAPTER IV. + +THE TRIAL OF JOSEPH HOLT. + + +On the threshold of his Vindication, Gen. Holt revives the discredited and +apparently forgotten declaration made by Mr. Pierrepont on the trial of +John H. Surratt, and stakes his whole case upon the establishment of the +truth of the allegation that the petition for commutation, attached as it +was to the record of the findings and sentences of the Military +Commission, was the subject of consideration at a meeting of the Cabinet +of President Johnson, and its prayer rejected with the concurrence of the +members present at such meeting. + +So long as the contention is limited to what took place during that +momentous hour between the President and himself, "alone," with the light +thrown upon it by the record including the endorsed death-warrant and the +affixed paper, he exhibits a certain lack of confidence in the strength of +his defense. For, although he prints the "circumstantial evidence," as he +calls it, to sustain his own version of the "confidential interview" +(consisting of the two letters from his former clerk, heretofore alluded +to, and the letter from Gen. Mussey saying that the "acting President" +told him of the recommendation "about that time"), he confesses it was not +until he recently had secured certain testimony that the petition had been +considered by officers of the Cabinet, that he at length felt his case +strong enough to warrant a public challenge of his adversary, and himself +justified in submitting it to the public. + +In short, we have a sort of reversal of the position of six years before. +_Then_, after having at first put forward the assertion that the petition +was considered by the Cabinet, the Judge-Advocate summarily suppresses +that branch of his case, and puts into the foreground the explicit +asseveration of the identical paper being "right before the President's +eyes" when he signed the death-warrant. "He wants no misunderstanding +about that." _Now_, while he keeps in mind, it is true, this version of +the confidential interview, he relegates it to the rear, and constitutes +the Cabinet consideration the very citadel of his cause. + +As to what takes place at a meeting of the Cabinet, its members of course +are the first, if not the only, witnesses. And it is a matter of surprise +that General Holt, so far as is apparent, never, in all these past years, +applied to any one of them to substantiate so essential a part of his +vindication. He states that he has always been satisfied that the matter +must have been considered in the Cabinet, and adds that "from the +confidential character of Cabinet deliberations" he has "thus far been +denied access to this source of information." But he does not say when, +or to whom, he applied for such "access," or how he had been "denied." It +is certain, from what he says elsewhere, that he never applied to Stanton +or to Seward; he admits in a subsequent communication that he never +applied to McCulloch, Welles or Dennison; and, from the tenor of their +letters now in reply to his, it appears he never applied before to Harlan +or to Speed. And these are all the members of the Cabinet of President +Johnson in July, 1865. Moreover, he does not, even now, in 1873, make +application in the first instance to an ex-Cabinet officer. His first +application is made to John A. Bingham, his old colleague in the +prosecution of Mrs. Surratt, for Cabinet information in the shape of +conversations with the two ministers, who, after so many years of +unsolicited silence in life, are now silent, beyond the reach of +solicitation, in death. And it is not until he has secured the desired +information, which he would have us believe was entirely unexpected, that +he is stirred up to the necessity of a public vindication of his +character; and then he selects the two of the surviving ministers of the +Cabinet, known to be hostile to the ex-President, as the objects of +solicitation, sending them, as a spur to their recollections, the letter +containing the reminiscences of his serviceable ally. But, by some +fatality, the industrious inquirer takes nothing by his somewhat +complicated manoeuvre. The letters he produces from Cabinet officers +afford him no assistance. Judge Harlan can recall only an informal +discussion by three or four members of the Cabinet (Seward, Stanton, +himself and probably Speed) of the question of the commutation of the +sentence of Mrs. Surratt because of her sex; which, she being the one +woman under condemnation, would surely arise in a tribunal of gentlemen, +whether there was a recommendation or not, as in fact it did even among +the stern soldiers of the Military Commission. But the writer, who, as +Senator from the State of Iowa, had voted for the conviction of President +Johnson, makes the positive declaration, that "no part of the record of +the trial, the decision of the court, or the recommendation of clemency +was at that time or ever at any time read in my (his) presence." He +remembers, with undoubting distinctness, inquiring at the time whether the +Attorney-General had examined the record, and was told that the whole case +had been carefully examined by the Attorney-General and the Secretary of +War; and he states that the question was never submitted to the Cabinet +for a formal vote. + +This letter is most significant, both for what it says and for what it +refrains from saying. Its positive statement annihilates the story of a +"full Cabinet" when "the vote of every member" was adverse, and indeed of +any Cabinet meeting whatever, where the paper was present and +considered--such a story as Judge Pierrepont first gathered from the +"voice" of Holt; and the absence of all affirmation that the writer had +either seen or heard of the recommendation, while he expressly states that +it was never read in his presence (considering the occasion and object of +the letter and the bias of the ex-Senator), warrants the conclusion that +such a document was not mentioned at the informal Cabinet consultation he +describes. + +In any view, the letter furnishes no support to Holt's contention. The +writer expressly negatives the presence of the record and the paper, and +he does not affirm that such a petition was alluded to, in terms, in the +discussion in the presence of the President; which he surely would have +done, in aid of his sorely tried friend, if such had been the fact. + +The Judge-Advocate fares even worse at the hands of the +Ex-Attorney-General. Here is a man who knew, if any other member of the +Cabinet except Stanton knew, whether the paper in question ever came up +for discussion before the President in his Cabinet. He goes so far as to +say that, after the findings and before the execution, he saw the paper +attached to the record "in the President's office;" a statement which +reminds us of another of the same elusive and evasive character, (that the +paper was "_before the President_"), and, like that, affirms nothing one +way or the other as to the consciousness of the President of its presence. + +And then he proceeds as follows: + +"I do not feel at liberty to speak of what was said at Cabinet meetings. +In this I know I differ from other gentlemen" (presumably an allusion to +the Seward and Stanton of Bingham's letter), "but feel constrained to +follow my own sense of propriety." + +His friend's necessity would have been met by something less than a +repetition of what was _said_ at Cabinet meetings. He had only to tell +whether he saw a certain paper (not in the President's office), but at a +meeting of the President and his advisers, or knew of the recognition +there of its mere existence;--a revelation which would not have violated +the most punctilious sense of official propriety; and he feels constrained +to withhold the least ray of light upon so simple a question. + +The witness "declines to answer." + +Ten years after the present controversy, Judge Holt, feeling acutely this +weak point in his vindication, again appeals to Speed, in the most moving +tones, to break his unaccountable silence and rescue his friend's gray +head from "the atrocious accusation," "known to him to be false in its +every intendment," with which that perfidious monster, dead now eight +years, and, (as Holt significantly quotes), "gone to his own place," +sought "to blacken the reputation of a subordinate officer holding a +confidential interview with him." + +And, strange to say, Speed first neglects even to reply to Holt's repeated +communications for six months, and then just opens his lips to whisper, "I +cannot say more than I have said." He had offered in private (if we may +credit Holt) to write a letter to his aggrieved friend, giving him the +desired information, "but not to be used until after Holt's death;" a +proposition quite naturally discouraged by Holt, who made this sensible +reply: "that a letter thus strangely withheld from the public would not, +when it appeared, be credited." + +But, when repeatedly implored to spread "the desired information" before +the public, he again declines to answer. James Speed would not tell the +truth, when by telling the truth he might relieve his old friend in "the +closing hours of his life" from a most damnable calumny, because, +forsooth, "of his sense of propriety." He could not violate the secrecy of +a Cabinet meeting, held nearly twenty years before; a secrecy which he had +good reason to believe had already been broken, in the professed interest +of truth, by three of his own colleagues, and, in the alleged interest of +a most foul falsehood, by the President himself. + +Before the Judge finally gives up his old associate as hopeless, he +craftily points out to him a way by which the ex-Cabinet officer may give +his testimony without violating the most punctilious sense of propriety, +not only, but without departing one iota from the literal truth. Since his +first letter, General Holt informs him: "I have learned that although you +gained the information while a member of the Cabinet, it was not strictly +in your capacity as such, but that at the moment I laid before the +President the record of the trial, with the recommendation for clemency +on behalf of Mrs. Surratt, you chanced to be so situated as to be assured +by the evidence of your own senses that such petition of recommendation +was by me presented to the President, and was the subject of conversation +between him and myself." Does this mean that Speed was an unseen spectator +of the confidential interview, and witnessed the writing of the +death-warrant? At all events, for some reason, the ex-Attorney-General was +afraid to accept this opportunity to equivocate. + +Holt may well wonder at Speed's obstinate silence. He exclaims: "It is a +mystery to me." It will be a mystery to every one, provided the black +charge was false. But, on the hypothesis that the charge was true, that +the paper was suppressed, either actually or virtually, there is no +mystery. + +Had Speed known that the paper was, not only "_before_" the President, but +considered by him, either in or out of the Cabinet, it is beyond the limit +of human credulity to believe, for a moment, that, with all possible +motives to lead him to succor his friend, and with none to lead him to +shield the character of his dead political foe, he would not have uttered +the one decisive word in the controversy. And he comes as near doing so as +he dares, evidently. He shows, in 1873, a yearning to help his old +friend--a yearning so strong that we may be sure it was not the frivolous +pretext of "official propriety" which constrained him, then, much less in +1883. + +If he, too, as Holt said of Stanton, feared the resentment of the +dethroned Johnson in life, he certainly could not have feared the +resentment of Johnson's ghost after death. + +He must be numbered among those who, + + "With arms encumbered thus, or this head-shake, + Or by pronouncing of some doubtful phrase, + As, _'Well, well, we know;' or 'We could, an' if we would;' or + 'If we list to speak;' or 'There be, an' if they might;'_" + +"ambiguously give out" to know what they are sworn "never to speak of." If +there was any oath-guarding "fellow in the cellarage," rest assured it was +not the pale wraith of the hood-winked Johnson, but the blood-boltered +spectre of his once wide-ruling Minister of War. + + * * * * * + +Amid such a dearth of direct explicit testimony of members of the Cabinet +about a disputed Cabinet incident, it is curious and interesting to watch +the assiduous ex-Judge-Advocate, with the most ingenious and industrious +sophistry, attempt to extract corroboration from the statements of the two +ex-Cabinet officers, whom he has induced to speak, where in truth no +corroboration can be found. + +After all his efforts, he is forced at last to fall back upon the single +testimony of the one man without whose encouraging information he frankly +informs us he would not have dared to come before the people, and upon +whom he brings himself to believe he might safely rest his defense. That +man is John A. Bingham, now, as once before, Special Assistant +Judge-Advocate to Joseph Holt. + +During the eight years which had elapsed since their crowning achievement +of hanging a woman for the murder of Abraham Lincoln, these two men had +lived, for a considerable portion of the time, in the same city. They were +together in the contest over reconstruction and impeachment, standing in +the front rank of the enemies of Johnson. They were both at the Capital +during the trial of John H. Surratt, when the ghastly reminiscences of the +trial of the mother along with seven chained men must have drawn the two +military prosecutors into a most sympathetic union. + +And yet when, in February, 1873, Joseph Holt sits down in Washington to +write his letter of inquiry to John A. Bingham, then in the same city, he +would have us believe that he had never before poured into the bosom of +his old colleague his own sufferings over the frightful calumny so long +poisoning the very air he breathed, never before told him his +embarrassment over the difficulty to elicit evidence from Cabinet +officials, never before besought his friend for his own powerful testimony +on the side of his persecuted fellow-official. + +He writes to his former assistant, as though the information were now +communicated for the first time, that the President and he were alone +when the record was presented and the death-warrant signed; that he had +always been satisfied the petition was considered in a Cabinet meeting, +but has hitherto been unable to obtain any evidence upon that point; and +then, in an artless, ingenuous manner, as if putting the question for the +first time, asks his correspondent whether or not he had had a +conversation with William H. Seward, Secretary of State under President +Johnson, in reference to the petition, and "if so, state as nearly as you +may be able to do all he said on the subject;" with a like request as to +Edwin M. Stanton, Secretary of War. + +With a diviner's skill he selects the two members of the Cabinet who are +then dead; and, not to disappoint him, Bingham, in a letter from +Washington six days later, informs him that he has struck the two-fold +mark. With the same apparent artlessness which characterizes the letter of +inquiry, this useful advocate now, as if for the first time, discloses to +his long-tried colleague, that he did indeed have a conversation with each +of the eminent men he had hit upon, who are now, alas! dead. + +Judge Bingham is a most willing witness. He relates with great +circumstantiality that "after the Military Commission had tried and +sentenced the parties" he "prepared the form of the petition to the +President." He then gives the form thus prepared as he now recollects it +(in which there are two significant mistakes); he states that he wrote it +with his own hands, that General Ekin copied it, and the five signed the +copy; as if all this particularity had any relevance to the question at +issue, as if the point in dispute was the existence of the paper, and not +its suppression at a critical moment after it was written. He affects to +believe it necessary to state to his old colleague, that he "deemed it his +duty to call the attention of Secretary Stanton to the petition, and did +call his attention to it before the final action of the President;"--as if +it were among the possibilities, that the head of the War Department could +in any case have overlooked so important a paper, much less that the +imperious Chief of this very prosecution could have been kept in +ignorance, one hour, of what was done by his tools. + +The Special Assistant, however, at last comes to the point: + + "After the execution, the statement to which you refer was made that + President Johnson had not seen the petition for the commutation of the + death sentence upon Mrs. Surratt. I afterwards called at your office, + and, without notice to you of my purpose, asked for the record in the + case of the assassins. It was opened and shown me, and there was then + attached to it the petition, copied and signed as hereinbefore + stated." + +Oh, what an artless pair of correspondents! The former Special Assistant +tells the former Judge-Advocate how he played the detective on him to his +friend's justification; "_without notice of my purpose_"! + + "Soon thereafter I called upon Secretaries Stanton and Seward, and + asked if this petition had been presented to the President before the + death-sentence was by him approved, and was answered by each of those + gentlemen that the petition was presented to the President, and was + duly considered by him and his advisers, before the death-sentence + upon Mrs. Surratt was approved, and that the President and the Cabinet + upon such consideration were a unit in denying the prayer of the + petition; Mr. Stanton and Mr. Seward stating that they were present." + +In weighing the credibility of this statement, so conclusive if true, two +considerations should be borne in mind. + +1. That we have here, not the testimony of either Seward or Stanton, but +the testimony of a man who, if the paper was in fact suppressed, must have +been a participant in the foul deed. For no one will believe, for a +moment, that Joseph Holt would have dared to perpetrate, if he could, or +could have perpetrated, if he dared, so unspeakable a wickedness, without +the knowledge and cooeperation of his fiery leader in the conduct of the +trial. + +2. If this decisive information was in the possession of Judge Bingham at +so early a date as "soon after the execution," why had he not communicated +it to his distressed partner while Stanton and Seward lived? He had taken +pains to obtain it to meet the ugly stories that were even then +circulating against the Judge-Advocate. He knew it at the time of the +struggle at close quarters over the petition during the Surratt trial, and +he must have been cognizant of the fact, that for the lack of it, that +officer had been forced to withdraw the allegation of a full Cabinet +consideration of the petition, which he had at first prompted the counsel +of the United States boldly and publicly to make. + +After the trial the reports grew louder and louder, until it was +everywhere said that Andrew Johnson habitually declared that he had never +seen the paper. Holt ran hither and thither collecting testimony from all +available quarters. Hear Holt himself: "Every time the buzz of this +slanderous rumor reached him (Bingham) during the last eight years--which +was doubtless often--his awakened memory must have reminded him that he +held in his keeping proof that this rumor was false." Why did not his +former assistant even relieve his tremendous anxiety by telling him that +he had evidence which would blow the calumny into the air? General Holt, +in a letter in reply to Bingham's, dated at Washington the next day, which +he also prints in his Vindication, says: + +"It would have been fortunate indeed, could I have had this testimony in +my possession years ago." + +He calls its concealment "a sad, sad mockery." Yes; and why was Judge +Bingham willing to perpetrate such a "mockery," and continue the "mockery" +until Stanton's death, and then until Seward's death, which occurred only +a few months before he at last enlightens his colleague? Can the most +credulous of men believe that, during all these years, he was guilty of +such cruelty as not even to whisper such welcome intelligence into the +ears of his sorely distressed brother officer? + +And what shall we say of William H. Seward? + +If that great man told Judge Bingham in 1865 what the Judge, after Seward +was dead, first says he did, why had William H. Seward kept silent so many +years, and at last died and made no sign? He must have heard the charge, +so infamous if false, and, if Judge Bingham be believed, he must have +known it to be false. + +He must have heard the statement of Judge Pierrepont in open court in +1867. He must have known of the President's sending for the record and of +the explosion thereupon in the Department of War. Why did he not at that +crisis come forward with the proof of which the Judge-Advocate was so +dreadfully in need? + +The Secretary of State could not have intrenched himself behind the +inviolability of proceedings of Cabinet meetings, as did the +over-scrupulous Attorney-General, because, according to Judge Bingham, he +himself had betrayed the secret long before. + +And why did not Judge Bingham force him to speak, or else make public his +interview with him, while Seward was alive and could either affirm or +contradict it? + +No, these two eminent lawyers, yoked together as the common mark of what +they call a "most atrocious slander," originating with a President of the +United States, bruited about everywhere both in official and private +circles, wait eight long years, and until after the death of the head of +that President's Cabinet, from whose lips one of them at least had heard +at its very inception a solemn refutation of the black lie, before they +venture to proclaim it to the world. + +Mr. Bingham admits in his letter that, in 1865, "he desired to make" the +facts he had ascertained "public." Why did he not "make public" what +Seward had told him, while Seward was living? + +He furnishes no answer to this question, and until he does, his testimony +on the matter is tainted with a most reasonable suspicion. + +And, besides, what we know of the situation of the Secretary of State at +the time of the execution of Mrs. Surratt, of his subsequent career, and +of his lofty character as a man, is sufficient to stamp the account of +Judge Bingham as incredible. + +William H. Seward, one of the most distinguished statesmen of the era of +the civil war, one of the most illustrious founders of the republican +party, and one of the most trusted advisers of Abraham Lincoln, remained +in the Cabinet of Andrew Johnson until the close of his administration. He +united in the pardon of Mudd, Spangler and Arnold. He stood by the +President fearlessly in the dark days of the impeachment, and when the +President had become the target of the daily curses of thousands of +Seward's former political friends. Had he known that the accusation +against General Holt was false, and at the same time heard the daily +reiteration of its truth from the lips of his Chief, he would not have +remained an hour in the Cabinet of such a monumental slanderer. So far +from allowing the ceremonial restraints of Cabinet rules to make him a +silent accomplice in a foul falsehood, he would have proclaimed the truth, +if necessary, even from the steps of the Capitol. + +Mr. Seward, at the time of the execution of Mrs. Surratt, could have but +barely recovered from the broken jaw and broken arm from which he was +suffering, when he bore the savage assault of Payne, and from the grievous +wounds which that mad ruffian inflicted. One of his sons was still +incapacitated because of injuries from the same hand, and his wife died +June 21st, 1865. It is not at all probable that, in such dolorous +circumstances, he would be required to give close attention to a subject +entirely outside of the duties of his department, and in which his +personal feelings as a sufferer were so deeply involved. He said himself +under oath to a Congressional Committee: "Having been myself a sufferer in +that business, the subject would be a delicate one for me to pursue +without seeming to be over-zealous or demonstrative." + +In spite of the eight-years-embalmed testimony of a hundred Binghams, we +would not believe that the uncomplaining victim of Payne voted to deny the +Petition of Mercy. + +While no attempt is made to explain the silence of Seward during his +lifetime, or the silence of Judge Bingham himself regarding the +information he got from Seward, this willing witness does give a most +singular and perplexing explanation of his long silence regarding the +information he got from Stanton. + +He says: (in the same letter) "Having ascertained the fact as stated, I +then desired to make the same public, and so expressed myself to Mr. +Stanton, who advised me not to do so, but to rely upon the final judgment +of the people." + +General Holt, in a subsequent article, states that Stanton "enjoined upon +the Judge silence in reference to the communication." + +We are called upon to believe that the Secretary of War, at the very first +interview with Judge Bingham, when, upon the theory of the truth of the +information, there could have been no conceivable motive for its +concealment, advised his inquiring friend to suppress a fact essential to +the refutation of a despicable slander, blotting the fair name of a +brother officer. Not only this; but that the Secretary continued the +injunction of silence during all the years the terrible charge was being +bandied about on the lips of men to the daily torment of the poor man so +cruelly assailed. As General Holt says: "It was a deliberate and merciless +sacrifice of me, so far as he could accomplish it." + +And he "enforced" the "silence" up to the day of his death. + +But we ask what reason had the "Great War Minister" "to perpetrate so +pitiless an outrage?" Why, in the days of the trial of John H. Surratt, +why, in the days of his stern enmity towards the President, when his +removal furnished the main ground of impeachment, did he not once speak +out for his slandered servant, or even unlock the sealed lips of the +obedient Bingham and suffer him to tell the truth? + +General Holt, in 1883, on affirming in the text of his article that +"Messrs. Seward and Stanton declared the truth to Judge Bingham," adds the +following explanatory note: + +"This praise was certainly due to Mr. Seward, but not, in strictness, to +Mr. Stanton, since on making the communication to Judge Bingham, he +endeavored and successfully, to prevent him from giving it publicity. + +"The fear of Andrew Johnson's resentment, added to a determination on his +part to leave my reputation--then under fire from his silence--to its +fate, sufficiently explain his otherwise inexplicable conduct." + +But does it? Is this in truth a sufficient explanation? + +Stanton, the stern War Minister, fear the resentment of Andrew Johnson! +When was he taken with it? When he bearded the President in his Cabinet? +When he defied him in the War Department, and scattered his missive of +removal to the winds? Or did he wait to begin to fear him until the +President retired to private life, just escaping conviction by +impeachment, and shorn of all popularity North or South? The preposterous +nature of the cause assigned casts suspicion upon the assignor himself. +As to the second cause, we are at a loss to conceive why Mr. Stanton +should harbor such motiveless malignity against the reputation of his +former colleague, then his pliant subordinate, and always his friend. We +need, in this regard, an explanation of the explanation. If it be true, it +settles the character of Stanton for all time. + +But, it appears, in the words of General Holt, that "while he (Stanton) +lived, this enforced silence was scrupulously obeyed." Again we ask why? + +Why should Bingham have obeyed the "advice," even if given by Stanton so +long before? Why should the associate of Holt, in the prosecution and +execution of Mrs. Surratt, have ministered to the malignity of Stanton, +scrupulously obeyed his base injunction, and never even told his beloved +fellow-laborer on the field of courts-martial, that he possessed such +secret sacred testimonials in his favor? + +The General gives us no explanation of this "inexplicable conduct." + +Surely, the undaunted Bingham--who, as manager on the impeachment trial, +so clawed the character of the arraigned President, could have had no +"fear of the resentment of Andrew Johnson." And, unless the masterful +Stanton held some secret back to feather his "advice," or lend weight to +his injunction of silence, we see no reason why the fear of Stanton should +have closed the lips of the voluble Special Judge-Advocate. He surely +could not have joined in the fine irony of the Secretary, that it would +be better for their mutual friend, although "under fire," "to rely on the +judgment of the people." + +But another, and a final, explanation is necessary. The Great War Minister +died in December, 1869. Holt more than hints that "Providence" shortened +his life so that he should no longer "perpetrate so pitiless an outrage" +as keeping Bingham's mouth shut. + +Why, then, do we hear nothing from Judge Bingham for three years more? In +the words of Holt, "after the Secretary had, amid the world's funeral +pomp, gone down into his sepulchre, the truth came up out of the grave to +which he had consigned it," and was "resurrected and openly announced by +Judge Bingham." But why was the resurrection delayed until February, 1873? +He does not tell us. Why should "the buzz of this slanderous rumor" (to +use Holt's own words), "sadly recall to him that, though holding that +proof, he was not yet privileged to divulge it?" There is no answer to +this; none. The "scrupulosity" of Bingham did not end with the +providential taking off of Stanton, but prolonged its reverential +obedience to the advice of the dead, until his great colleague also was +summoned from the scene. + +Such resurrected truth, like the suggested letter of Speed to be used only +after poor Holt's death, seems doubly obnoxious to the latter's own +common sense remark: "thus strangely withheld from the public, it would +not, when it appeared, be credited." + + * * * * * + +On the whole, it is exceedingly doubtful whether Judge Bingham's testimony +does not do more harm than good to General Holt's case. It is the +testimony of an accomplice, if the charge it is meant to refute is true. +Its subject-matter is hearsay, withheld, so long as the direct evidence +was attainable, for no good reason, or for a reason assigned which will +not stand a moment's examination. + +This interchange of letters between two associates in infamy, if infamy +there were, the one applying for, and the other disclosing ostensibly for +the first time, at so late a day, decisive information, which, in the +ordinary course of things, the one must have asked for or the other +revealed, and both talked over from the beginning, wears upon the face all +the features of a collusive correspondence. + +No one acquainted with the facts can be induced to credit what both these +men state upon the threshold of their correspondence, and upon the truth +of which their credibility is staked for all time, that, if two such +conversations with Judge Bingham actually took place, this co-victim of a +common charge would ever have withheld all knowledge of such important +testimony from his brother in affliction for eight years, and until the +lips of his two eminent interlocutors, whose confirmation would have at +once and for ever crushed the calumny, were closed in death. + +And, with this incontrovertible assertion, we dismiss John A. Bingham to +keep company with Richard Montgomery and Sanford Conover, two witnesses +who were once the subjects of his own fervid eulogy. + +Another aspect of the case must for a moment detain us. + +Under the admitted fact that the President approved the death-sentence on +Wednesday, July 5th, it is by no means clear how we are to find room for +this supposed Cabinet meeting. + +The natural construction of Bingham's letter would lead us to believe that +the Cabinet meeting, which the two Secretaries are said to have described, +was a regular consultation between "the President and his advisers," held +_before_ the "confidential interview" at which the President "approved the +death-sentence;" and that the entire Cabinet voted on the question raised +by the petition, because it was "a unit in denying the prayer." This is +but another version of the "full Cabinet" of Judge Pierrepont's first +statement, and forcibly suggests that the two have an identical origin--at +first withdrawn under compulsion while Seward lived, at last brought +forward again after his death. + +And every one, on such construction, would expect to hear the voices of +McCulloch, Welles and Dennison, still living in 1873, and accessible to +the ex-Judge-Advocate. + +He states in his "Refutation," that he "had satisfactory reasons for +believing that they were not there;" but he could not have gathered those +reasons from Judge Bingham or his letter, which really is only consistent +with the presence of some, if not all, of the three; and it is naturally +to be inferred he got them from the ex-members themselves in letters +repudiating all knowledge of the petition;--letters he takes care not to +publish. + +Again: the Cabinet meeting described in Judge Bingham's letter cannot be +made to square with the meeting described in the letter of Judge Harlan. +The former was a regular Cabinet meeting, the latter was an informal +discussion by a few members of the Cabinet. At the one, the petition was +"duly considered," at the other, neither record nor petition was present. +At the one, "a formal vote" was taken upon the "question as to Mrs. +Surratt's case;" at the latter, her case "was never submitted to a formal +vote." + +But--not to dwell further on dispensable points--it is enough to say that +_any_ Cabinet meeting whatever, for the consideration of the petition, +held _before_ the President's approval of the death-sentence, is, on the +admitted facts of the case, an impossibility. + +Indeed Holt himself, when driven to the question, does not claim that +there was. The record was in the custody of the Judge-Advocate from the +30th of June until that officer carried it to the President on the 5th of +July, and during that interval the President was sick-a-bed. It was +General Holt, as he himself states, who first "drew his attention to the +recommendation," and "the President then and there read it in my (his) +presence." And this was at the confidential interview on Wednesday, July +5th. There could have been no meeting of the President and his Cabinet at +which the record and petition were present and discussed, "before the +approval of the death-sentence;" which confessedly was done at the +confidential interview. + +When this impossibility was pointed out by Andrew Johnson, General Holt, +in his "refutation," with great show of indignation, denounces such an +argument as "intensely disingenuous." While conceding at once that from +the adjournment of the Commission to the 5th of July, the President "had +been sick in bed, and had, of course, had no opportunity of conferring +with any members of his Cabinet;" he proceeds to show what his idea of +intense ingenuousness is, by claiming that what "Messrs. Seward and +Stanton" (of Bingham's letter) "clearly meant was, that before the +President had _finally_ and _definitely_ approved the sentences in +question," the recommendation to mercy "had been considered by him and his +advisers in Cabinet meeting;" and therefore such a meeting might have been +held _after_ the signature to the death-warrant, say on Wednesday +afternoon (5th), or on Thursday, the 6th. And he, now, once again, as in +the days of the Surratt trial, abandons all idea of a "full" or regular +Cabinet meeting, and endeavors, with the most transparent sophistry, to +identify the informal discussion of Judge Harlan's letter with the Cabinet +Council of Judge Bingham. But alas! for the ingenuous General! +Circumstances are too strong for him. For there is no more room for a +Cabinet meeting, formal or informal, to do what Judge Bingham's informants +are said to relate--_i. e._ consider, and then vote upon the +petition--_after_ the confidential interview than _before_. + +It is agreed on all hands that the President approved of the +death-sentence on Wednesday, at the confidential interview between Holt +and himself, and, at that very time, and by the same warrant, appointed +Friday the 7th, for the executions. The whole matter was begun and ended +in an hour. + +There was neither opportunity, nor, if there had been, use, to hold a +Cabinet consultation upon the question of commutation after that. + +The President had reviewed the record, and, without consultation with any +human being but Holt, put his name to the death-warrant. Why consult his +confidential advisers after he had decided the whole matter? Holt himself +says that, at this private interview, it was not he, but Andrew Johnson, +who had fully made up his mind that Mrs. Surratt must be put to death; +that the President needed no urging or advice on that subject; that he +inveighed against the women of the South with a ferocity which reminds us +of the loyal Bingham himself. Holt says that the President himself, +without a suggestion from him, was "prompt and decided" "as to _when_ the +execution should take place," "and in the same spirit too, in which he +subsequently suspended the writ of Habeas Corpus, he fixed the Friday +following." Why call in his "advisers" after he had, with the approval of +his judgment and his conscience, put his hand to the work of blood! +Besides, if he needed such a supererogatory endorsement of his "advisers," +there was no time to get it. + +The record with the death-warrant went direct to the Adjutant-General's +office that very Wednesday. Holt cannot remember whether he took it or +not, nor can the Adjutant-General remember when or how he received it. But +this is of no consequence. The order for the execution was drawn on that +day, the necessary copies made that day; it was promulgated on the morning +of Thursday the 6th, and on that day at _noon_, the warrant for her death, +within twenty-four hours, was read to the fainting woman in her cell. All +day long, on the 6th, the White House was besieged by her friends, her +priests and her daughter, to obtain a reprieve. The guardians of the +President had no time to hold Cabinet consultations over foregone dooms of +death. They were too busy intercepting verbal prayers for mercy, holding +shut the doors of the President's private room, sending away all +petitioners, for a few more hours' life, to the merciful Judge-Advocate, +making sure that there should be four pine coffins and four newly dug +graves, and that the Habeas Corpus should not leave one empty. Hold a +Cabinet meeting after the President had signed the bloody warrant, and +Stanton had once clutched it! Reopen the perilous question to hear Welles +and Dennison, and McCulloch and Seward, to say nothing of Harlan and Speed +And Stanton, discuss a petition addressed to the President who had already +denied it! "Five members of our court have been suborned by their feelings +to swerve from their duty. We run no more risks of soft-hearted gallantry +this time amid the members of the Cabinet. Let the funeral games begin." + +The ex-Judge-Advocate insists that the signature to the death-warrant was +a matter of very little moment. The President could withdraw it at any +time. But would he have us believe that, after the President had +dispatched such a fatal missive to the officer whose sole duty, with +regard to it, consisted in the promulgation of an order for its execution +within twenty-four hours, such action was simply provisional and, +according to usage, still subject to rescission by a Cabinet vote? + +Desperate, indeed, must be the necessities of a defence, which drive the +defendant on the forlorn hope of identifying a Cabinet meeting, voting as +a unit to deny a petition for clemency, "_before the death-warrant was +approved_," with a Cabinet discussion of the petition, _after_ the +death-warrant, fixing the execution on the next day but one, had been +signed by the President, (who is represented as urgent and eager at the +moment of his signature to exact in the shortest time the extremest +penalty); on the ground that the latter was held _before_ the theoretical +_animus revocandi_ of the Executive had become technically inoperative +with the last sigh of the condemned. + + * * * * * + +It has been suggested by one of his subordinate officers that the +Secretary of War having seen the petition as soon as the record came to +his department, it is inconceivable that, at some moment between the 30th +and the 7th, the matter should not have been discussed by him with the +President. + +Of course, there can be no doubt that Stanton knew all about the +recommendation. But, (and this obvious answer seems to have altogether +escaped the attention of his friend), if the paper was in fact suppressed, +it was suppressed with Stanton's own knowledge. Indeed, his must have been +the master-hand. He it was who kept the late Vice-President up to the mark +of severity as long as the bloody humor lasted. + +He was the sovereign, and Bingham and Holt but his vassals. Everybody will +give them the credit of not having dared to dream of suppression without +the electrifying nod of their imperious lord. + +And, from the long silence of one, if not both, of his slaves, it would +appear, that he not only directed the suppression of the paper, but was +too proud to deny, or suffer his minions to deny, it to his dying day. + + + + +CHAPTER V. + +ANDREW JOHNSON SIGNS ANOTHER DEATH-WARRANT. + + +Let us turn from the case made by General Holt, which on a cursory +inspection seems so strong, but the seeming strength of which, on a closer +scrutiny, dissipates itself among such perplexing questions, and lands us +at last in the "enjoined silence" of Stanton, to the first public, +authoritative charge made by the ex-President. + +It appeared, November 12th, 1873, in the same newspaper which had +published General Holt's Vindication, to which it was a reply. For it must +be remembered that it was Joseph Holt, for eight years the accused, and +not Andrew Johnson, for eight years the accuser, at the bar of rumor, who +first threw down his gage in the public arena, defying his secret +antagonist to come forth. + +The gallant knight chose his own good time; and, at last, surrounded with +sponsors, both clerical and martial, with banners flying and a most +sonorous peal of trumpets, he burst into the lists, as though he would +fain hope by noise and show to over-awe his dreaded adversary into +submissive silence. + +His thunders availed nothing. His glove had no sooner reached the ground +than it was taken up. + +Let us hear the plain, straightforward statement of Andrew Johnson. There +are no mysteries to unravel, no explanations to explain. + + "The findings and sentences of the court were submitted on the 5th of + July (he and I being alone), were then and there approved by the + Executive, and taken by the Judge-Advocate-General to the War + Department, where on the same afternoon the order to carry them into + effect was issued. Mr. Speed, doubtless, saw the record, but it must + have been in the Department of War, and not in the Executive office." + +After thus quietly disposing of Mr. Speed's evidence, he proceeds:-- + + "The record of the court was submitted to me by Judge Holt in the + afternoon of the 5th day of July, 1865. Instead of entering the + Executive Mansion in the usual way, he gained admission by the private + or family entrance to the Executive office. The examination of the + papers took place in the library, and he and I alone were present. The + sentences of the court in the cases of Herold, Atzerodt and Payne, + were considered in the order named, and then the sentence in the case + of Mrs. Surratt. In acting upon her case no recommendation for a + commutation of her punishment was mentioned or submitted to me." + +He then states that the question of sex was discussed alone; Holt +insisting upon carrying out the sentence without discriminating as to sex; +that a woman unsexed was worse than a man; that too many females had +abetted traitors during the war, and that there was a necessity an example +should be made. + + "He was not only in favor of the approval of the sentence but its + execution on the earliest practicable day. + + "Upon the termination of our consultation, Judge Holt wrote the order + approving the sentences of the Court. I affixed my name to it, and, + rolling up the papers, he took his leave, carrying the record with + him, and departing as he had come through the family or private + entrance." + +And there we must leave him. + +True, he rejoined, in December, in another very long article, contributed +to the same newspaper, in which he endeavored to break the force of +several points made in Johnson's answer, and dwelt with much insistence on +the abstention of the President from making any open charge against him, +and on his adversary's present silence with regard to General Mussey's +letter. But there is nothing new in the way of testimony, except two +sympathizing letters from Generals Ekin and Hunter, respectively; the +former of which might be construed by the uncharitable as evidence that +General Holt, at the time of the execution, was already forestalling +anticipated accusation by defending himself in private to his friends; the +latter is a tribute from the grim President of the Military Commission to +the Judge-Advocate's _tenderness_ to the prisoners before that body, of +which the printed record of the trial affords such striking illustrations. + +This lengthy "Refutation," as it was entitled, upon the whole added +little, if any, strength to the "Vindication." His accuser, on his side, +resting content with his one single explicit public utterance, paid no +attention to it. + +And when, at the present hour, we calmly survey the relative standing, the +position, the character and career of the two combatants, the +circumstances surrounding the momentous confidential interview, the silent +testimony of the record with the significant twist of the death-warrant, +the nature of the accusation, the mysteries enveloping the belated +defense, the probable motives actuating each, the thirst for blood which +for a time maddened the leading spirits of the War Department, the +passivity of Johnson for the few weeks after his sudden and sombre +inauguration, and for the same period the wild and reckless predominance +of Stanton;--what valid reason exists why we should discredit, or even +suspect for a moment, the veracity of the ex-President? Andrew Johnson +looms up in history a very different figure from the one discerned by his +enemies, both North and South, amid the passions of his epoch. He was no +inebriate, as he was stigmatized because of the unfortunate incident at +his inauguration as Vice-President. He was no weak, frightened tool, as he +appeared to be at the bloody crisis of his accession to the Presidency. He +was no apostate from his section, as he was cursed by the South for being +at the breaking out of the war. He was no traitor to the North, as he was +denounced by the impeachers for the mere endeavor to carry out the +reconstruction policy of his lamented predecessor. He was not the +garrulous fool, he was called in ridicule when he "swung around the +circle." He is now recognized, when his career is reviewed as a whole, as +a man temperate in his habits, firm, self-willed and honest; as a +statesman, intelligent though uncultured, sometimes profound and always +sincere; and as a union-loving, non-sectional, earnest patriot. His +impeachment is looked back upon by the whole country with shame. His +impeachers are already, themselves, both impeached and convicted at the +bar of history. + +In sober truth, so unique and perfect a triumph never capped and completed +the career of Roman warrior or modern ruler of men, as when, but little +more than a year after his reply to General Holt, the ex-President--once +again the chosen representative of that State whose rebellious people he +had coerced with an iron hand as military governor during the Civil +War--took his seat in that body, before which he had been arraigned on the +impeachment of the House of Representatives and had escaped conviction by +but a single vote. + +With the words of Holt's denunciation still fresh in their remembrance, +the citizens of Washington loaded the desk of the retributive Senator with +flowers; and, when he advanced, amidst so many colleagues who had +condemned him as judges, to take the oath of office, and again when, a few +days later, his voice, which had before been heard pleading for the +imperiled Union, was from the same place once more heard pleading for the +imperiled Constitution, the crowded galleries and corridors gave him a +conquering hero's welcome. + +When in the following summer he died, his body was followed to its grave +in the mountains by what it is hardly an exaggeration to call the whole +people of his State. When Congress reassembled, the Senate and the House +clothed themselves with crape. One of his former judges, who had voted him +guilty of high crimes and misdemeanors (Morton, of Indiana), thus spoke of +him in the Senate: + +"In every position in life he showed himself to be a man of ability and +courage, and I believe it proper to say of Andrew Johnson that his honesty +has never been suspected; that the smell of corruption was never upon his +garments." + +The same Senator related that when Johnson, as the newly appointed +Military Governor, arrived at Nashville "he was threatened with +assassination on the streets and in the public assemblies, but he went on +the streets; he defied those dangers; he went into public assemblies, and +on one occasion went into a public meeting, drew his pistol, laid it on +the desk before him, and said: 'I have been told that I should be +assassinated if I came here. If that is to be done then it is the first +business in order, and let that be attended to.' No attempt having been +made he said: 'I conclude the danger has passed by;' and then proceeded to +make his speech." + +Again the Senator said: "After I had voted for his impeachment, and met +him accidentally, he wore the same kindly smile as before, and offered me +his hand. I thought that showed nobility of soul. There were not many men +who could have done that." + +The man, of whom two such incidents could be truthfully related, could +never have invented so foul a charge against an innocent subordinate. + +A Senator from a neighboring State, (McCreery), on the same mournful +occasion said of him: + + "When he went to Greeneville he was a stranger, and a tailor's "kit," + his thimbles and his needles, were probably the sum-total of his + earthly possessions; at his death, the hills and the valleys and the + mountains and the rivers, sent forth their thousands to testify to the + general grief at the irreparable loss. + + "I honor him for that manly courage which sustained him on every + occasion, and which never quailed in presence of opposition, no matter + how imposing. I honor him for that independence of soul which had no + scorn for the lowly, and no cringing adulation for the exalted. I + honor him for that sterling integrity which was beyond the reach of + temptation, and which, at the close of his public service, left no + blot, no stain upon his escutcheon. I honor him for that magnanimity + which after the war cloud had passed, and the elements had settled, + would have brought every citizen under the radiant arch of the bow of + peace and pardon." + +Another Senator (Paddock, of Nebraska) gave utterance to the following +unchallenged statement: + + "I believe, sir, notwithstanding the fact that a painful chapter + relating to the official acts of Andrew Johnson was made in this very + chamber, that no Senator here present will refuse to-day to join me + in the declaration that he was essentially an honest man; aye, sir, a + patriot in the fullest sense of the term." + +Yet another (Bogy, of Missouri), said: + + "His last election to a seat on this floor as Senator was the work of + his own hands, brought about by his own indomitable will and pluck, + the reward of a long and terrible contest, continuing for seven years, + unsuccessful for a time, and appearing to all the world besides + himself as utterly hopeless; nevertheless, finally he was triumphant. + From what I have learned from those who are familiar with this, his + last contest, he exhibited more openly his true and peculiar nature, + than at any other period of his life--which was to fight with all his + might and all his ability, asking no quarter and granting none; and + although like bloody Richard now and then unhorsed, still to fight and + never surrender, until victory perched upon his banner." + +Senator Bayard said: "Friend or foe alike must admit his steady, unshaken +love of country; his constant industry; his simple integrity and honesty; +his courage of conviction, that never faltered." + + * * * * * + +Truly, the solemn word of a man, of whom such things can be said, is no +light thing,--to be thrust aside by windy abuse or vociferous denial. + +Now, what conceivable motive had such a man, seated in the chair of the +Chief Magistracy of this republic, surrounded by Cabinet officers who had +been the advisers of his predecessor, to invent, in the first place, so +horrible a story as that a friendly subordinate officer had deliberately, +in a case of life and death, suppressed so vital a document? For it is +contradictory of historical fact, that he never openly made the charge +until the year 1873. + +This may be true of the period from about the time of the execution up to +the disclosures of the John H. Surratt trial in 1867. But our review of +the incidents of that trial, which General Holt in his refutation seemed +to have totally forgotten, proves, beyond the possibility of controversy, +that the President then first thought himself driven to inspect the record +to ascertain the existence of such a paper, and then first, after the +discovery that there was in fact a recommendation, at once, and at all +times afterwards, openly asserted that he had not seen it or read it. +Every one around him knew that he so said. Stanton, his great enemy, +Seward, his great friend, knew it. Bingham, at the very beginning when +Stanton forbade him to refute it; Bingham, when Butler pierced his shield +in the House of Representatives, and Bingham, when at the bar of the +Senate as manager of the impeachment he belabored his old-time +Commander-in-Chief, knew it; Holt, when he delivered his contradiction +through Judge Pierrepont to the Surratt jury, and when he felt the shadows +darkening over his head because of the "inexplicable conduct" of the great +War Minister in "perpetuating the pitiless outrage," knew it, and +recognized the President of the United States as the responsible author of +the tremendous accusation. + +If Holt is to be credited, the President must have known that four at +least of his confidential advisers stood ready to shatter the baseless +calumny. What conceivable motive, we ask again, to invent such a story--so +easy of refutation, so ruinous to himself, if refuted? + +The necessity to make some reply to this pressing question seems to have +driven both General Holt himself and his defenders into the maintenance of +the most absurd, antagonistic and untenable positions. + +Holt's theory on this subject in his "Refutation" is even ingenious in its +absurdity. He would have us believe that when Johnson originally +fabricated the calumny, "he had not yet broken with the Republican party, +and was, doubtless, in his heart at least, a candidate for reelection," of +course by that party. If this is true, then the "fabrication" was made +before the fall of 1865, for by that time the President was in full swing +of opposition to the men who had elected him Vice-President. During this +brief transitory period, according to Holt, Johnson discovered that the +hostility of the Catholics (especially, as may be inferred, those of the +Republican party), on account of his signature to the death-warrant of +Mrs. Surratt, would blast this otherwise felicitous prospect. Accordingly, +to abate this uncomfortable hostility, this Republican candidate concocted +the vile slander and set it secretly and anonymously circulating among his +friends and followers;--even his greed for reelection being not strong +enough to give full effect to his cowardly policy by openly clearing his +own skirts. Could the fatuity of folly farther go? The dream of Andrew +Johnson as a Republican candidate for President had ceased to be possible +even before the execution of Mrs. Surratt. The Catholics who could be +conciliated by any such story might be numbered on Johnson's fingers. And +the undisguised signature to the death-warrant could be obliterated by no +plea of abatement which the petitioner dared not avow. + +On the other hand, the other suggestion put forward, if not by Holt +himself; by several of his defenders, viz.: that the President propagated +the lie "to curry favor with the South in the hope to be elected to the +Presidency," has the one merit of being in direct antagonism to the +foregoing theory, but nevertheless is yet more flimsy and preposterous. At +the time he invented the story, if invention it was, (as Holt appears to +have perceived), the road to the Presidency was to curry favor with the +North and not with the down-trodden South. And after Johnson had escaped +conviction and removal by but one vote, and had retired from office +execrated by the North and distrusted even yet by the South, the chance of +the Presidency for such a character as he was popularly considered +then--especially by truckling to the discredited South--could only look +fair in the imagination of a lunatic. + +No Southern man has seriously thought of being, or has been seriously +thought of as, a candidate for President of either political party since +the termination of the war, let alone the one Southerner reputed to have +been false alternately to both parties and both sections. + +Besides, Andrew Johnson never apologized for his appointment of the +Military Commission, for his approval of its judgment, or for his +signature to the death-warrant. He pardoned Dr. Mudd on the very eve of +the Impeachment Trial. And he pardoned the two remaining prisoners just +before he went out of office. And he may, therefore, be held to have thus +signified his reawakened reverence for constitutional rights as expounded +in the Milligan decision. + +But in no other way did he ever acknowledge that in taking the life of +Mary E. Surratt he had done wrong. On the contrary, he defended his action +in his answer of 1873, and he justified his denial of the habeas corpus, +which the ex-Judge-Advocate had the exquisite affrontery to cast up +against him. That a President in his situation could cherish +aspirations--or hope--of reelection, based on such a phantom foundation as +the whining plea that he would have commuted the unlawful sentence of a +woman, hung by his command, to imprisonment for life, had he been +permitted to see the petition of five of her judges;--such an imputation +can only be made by men mad enough to believe him to have been the +accomplice of Booth and Atzerodt. + +Finally, let us sternly put the question:--What right has Holt to ask us, +on the word of himself and his associates, to reject the testimony of +Andrew Johnson, who at the best was their accomplice or their tool? He, +and his associates, demanded the life of Atzerodt for barely imagining the +death of so precious a Vice-President. He, and his associates, hounded the +woman to the scaffold, welcoming with delight the stories of spies, +informers, personal enemies, false friends, against her, and meeting with +contumely and violence the least scrap of testimony in her favor. He +suppressed the "Diary." Why may he not have been bad enough to suppress +the recommendation? Two of the same band of woman-stranglers kept back +from the President the petition for mercy, which wailed out from the lips +of the stricken daughter. Why should he not have kept back the timorous +suggestion of five officers, who were so soft-hearted as to "discriminate" +as to sex? His fate will be--and therein equal and exact justice will be +done him--to go down through the ages, stealing away, in the dusk of the +evening, from the private entrance of the White House, bearing the fatal +missive--the last feeble hope of the trembling widow crushed in his +furtive hand. + + + + +CHAPTER VI. + +CONCLUSION. + + +That the petition for commutation was a device of the Triumvirate of +prosecutors to secure the coveted death-sentence, employed in reliance +upon the temporary ascendency of the chief of the three over the +beleaguered President, and upon the momentary pliability, heedlessness, +or, it may be, semi-stupefaction of the successor of the murdered Lincoln, +to smother the offensive prayer:--such an hypothesis alone seems adequate +in any degree to reconcile the apparent contradictions, clear up the +perplexities and solve the mysteries, which hang around this dark affair. + +It furnishes the only rational answer to the else insoluble question, how +it happened that a court, a majority of whose members had the inclination +and the power to lower the punishment of the solitary woman before them to +life-long imprisonment, as the court did with the three men who were tried +with her and convicted of the same crime, did nevertheless, by at least a +two-thirds vote, condemn her to die by the rope. + +It lights up the else inscrutable prohibition by Stanton of a public +exculpation of his subordinate officer, softened by the sardonic +admonition "to rely" for justification "on the final judgment of the +people." A source of glorification, rather, it should be, that no maudlin +pity for a woman had been suffered to intercept the death-stroke of a +righteous vengeance. + +It accounts for the "scrupulous obedience" of Bingham, not only until +Stanton's death, but three years after, until Seward, too, had gone. +Stanton knew the petition had been suppressed or made invisible; Seward, +that the petition never had been before the Cabinet. + +It throws a glimmer, faint it is true, on the shameful attitude of Speed, +eight years after the death of Johnson--still shutting his ears to the +repeated appeals of his agonized friend, and still falling back on his +propriety. According to Judge Harlan, the whole record had been examined +by the Attorney-General, as well as the Secretary of War. Speed, too, +under the spell of Stanton, may have fingered the obnoxious paper, which +might nip the bloody consummate flower of his "_common law of war_." + +It furnishes the only plausible reason why such an historic document did +not appear in the published official record of the proceedings of the +Military Commission, in November, 1865, or in the reports of the +Judge-Advocate, first, to the President, and, second, to the Congress. + +It illumines with a baleful light the atmosphere of sinister secrecy, in +which this adjunct to the record, for no lawful reason, has been +enshrouded; the mysterious incidents at the Surratt trial, such as the +tardy and reluctant production, the faltering and imperfect exhibition, +and the hasty withdrawal of the "roll of papers;" the two statements of +Mr. Pierrepont; the shrinking of the "full Cabinet meeting" into a +"confidential interview," until after Seward's death; and the singularly +equivocal language that the petition was "_before the President_" when he +signed the warrant. + +And, finally, when it is considered that the suppression of the paper was +not the overt act of any one man, but the result of a strictly formal +presentation of the record on the part of the Judge-Advocate, aided, it +may be, by a timely sleight-of-hand in writing the order of approval, and +of a blind carelessness on the part of the President in the examination of +the papers; this hypothesis goes far to explain the reluctance of General +Holt to rest his defense on his own evidence of the confidential +interview, his eager grasping after Cabinet corroboration, and the +abstention of both Judge-Advocate and President from taking official +action upon the charge, the one for vindication, the other for punishment. + + * * * * * + +And so the history of this murder of a woman by the forms of military rule +slowly unrolls itself, to disclose, as its appropriate finis, the writer +of the death-warrant struggling in the meshes of his own fraud. + +The draughtsman of the unaddressed petition for commutation, after waiting +eight years for death to clear the way, comes to the help of his old +colleague, only to be caught in the same net. + +The entangled twain call up the sullen shade of their departed master, and +force him to father the trick he fain would have scorned. + +These three are the men who, when the summary methods of martial law would +else have failed to crush out entirely the life of their victim, contrived +to attain their bloody end by cool and deliberate chicanery. + +The other actors on the scene may plead the madness of the time. For these +three no such plea is open. They superadded to the common madness of the +time the particular malice of the felon. Upon their three heads should +descend the full weight of criminal turpitude involved in this most +unnatural execution. + +They sat upon the thrones of power. They dragged a woman from her humble +roof and thrust her into a dungeon. They chose nine soldiers to try her +for the murder of their Commander-in-Chief. They chained her to the bar +along with seven men. They baited her for weeks with their Montgomerys and +Conovers, their Weichmans and Lloyds, the spawn of their bureau, dragooned +by terror or suborned by hope. They shouted into the ears of the court +appeal on appeal for her head. And, when at last five of their chosen sons +sickened at the task, and shrank from shedding a woman's blood, they +procured the death-sentence by a trick. They forged the death-warrant by +another. They turned thimble-riggers under the very shadow of the gallows. +They cheated their own court. They cheated their own President. They +cheated the very executioner. They sneaked a woman into the arms of death +by sleight-of-hand. They played their confidence game with the King of +Terrors. They managed to hide the cheat from the country until they +quarreled with their new Commander-in-Chief. Then ensued an interval of +ambiguous mutterings, dark equivocations, private accusation, private +defenses. From one side: "I never saw the paper." From the other: "It was +right before his eyes." + +The twin ex-Judge-Advocates, at length, brace each other up to the +sticking-point and venture on an appeal to the public. The ex-President, +thus driven at bay, fulminates the secret infamy in all its foul extent to +the whole world. Thereupon, Great Nemesis finds her opportunity, and makes +these once high-placed, invulnerable woman-slayers the sport of her mighty +hands. + +Every one, as if coerced by some magic power, comes at last to act as +though he were afraid of the other, and, willing or unwilling, contrives +to show how profoundly base the others are. + +Stanton slinks mysteriously into the shadow of death, refusing to cut his +co-conspirator down from the gibbet where the dreaded Johnson has swung +him. Bingham, standing like an Indian with a single female scalp bleeding +from his girdle, presses his finger to his lips until Stanton and Seward +die. Speed, with the obnoxious petition pressed again and again to his +nostrils, feebly yet persistently refuses to open his mouth. + +Holt pictures the dead Johnson exulting even in Hell over the silence of +his old Attorney-General; blasts the character of Stanton by ascribing his +injunction of silence to a motive the most diabolic; and, unconscious +seemingly that he does it, at the same time ruins the credit of Bingham by +extolling his "scrupulous obedience" to such an infernal command. + +Johnson unwittingly proclaims the pardon of the slain woman in his anxiety +to show that he signed her death-warrant through ignorance, forced upon +him by the ineffable depravity of the men in whom he was compelled to +trust. + +This controversy over the petition of clemency was the only thing needed +to round out and decorate the entire, complete and perfect iniquity of the +whole drama. It is immaterial and indifferent to history where the truth +lies between these combatants in so unsavory a strife. Each one tears off +the burning brand of shame, not to extinguish it, but to pass it on to his +colleague. If we credit Holt, it is difficult to conceive the malignity +of soul of Andrew Johnson, who could invent so foul a charge, the meanness +of spirit of Edwin M. Stanton, who, knowing its blackness, could forbid +the promulgation of the truth, the cowardly silence of John A. Bingham, +whose lips the death of the dreaded Stanton alone could unclose. If we +credit Johnson, then in all the crowded catalogue of inquisitors, +persecutors, cruel or pettifogging prosecuting officers, devil's advocates +and murderous Septembrisers, there is not one who would not spurn with +profane emphasis association with Holt or Bingham or Stanton. + +As the choicest specimen in this shower of accusations and +counter-accusations, listen to the tender-hearted ex-Judge-Advocate of +1873--once the stony head of the death-dealing Bureau--rebuking Andrew +Johnson for his cold-blooded cruelty! "I would have shuddered to propose +the brief period of two days within which the sentences should be +executed, for with all the mountain of guilt weighing on the heads of +those convicted culprits I still recognized them as human beings, with +souls to be saved or lost, and could not have thought for a moment of +hurrying them into the eternal world, as cattle are driven to the +slaughter-pen, without a care for their future." + +Listen again to the former expounder of the "common law of war" before the +Military Commission, as he arraigns the ex-President for his disregard of +the writ of habeas corpus: "The object of which was, and the effect of +which would have been, had it been obeyed, to delay the execution of Mrs. +Surratt at least until the questions of law raised had been decided by the +civil courts of the District; yet this writ was, by the express order of +the President, rendered inoperative. And so, under this Presidential +mandate, the execution proceeded. * * * But for his direct intervention +and defiant action on the writ, whatever might have been the final result, +it is perfectly apparent her life would not then have been taken." + +Once more. Hear J. Holt, the Recorder of the Commission! "As Chief +Magistrate he was, under the Constitution," (HEAR HIM!) "the depositary of +the nation's clemency and mercy to the condemned, and a pressing +responsibility rested upon him as such _to hear the victims of the law +before he struck them down_." (The italics are his who wrote out the +death-warrant.) "Did he do this? On the contrary, * * he gave * * a +peremptory order to admit nobody seeking to make an appeal in behalf of +the prisoners, saying that he would 'see no one on this business.' + +"He closed his door, his ears, and his heart against every appeal for +mercy in her behalf, and hurried this hapless woman almost unshrived to +the gallows." + +What a picture is this! + +The minion of Stanton, the colleague of Bingham, the tutor of Weichman, +the tutor of Lloyd, the procurer of the death-warrant, weeping over the +empty grave in the Arsenal, which, after his master's relentless watch was +over, had at length given up its dead! + +Here we are forced to stop. After such an exhibition, we can linger no +longer over this miserable scramble to shirk responsibility. Its only +consequence of historic importance, after all, is the light it casts upon +the memory of the sacrificial victim. Out of the cloud of mutual +vituperation, which covers the men who, among them, somehow, compassed her +slaughter, her innocence rises clearer and clearer, like the images of +retribution from the foul fumes of the witches' cauldron. + +Her vindication must be held to be final, complete and unassailable, when +John A. Bingham is anxious to acquaint the country that he drafted a +petition to save her life; when J. Holt pretends to weep for her; when +Andrew Johnson is forced, by the inexorable pressure of events, to confess +that when he signed her death-warrant he knew not what he did. + + * * * * * + +As we let fall the curtain at the close of this dark and shameful tragedy, +let us endeavor to anticipate the verdict of history. + +The execution of Mary E. Surratt is the foulest blot on the history of the +United States of America. + +It was a violation of the most sacred provisions of that Constitution, +whose enforcement was the vaunted purpose of the War. + +It was a violation of the fundamental forms and principles of criminal +jurisprudence, centuries older than the Constitution. + +It was a violation of that even-handed justice, which is said to rule in +the armies of Heaven and among the inhabitants of the earth. + +It was a violation of those chivalrous impulses which spring unbidden to +the manly breast in the presence of woman. + +It was a violation of the benign precepts of Jesus, which enjoin +tenderness to the fatherless and the widow. + +It was a violation of the magnanimity of the brave soldier, which scorns +to wound the weak, the fallen and the helpless. + +It was a violation of even the common instincts of fairness, which +subsist, as a matter of course, between man and man. + +It was unconstitutional. It was illegal. It was unjust. It was inhumane. +It was unholy. It was pusillanimous. It was mean. And it was each and all +of these in the highest or lowest degree. It resembles the acts of +savages, and not the deeds of civilized men. + +The annals of modern times will be searched in vain to furnish its +parallel. Execrations rise to our lips, as we read, in the pages of +Macaulay, of the hanging of Alice Lisle, and the burning of Elizabeth +Gaunt. But Alice Lisle and Elizabeth Gaunt were indicted by grand juries, +tried by petit juries, found guilty, and sentenced, in strict accordance +with criminal procedure. The forms of law, which the bigoted James, and +even the infamous Jeffrey, were careful to observe, were swept aside by +Holt and Bingham and Stanton, with a sneer. + +We turn aside with sickening horror from the recital of the murderous +orgies of the Terrorists of the French Revolution--shedding the blood of +the young, the tender, the beautiful, the brave. But the Terrorists of +France could plead the excuse, that they were driven to madness by the +thought, that the invading hosts, encompassing the new-born Republic, were +drawing nearer and nearer, every hour, with vengeance and +counter-revolution perched upon their banners; and a merciful destiny +granted them the grace to expiate their bloody deeds on the same scaffold +as their victims. + +But, in the case of Mary E. Surratt, not a single redeeming feature +relieves + + "The deep damnation of her taking off." + +Alas! Alas! Right in the centre of the glory which beams from the triumph +of the Union and Emancipation, there hangs a dark figure--casting an +eclipsing shadow--ever widening--ever deepening--in the eyes of all the +coming generations of the just. + + + + +Transcriber's Notes: + +Passages in italics are indicated by _italics_. + +In the original text, the list on pages 72-73 skips from 2 to 7. + + + + + + +End of the Project Gutenberg EBook of The Judicial Murder of Mary E. Surratt, by +David Miller DeWitt + +*** END OF THIS PROJECT GUTENBERG EBOOK THE JUDICIAL MURDER OF MARY *** + +***** This file should be named 36188.txt or 36188.zip ***** +This and all associated files of various formats will be found in: + http://www.gutenberg.org/3/6/1/8/36188/ + +Produced by Carla Foust and the Online Distributed +Proofreading Team at http://www.pgdp.net (This book was +produced from scanned images of public domain material +from the Google Print project.) + + +Updated editions will replace the previous one--the old editions +will be renamed. + +Creating the works from public domain print editions means that no +one owns a United States copyright in these works, so the Foundation +(and you!) can copy and distribute it in the United States without +permission and without paying copyright royalties. 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