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diff --git a/42855-0.txt b/42855-0.txt new file mode 100644 index 0000000..9916c14 --- /dev/null +++ b/42855-0.txt @@ -0,0 +1,18062 @@ +*** START OF THE PROJECT GUTENBERG EBOOK 42855 *** + +Note: Project Gutenberg also has an HTML version of this + file which includes the original illustrations. + See 42855-h.htm or 42855-h.zip: + (http://www.gutenberg.org/files/42855/42855-h/42855-h.htm) + or + (http://www.gutenberg.org/files/42855/42855-h.zip) + + + Images of the original pages are available through + Internet Archive. See + https://archive.org/details/assassinationof02harr + + + + + +[Illustration: T. M. Harris] + + +ASSASSINATION OF LINCOLN + +A History of the Great Conspiracy + +Trial of the Conspirators by a Military Commission +and a Review of the Trial of John H. Surratt + +by + +T. M. HARRIS + +Late Brigadier-General U. S. V. and Major-General By Brevet + +A Member of the Commission + + + + + + + +Boston, Mass. +American Citizen Company +7 Bromfield Street + +Entered according to Act of Congress, in the year 1892, +By T. M. HARRIS, +In the Office of the Librarian of Congress at Washington. + +All Rights Reserved. + +Typography by Fish & Sancton, 198 Washington St., Boston. + + + + +EXPLANATION. + + +It is perhaps necessary that the author should explain the sense in +which the term, "Great Conspiracy," in the title of his book, is used. +It is not at all in the same sense in which it is used by General +Logan in his book. In that it is used as the equivalent of the Great +Rebellion, only that it broadly covers all that led to and culminated +in the war against the government, designated as "The Rebellion." It is +only here used to designate the conspiracy that resorted to the policy +of assassination as a means to give aid to the rebellion; and the +reader who follows the author through will then be able to perceive why +he designates this a "Great Conspiracy." + + + + +PREFACE. + + +It is now more than twenty-seven years since the assassination of +Abraham Lincoln, President of the United States,--an event of the +greatest importance at the time, not only to the people of the United +States, but to the civilized world. The trial of the conspirators by +a military commission created the greatest possible interest; and the +proceedings and testimony were published from day to day by all of the +great newspapers of the country, and read with avidity. The judgment of +those who carefully studied the testimony at the time was formed upon a +competent knowledge of the facts. + +And yet, even then, the fate of the prisoners on trial before the +Commission, to be found innocent or guilty according to the evidence, +constituted the great point of interest, and thus tended to divert +attention from the evidence against the other parties charged not only +with being co-conspirators, but as being the instigators of the plot. + +Since that time a new generation has come on to the stage of action, +and as the official report of the trial by Ben Pittman, published at +the time, is in the hands of but comparatively few people, a concise +history of this great event, in popular form, but founded on the +evidence, seemed to the writer to be due and called for at the present +time. + +The necessity for this has been emphasized by a recent revival of +efforts that have been made from time to time, ever since the +execution of the assassins that were condemned to death, to prejudice +public sentiment against the government by the assumption of the +innocence of one of the parties executed--Mrs. Surratt. + +Only a few months since (May 30, 1891), La Salle Institute in New York +City was crowded by an audience that came together expecting to hear +Cardinal Gibbons and Father Walter review the case of Mrs. Surratt. +Neither the cardinal nor the father appeared, but a Mr. Sloane arose +and read to the audience a letter from Father Walter on the subject. +This letter contained nothing new to those who were familiar with the +case at the time of its occurrence. It was substantially the same that +was published over his signature shortly after her execution. After +stating that he was her confessor, and that his priestly vows did not +permit him to reveal the secrets of the confessional, he very calmly +and positively states his belief in her entire innocence, basing that +belief on what he professes to know. He then relates the efforts he +made to get a reprieve and a postponement of her execution for a few +days, and expresses the belief that could he have succeeded in this for +only ten days he could have saved her life. + +He then complains of the manner in which he was treated by the +President, Andrew Johnson, and Judge Holt, who referred him back and +forth, each to the other, and that between them he could get nothing +accomplished. + +A story has also been gotten up of a Union soldier who was a member of +the conspiracy and knew all of its members and secrets, who affirms +the innocence of Mrs. Surratt. The most rational and, at the same +time, charitable thing to be said about this story is, that this Union +soldier was manufactured for the occasion. + +That portion of the press of to-day that inherits the old copper-head +animus, greedily publishes all such things as these, and indulges in +the wildest latitude of editorial comment and false statements. They +have buried all of the members of the Commission but one many times; +have followed all of the principal actors in the scene to violent and +miserable deaths; and have made it manifest that had the Almighty Ruler +of the Universe viewed the matter in their light, and been as swift in +his retributions as they would have had him to be, not one who had any +connection with the arrest, trial, and execution of the assassins of +the great and good President would have been left alive. + +They have manifested an especial venom of feeling against the then +Secretary of War, Hon. E. M. Stanton, iterating and reiterating the +absurd and false statement that he died from the violence of his own +hand, being crazed with remorse. Why they should thus select Mr. +Stanton as the especial object of their hatred cannot be seen from +any connection he had with this case. His part, though important and +involving great responsibility, was, in fact, a very subordinate +one. He selected the officers to be embraced in the order of detail +for the Commission, under the order of the President, that was all. +Judge Holt conducted the trial and recorded the proceedings under the +President's order, and when he handed that record over to the President +his connection with the case ended. President Johnson then held the +temporal destiny of this woman, as well as that of all the others +convicted, in his own hand. He and he alone was responsible. + +From all this it appears that the time has come when a clear, concise +history of this conspiracy and trial should be given to the world. To +this task the writer has addressed himself, and he offers this volume +as the result of his labors. The facts herein narrated in regard to +the assassination, as well as to the parts enacted by each of the +individual members of the conspiracy, are drawn from the testimony +before the Commission. They have been thrown into the form of a +connected narrative, and there has been nothing stated as a fact but +what is fully sustained by the evidence which formed the basis of +the decisions of the Commission. Nothing has been admitted into this +narrative but what rests on the specific testimony of unimpeachable +witnesses. The author only deems it necessary that the opinion, or +belief, of Father Walter, and all others of his persuasion, shall be +confronted by the testimony in the case, in order that an intelligent +judgment shall be reached. At the time of this trial there were just +two classes of people in this country--the friends and the enemies of +the government. The former were united and determined in their purpose +and effort to preserve and perpetuate the government established +by our fathers under the constitution that included in its purpose +and provisions the union of the states and made us a nation. The +latter were madly bent on its overthrow, and so judged favorably or +unfavorably of the occurrences of the times, as they tended to favor +or hinder the accomplishment of their purposes. The feelings of both +parties had been wrought up to the highest pitch of intensity because +the matters at issue had been submitted to the arbitrament of the +sword. The result of this appeal was clearly foreshadowed at the time +of the assassination of the President, and before the conclusion of +the trial of his murderers the cause of the Confederacy had collapsed. +The rebellion was virtually overcome. The deep political scheme to +give it a new lease of life and bring to its aid new elements of +success by the assassinations that had been planned, had been too +long delayed, and its execution had become utterly impracticable. The +soldiers of the rebellion had fought their fight--a brave and plucky +and protracted fight. They realized the hopelessness of their cause +and, though greatly disappointed and mortified at their failure, they +had the consciousness that they had done all that brave men could do +to win success, and so were ready to accept the result, return to their +homes, and resume citizenship under the government they were unable to +overthrow. Not so with the secret active enemies of the government. +They were not willing to accept defeat, but were, nevertheless (happily +for the country), in a condition that they could only show their +enmity by maligning and villifying the authorities they were unable +to overthrow; and of this privilege they fully availed themselves. +Thus it has come to pass that the magnitude, scope, and purpose of +the assassination conspiracy are unknown to the present generation. +All that a large majority of those who have come upon the stage of +action since that time know of this, in many respects, one of the most +important trials that has ever occurred in our history, is what they +have learned through the efforts of these vituperators; and they have +never seen it referred to other than as the trial of Mrs. Surratt. +The Commission was not called upon to render a decision as to the +innocence or guilt of the persons charged by the government with being +co-conspirators with John H. Surratt and John Wilkes Booth, who were +not in the custody of the government and so not before the Commission; +but the government, having assumed the responsibility of charging +Jefferson Davis, George N. Sanders, Beverly Tucker, Jacob Thompson, +William C. Cleary, Clement C. Clay, George Harper, George Young, and +others, with thus conspiring to kill and murder Abraham Lincoln, Andrew +Johnson, Wm. H. Seward, and Ulysses S. Grant, was under the necessity +of vindicating its honor and dignity before the world by presenting +the evidence in its possession on which its charge was founded. It +will be my purpose to present this evidence, and to show the full +significance and purpose of the plot, and with whom it originated. +Many of the prominent actors in this tragedy have been summoned before +a higher tribunal to answer for the deeds done in the body. There we +are content to leave them, assured that "all things are naked and open +to the eyes of Him with whom they have to do," and that there will be +no mistakes made in the decisions there rendered. And toward those who +yet remain, it is with no feelings of personal enmity that the author +shall write. He only knows them as they are revealed in the testimony, +and by this he shall endeavor to deal fairly and candidly. They made +themselves conspicuous in their connection with public affairs of +the greatest importance, and so their acts belong to the public. If +they have made a bad record, it is due to the truth of history that +their acts shall be fully unfolded. History is a truthful narration +of events that have occurred; and its conclusions must be based on a +consideration of all of the facts, taken in their proper order and +relation to the events. The aim of the writer has been to give a candid +and reliable history of the Great Conspiracy as deduced from the +evidence before the Commission and to be found in the official report +of the proceedings published by Ben Pittman immediately after the trial. + +The asperities of the great conflict have been largely obliterated by +the many happy years of peace that have intervened since that unhappy +period. We have but one country and one flag, which almost all have +learned to love as of old. Let us draw wisdom and virtue from the +history of the past, learning as well from our errors and mistakes as +from our virtues, that we may, by a course of well-doing, gain the +favor of Him who holds the destiny of nations in His hands, and who +pulls down one and sets another up. + +The stability of a popular government must rest on the virtue and +intelligence of its people. Our institutions were established on this +basis alone, and on this alone can they stand. The divorcement of +Church and State by the framers of our constitution was one of the +wise conclusions which they drew from the past; but it was no part of +their purpose to divorce religion from the State. On the contrary, +their politics was a part of their religion and was deduced from the +teachings of God's word. Let us beware of the effort of the present +time to divorce politics from religion because we rightly divorce the +Church from the State. + +There is no morality that can make a man a valuable and a reliable +citizen of a free state except the morality of the Christian religion +as taught in God's word. It is the duty, therefore, of every parent and +every teacher to instill into the minds of our youth this Christian +morality as a basis for the highest patriotism and noblest citizenship. +Let the American flag float over every school-house, and the morality +of the Bible be taught with the authority inherent in God's word. Then +will the days of assassinations, whether political or religious, come +to an end. Owing to a variety of causes, the facts connected with this +most important event in our nation's history have been slurred over +and obscured. Scarcely one in a thousand of our people to-day have any +knowledge of their existence. + +The object of the writer will be to revive them and bring them out +clearly to the knowledge of all. + + T. M. HARRIS. + + RITCHIE C. H., W. Va. + + + + +CONTENTS. + + + EXPLANATION 3 + + PREFACE 5 + + CONTENTS 13 + + + CHAPTER I. + + INTRODUCTORY 17 + + + CHAPTER II. + + PREPARATIONS FOR THE EXECUTION OF THE PLOT 24 + + + CHAPTER III. + + ASSASSINATION OF THE PRESIDENT AND ATTEMPTED ASSASSINATION + OF SECRETARY SEWARD 34 + + + CHAPTER IV. + + THE NEWS COMMUNICATED TO THE WORLD, AND ITS EFFECT 47 + + + CHAPTER V. + + UNRAVELLING THE PLOT--PURSUIT AND CAPTURE OF BOOTH AND + HEROLD--DEATH OF BOOTH 51 + + + CHAPTER VI. + + UNRAVELLING THE CONSPIRACY--ARREST OF SPANGLER, O'LAUGHLIN, + ATZERODT, MUDD, AND ARNOLD 60 + + + CHAPTER VII. + + QUESTIONS PRELIMINARY TO THE TRIAL--WHAT SORT OF TRIAL + SHOULD BE GIVEN, CIVIL OR MILITARY 82 + + + CHAPTER VIII. + + A MILITARY COMMISSION--ITS NATURE, CONSTITUTION, DUTIES, + AND JURISDICTION 96 + + + CHAPTER IX. + + CONSTITUTION OF THE COMMISSION, AND TRIAL 98 + + + CHAPTER X. + + EVIDENCE IN REGARD TO ATROCITIES NOT EMBRACED IN THE CHARGE + AND SPECIFICATIONS, FOR WHICH DAVIS AND HIS CANADA + CABINET WERE RESPONSIBLE 118 + + + CHAPTER XI. + + EVIDENCE PRESENTED BY THE GOVERNMENT TO SUSTAIN ITS CHARGE + AND SPECIFICATIONS 147 + + + CHAPTER XII. + + THE GOVERNMENT WITNESSES AGAINST DAVIS AND HIS ASSOCIATES + IN THIS CRIME 163 + + + CHAPTER XIII. + + A CRITICISM OF NICOLAY AND HAY 177 + + + CHAPTER XIV. + + JACOB THOMPSON'S BANK ACCOUNT--WHAT BECAME OF THE MONEY 182 + + + CHAPTER XV. + + THE CASE OF MRS. SURRATT 192 + + + CHAPTER XVI. + + FATHER WALTER 204 + + + CHAPTER XVII. + + CONCLUSION 211 + + + CHAPTER XVIII. + + FLIGHT AND CAPTURE OF JOHN H. SURRATT 212 + + + PART II. + + + CHAPTER I. + + INDICTMENT AND TRIAL 229 + + + CHAPTER II. + + A CRITICISM OF THE DEFENSE 253 + + + CHAPTER III. + + TREATMENT OF WITNESSES AND EVIDENCE BY THE COUNSEL FOR + THE DEFENSE, AND THEIR ANIMUS TOWARD THE GOVERNMENT + AND APPEALS TO THE POLITICAL PREJUDICES OF JURORS 259 + + + APPENDIX 317 + + PREFACE TO APPENDIX 319 + + ARGUMENT OF JOHN A. BINGHAM 325 + + CONTROVERSY BETWEEN PRESIDENT JOHNSON AND JUDGE HOLT 407 + + + + +PART I. + +ASSASSINATION OF LINCOLN. + +[Illustration: A. Lincoln ] + + + + +CHAPTER I. + +INTRODUCTORY. + + +The rebellion of the slave-holding states, and the attempt to establish +a separate government by force of arms, was solely in the interest +of the institution of slavery. The Southern Confederacy was to rest +on this institution as its corner-stone. By the establishment of the +Confederacy it was intended to end, forever, the agitation of this +question, and establish the system of human slavery as one of the +permanent institutions of the world. And all this in the nineteenth +century of the Christian era! Preparatory to this the pulpit and the +press had been suborned, the Christian conscience of the country had +been debauched, and the doctrine that slavery was a Divine institution +was taught, and accepted as true, by one-half of the American people. + +A doctor of divinity, or even a common preacher, who could prove this +to his own satisfaction, and that of his hearers, at once achieved +popularity, and had his great learning and ability heralded by the +secular press throughout the South land. Neither was this kind of +preaching confined to the South. It found a distinct and earnest echo +in many places in the North. It was argued, and no doubt sincerely +believed, that slavery was the best condition for securing the +happiness and welfare of the African race--the condition in which +the negro could be most useful to the world; that his condition had +been greatly improved by his transplantation from a heathen land and +the environments of barbarism to a Christian land and civilized and +Christian environments; and that subjection to a higher and superior +race was necessary to his deriving the highest benefit from the change. +Slavery, it was taught, was a patriarchal institution, and that it was +only through it that the highest ideal of human civilization could be +attained. It was natural that a people whose judgment had crystalized +around such opinions as these should be intolerant of opposition, as +they had closed the door to discussion on this question; and so for +several generations a contrary opinion was not tolerated, or allowed +to find expression, in the slave-holding states. The agitation of this +question, in its moral aspects, by constantly increasing numbers of +earnest, able men in the North, at last led to the organization of +a political party opposed to this institution, and the question of +slavery thus became a political question. + +The friends of the institution instinctively recognized the danger that +thus confronted them, and began to strengthen their fences by most +stringent measures to repress discussion and shut out the light. This +was a tacit admission that they felt themselves unable to stand before +the world in argument. It may be laid down as an axiom, that whenever +a political party forecloses discussion on any subject, but more +especially on a great moral issue, it is not only on the wrong side of +that issue, but has an intuitive perception of that fact. + +It may also be accepted as an axiom, that the more inconsistent a man's +attitude is on any great moral question the more intolerant will he be +of opposition. Not only were the most stringent laws passed to prevent +the discussion of the institution of slavery in its moral aspects in +the Southern States, but also the most lawless and violent measures +were resorted to, so that it was as much as a man's life was worth to +undertake to make a public argument against slavery in a slave-holding +state, and even to be found earnestly opposed to the institution in +sentiment was to put personal safety in jeopardy. The making of this +question a political question tended largely to de-sectionalize it. No +party could hope to succeed, as a National party, without the vote of +the South, and this could only be secured by concessions to the demands +of the slave holders in the interest of that institution; and so the +party that was willing to concede the most to their demands became the +dominant party in the nation. Thus the leading Democratic politicians, +all over the North, became the staunch advocates of slavery; and we +all know with what blind confidence, and fierce determination, the +masses follow their political leaders. The culmination of the contest +over this question, resulting in the election of Abraham Lincoln +to the Presidency by a party openly opposed to slavery, caused its +friends to take their appeal from the ballot box to the sword; and +this appeal found those who were the friends of the institution from +political party considerations scattered all over the North in quite +formidable numbers, constituting an enemy in the rear of our armies +that gave to the administration of President Lincoln no little anxiety +and embarrassment, making it necessary for him, as early as September, +1862, to proclaim martial law and suspend the writ of _habeas corpus_ +in respect to all persons in the United States who were found to be +actively disloyal, and engaged in efforts to aid the rebellion. The +following is a copy of his proclamation:-- + + GENERAL ORDERS NO. 141. + + WAR DEPARTMENT, + ADJUTANT GENERAL'S OFFICE, + WASHINGTON, Sept. 25, 1862. + + The following Proclamation by the President is published for + the information and government of the Army and all concerned: + + _By the President of the United States of America._ + + A PROCLAMATION. + + Whereas it has become necessary to call into service not only + volunteers but also portions of the militia of the States + by draft, in order to suppress the insurrection existing in + the United States, and disloyal persons are not adequately + restrained by the ordinary processes of law from hindering + this measure and from giving aid and comfort in various ways + to the insurrection: Now, therefore, be it ordered: First, + That during the existing insurrection, and as a necessary + measure for suppressing the same, all rebels and insurgents, + their aiders and abettors, within the United States, and all + persons discouraging volunteer enlistments, resisting militia + drafts, or guilty of any disloyal practice affording aid and + comfort to rebels against the authority of the United States + shall be subject to martial law, and liable to trial and + punishment by court-martial or military commission. Second, + That the writ of _habeas corpus_ is suspended in respect to + all persons arrested, or who are now, or hereafter during the + rebellion shall be, imprisoned in any fort, camp, arsenal, + military prison, or other place of confinement, by any military + authority, or by sentence of any court-martial or military + commission. In witness whereof I have hereunto set my hand, and + caused the seal of the United States to be affixed. + + Done at the city of Washington, this twenty-fourth day of + September, in the year of our Lord one thousand eight hundred + and sixty-two, and of the Independence of the United States the + eighty-seventh. + + ABRAHAM LINCOLN. + + "By the President, + "WILLIAM H. SEWARD, _Secretary of State_. + + By order of the Secretary of War, + "L. THOMAS, _Adjutant General_." + + "Official." + + +This disloyal element was rendered much more formidable by the fact +of its perfect combination, through secret, oath-bound organizations +under the names of Knights of the Golden Circle and Order of American +Knights. These secret orders no doubt had their origin in the South, +preparatory to secession and war; but after the war had been commenced +it was chiefly in the North that they were useful to the rebel cause, +and it was through these that the assassination of the President-elect +was to have been accomplished at Baltimore when on his way to the +Capital in 1861, and thus his inauguration as President was to have +been prevented. We thus see the desperate character of the political +leaders of the rebellion, who were ready to frustrate the expressed +will of the people by resorting to assassination. We need not think +strange that a rebellion which was ready to resort to such means in its +incipiency should finally expire under the weight of this infamy. + +By these secret organizations, the enemies of the government, wherever +they might be, possessed the means of a secret recognition amongst +their members. And under whatever circumstances they might be placed, +the obligations of their oath afforded them confidence and security. +They constituted a brotherhood, and by their secret grips, signs, +passwords, etc., they had a guarantee of unity of sentiment and of +purpose, and of faithfulness to each other and to the obligations of +their oath. + +These organizations were regarded as allies by the rebel government, +and were counted on as a valuable factor to secure the success of its +arms. This element in the North kept itself in constant communication +with the rebel government and the rebel armies, and thus, in a large +degree, filled the place of spies in giving information. To furnish +facilities for communication with its friends in the North, as also +for various other purposes in aid of the rebel cause, the Confederate +Government sent a number of its ablest civilians to Canada, at an +early period of the war, as its secret agents, who established their +headquarters at Montreal. This cabal consisted of the following +persons: Jacob Thompson, who had been Secretary of the Interior under +Buchanan's administration; Clement C. Clay, who had been a United +States Senator from Alabama; Beverly Tucker, who had been a Circuit +Judge in Virginia; George N. Sanders, William C. Cleary, Prof. +Holcomb, George Harper, and others. Of these, Thompson, Tucker, and +Clay seem to have held semi-official positions, and we will designate +them as Davis's Canada Cabinet. The others named, as also others +unnamed above, appear to have acted as aids, in a subordinate capacity, +in the execution of their plots. They all claimed to be acting as +agents of the Rebel Government upon their oaths on the trial for the +extradition of the St. Alban's raiders. + +The proclamation of martial law and suspension of the writ of _habeas +corpus_ in September, 1862, had the effect of restraining the open, +active efforts of these secret disloyal organizations to cripple the +resources at Mr. Lincoln's command for suppressing the rebellion, +inasmuch as any such efforts were met by arrest, military trial, and +imprisonment; yet, inasmuch as they created a necessity for a military +police at all important points in the North, they felt that they were +still rendering valuable service to the rebellion by thus weakening +the force at the front; and whilst it was necessary to conduct their +operations with much more secrecy, their organizations were not +disbanded. They went on to effect a complete military organization, +thoroughly officered and drilled, and in many cases armed, holding +themselves ready to take the field in any emergency that might arise +that would justify so bold a measure. The Canada Cabinet watched over +these organizations with great interest, and directed their operations, +and by many schemes sought to bring about an emergency that would +enable them to bring this army, which they had hidden away in secrecy, +into the field of active operations for the success of their cause. +The officers of these secret military organizations were chosen from +the local political leaders in the different localities where they +existed, and kept themselves in communication with the Canada Cabinet, +and through this medium the Confederate Government was kept informed of +their strength, organization, plans, and purposes. So bold and active +did they become, in spite of the efforts of the military police for +their suppression, that the government finally found it necessary, +through its secret service department, to possess itself of a thorough +knowledge of these organizations, and in this way was enabled to +capture the arms and munitions of war which had been secured and were +hidden away in secrecy by them, and also to arrest the leading officers +of these organizations in several states. Whilst by these means these +treasonable combinations were seriously crippled, they were unchanged +in animus and still struggled to maintain their existence. They kept +themselves in communication with the Canada conspirators, and ready +to co-operate with them for the success of their schemes should the +conditions become sufficiently promising to justify them in declaring +themselves openly. + +It was in the summer of 1864 that Jacob Thompson, according to the +testimony before the Commission, declared that he had his friends all +over the Northern States, who were willing to go to any length in order +to serve the cause of the South. Jefferson Davis's Canada Cabinet kept +up a constant correspondence with their chief, through secret agents +who travelled directly through the states, and even through the city of +Washington. + +So potent was the aid of secret signs, grips, pass-words, etc., as a +means of recognition, and so universally were the members of these +secret orders diffused over the country, that they could go anywhere. +Should one agent find it necessary to stop his task for fear of +detection, another would take it up; and where men could not go, women +went, to carry communications. The Canada Cabinet was well supplied +with money by the government at Richmond, and in this department of the +service Jacob Thompson seems to have been Secretary of the Treasury. +He kept his deposits largely in the Ontario Bank of Montreal, and his +credits there arose from Southern bills of exchange on London. The +object of the writer in this introductory chapter has been to place +clearly before his readers the formidable character of the conspiracy, +which, with the President of the Confederacy at its head, and organized +by his Canada Cabinet, was intended to throw the loyal North into a +state of chaotic confusion and bring to the aid of their sinking cause +the disloyal element all over the North, by a series of assassinations +which would leave the nation without a civil and military head and +without any constitutional way of electing another President, and +at the same time would deprive the armies of the United States of a +lawful commander. This was the last card of the political leaders of +the rebellion, the last desperate resort to retrieve a cause that had +been manifestly lost in open warfare. It may seem like temerity in the +writer to make such a charge involving a total disregard of the laws of +civilized warfare, and such utter moral depravity on the part of these +conspirators, and to claim for their wicked project the approval of +Jefferson Davis, but the evidence in the possession of the government +and adduced before the Commission, it will be seen, fully justified +the government in making this charge. The persons brought before the +Commission, though in full sympathy in sentiment with their employers, +were merely the tools and hired assassins of the Canada Cabinet, acting +under the advice and sanction of their chief. I shall now proceed to +bring before my readers the denouement of their plot, and, from the +evidence given before the Commission, show that the origin, scope and +purpose of the conspiracy have been truly indicated above. + + + + +CHAPTER II. + +PREPARATIONS FOR THE EXECUTION OF THE PLOT. + + +The evidence which will be hereafter referred to shows that John Wilkes +Booth and John H. Surratt had, as early as the latter part of October, +or early in November, 1864, entered into a contract with Davis's Canada +Cabinet to accomplish the assassinations they had planned, and that +they immediately entered upon their work of preparation. It would seem +from the evidence, that at that time the purpose was to execute their +designs at a much earlier date than they did; and that this delay was +occasioned by the Canada conspirators. + +[Illustration: J. WILKES BOOTH.] + +Surratt and Booth, however, were busied from that time on in making +their preparations. The first step was to enlist in the conspiracy a +sufficient number of competent and reliable assistants, to each one +of whom was assigned the part he was to take in it, and to train, +equip, and prepare him for the part assigned him. The assassination of +President Lincoln had fallen to Payne by lot; and to him was entrusted +the task of making all needed preparations. Payne had visited Canada +during the fall of 1864, and probably there made the acquaintance of +Booth. To a man of Booth's sagacity, a mere glance at Payne would be +sufficient to impress him with the idea that he was one of the helpers +he wanted; and as we find him as early as February, 1865, transplanted +to Washington City by Booth and Surratt, and from that time on +associating with them very intimately but very secretly, and without +employment, or visible means, passing back and forth between Washington +and Baltimore, and finally provided with quarters in Washington by +Surratt, there can be no doubt that he was early enlisted in the +conspiracy, and supported by the Canada Cabinet through their agents +in Washington--Booth and Surratt. The author is led to conclude +from studying the evidence that Booth and Surratt were acting under a +considerable latitude of provisional instructions, and that to them was +entrusted the selection of the time and place for the accomplishment of +their purpose. There were a number of persons in Canada, members of the +conspiracy, who were expected to take an active part in its execution; +and it is altogether probable that the original plan contemplated the +accomplishment of these assassinations as opportunities could be found +or made, and that for each one a man had been assigned. + +John Wilkes Booth and John Harrison Surratt were the leaders of the +conspiracy in Washington, they having proposed to their co-conspirators +in Canada to accomplish for them the assassinations they had planned. + +They were stimulated by their intense hostility to the administration +of President Lincoln and desire for the establishment of the Southern +Confederacy, and also by the delusive idea of winning enduring fame and +the lasting gratitude of their countrymen of the South for being thus +the instruments of retrieving the fortunes of their dying cause. But in +addition to these considerations, they had large promises of pecuniary +reward. They were, in fact, the hired assassins of Jefferson Davis and +his Canada Cabinet. + +These two men had been engaged for months in making their preparations +for the assassination of the President, Vice-President, Secretary +Seward, and General Grant. They visited and conferred with the Canada +conspirators from time to time during the summer and fall of 1864, +and early winter of 1865. They traversed the counties of Prince +George, Charles, and St. Mary's, Maryland, lying along the north side +of the Potomac below Washington, to prepare the way for escape by +securing confederates along the contemplated route who would assist +in facilitating their flight by aiding them in their progress, or +by concealing them if necessary. Booth had spent some time in this +work during the fall and early winter, making himself familiar with +the geography of the country, roads, etc., under the pretence that +he desired to purchase lands in Maryland. He found in Charles County +Dr. S. A. Mudd, who sympathized with his plans, and entered into them +at least so far as to pledge him any assistance he could give him +in making his escape. Mudd also visited Booth two or three times in +Washington during the winter, introducing him on the occasion of his +first visit to John H. Surratt; and in the course of these visits he +was always found in company with Booth and others of the conspirators +who were to take an active part in its accomplishment, and was no +doubt kept well informed of the progress of their preparations, and +of the time when it would be attempted after that had been determined +upon. Surratt also spent much time during the winter in this part of +Maryland, in preparation for the work. Being at home there, he could +render Booth valuable assistance by procuring friends who would aid him +in his flight, and in getting him across the Potomac at the selected +point. As this was on the line of a regular underground mail route +between Washington and Richmond, with which Surratt was familiar, he, +of course, had no difficulty in making satisfactory arrangements, the +great mass of the population in all of these counties being intensely +disloyal. + +They had selected and arranged with Payne, Atzerodt, O'Laughlin, +Arnold, Herold, Spangler, and numerous other parties who were never +made known, to take an active part in the work of assassination, or to +aid them in their escape. Booth and Surratt had provided horses for +the occasion, and, with Atzerodt and Herold, were known to a number of +liverymen of whom they were liberal and frequent patrons. + +Surratt provided quarters for Payne at the Herndon House, representing +him to be a delicate gentleman, and stipulating that his meals should +be served to him in his room. Atzerodt, who was to have assassinated +the Vice-President, had taken a room at the Pennsylvania House. Booth, +being an actor, and familiar with the routine of the play and the work +of the assistants on the stage, having selected Ford's Theatre as the +place for the accomplishment of his purpose, proceeded to make himself +at home amongst the _habitues_ of that establishment. He was a very +handsome man, stylish in his dress, dissolute in his habits, a constant +and free drinker, generous in the expenditure of his money on his vices +of smoking and drinking, and of great personal magnetism. He soon +ingratiated himself with the employees of the theatre, and became a +general favorite. + +It was necessary that he should have a co-conspirator at the theatre +to assist him in making his escape. He had labored hard with an actor +in New York by the name of Chester, with whom he was acquainted, to +engage him in the conspiracy, that he might station him at the door of +his exit, to see that his way should be clear and the door open at the +critical moment, for which service he offered to pay him three thousand +dollars; but Chester, after several interviews and much importunity, +absolutely declined, and begged Booth never to mention the matter to +him again. Failing to secure Chester, he turned his attention to Edward +Spangler, an employee at the theatre. Spangler was a man of dissipated +habits, low moral tone, and little intellectual culture, and being +politically in sympathy with Booth, he was easily led by him into the +conspiracy. Booth had had a shed fitted up as a stable in an alley back +of the theatre, and had kept his horse in it occasionally for some time +previous, that he might have it convenient when the supreme moment +should have arrived, without exciting suspicion. To reach the private +box fitted up on the occasion for the occupancy of the President and +General Grant, with their wives, it was necessary to pass through two +doors. The first led into a passage behind the box, the second from +this passage into the box. To prevent any one from following him into +the passage and hindering the accomplishment of his purpose, Booth had +cut, himself, or more likely had had Spangler, who was a kind of rough +carpenter, cut a mortise in the plastering of the passage wall, in such +a position with reference to the door that the end of a wooden bar, +three and a half feet long, which had been prepared for that purpose, +could be inserted in the mortise, and the other end placed against the +panel of the door so that it could not be opened from the outside. + +That ingress to this passage might not be prevented by the bolting of +the door by the President and his party after entering, the screws of +the fastenings had been drawn, so that it could be easily pushed open. +A hole had been bored through the door to the box, opposite where the +President's chair was placed, with a small bit, and reamed out with a +knife, so that Booth could, after gaining the passage and barring the +door behind him, peep through this hole and assure himself of the exact +position of his intended victim. The manner in which all of these +arrangements had been made, the mortise in the plastered wall, the +bar of wood fitted to the mortise, and in length having been exactly +prepared to fit against the panel of the door and act as a brace, show +that all these preparations had been made with the greatest forethought +and care. + +About three weeks previous to the assassination, John H. Surratt, +Herold, and Atzerodt brought to the tavern at Surrattsville, in +Maryland, about ten miles below Washington City, owned by Mrs. Surratt, +and at the time occupied by a man by the name of Lloyd, two carbines, +with ammunition, a monkey-wrench, and a piece of rope. Surratt asked +Lloyd to take charge of these things and keep them secreted, saying +they would be called for before a great while, at the same time showing +him a suitable place about the house in which to hide them. The Surratt +family had lived in this house and kept a country tavern until within +a few months previous, when they had removed to Washington, renting +their tavern to Lloyd, so that Surratt was much more familiar with the +house than Lloyd. These things, as we shall see, were placed there +for the use of Booth and his companion in their flight after the +assassination. As a precautionary measure, Booth, on the Tuesday before +the assassination, sought an interview with Mrs. Surratt, who shortly +after that interview discovered that she had some private business at +Surrattsville that had to be attended to that day, and so she asked +Mr. Wiechmann, a young man who had been a boarder at her house for +several months, to drive her down, saying that she wanted to go and +see a Mr. Nothey who owed her some money. She then sent Wiechmann to +Booth, to get his horse and buggy for the drive. Booth told Wiechmann +that he had sold his horse and buggy, but gave him ten dollars with +which to procure one. Meeting Lloyd on the way down, driving up to +Washington, they stopped; Lloyd got out of his buggy and went to the +side of Mrs. Surratt's buggy, on which she was sitting, when Mrs. +Surratt told Lloyd, as he afterwards testified, in a low voice, so that +Wiechmann did not hear what she said, to have those shooting irons +ready, or handy, as they would be called for before long. On the day +of the assassination Booth again had a private interview with Mrs. +Surratt, after which she again asked Wiechmann to drive her down to +Surrattsville, claiming the same errand as before. On this occasion she +sought an opportunity for a private interview with Lloyd, when she told +him to have the carbines handy, as they would be called for that night, +at the same time handing him a field-glass, which Booth had given to +her, and telling him to have two bottles of whiskey ready. + +John H. Surratt left Washington for Richmond on the 25th of March and +returned to Washington on the 3d of April, leaving for Montreal on the +evening of the same day. He showed to Wiechmann--an old college friend +and, at this time, a boarder in his mother's house--nine or eleven +twenty-dollar gold pieces, and sixty dollars in greenbacks, on his +return from Richmond. Surratt, in his Rockville lecture, admits that +he received two hundred dollars in gold from Benjamin to pay expenses +and remunerate for services. Surratt left Washington for Canada on +the evening of the 3d of April, and we find him, by the evidence, in +Montreal on the 6th, where he delivered to Thompson a cipher dispatch +from Jefferson Davis, and a letter from Mr. Benjamin, of Davis's +Richmond Cabinet. After reading these documents, Thompson, laying his +hand on them, said, "This makes the thing all right." The sanction of +the rebel president to his arrangements with the assassins had been +obtained, and authority also for the expenditure of funds to fulfil the +contract. The Canada conspirators who were to take a part prepared at +once, and started for the States, boasting to their friends that they +would hear of the death of Old Abe and others before ten days. This was +on the 8th of April, and nothing now remained but to find, and use, an +opportunity; and Booth selected the appearance of the President at the +theatre as affording the opportunity he sought, and proceeded to make +all his arrangements accordingly. + +All things were now ready. Booth had selected the route for his escape +and had provided to be furnished with a field-glass, two carbines, +and two bottles of whiskey at Surrattsville, having sent a notice to +Lloyd to have them ready, as they would be called for that night. He +had provided horses from a livery-stable for himself and Herold, who +was to accompany him. He had also provided a horse for Payne, whose +part was to murder Secretary Seward. He had assembled his assistants +in Washington, to one of whom, Michael O'Laughlin, he had assigned +the task of the assassination of General Grant; and having made these +preparations, he spent the day and afternoon of the 14th of April +looking after the matter generally, and keeping up his courage, or +rather recklessness, with frequent potations of whiskey. To Payne he +had given a one-eyed bay horse, which he had purchased of a man by the +name of Gardner, a neighbor of Dr. Samuel Mudd, in Charles County, +Maryland. Mudd accompanied him, and introduced him to Gardner as a +man who was desirous of purchasing land in that part of Maryland, +and who wished a good driving horse that he could use for a short +time. During the afternoon of the 14th, Booth, Herold, and Atzerodt +hired horses from liverymen, and were to be seen riding here and +there about the streets of Washington, frequently stopping at saloons +to refresh themselves with that which obtunds all moral sensibility +and makes men reckless in wickedness. Booth was acting the part of a +general mustering his forces for the conflict, part of which he thus +displayed openly, but keeping another part in concealment. He kept +himself in active communication with all, and delivered his orders +and instructions. Feeling the full force of the responsibility of +his engagement, and earnestly intent on its complete and thorough +accomplishment, he attended in person to every detail to make failure, +if possible, an impossibility. + +It would seem that a previous attempt had been made to assassinate +the President, which had resulted in a failure. It was known that +President Lincoln was in the habit of riding out to the Soldiers' Home +of evenings, passing through a lonely suburb of the city unguarded. +Some time in March, John Wilkes Booth, John H. Surratt, Payne, +Atzerodt, Herold, and two others, left the house of Mrs. Surratt about +two o'clock in the afternoon, on horseback, armed with revolvers +and bowie-knives, and returned about six o'clock under the greatest +possible excitement of rage and disappointment. All the evidence +went to show that this expedition was regarded by them as one of the +greatest importance, involving the necessity of leaving the city, +perhaps for good, as their return in the evening was as much of a +surprise to their friends as it was an occasion of dissatisfaction to +themselves. I think there can hardly be a doubt that they expected to +intercept the President on his way to the Home, and were lying in wait +for him with the purpose of there assassinating him, and then making +their escape. The President, however, upon the earnest advice of his +cabinet, had yielded the point of riding unprotected and alone, and had +accepted the protection of an escort of cavalry on these rides. Booth +and his party finding him thus guarded had been compelled to abandon +the idea of thus finding an opportunity to assassinate him, and so had +to prepare a new plan of operations. There was a rumor, which found +its way into the papers about this time, that there was a plot to +capture the President and carry him a prisoner to Richmond; but however +much Booth's pride and vanity might have impelled him to achieve the +notoriety that would have attended the accomplishment of such a feat, +the difficulties and dangers attending its accomplishment must have +been too obvious to a man of Booth's sagacity, and its success involved +in too much uncertainty, to have justified him in making such an +attempt. + +In view of all the facts, I conclude that the real purpose of Booth and +his party on the occasion referred to was to murder the President, and +trust to flight for concealment and safety. But now Booth was fully +possessed with the idea of the practicability of his present plan, and +was determined to know no such word as fail; and that it was entirely +possible that, but for a Providential interference, he might have made +good his escape after murdering the President, we shall hereafter see. + +President Lincoln had been convinced by the most undoubted proofs +that a plan for his assassination at Baltimore whilst on his way to +Washington, in 1861, to assume the responsibilities of the office to +which he had been called by the choice of the people, had been arranged +and prepared for by his enemies, and had only been prevented of its +execution by the strategic movement planned by his friends, by which he +passed through that city during the night previous to the morning on +which he was expected. + +"From the very beginning of his Presidency Mr. Lincoln had been +constantly subject to the threats of his enemies and the warnings of +his friends. The threats came in every form: his mail was infested with +brutal and vulgar menace, mostly anonymous, the proper expression of +vile and cowardly minds. + +"The warnings were not less numerous; the vaporings of village +bullies, the extravagancies of excited secessionist politicians, even +the drolling of practical jokers, were faithfully reported to him by +zealous or nervous friends. Most of these communications received no +notice. In cases where there seemed a ground for inquiry it was made, +as carefully as possible, by the President's private secretary and by +the War Department, but always without substantial results. + +"Warnings that appeared to be most definite, when they came to be +examined proved too vague and confused for further attention. The +President was too intelligent not to know he was in some danger. Madmen +frequently made their way to the very door of the executive offices, +and sometimes into Mr. Lincoln's presence. + +"He had himself so sane a mind, and a heart so kindly even to his +enemies, that it was hard for him to believe in a political hatred so +deadly as to lead to murder. He would sometimes laughingly say, 'Our +friends on the other side would make nothing by exchanging me for +Hamlin,' the Vice-President having the reputation of more radical views +than his chief. He knew, indeed, that incitements to murder him were +not uncommon in the South. An advertisement had appeared in a paper of +Selma, Alabama, in December, 1864, opening a subscription for funds to +affect the assassination of Lincoln, Seward, and Johnson before the +inauguration."[1] + +In view of all this danger he would say "that he could not possibly +guard against it unless he were to shut himself up in an iron box, in +which condition he could scarcely perform the duties of a President. +By the hand of a murderer he could only die once; to go continually in +fear would be to die over and over." + +To his faithful and devoted friend, Father Chiniquy, who on several +occasions warned him of his danger, and of the ultimate source of its +inspiration, he said, "I see no other way than to be always prepared to +die. I know my danger; but man must not care how and where he dies, +provided he dies at the post of honor and duty." + +We have come to the point now where we find, on the part of his +murderers, all things ready for his taking off; and their intended +victim prepared in mind for his fate, and ready to "die at the post +of honor and duty." What a fearful, and at the same time, sublime +spectacle! The powers of light and the powers of darkness were +contending, as ever, for the supremacy. Satan, the usurper, claims this +world for his kingdom. He has seduced and enslaved the human race, and, +by every false and cunning device, is always resisting every movement +that looks to the disenthralment of mankind, and bringing the world +back to its allegiance to God, its rightful sovereign. How sublime was +the faith of President Lincoln in the ultimate triumph of the right! +How sincerely and believingly could he have sung, + + "Thy saints in all this glorious war, + Shall conquer though they die; + They see the triumph from afar, + By faith they bring it nigh." + + + + +CHAPTER III. + +ASSASSINATION OF THE PRESIDENT AND ATTEMPTED ASSASSINATION OF SECRETARY +SEWARD. + + +On the morning of the 14th of April, 1865, the President's messenger +went to Ford's Theatre in Washington City and engaged a private box +for the President and General Grant, with their wives, to witness the +play of "Our American Cousin," which was to be rendered there that +night. The heavy burden of responsibility, the weight of cares and +anxieties which had for four long years rested on the head of President +Lincoln in his official position of President of the United States +and Commander-in-Chief of its army and navy, employed during all that +time in suppressing a gigantic rebellion of the slave-holding States +of the South against the constitutional and lawful authority of the +government, and which had followed him into his second term of office, +upon which he had just entered, had been partially lifted by the signal +success of the Union arms at Appomattox, and the surrender of Lee's +army. General Grant, who had just accepted the unconditional surrender +of that army, and finished the work of dismissing to their homes the +officers and men who had composed it (and who for four long years had +fought with such magnificent bravery, and manifested such earnestness +and determinedness of purpose in a cause which, though bad, was no +doubt esteemed by them to be just), under no other condition than that +they should return to their homes and the pursuits of peaceful life, +and desist from all further acts of hostility against the government +they had sought, but failed, to overthrow, had gone to Washington to +talk over the situation with the President and Secretary of War, and +to decide on future operations for the speedy establishment of peace. +With the surrender of Lee's army, and the successful march of Sherman +from Atlanta to the sea, and his almost unresisted progress up the +coast toward the Nation's Capital, it was obvious that the rebellion +had collapsed, and that the return of peace was just at hand. All +loyal hearts throughout the land throbbed with joy, and praise and +thanksgiving ascended to Him who had stamped the righteousness of the +union cause with the signet of His approbation, in thus giving us the +victory after a long and bloody contest. The years of sacrifice, toil, +suffering and danger were almost forgotten in the gladness of that +hour; and the war-scarred veterans in the field, and their friends at +home, were rejoicing at the prospect of a speedy re-union, under skies +of peace. It was an hour big with the memories of the past and hopes +of the future. When we think of what President Lincoln had endured +through all these years of the war; of his unfaltering purpose to +discharge all the duties of his official oath, by protecting, defending +and preserving the constitution of his country; of the formidable +difficulties that had to be met and overcome--difficulties thrown +across his pathway often by friends, always by foes; when we remember +his largeness of soul, his unbounded love of, and sympathy with, +mankind; his all controlling love of his country and her institutions +of freedom; his patient toleration of opposing views of martial and of +political policy; his self-poise, and almost infallible appreciation +of the situation and its demands, in whatever circumstances he might +be placed; his kindness of nature and goodness of heart, we can well +conceive what must have been his fullness of joy on this the last day +of his sojourn on earth. God, in his providence, led him to the opening +of a vista through which his patriotic and philanthropic soul could +swell with delightful anticipations of the greatness, the glory, and +the happiness that should accrue to mankind through his faithfulness to +the obligations of his official oath, by which he had vindicated his +authority, and brought to a right solution the great moral question +underlying the contest, and thus had made our beloved land a land +of freedom in fact, as well as in name. He saw a new and glorious +era about to dawn on his country. Like Moses, however, he was only +permitted, in vision, to look over into the promised land--the great +future of his beloved country. + +It is consoling to thus know that to the great Lincoln his last day on +earth was the happiest, and at the same time, the meekest day of his +life. His biographers, Nicolay and Hay, who were able to write from +personal association with, and observation of, this great man, inform +us that on this day his soul was filled with the kindliest feelings +toward his enemies, and in his last conference with his cabinet his +policy of dealing with them was shadowed forth as free from feelings +of revenge or desire for the punishment of any. He desired that no man +should lose his life for the part he had taken in the rebellion. He +held "malice toward none," and was filled with "charity for all." His +passage from time to eternity, though brought about by the bullet of an +assassin, was a passage through a triumphal arch, whose further portal +was the gate of heaven. + +The presence of General Grant was known to the city, and it was noised +abroad that both he and President Lincoln would honor the theatre with +their presence on that evening. The public knowledge of this fact was +calculated to bring out a brilliant and large assemblage of people. +The loyal citizens would be there to give to the President and the +successful and popular commander of his armies in the field a heartfelt +and royal ovation in this the hour of their triumph. All felt happy +and secure. That they were coming together to witness, on that night, +the awful tragedy of the assassination of the nation's head, President +Lincoln, was not dreamed of by any except those who had made every +preparation in advance for accomplishing the murderous plot, and who +were stealthily slipping about through the assembling crowds, like +fiends, to assure themselves that every arrangement for the successful +accomplishment of their hellish purpose was complete. During the day +General Grant received a telegram that called him to Philadelphia on +business, and owing to this apparently providential circumstance he +was prevented from accompanying the President to the theatre on that +eventful night, and also, in all probability, from being, with the +President, a victim of the plot, in which there is good reason to +conclude, from all the evidence, his life was included, and that for +him an assassin had been provided. + +In lieu of General and Mrs. Grant, President Lincoln had taken Major +Rathbone and Miss Harris, the step-son and daughter of Senator Harris, +of New York, into the Presidential party. On reaching the theatre at a +somewhat late hour, and after the play had commenced, as soon as the +presence of the President became known, the actors stopped playing, the +band struck up "Hail to the Chief," and the audience rose and received +him with vociferous cheering. + +The party proceeded along the rear of the dress circle, and entered the +box that had been prepared for them, the President taking the rocking +chair that had been placed there for him on the left of the box, and +nearest to the audience, about four feet from the door of entrance to +the box. Major Rathbone and the ladies found seats on the President's +right. During this time the conspirators were on the alert, scanning +the situation, passing about so as to keep up a communication with each +other, in preparation for their work. Booth had arranged with Payne to +assassinate Secretary Seward at the same time that he would assassinate +the President; and no doubt had planned for Payne, after accomplishing +his task, to join him and Herold in their flight, crossing the Eastern +Branch at the Navy Yard bridge, and then to pass down through Maryland +and cross the Potomac, at a selected point, into Virginia, where +they might consider themselves as being safe amongst their friends. +Secretary Seward was known to have received severe injuries from the +upsetting of his carriage, and to be lying in a critical condition +under the care of Dr. Verdi. Booth had planned to take advantage of +this circumstance for gaining admittance for Payne into the sick +chamber, where, by springing with the ferocity of a tiger upon the sick +man, he might make quick work in dispatching him with his dagger. To +this end he had prepared a package rolled up in paper, and had schooled +Payne in the artifice, teaching him to represent himself as having been +sent by Dr. Verdi with this package of medicine, which it was necessary +he should deliver in person, as he had important verbal directions as +to the manner of its use, which required him to see the Secretary. + +About ten o'clock Booth rode up the alley back of the theatre where +he had been accustomed to keep his horse, and having reached the rear +entrance, called for Ned three times, each time a little louder than +before. At the third call Ned Spangler answered to his summons by +appearing at the door. Booth's first salutation was in the form of a +question: "Ned, you will help me all you can, won't you?" To which +Spangler replied, "Oh, yes!" Booth then requested him to send "Peanuts" +(a boy employed about the theatre), to hold his horse. Spangler gave +the boy orders to do this, and upon the boy making the objection that +he might be out of place at the time he had a duty to perform, Spangler +bade him go, saying that he would stand responsible for him. The boy +then took the reins, and held the horse for about half an hour, until +Booth returned to reward him with a curse and a kick, as he jerked the +rein from him preparatory to remounting for his flight. After entering +the theatre, Booth passed rapidly across the stage, glancing at the +box occupied by his intended victim, and looking up his accomplices, +he passed out of the front door on to the walk where he was met by two +of his fellow conspirators. One of these was a low, villainous-looking +fellow, whilst the other was a very neatly-dressed man. Booth +held a private conference with these by the door where he and the +vulgar-looking fellow had stationed themselves. The neatly-dressed man +crossed the walk to the rear of the President's carriage and peeped +into it. One of the witnesses, who was sitting on the platform in front +of the theatre, had his attention arrested by the manner and conduct of +these men, and so watched them very closely. + +It was at the close of the second act that Booth and his two fellow +conspirators appeared at the door. Booth said, "I think he will come +down now"; and they aligned themselves to await his coming. Their +communications with each other were in whispered tones. Finding that +the President would remain until the close of the play, they then began +to prepare to assassinate him in the theatre. The neatly-dressed man +called the time three times in succession at short intervals, each +time a little louder than before. Booth now entered the saloon, took a +drink of whiskey, and then went at once into the theatre. He passed +quickly along next to the wall behind the chairs, and having reached a +point near the door that led to the passage behind the box, he stopped, +took a small pack of visiting cards from his pocket, selected one and +replaced the others; stood a second with it in his hand, and then +showed it to the President's messenger, who was sitting just below +him, and then, without waiting, passed through the door from the lobby +into the passage, closing and barring it after him. Taking a hasty, +but careful, look through the hole which he had had made in the door +for the purpose of assuring himself of the President's position, and +cocking his pistol and with his finger on the trigger, he pulled open +the door, and stealthily entered the box, where he stood right behind +and within three feet of the President. The play had advanced to the +second scene of the third act, and whilst the audience was intensely +interested Booth fired the fatal shot--the ball penetrating the skull +on the back of the left side of the head, inflicting a wound in the +brain (the ball passing entirely through and lodging behind the right +eye), of which he died at about half-past seven o'clock on the morning +of the fifteenth. He was unconscious from the moment he was struck +until his spirit passed from earth. An unspeakable calm settled on that +remarkable face, leaving the impress of a happy soul on the casket it +had left behind. + +Thus died the man who said, "Senator Douglass says he don't care +whether slavery is voted up, or voted down; but God cares, and humanity +cares, and I care." + +As soon as Booth had fired his pistol, and was satisfied that his end +was accomplished, he cried out, "Revenge for the South!" and throwing +his pistol down, he took his dagger in his right hand, and placed his +left hand on the balustrade preparatory to his leap of twelve feet to +the stage. Just at this moment Major Rathbone sprang forward and tried +to catch him. In this he failed, but received a severe cut in his arm +from a back-handed thrust of Booth's dagger. Time was everything now to +the assassin. He must make good his escape whilst the audience stood +dazed, and before it had time to comprehend clearly what had happened. +With his left hand on the railing, he boldly leaped from the box to the +stage. The front of the box had been draped for the occasion with the +American flag, which was stretched across its front, and reached down +nearly or quite to the floor. In the descent, Booth's spur caught in +the flag, tearing out a piece which he dragged nearly half way across +the stage. The flag, however, was avenged for this double insult which +he had put upon it; for by this entanglement his descent was deflected, +causing him to strike the stage obliquely, and partially to fall, thus +fracturing the fibula of his left leg, on account of which injury his +flight was impeded, and his permanent escape made impossible. As he +recovered himself from his partial fall and started to run across the +stage with his dagger brandished aloft, he cried out in a theatrical +tone, "_Sic semper tyrannis!_" and quickly passed out at a little back +door opening into the alley where he had left his horse, and, though +closely pursued, succeeded in mounting, and rode rapidly away. + +Of course he could not afford to run any risks in regard to his escape, +and for all this he had made his arrangements in advance. Spangler had +faithfully redeemed his promise to render him all the aid he could by +keeping the passage to the door clear at the critical moment, and also +by doing all he could to retard pursuit. When a fellow-employee cried +out, "That was Booth!" Ned ordered him to shut up, saying "You don't +know who it was." Booth was closely pursued by a man by the name of +Stewart, who followed him into the alley, making every effort he could +to stop him; but Booth kept his horse in motion, so that Stewart failed +to get hold of the rein, and the assassin was soon off at a rapid pace. + +Stewart testified that Spangler, or a man resembling him, stood +near the door, and could have prevented Booth's exit had he been so +disposed. It is evident his purpose was to aid, rather than hinder, his +escape. All the occupants of the stage, actors and assistants, male and +female, were in a state of confusion and intense excitement except this +man, who evidently had not been taken by surprise, but was prepared in +mind for what had happened, and had played his part in the tragedy. + +At the same hour that Booth fired the fatal shot, Payne appeared at the +door of Secretary Seward's house, in the guise of a messenger from Dr. +Verdi, holding in his hand the package that Booth had prepared for him, +and demanded to see the Secretary, saying that he had a verbal message +which was of particular importance in regard to the use, or application +of, the medicine, and that he must see the Secretary himself. Dr. +Verdi had left his patient but a short time previous, and had consoled +the family that had for days been suffering the greatest anxiety on +account of the Secretary's condition by taking a favorable view of the +symptoms. The family, worn with watching and anxiety, were disposing of +themselves for the night. Major A. H. Seward had retired to his room. +Sergeant George F. Robinson, acting as attendant nurse, was watching +by the bedside, in company with Miss Seward, the Secretary's daughter. +Frederick Seward occupied the room at the head of the stairs. All the +rooms occupied by the Secretary and his family were on the second +floor, and were reached by a flight of stairs in the hallway. + +The second waiter, William H. Bell, a colored lad of nineteen, was +stationed at the hall door. Being somewhat relieved of their anxiety by +the doctor's favorable view of the case, all were anticipating a night +of quiet rest. The door bell rang, and was responded to by Bell, the +colored waiter. Immediately upon his opening of the door, Payne stepped +into the hall. He was a tall, broad-shouldered, muscular man, as agile +and ferocious as a panther; a low-browed, scowling, villainous-looking +specimen of humanity, the animal preponderating largely in every +feature of his visage and expression of his countenance. There he +stood, holding in his left hand the package, and keeping his right hand +in his overcoat pocket. He demanded of the boy to be allowed to see the +Secretary, telling his story about being sent by Dr. Verdi to deliver +the medicine with his directions. The porter told him that his orders +were to admit no one, and that he could not see Mr. Seward; that he +would deliver the package himself. To this Payne would not consent, but +persisted in saying that he _must_ see Mr. Seward. After considerable +parleying, he started up stairs, and the porter, seeing that he +would go, and thinking that he might complain of his conduct to the +Secretary, asked him to pardon him, to which Payne replied, "O, I know, +that's all right." He was wearing heavy boots, and took no pains to +walk lightly as he went up the stairs, whereupon the porter requested +him not to make so much noise, to which, however, he paid no attention. +As he approached the head of the stairs, he was met by Mr. Frederick +Seward, who had been attracted by the noise, to whom he said, "I want +to see Mr. Seward." Frederick went into his father's room, and finding +him asleep, returned saying, "You cannot see him." All this time Payne +stood holding out the package in his left hand, grasping with his right +hand the pistol in his overcoat pocket. Frederick requested him to give +him the package, saying he would deliver it; but Payne persisted in +saying that that would not do; he _must_ see Mr. Seward,--he _must_ see +him. + +Frederick finally said, "I am the proprietor here, and his son; if +you cannot leave your message with me, you cannot leave it at all." +Payne still continued parleying with Frederick for some time; but +finding that his talking availed nothing, he started as if to go down +stairs. This, however, was only a feint on his part in order to throw +Frederick off of his guard and to get rid of the porter who stood +behind him. He again walked so heavily that the porter requested him +not to make so much noise; but at that moment, Payne, having prepared +himself for the encounter, turned quickly, and making a spring towards +Frederick, struck him two or three times with the pistol, which he had +all the time held in his hand, fracturing his skull and knocking him +senseless to the floor. Having learned which was the room occupied +by the invalid by seeing Frederick go into it, Payne rushed past the +prostrate man, opened the door of the Secretary's room, and was met by +Sergeant Robinson. Having broken and thrown down his revolver in his +encounter with Frederick, he had drawn his dagger, and at his first +encounter with the sergeant he struck him with his knife, cutting an +ugly gash in his forehead, and partially knocking him down. He then +pressed rapidly forward, knife in hand, to where the invalid lay in his +bed. Throwing himself upon him, he commenced striking at his face and +neck with his dagger. The Secretary was reclining in a half-sitting +posture, having the coverings well drawn up about his neck and chin, +to which circumstance the failure of the would-be assassin to take +his life was no doubt due. The sergeant, as soon as he recovered his +equilibrium, sprang upon Payne, and Major Seward, having been awakened +by the screams of his sister, sprang into the room in his night-dress. +Finding the sergeant grappling him in such a way as to hinder the +effectiveness of his thrusts at the Secretary, and probably thinking +that he had accomplished his purpose, he turned his attention toward +making his escape. In disentangling himself from the grasp of the two +men who now had hold of him, he gave to Major Seward several severe +cuts about the head and face, crying all the time, "I am mad! I am +mad!" Finally, pulling himself loose, he started to make his way to the +street. Meeting a Mr. Emrick W. Hansel, another nurse, on the stairs, +he made a thrust at him with his knife, inflicting an ugly wound. He +now left the house, leaving five of its inmates stabbed, cut, and +bleeding behind him. Having reached the street, he deliberately threw +his dagger away, mounted the horse which he had hitched in front of +the door, and rode off. Thus, for the time being, this inhuman monster +passed from sight, having made good his retreat minus his dagger, +hat, and revolver. He was not a moment too soon in withdrawing from +the house. The colored porter, as soon as he saw the violence done to +Frederick Seward at the head of the stairs, ran down and out into the +street with the cry of "murder," and did not stop until he reached +General Angur's headquarters, where he reported the occurrence and ran +back immediately, accompanied by two or three soldiers. They reached +the house just in time to see Payne mount his horse and ride away. +He was followed some distance by the porter, who kept nearly up with +him for some time, as he rode slowly at first, but he then mended his +pace, and was soon out of sight. The soldiers, having no orders and not +comprehending the situation, made no effort to stop him, although the +colored boy who gave the alarm, and who preceded them, pointed him out +to them as the man who had so ruthlessly broken the quiet of that house +and produced such consternation amongst its peaceful inmates. + +Although Payne rode away so leisurely at the start, he put his horse +to the top of his speed as soon as he had fairly cleared the streets +and reached the suburbs of the city. About two hours later, a bay +horse, saddled, and blind of an eye, came running up a by-road that +led to Camp Barry, about three-fourths of a mile east of the capitol, +and was there halted and taken charge of and placed in General Angur's +stables. The horse, when found, bore marks of having been ridden at a +furious rate. The sweat was streaming from every pore and dripping to +the ground. This proved to be the bay horse that Booth had bought from +Gardner, the neighbor of Dr. Mudd, in November, 1864, and which he sold +to his co-conspirator, Arnold, in January, 1865, according to his own +statement made some time before the assassination. + +This was no doubt the horse rode by Payne on that night. The most +probable theory is, that being pushed and urged at a furious rate, and +being blind of an eye, he stumbled and pitched headlong, throwing, and +probably stunning, his rider, after which he regained his footing and +made his escape before Payne had sufficiently recovered to get hold of +him. The fact of his being a little lame when caught goes to sustain +this theory. Thus was the would-be assassin prevented from joining his +comrades, Booth and Herold, in their flight, and compelled to skulk and +hide in the suburbs of the city for the next two days. He was without +arms and hatless, and was compelled to throw away his overcoat, which +was afterwards found, on account of the bloodstains on its sleeves. He +knew that the alarm would spread rapidly throughout the vicinity, and +in his present condition he dared not venture out through the country, +so he was compelled to spend the time in hiding and skulking until he +was forced from his retreat by hunger. Making a covering for his head +out of a sleeve from his under-shirt, which he drew over it like a +turban, he shouldered a pick, which he had stolen from the trenches, +and at near the hour of midnight on the 17th he entered the city. He +went directly to the house of Mrs. Surratt, as the safest place he +could find to rest, hide, and refresh himself, and obtain an outfit +in which he might make his escape. Here he felt that he could trust +the secret of his presence. Unfortunately for him, as well as for Mrs. +Surratt, the government had by this time come into possession of such +information as justified it in sending its military police to that +house, with orders to arrest its inmates. + +It had been discovered that the house of Mrs. Surratt had been the +headquarters of the conspirators in Washington City. The officer in +charge of the police, Major H. W. Smith, had reached the house but a +short time before Payne arrived. Payne came with his turban on his +head, and the pick on his shoulder, and rang the door-bell. Major Smith +responded to the bell, and asked him to come in. Seeing the officer, he +said he believed he was mistaken in the house. Being asked whose house +he sought, he replied, "Mrs. Surratt's." The officer replied, "This +is the place," and drawing his revolver on him, ordered him to come +in. Payne entered, and the officer closed the door. He then inquired +who he was, and what he wanted. To these questions he replied that he +was a poor man, and a laborer, and that Mrs. Surratt had sent for him +to dig a drain for her. On being asked what brought him there at that +time of night, he replied that he "merely called to see what time Mrs. +Surratt wanted him to go to work in the morning." The officer saw that +his hands bore no marks of labor, and at once suspected he had caged +one of the conspirators. He placed him under arrest and took him along +with the others in the house, to General Angur's headquarters, where he +was held for identification. William H. Bell, the colored boy who was +second waiter at Mr. Seward's, being sent for, at once unhesitatingly +identified him as the man who had produced such consternation in the +house of Mr. Seward, on the night of the 14th, by his determined +efforts to take the Secretary's life. Lewis Payne, having been thus +captured and identified, and Mrs. Mary E. Surratt, were the first +amongst the conspirators to be held for trial. + +After the attack at Secretary Seward's, Dr. Verdi and two or +three other surgeons were at once called to examine and treat the +Secretary and the other victims of Payne's dagger. The house in which +the onslaught was made had the appearance of a charnal house or +slaughter-pen. The Secretary was found to have received three or four +severe cuts about the face and neck, which were only made dangerous by +the loss of blood they had occasioned and the weak condition of the +patient. + +The Secretary made a slow but good recovery. Of the other four wounded +men, the wounds of Mr. Frederick Seward proved the most serious, +as his skull had been fractured and depressed, so as to render him +unconscious, from which condition he was only recalled by a surgical +operation. + +All finally recovered. Here again we are called to notice the +providences in the case, leading to the capture of Payne, and to the +bringing on his head the just reward of his deeds. + + + + +CHAPTER IV. + +THE NEWS COMMUNICATED TO THE WORLD, AND ITS EFFECT. + + +On the morning of the 15th of April, 1865, the telegraph wires carried +to every part of the United States that was in communication with +Washington, and to the rest of the civilized world, the astounding +intelligence that Abraham Lincoln, President of the United States, +had been assassinated on the previous night by John Wilkes Booth, +at Ford's Theatre in Washington City; that at the same hour a most +savage attempt had been made to assassinate the Secretary of State, +Hon. William H. Seward, and that he was lying in a most critical and +dangerous condition from the wounds which he had received, and would +probably die. Never, perhaps, in the history of the race were so many +hearts bleeding, and so many eyes suffused with tears at one time, as +on that sorrowful day. The nation was filled with grief, mingled with +indignation and horror at the deed. The land was literally draped in +mourning. Every city, and every town and village, displayed the sable +habiliments of grief. The response came back to our people, in kind, +from every civilized people on earth. + +The writer was at the time a member of Grant's victorious army, and +had large opportunities for witnessing the effects produced by the sad +intelligence on the soldiery of our country. From the highest officers +down to the rank and file of the army, sorrow and grief were depicted +on every countenance. From Appomattox to Richmond the victorious +army that had been filled with joyful and hopeful anticipations over +its successes, and the prospect of the speedy dawn of peace, and of +returning to their homes and friends and to the pursuits of peaceful +life, after four years of arduous military service, was at once plunged +into the deepest sadness and gloom. Strong men wept. It was as though +every soldier had lost his dearest friend. There was always a day of +sadness in the army after every great battle, even in the triumphs +of victory, at the thought of the many brave comrades who had given +up their lives for their country, and would never again be seen in +the ranks,--who were even then being gathered up from the field and +carefully laid away in silence to await the resurrection morn; and of +the others, who with loss of limbs and fearful wounds, were receiving +the care of the surgeons and nurses in the hospitals improvised for the +occasion; but never before had such a pall of grief been thrown over +the entire army. + +The depth of sorrow into which the nation was plunged by the news +of his assassination revealed, as nothing else could have done, the +place Abraham Lincoln held in the confidence and affections of the +loyal people of the land. The first shock of the sad intelligence was +almost paralytic. The people--even the army--for the moment stood dazed +and bewildered. What was the meaning of all this? Was the war to be +prolonged? Were we now to be called upon to turn our victorious arms +upon the enemy in the rear, of whose existence we had all the time been +conscious? Such were the questions that first suggested themselves. If +so, the army was then in a state of mind to have made a short work of +it. The victory over our armed foe in front, who had so bravely met us, +and often with success, on many a hotly-contested field, would never +have been yielded to the disloyal cowards who, through all of these +years of the war, from their safe retreats and hiding-places, threw +every obstacle they could in the way of our now martyred President, and +who had planned and accomplished his taking off. + +The extent of the conspiracy had not as yet been revealed; but enough +was known to the government to evince the fact that this was an act of +deep political significance, having behind it a very different class of +men from the dissolute and depraved assassins who were executing their +behests, and not merely done for the gratification of personal and +political revenge. It was obvious that the occasion called for the most +vigorous and decided measures on the part of the government to meet +and overcome the strategy of assassinations just now entered upon. It +very soon became known to the authorities that the plot had been but +very partially executed, and that the purpose of the conspirators was +to subvert the constitution by depriving the nation of its executive +head, and leaving no constitutional way of electing a new President, +and at the same time to deprive the armies in the field of a lawful +commander. To accomplish this, the President, Vice-President, Secretary +of State, and General Grant were all to have been assassinated. The +conspirators in Canada and also the rebel president, when they heard +that only President Lincoln had been killed, could not conceal their +disappointment, and virtually confessed that their deep-laid scheme +had proven a failure. The former still adhered to their purpose, and +in their rage declared, "We are not done with them yet." We hardly +dare to venture upon the consideration of what would have been the +result had they completed the work they had planned. We have reason +for profound thankfulness to that God who has thus far so wisely and +graciously watched over our national progress, that he did not permit +its accomplishment. But we, who were actors on the stage at that time, +knowing how the principal actors in our national affairs, both civil +and military, had been schooled in self-sacrificing, patriotic devotion +to the institutions of our fathers, and their unfaltering purpose to +transmit them unimpaired to their children and children's children for +a perpetual inheritance, can but feel assured that even in the dire +extremity now under consideration they would have proven true to their +trust, and would have found a way to restore all of the machinery of +government provided for in the Constitution. The people are above the +Constitution even as the maker is above the thing made. + +The rebel armies had been so completely overcome that they could no +longer have formed even a nucleus around which the traitors in the +North could have organized an opposition that could have been regarded +with other than feelings of contempt by our victorious hosts. The time +had passed; the opportunity was gone. No wonder the conspirators in +Canada gnashed their teeth with rage and disappointment because "the +boys had not been allowed to act when they wanted to." They had amongst +their many schemes concocted during the summer of 1864, such as making +raids, liberating rebel prisoners of war held in Northern prisons, +burning cities, spreading pestilence, and poisoning reservoirs, been +led also to consider this scheme of assassinations. All of these things +were to be done in aid of the rebellion. + +As their cause became desperate on account of the continued success +of our arms, so did they become desperate in planning to retrieve. As +early as January, 1865, they received a communication from Jefferson +Davis suggesting these things and urging them to stop at nothing, +however desperate, and plainly intimating that Lincoln ought not to +be allowed to live; but it was not until the latter part of March, +1865, that they were prepared to present to him a definitely-prepared +plan for the accomplishment of their purposes that he could accept and +sanction. They had thus been long delayed, and now they were compelled +to realize that their work was a failure. No wonder that they all, from +Jefferson Davis down, felt and expressed grievous disappointment. It +reminds us of Milton's description of the malignant schemes, failures, +disappointments, and rage of the Prince of Devils in his contests with +the Almighty. + + + + +CHAPTER V. + +UNRAVELLING THE PLOT.--PURSUIT AND CAPTURE OF BOOTH AND HEROLD.--DEATH +OF BOOTH. + + +The most active measures were at once resorted to by the government +to discover the conspirators, and to capture all who could be found +of those engaged in it. The civil and military police, as also those +engaged in the secret service of the government, were at once set to +work. It was soon learned that Booth and a co-conspirator, which proved +to be Herold, had passed over the navy-yard bridge, on horseback, very +shortly after the hour at which the fatal shot had been fired, and +were fleeing toward Surrattsville and Bryantown in Maryland. They had +been allowed to pass by the sentinel at the bridge, having represented +themselves as citizens on their way to their homes. Booth was first +at the bridge, and gave his true name to the sentinel, saying that he +lived close to Beautown. Five minutes later Herold came and gave his +name as Smith, saying that he lived at White Plains and was on his way +home. Having gotten safely on the road, they directly joined company, +and pushed on rapidly, arriving at Surrattsville about midnight. + +Stopping at Lloyd's tavern in Surrattsville, Herold dismounted and +went into the house, saying to Lloyd, "For God's sake, make haste +and get those things!" Lloyd, understanding what he wanted from the +notification given him by Mrs. Surratt on the evening previous, without +making any reply, went and got the carbines, which he had placed in +his bedroom that they might be handy, and brought them to Herold, +together with the ammunition and field-glass that had been deposited +with him, and the two bottles of whiskey that Booth had ordered through +Mrs. Surratt the evening before. Herold carried out to Booth one of +the bottles of whiskey, drinking from his own bottle in the house +before going out. Booth declined taking his carbine, saying his leg was +broken and he could not carry it. As they were about leaving, Booth +said to Lloyd, "I will tell you some news if you want to hear it"; and +then went on to say, "I am pretty certain that we have assassinated +the President and Secretary Seward." The moon was now up and shining +brightly, and the two confessed criminals resumed their flight. The +next heard of them was at the house of Dr. Samuel A. Mudd, near +Bryantown, in Maryland, and about thirty miles from Washington, where +they arrived at about four o'clock on the morning of the 15th, having +travelled at the rate of six miles per hour. + +[Illustration: MAP OF BOOTH'S ROUTE.] + +Booth's leg had been broken by a fracture of the fibula, or small bone +of the leg, when he fell on the stage on leaping from the President's +box, and by this time had become very painful. He greatly needed +the support of a splint, and quiet as well. He was in a position, +however, to get neither; for although he had reached the house of a +co-conspirator, who was a country doctor, and well disposed to render +him all the aid he could, he appears to have made a very bungling +out, dressing the broken limb with some pasteboard and a bandage that +gave but a very imperfect support. As to the rest he required, that +was impossible, for although Mudd placed him in an upstairs room and +kept him until the afternoon, they were admonished by seeing a squad +of soldiers under Lieutenant Dana passing down past Mudd's place, +which was a quarter of a mile off the road to Bryantown, that there +was no rest for the wicked; and as quickly as it could be done after +the soldiers passed, Mudd got rid of his dangerous charge by sending +them by an unfrequented route to the house of his friend and neighbor, +Samuel Cox, about six miles nearer to the Potomac. Booth was on no new +ground, neither amongst strangers either to his person or to his wicked +purpose. He had spent a good deal of his time during the previous +fall in that part of Maryland, preparing a way for his escape after +accomplishing his purpose. His way had seemed clear to him in advance; +his route had been selected; his friendly acquaintanceships secured. +But, alas! the broken leg. Under the guise of looking at the country +with a desire to purchase lands, he had perfected all his arrangements, +and had expected to pass swiftly over his route, accompanied by +Atzerodt (whose home was in this neighborhood, and who knew all about +the contraband trade with the rebel capital, the underground mail +route between Richmond and Washington, and all of the people engaged +in these operations, and also the place and facilities for crossing +the Potomac), and also by Payne and Herold. He had purposed to be safe +on the soil of the Old Dominion e'er this time. Instead of realizing +all this, he found himself a cripple, scarcely able to travel, and +closely pursued by those whom he knew to be on his trail, with no other +companion than his devoted but inefficient friend, Herold; and thus he +was compelled to realize that + + "The best laid schemes o' mice and men + Gang aft aglee; + And lea' us nought but grief and pain + For promised joy." + +Mudd had done all he could to relieve him, but dare not try to conceal +and keep him. He could only forward him to the next stage of his +journey and to a safe place of concealment. This he faithfully did. +Cox lived near Port Tobacco, the home of Atzerodt; and as his was too +public a place to afford safety to the fugitives, he turned them over +to his neighbor, Thomas Jones, a contraband trader between Maryland +and Richmond, who, in the midst of a constant scouring of the country +by pursuing parties, kept his charge concealed in the woods near his +house, supplying them with food and doing everything he could for their +comfort, waiting and watching constantly to find an opportunity to get +them across the Potomac. They were hunted so closely that they could +hear the neighing of the horses of the troopers, and fearing they might +be betrayed by their horses answering the calls, Herold led them into a +swamp near where they lay concealed in the pines and shot them. + +The river was being continually patroled by gun-boats, and the task of +getting his wards across proved both difficult and dangerous to Jones. +The proclamation of the Secretary of War, offering one hundred thousand +dollars for the capture of Booth, and warning all persons from aiding +the fugitives in any way in making their escape, had been published +broadcast, yet Jones was true to his trust. Neither the offered rewards +nor the warnings of the proclamation had any effect on him; but for a +whole week he kept them secreted in the pines on his premises, where +Booth lay night and day wrapped in a pair of blankets that had most +likely been furnished him by Dr. Mudd. Finally, being furnished by +Jones with a boat, they took their own risks and effected a crossing; +but they were seen by a colored man, upon whose report General Baker +got on their track and finally effected their capture. + +There can be no doubt that Booth had selected this as the route for +his escape months before, and that all of his visits to this part of +Maryland had been made with reference to this plan. Being at length +across the Potomac, even though under such unfavorable auspices, Booth +no doubt drew a free and exultant breath at having been permitted to +set his foot at last on the soil of the Old Dominion. He felt that he +was now amongst friends who would aid him in his progress, or help +him by concealment, as the case might require; and his friend Jones +no doubt breathed with a freedom he had not known for some days at +finding himself cut loose from his dangerous charge. Booth was greatly +disappointed at the cold reception given him by the people on whom he +had counted so much after crossing into Virginia. He had expected to +be lionized and honored as the hero of the age; but instead of that he +received a comparatively cold reception that stung his vanity like the +poison of an asp. + +[Illustration: DAVID E. HEROLD.] + +It is true the people showed no disposition to betray him; but, at the +same time, they manifested a disposition to enter into no compromising +friendship with him, or in any way to assume any responsibility in his +behalf by helping him to escape. How much of this was due to abhorrence +of his crime, and how much to a dread of consequences, can only be +a matter of conjecture. The fact that they were willing to let him +escape, if he could, would throw the preponderance on the latter as the +governing motive of their conduct. Sad, indeed, was Booth's condition +at this time. More than a week had elapsed since he had perpetrated +his great crime and commenced his guilty flight; and now he found +himself on foot, so lame as scarcely to be able to walk a step, even +with the help of a crutch, and scarcely more than fifty miles from +his starting point. His companion in crime, Herold, was now the only +human being on whose friendship and fidelity he could certainly rely. A +reward of one hundred and seventy-five thousand dollars offered for his +capture, the brand of Cain upon him, his fractured bone cutting into +the flesh at every movement of his limb,--a constant admonition of a +frowning Providence,--it is no wonder that the diurnal entries in his +book begin to bear evidence of a remorse that can never be appeased. +We can but pity his deplorable condition, for he was a fellow-man; but +then he was at the same time a monster in crime, directed by hatred of +a fellow-man without just cause, and of wickedness that had brought +upon him the blood of one of the greatest and best of men, not only +of his own age and country, but of all the ages of the world. When we +contemplate his crime, our sympathies refuse to go with him, and our +sense of justice finds a grateful feeling of relief in the evidence now +clearly pointing to the fact that he is a doomed man. + +By the aid of his blind follower, Herold, he is able to maintain his +concealment, and after a wretched fashion to resume his flight in an +old wagon drawn by two miserable horses and driven by a negro. In this +state he reaches Port Conway, on the Rappahannock, in King George +County, Virginia. Here his driver refuses to take him any further. It +is just at this juncture and in this dilemma that they are met by three +confederate soldiers, Major Ruggles, Lieutenant Bainbridge, and Captain +William Jett, the latter of Moseby's command. + +Herold, thinking they were recruiting for the rebel service, was quick +to see in them a means of assistance in getting South, and under the +protection of the stars and bars, and so revealed their identity, +appealing to them for assistance. A little later, Booth, getting out +of the wretched conveyance, came forward, and to assure himself of +their disposition toward him, accosted them with the interrogatory, "I +suppose you have been told who we are?" then, throwing himself back +on his crutch, and straightening himself up, with pistol cocked and +drawn, he said, "Yes, I am Wilkes Booth, the slayer of Abraham Lincoln, +and I am worth just one hundred and seventy-five thousand dollars to +the man that captures me." His attitude and speech was that of a man at +bay, under the power of a desperate purpose never to be taken alive. +These three officers of the confederate army (for they were such at +this time, not having been paroled), whilst mildly protesting that they +did not sanction his acts as an assassin, assured him that they did not +want any blood money, and promised to render him all the assistance +in their power in making his escape, a promise which they faithfully +kept. Major Ruggles dismounted and placed Booth on his horse, when +the whole party crossed over the Rappahannock, from Port Conway, in +King George, to Port Royal, in Caroline County, Virginia, and after an +ineffectual effort to find quarters for Booth in the town, they took +him three miles on the road to Bowling Green, the county seat of the +latter county, where they succeeded in getting a man by the name of +Garrett to take him in, with the understanding that he would do all he +could for his comfort and safety. Garrett took Booth and Herold in with +a full knowledge of all the facts in the case, and with some manifest +reluctance from a knowledge of the danger he would thus incur. + +Bainbridge and Herold went on to Bowling Green, whilst Ruggles and Jett +remained over night in the woods near the house, Booth being hid away +on the premises and cared for. On the following day Captain Jett went +to Bowling Green on a visit, prompted by the tender passion, where he +intended to remain a few days; and Lieutenant Bainbridge returned to +the Garrett farm, where he rejoined Major Ruggles. The two started for +Port Conway, but before getting there, learned that the town was full +of Yankee cavalry, when they lost no time in returning to Garrett's, +and gave warning to Booth, advising him to lose no time in fleeing to a +piece of woods, which they pointed out to him, and then turned to look +out for their own safety. The cavalry of which they got this notice was +a squad detailed from the Sixteenth New York Regiment, commanded by +Lieutenant Dougherty, which had been ordered to report to General L. +C. Baker of the Secret Service Department, and by him placed in charge +of E. J. Conger and L. B. Baker, officers belonging to his detective +force. + +Arriving at Port Conway on the afternoon of the day subsequent to the +crossing of the parties above referred to, and finding the wife of the +ferry keeper at the ferry-house sitting and conversing with another +women, Colonel Conger exhibited to them a photograph of Booth, and +informed them that that was the man they wanted. It at once became +apparent to him, from the manner and actions of the woman, that Booth +was not far off. The ferryman, a man by the name of Rollins, was sent +for, and being influenced no doubt by fear of compromising himself he +became very communicative. He told them all about the party that had +crossed the day before, one of whom, Captain Jett, he knew well; and +knowing that Jett had been paying attention to a Miss Goldman, the +daughter of a Bowling Green hotel keeper, he suggested that he would +most probably be found there. Colonel Conger pushed on with his squad +of cavalry, commanded by Captain, then Lieutenant, E. P. Dougherty, to +Bowling Green, passing the Garrett farm after dark. + +Arriving at Goldman's Hotel, he inquired of Mrs. Goldman as to the men +that were in the house. She answered him that her wounded son was in +a room upstairs, and that he was all the man there was there. Colonel +Conger then required her to lead the way upstairs, telling her at the +same time that if his men were fired on he would burn the building and +carry its inmates to Washington as prisoners. As he entered the room +which she showed him, up one flight of stairs, Captain Jett jumped out +of bed half-dressed, and admitted his identity. Colonel Conger then +informed him that he was cognizant of his movements for the last two +days, and proceeded to read to him the proclamation of the Secretary +of War, telling him when he had done reading it that if he did not +tell him the truth he would hang him; but that if he truly gave him +the information that he sought he would protect him. Jett was greatly +excited, and told him that he had left Booth at the Garrett Farm, three +miles from Port Royal. The Colonel then had Jett's horse taken from +the stable, making Jett his unwilling guide to the place of Booth's +concealment. + +Arriving at Garrett's, the cavalry was so disposed of as to prevent +any one from escaping, and after having extorted, by threats, the +information that Booth and Herold were concealed in the barn, it +was at once surrounded. They were ordered to come out and surrender +themselves, which Booth refused to do. After a considerable parley, +Herold came to the door and gave himself up. He was followed by the +maledictions of Booth, who accused him of cowardly unfaithfulness in +thus deserting him. Booth still refusing to surrender, a wisp of hay +was fired and thrown in on the hay in the barn. From this start the +barn was soon lighted up with the flames of the burning hay. Booth +was known to be armed and desperate, and as the burning hay began to +illuminate the barn he was seen, carbine in hand, peering through the +cracks, and trying to get an aim. He had before offered to fight the +crowd for a chance of his life if the Colonel would but withdraw his +men one hundred yards. Being answered that they had come to capture +him, not to fight, he was preparing to sell his life as dearly as +possible. At this moment, Sergeant Boston Corbett, of the Sixteenth +New York Cavalry, fired at Booth through a crack in the barn, upon his +own responsibility, and struck him on the back part of his head, very +nearly in the same part where his own ball had struck the President, +only a little lower down, and passing obliquely through the base of +the brain and upper part of the spinal cord; it produced instantly +almost complete paralysis of every muscle in his body below the seat +of the wound, the nerves of organic life only sufficing to keep up a +very difficult and imperfect respiration, and a feeble action of the +heart for a few hours, when, with the coming of the morning of the +26th of April, 1865, twelve days after the commission of his crime and +commencement of his flight, the malefactor expired. He was perfectly +clear in his mind, but could not swallow, and was scarcely able to +articulate so as to be understood, although he seemed anxious to talk. +He requested the officer, who was waiting over him and trying to +minister to him, to tell his mother that he died for his country. Thus +was avenged, not the loyal North alone, but the cause of justice, the +cause of freedom, the cause of humanity. Amongst the articles found on +his person the most important as bearing on the conspiracy in which he +was engaged was a bill of exchange, as follows:-- + + No. 1492. + Stamp. + + THE ONTARIO BANK, + MONTREAL BRANCH. + + _Exchange for £61 12s. 10d._ + + MONTREAL, 27th October, 1864. + + Sixty days after sight of this first exchange (second and + third of same tenor and date unpaid) pay to the order of J. + Wilkes Booth sixty-one pounds, twelve shillings, and ten pence + sterling. Value received and charge to account of this office. + + To Messrs. GLYNN, MILLS & CO., London. + + [Signed] + H. STANUS, _Manager_. + +The body was brought to Washington and identified fully. It was buried, +for the time secretly, under the floor of the old Capitol Prison, but +afterwards was given up to his friends. + +Major Ruggles, in his account of his connection with Booth in his +flight, gives it as his opinion that he was not shot, as claimed, by +Sergeant Corbett, but that seeing escape hopeless, and knowing death +to be his fate, he took his own life, holding his pistol to the back +of his head; and in support of this opinion refers to the fact that +one chamber of his revolver was found to be empty. He also advances +the opinion that had the war still been going on, and Booth had made +his escape into the confederate lines, the rebel government would have +arrested him and delivered him up to the United States authorities. +In this opinion, he takes a charitable view of the virtue and moral +integrity of the Richmond government which I shall hereafter show is +not warranted by the facts and evidence in the case. In this opinion +he is also giving that government credit for a degree of virtue and +integrity in striking contrast with the conduct of himself and his +companions, who hurriedly entered into a friendly compact with the +assassins, knowing them to be such, pledging fidelity and assistance to +the full extent of their ability under the circumstances in which they +were placed, thus morally and legally making themselves accomplices +after the fact.[2] + + + + +CHAPTER VI. + +UNRAVELLING THE CONSPIRACY. + +_Arrest of Spangler, O'Laughlin, Atzerodt, Mudd, and Arnold._ + + +Not only was the government bending every energy to overtake and +capture Booth and Herold, but also to find out who were their +co-conspirators. It undertook a systematic investigation of Booth's +haunts, associations, habits, and employment during the recent past. +Hotel registers were overhauled, liverymen interviewed, and each clue +followed up, so that in a short time enough was known to lead to the +arrest of Edward Spangler, Michael O'Laughlin, George A. Atzerodt, +Samuel Arnold, and Dr. Samuel A. Mudd, in addition to those heretofore +spoken of as having been arrested. By this time the evidence in +possession of the government made it clear that what had occurred was +but a partial accomplishment of a great conspiracy, which had its +origin with the agents of the rebel government in Canada; and that its +execution had been entrusted to John Wilkes Booth and John H. Surratt, +as leaders, and to such assistants as they should select and employ. + +[Illustration: EDWARD SPANGLER] + +It was soon discovered that Booth's intimate associates, with whom he +held private confidential intercourse, were John H. Surratt, and his +mother, Mary E. Surratt, Lewis Payne, George A. Atzerodt, Dr. Samuel +A. Mudd, David E. Herold, Samuel Arnold, and Michael O'Laughlin; and +that the house of Mrs. Surratt was the headquarters of the conspirators +in Washington. Arnold and O'Laughlin were intimate personal friends +and associates of Booth at his home in Baltimore. Booth, Payne, +and Atzerodt were frequent callers at the house of Mrs. Surratt, +where they were always made welcome; their business was always of a +private, confidential nature, and was with John Surratt when he +was at home, but in his absence was with Mrs. Surratt herself. Booth +had every privilege granted to him in that house, his requests for a +private conference being always responded to by John or his mother. +To Booth it seemed to be a matter of indifference which of the two +it was. In tracing his movements the last few months preceding the +assassination, it soon became evident that he was acting under the +impulse of a purpose that had entire possession of his mind. Having +undertaken to secure the accomplishment of the assassinations planned +by Davis and his Canada Cabinet, in the latter part of October, +1864, he was constantly employed in making his preparations for the +fulfillment of his contract, and gave no time or thought, apparently, +to anything else. He entirely abandoned his profession, that of an +actor, and lost all interest in the stage. He no longer consorted +with those of his profession to any extent, except as it might be +in preparation for the work to which he had devoted his life, and +accepted, instead, the fellowship of such low-browed scoundrels as +Payne and Atzerodt as better suited to his purpose. They became +mere tools in his hands, sympathizing with him fully in his intense +disloyalty, but being actuated at the same time by a mercenary motive, +the evidence justifying the conclusion that they had a promise of a +large pecuniary reward. He spent a great deal of time with these men, +studying their characters, and schooling them in the parts they were +to act. They were all known to the liverymen of the city, of whom they +very frequently obtained horses to ride about the suburbs and study +the roads, that they might be thoroughly familiar with the locality +when the time should come for them to make their escape. They were all +known, also, to go constantly armed with revolvers and bowie-knives by +those who had opportunities of seeing them together in their private +intercourse. They boarded at different hotels, and frequently changed +their boarding-places, but were frequent visitors of each other at +whatever places they might be stopping, and their intercourse was +always observed to be that of privacy; and so it became a just cause +for suspicion to have been an intimate companion of Booth, and finally +led to the arrest of them all. + +With regard to the relations existing between Booth and John H. +Surratt, and his mother, Mary E. Surratt, the evidence showed that they +would always retire to an upstairs room whenever a lengthy conference +was desired; but that they frequently held short private conferences +in the parlor, when it could be done without danger of interruption. +Booth's right to thus come into the house and demand these private +interviews was never questioned, but granted with the alacrity due to a +common purpose that required it. + + +_Foundation for the Arrest of Mrs. Surratt._ + +The agents of the government, in pursuing their investigations, +obtained evidence that Mrs. Surratt's house had been the meeting-place +or headquarters of the conspirators, and that she was in private, +confidential intercourse with Booth. One of the principal witnesses +against her was Louis J. Wiechmann, who had been for several months a +boarder in her house, and whose friendly relations with the family were +due to the fact that he had been a fellow-student with John H. Surratt +at St. Charles College, in Maryland, and to the further fact that they +were co-religionists. Wiechmann had been, during all this time that +he had been a boarder at Mrs. Surratt's, employed as a clerk in the +office of General Hoffman, Commissary General of Prisoners; and from +him the facts above alleged were learned. Wiechmann also stated that +Mrs. Surratt sent him to Booth with a message that she wanted to see +him on private business, and that Booth replied that he would come that +evening or as soon as he could, and that he did come that evening. + +On the Tuesday previous to the assassination, Mrs. Surratt requested +Wiechmann to drive her down to Surrattsville, saying that she wanted to +see a Mr. Nothey who owed her some money. Upon his consenting to do so, +she sent him to the National Hotel to see Booth, and request the use of +his horse and buggy for the occasion. Booth said he had sold his horse +and buggy, but handed to Wiechmann ten dollars with which to procure +one. Wiechmann got a conveyance and drove Mrs. Surratt to Surrattsville +and back. As they were on their way down, they met Lloyd, to whom Mrs. +Surratt had rented her farm and tavern at Surrattsville. Mrs. Surratt +requested Wiechmann to stop; and Lloyd, stopping at the same time, got +out of his buggy and came close to Mrs. Surratt, who conversed with +him in so low a tone that Wiechmann did not hear what was said, but +Lloyd testified before the Commission that she told him to "have those +shooting-irons where they would be convenient, as they would be wanted +before long." The "shooting-irons" referred to were two carbines, +which, with ammunition, a monkey-wrench, and a piece of rope, had been +left with Lloyd by John H. Surratt, Herold, and Atzerodt about three +weeks before, with the request that he should keep them hid, Surratt at +the same time showing him a safe place to secrete them. On the Friday +of the assassination, Mrs. Surratt requested Wiechmann to drive her +down to Surrattsville, alleging that she was going to see Mr. Nothey +again on the same business as before. She gave Wiechmann money to +procure a conveyance and he drove her down. Booth was with her in the +parlor when he returned with the conveyance, and when Mrs. Surratt was +about getting into the buggy, she requested Wiechmann to wait until +she went and got Mr. Booth's things. She went back into the parlor and +returned with a field-glass, which she delivered to Lloyd. They reached +Surrattsville about four o'clock. Mrs. Surratt then had Wiechmann sit +down and write a note to Mr. Nothey at her dictation, which she sent +to him by a Mr. Bennett Gwin. Lloyd had gone to Marlboro to court, and +Mrs. Surratt awaited his return which was not until about half-past +six o'clock. When Lloyd returned, he drove around into the back yard +to unload some fish and oysters which he had purchased, and Mrs. +Surratt, who had been waiting and watching for his return, seized this +opportunity to see him privately, when she told him, as Lloyd testified +before the Commission, to have the carbines ready, as they would be +called for that night, and also two bottles of whiskey. Then going with +him into the house, she gave him the field-glass. + +She was now ready to return, and expressed anxiety to Wiechmann to +reach home before nine o'clock, saying that she had an engagement for +that hour. She reached her home just before nine, and a few moments +later Wiechmann, from his place at the table in the dining-room below, +heard the door-bell ring, and some one enter the parlor. The interview +was very short--just long enough for Mrs. Surratt to say that all was +right--when Wiechmann heard retreating footsteps, but did not know who +the visitor was. In view, however, of all the foregoing, we cannot +resist the conclusion that Booth was the person, and that this was +their last interview. Mrs. Surratt was able to produce the letter of +Mr. Calvert which she claimed required her to go to Surrattsville that +day to see Mr. Nothey, but she had no appointment to meet him there, +did not see him, and could just as well have written to him from her +home in Washington. This excuse for her visit was a mere fabrication. +Her real business was with Lloyd, and she was not ready to return +until after she had an interview with him, and delivered her message +from Booth, and the field-glass which he had given her. It is evident +that her show of private business was gotten up as a cover to her real +errand. + +Again, Payne had visited the Surratt house on several occasions. The +first time he came he called for John H. Surratt, and on being told by +Wiechmann that John was not at home, he requested to see Mrs. Surratt. +He passed this time under the alias of Wood, and was received by Mrs. +Surratt, and kept over night, when he departed for Baltimore. About +three weeks later, say about the 20th of March (as his first visit was +about the 1st of March), he made his second visit, passing under the +name of Payne, and remained three days. It was during this visit that +the episode already referred to as having in all probability been an +attempt to murder the President on his visit to the Soldier's Home, +occurred, and from which Surratt, Booth, and Payne returned under such +excitement and evident disappointment. + +[Illustration: LEWIS PAYNE.] + +To such members of the family as had not been initiated into the plot, +this man of many aliases--Wood, Payne, and Powell--passed as a Baptist +preacher. He said that he had taken the oath whilst in Baltimore, and +intended henceforth to be a good, loyal man. When this man came to the +house of Mrs. Surratt on the night of the 17th of April, as heretofore +related, and was placed under arrest, Mrs. Surratt, who had also upon +a knowledge of the facts just recited been arrested a few minutes +before, when she was called into the hall and confronted with Payne, +having heard his story as to why he had come and what he had come for, +holding up her hands exclaimed, "Before God, I do not know this man, +and never saw him before." He had been a guest at her table for three +days only a few days previous to this, and was a man of such a marked +personality that having seen him once it would have been impossible to +have failed to recognize him on seeing him again, even though he might +have been partially disguised. With a woman's intuitive perception, she +saw the compromising effect that his visit at that time of night, and +under such circumstances, was calculated to have on her own case, and +so felt the necessity of this solemn disavowal of any knowledge of him. +Before the government felt justified in arresting this woman, only, +indeed, two or three hours after the assassination, it being known that +Booth was the assassin, and that he and John H. Surratt were intimate +friends, the detectives went to the house of Mrs. Surratt to see whom +they could find there. When they rang the bell Wiechmann, who occupied +an upstairs room, opened the window and inquired what they wanted. Upon +their demanding admittance, stating that they had been sent to that +house to see whom they could find in it, Wiechmann went and rapped at +Mrs. Surratt's door, informing her who it was that demanded admittance, +and asking her if he should let them in, when she replied, "Yes, let +them in; I have been expecting them." Now, why should Mrs. Surratt at +that hour, about three o'clock on the morning of the 15th, and only +three or four hours after the assassination, have been expecting a +visit from the detectives? A guilty conscience is its own accuser. + +As Wiechmann and Lloyd were the principal witnesses against Mrs. +Surratt, and their evidence so conclusively established her guilt, +her counsel made an effort to discredit their testimony, but utterly +failed to do so. Wiechmann was a young man who established a good +character for veracity and general moral deportment by witnesses who +had been intimately associated with him for months in General Hoffman's +department. His manner was that of a man who was deeply affected by the +fact that he found himself in a situation in which his duty to his God +and his country required him to state facts that had been thrust upon +him, and that were now found to be so damaging to those with whom he +had been associating and whom he had regarded as friends. The attempt +made by counsel for the defense in their arguments to break the force +of his testimony by throwing out the unfounded insinuation that he +probably knew of the existence of the conspiracy, was done for the +purpose of engendering a doubt of the simple truth of his utterances +which were corroborated by other testimony than his own, and of which +he could have had no previous knowledge. Wiechmann's testimony, taking +into consideration the lies told to him and the deceptions practiced +upon him for nearly four months, is in itself absolute proof of his +integrity and of his innocence. In the words of Judge Bingham in +all that dread issue, "There was not a breath of suspicion found +against his character, nor was a single fact to which he testified +contradicted. The defense tried to kill him off with lies and +insinuations, but they could not and did not do it." Wiechmann admitted +that he had been puzzled to account for some of these occurrences. He +could not understand why such persons as Payne and Atzerodt should be +received and enjoy the privileges accorded to them by Mrs. Surratt +and her son; but particularly he had had his suspicions aroused by +the conduct of Surratt, Payne, and Booth upon their return from their +ride as heretofore recited. He had related this occurrence to Captain +Gleason, an officer with whom he was associated in his daily work. He +referred to a report or rumor, which had found its way into the papers, +of a plot to capture the President, and asked the Captain if he thought +it could be possible that this could have been the object of their +expedition. Wiechmann's character and actions in the matter could not +be discredited by insinuations that had no evidence to rest on for +their support. + +Lloyd had rented Mrs. Surratt's farm and tavern at Surrattsville, +and so was her tenant. He was a man of intemperate habits, and there +was, I think, taking all things into consideration, strong reason to +conclude that he had been entrusted with the secret of the plot; but +of this there was no direct proof, and much less of his having been +any further a party to the conspiracy. Even admitting that he had this +guilty knowledge, it does not disqualify him for telling the truth +as to what occurred at the private interviews referred to between +himself and Mrs. Surratt, and that these private interviews did take +place under the circumstances already related we have the positive +testimony of Wiechmann. Lloyd's testimony was drawn out of him by +questions suggested by what Wiechmann had previously stated before the +Commission. The defense failed entirely to prove that he was a man not +to be believed upon his oath. + +They endeavored to break the force of the testimony of Major Smith in +regard to Mrs. Surratt solemnly disclaiming any knowledge of Payne by +claiming that her eyesight was very defective, but failed to establish +any evidence of infirmity of sight beyond what was common to a person +of her age of forty-five years. + +The evidence of Major Smith was that the hall was well lighted when she +was confronted with Payne, and her haste to disavow any knowledge of +him with such unnecessary solemnity was itself evidence of guilt. Her +eminent volunteer counsel, Hon. Reverdy Johnson, at that time a United +States senator from Maryland, did not attempt to assail the testimony +against her or to make any reference whatever to her case; but confined +himself to an argument against the constitutionality of her trial by +a military commission and against the jurisdiction of the court. In +view of all the facts above narrated, all of which were proven by the +witnesses brought before the Commission by the government, the author +thinks it would be impossible for any candid mind to escape from the +conclusion that Mrs. Surratt was fully informed of the purposes of +Booth and her son, and gave to them her hearty approval and earnest +co-operation. We have now presented in narrative form the evidence on +which Mrs. Surratt was found guilty and sentenced by the Commission +to be hung. Her case was evidently one of those deplorable cases, of +which the rebellion furnished so many examples, of a woman so entirely +under the influence of disloyalty to her government and so desirous +of its overthrow, that she was ready to resort to any means whatever +to accomplish that purpose, and so entered heart and soul into the +schemes of Booth and her son, hoping thereby to serve the cause of the +confederacy. + + +_Arrest of Atzerodt._ + +George A. Atzerodt had undertaken for his part the assassination of +Vice-President Johnson. He was found to have been a frequent visitor at +the Surratt house, and a boon companion of Payne, Surratt, and Booth. +It was found that he had taken a room at the Kirkwood House where the +Vice-President was stopping at the time. He had been assigned to room +number 126, on the next floor above that on which was the room occupied +by the Vice-President. He had been stopping at the Pennsylvania House +from the 27th of March until the 12th of April, and took this room +at the Kirkwood House on the morning of the 14th of April, paying in +advance for one day. On the 12th of April he visited this house, and +meeting Col. W. R. Nevins in the passage leading to the dining-room, he +asked him if he knew where Vice-President Johnson was. Nevins showed +him the Vice-President's room, but remarked, "He is now at dinner," +pointing him out to Atzerodt as he sat at the table. Atzerodt did not +enter the dining-room, but simply looked in at the Vice-President. It +was ascertained that Atzerodt had not occupied his room on the night +of the 14th, and when the detectives who were on his track came to +the Kirkwood House on the afternoon of the 15th, it was found locked, +and the door had to be forced. Mr. Lee, the officer in pursuit of +him, found in his room, upon gaining admission, a black coat hanging +against the wall; underneath the pillow or bolster a revolver loaded +and capped, and between the sheets and mattress a large bowie-knife. +In the pockets of the coat were found a handkerchief marked "Mary R. +Booth," another marked "F. M.," or "F. A. Nelson," and another marked +"H," in one corner; also a bank-book of J. Wilkes Booth, showing a +credit of four hundred and fifty-five dollars with the Ontario Bank of +Montreal, and a map of Virginia. On the corner of the bank-book was +written "J. W. Booth, 53." On the inside of the book, "Mr. J. Wilkes +Booth, in account with the Ontario Bank of Montreal, Canada, 1864, +October 27; by deposit Cr. $455." This coat evidently belonged to +Booth, and its being thus found in Atzerodt's room showed that Booth +had visited him there during the day; and that he had spent some time +with him schooling him in his part was shown by the fact that he had +taken off his light overcoat and hung it up against the wall, and had +evidently become so much absorbed in mind with the purpose of his visit +that he forgot to take his coat when he left. The revolver loaded and +capped, and the huge bowie-knife hidden in the bed, serve to explain +the nature of the interview between Booth and Atzerodt, and the purpose +of death to the Vice-President on the part of the former, and in which +purpose at that time Atzerodt no doubt fully concurred. During the +stay of Atzerodt at the Pennsylvania House he was frequently called on +by Booth, and they were at pains always to hold their interviews in +private. + +Atzerodt's whereabouts from the 12th to the 14th of April are not +accounted for. On the 14th, after having taken his room at the +Kirkwood, we next find him at a livery-stable on Eighth and E streets, +where he procured a bay mare, paying five dollars for her hire for the +afternoon. He took her to Naylor's stable and had her put up. Here he +was accompanied by Herold. It was about one o'clock P.M. when +he had his mare put up. He left and did not return until about seven +P.M. On his return he ordered his mare to be saddled, and +requested that she should be left standing with the saddle and bridle +on until ten o'clock, when he would call for her. He returned at ten, +got his mare, and left. He returned the mare to the stable on Eighth +and E streets shortly after the assassination of the President, at +about eleven o'clock. + +After returning the mare, he boarded a navy-yard car at Sixth Street, +and rode down as far as the navy-yard. Finding a man by the name of +Briscoe on the car, with whom he was acquainted, he asked him to let +him sleep with him in his store. Being refused, he urged his request, +and seemed excited. Briscoe asked him if he had heard the news. He +replied that he had. + +Not getting permission to lodge with Briscoe, he said he would return +to the Pennsylvania House, which he did, arriving there on horseback +about twelve M. or one o'clock A.M. He asked the colored boy in waiting +at the house to hold his horse whilst he went into the bar. He then +mounted his horse and left, returning again at about two o'clock on +foot, in company with another man. They paid for their lodging and +retired. Atzerodt, on being requested by the clerk to register before +retiring to his room, hesitated, and did it with manifest reluctance. +These parties arose very early on the morning of the 15th, and left. +At about eight o'clock on the morning of the 15th, we find Atzerodt in +Georgetown trying to sell his watch to a man with whom he was somewhat +acquainted; but not being able to do so, he pawned his pistol for ten +dollars, saying he was going to the country and would come, or send, +and redeem it the next week. He was followed and arrested in Montgomery +County, Maryland, on the 20th of April. + +He ate his dinner on the 16th at the house of Mr Hezekiah Metz. There +were two or three other persons at the table with him, and all were +anxious to hear the news from Washington. He was asked whether it was +true, as had been reported in that neighborhood, that General Grant +had been killed. Atzerodt, according to the testimony of Metz, replied +that "if the man who was to follow him had done so it was likely to +be true." There was some conflict of statement, however, between Metz +and the other two parties who were at the table, and who were used as +witnesses for the defense. These thought he said if it were so, it was +likely to have been done by some one who got on the train with him. +There are good reasons, however, for concluding that Metz gave his real +answer. + +Atzerodt was known in that neighborhood as Andrew Atwood. From Metz's +he went to the house of his cousin, Hartman Richter, near the little +village of Germantown, and remained there until he was arrested by +Sergeant L. W. Grimmell on the night of the 20th. Richter denied that +there was anybody in his house when inquired of by the Sergeant. +When told by the Sergeant that he would have to search the house, he +admitted that his cousin was upstairs in bed. His wife then spoke up, +saying, "there were three men there for that matter." Atzerodt was +brought to Washington and held as a prisoner for trial, as a party to +the conspiracy. There is no doubt from the evidence presented, that +he was not only a party to the conspiracy, but also that Booth had +arranged with him and relied on him to assassinate the Vice-President. +For this purpose he had removed him from the Pennsylvania to the +Kirkwood House, where the Vice-President had rooms, and was boarding. +This change had been made on the morning of the 14th, and Booth +had been there during the day to see that all things were properly +arranged. Atzerodt's revolver was found hidden away in his bed, loaded, +capped, and ready for use. His bowie-knife also was found secreted in +his bed; and yet there is no evidence that he was in his room, or even +in the house during the evening or night. In his defense his counsel +set up the plea, and proved it, that he was incapable of committing +such a crime, being constitutionally a coward. He was a low-browed, +vulgar vagabond, fond of whiskey, tobacco, and vicious company; a +cowardly braggart, covering up his cowardice by a great pretense of +bravery when the battle was not on; low enough in moral tone to do any +wicked thing, but without physical courage to face the danger connected +with what he had engaged to do. Booth had mistaken his man; but being a +member of the conspiracy, he was equally guilty with Booth. + + +_Arrest of Spangler._ + +On the strength of the facts incidentally presented in the foregoing +narrative, Edward Spangler was taken into military custody, and held +as a prisoner for trial. The capture of Herold has already been given. +All of these prisoners were held in military custody, and under such +precautions as would have rendered any attempt at rescue or escape the +height of folly. + +In Booth's trunk a letter was found from Samuel Arnold to Booth, +dated at Hookstown, Md., March 27th, 1865. This letter was signed +simply "Sam," but was proved to be in Arnold's handwriting, and led +not only to his own arrest, but also to that of his friend and fellow +conspirator, Michael O'Laughlin. Arnold had evidently fallen into a +hesitating frame of mind. I feel that I cannot do better than to give +this letter entire. It is as follows:-- + + HOOKSTOWN, BALTIMORE CO., March 27, 1865. + + DEAR JOHN:--Was business so important that you could + not remain in Baltimore until I saw you? I came in as soon as I + could, but found you had gone to Washington. I called also on + Mike, but learned from his mother that he had gone out with you + and had not returned. I concluded, therefore, that he had gone + with you. How inconsiderate you have been! When I left you, + you stated you would not meet me in a month or so. Therefore, + I made application for employment, an answer to which I shall + receive during the week. I told my parents I had ceased with + you. Can I, then, under existing circumstances, come as you + request? You know full well that the government suspicions + something is going on there; therefore the undertaking is + becoming more complicated. Why not, for the present, desist, + for various reasons which, if you look into, you can readily + see, without my making any mention thereof. You, nor any + one, can censure me for my present course. You have been its + cause, for how can I come now after telling them I had left + you? Suspicion rests upon me now from my whole family and even + parties in the country. I will be compelled to leave home any + how, and how soon I care not. None, no, not one, were more + in favor of the enterprise than myself, and to-day would be + there had you not done as you have: by this I mean, manner + of proceeding. I am, as you well know, in need. I am, as you + may say, in rags; whereas to-day I ought to be well clothed. + I do not feel right stalking about with means, and more from + appearances a beggar. I feel my dependence: but even all this + would be and was forgotten, for I was one with you. Time more + propitious will arrive yet. Do not act rashly or in haste. I + prefer your first query: go and see how it will be taken at + R----d, and e'er long I shall be better prepared to again be + with you. I dislike writing,--would sooner verbally make known + my views,--yet your non-writing causes me thus to proceed. Do + not in anger peruse this. Weigh all I have said, and, as a + rational man and a friend, you cannot censure or upbraid my + conduct. I sincerely trust this, or aught else that shall or + may occur, will never be an obstacle to obliterate our former + friendship and attachment. Write me to Baltimore, as I expect + to be in about Wednesday or Thursday, or, if you can possibly + come on, I will Tuesday meet you in Baltimore at B----. Ever I + subscribe myself, + + Your friend, + SAM. + +Arnold got employment at Fortress Monroe, and was there at the time +of the assassination; but the finding of the above letter in Booth's +trunk, as also other evidence constantly turning up in the course of +the investigations being made, identifying him with the conspiracy, +led to his arrest on the 17th of April at Fortress Monroe. Arnold, +when arrested, made a partial confession, relating the circumstances +of a meeting of some of the conspirators held at the Lichau House in +Washington about three weeks previous to his going to Fortress Monroe. + +[Illustration: SAMUEL ARNOLD.] + +This meeting must have occurred within two or three days after the +writing of the above letter, immediately before Surratt's visit to +Richmond, and was attended by Booth, Surratt, O'Laughlin, Atzerodt, +Arnold, a man with the alias of Moseby, and another whose name he could +not recollect. He denied that he had ever corresponded with Booth, but +on being informed of the letter found in Booth's trunk he admitted that +he wrote it. He also stated that Booth had letters of introduction to +Dr. Mudd and Dr. Queen, but said he did not know from whom Booth got +them. He claimed that an angry discussion took place at the meeting +referred to. He said he told Booth then that if the thing did not take +place that week he would withdraw. Booth got angry at that, and said +he ought to be shot for talking in that way. He said that he replied +to Booth that two could play at that game; and that he withdrew from +the conspiracy at that time, and occupied his position at Fortress +Monroe on the 1st of April. It is evident, I think, that as he began to +contemplate the hazards of the enterprise, its dangers began to be more +and more apparent to him. His heart failed him, and he was anxious for +an excuse to withdraw from it, but had not the courage to peremptorily +do so. This is the interpretation I put upon the above letter--of the +altercation between him and Booth, and of his going to Fortress Monroe. + +There is also apparent in the letter a shade of disappointment and +dissatisfaction in regard to pecuniary matters, implying that promised +reward had been withheld by Booth. Early in September, whilst at a +grain threshing, Arnold received a letter containing a fifty-dollar +bill. Reading the letter and showing it with the money to a companion, +he remarked that "he was flush." He handed the letter to his friend to +read, but he, after trying to read a few lines, and finding that he +could not understand it on account of its ambiguity, handed it back +to Arnold, asking him what it meant. Arnold replied that something +big would be seen in the papers one of these days. This was no doubt +a retainer's fee, or in other words, an advance payment from Booth. +The rather complaining tone of Arnold's letter, hinting at pecuniary +embarrassment, would seem to indicate that Booth's promises of +pecuniary reward had been large, whilst his fulfillment had been far +from satisfactory. + +This, amongst other considerations to be named, had evidently cooled +Arnold's ardor in the prosecution of the plot, and was the cause of his +disposition to withdraw from it. + +The probabilities are that his parents and friends suspecting that his +intimacy with Booth foreboded evil, and probably suspecting something +of his purpose, had so earnestly remonstrated with him as to cause +him to stagger or falter in his purpose, and made him anxious for an +excuse for breaking with Booth. He perhaps began to regard Booth's +plan as quixotic and impracticable, full of hazard, and not likely to +succeed. In fact, he stated that he so told Booth at this meeting. He +was evidently restive, and thought it had been put off too long to +effect the end contemplated. It does not appear to have been from any +awakening of his moral nature that he faltered, neither from cowardice +that he weakened; and so he failed to purge himself of complicity in +Booth's guilt. But there was sufficient evidence of his desire to +withdraw from any part in the execution of Booth's present purposes +to extenuate his guilt in a measure, at least, in the judgment of the +Commission. + + +_Arrest of O'Laughlin._ + +Arnold's letter to Booth on the 27th of March, which was found in +Booth's trunk, together with evidence gathered up on every hand as +the investigation proceeded, led to the arrest of Michael O'Laughlin +at the house of his brother-in-law, in Baltimore, on Monday, the 17th +of April, the same day on which Arnold was arrested. When arrested he +seemed to understand what it was for, not asking any questions about +it. He had gone to Washington on the 13th and remained until Saturday, +the 15th. On returning to Baltimore on Saturday night, he was met at +the depot by his brother-in-law, who told him that he had been inquired +for by detectives that evening. Being advised by the friend who had +accompanied him to Washington and back to remain at his home, he said +he would not be arrested at home, as it would kill his mother. Why was +he expecting to be arrested? A man innocent of crime never fears or +expects arrest. He went to the house of his brother-in-law and quietly +awaited the issue. He even requested his brother-in-law to inform the +officer of his whereabouts, thus seeming to court arrest. + +He had carefully thought the thing over, and concluded that the +government would not be able to fix guilt upon him, and so he thought +to have the benefit of a seeming willingness to be arrested, as +presumptive proof of his innocence. He had gone to Washington on +the 13th with three companions, ostensibly to see the parade and +illumination in commemoration of the surrender of Lee's army, and to +"have a good time," as his companions expressed it in their evidence in +his behalf on his defense. + +He kept with these companions in the rounds of their drunken carousal +and debaucheries enough to blind them as to the real object of his +visit. They were drinking freely during the Thursday and Friday of +their stay, and were evidently unable to give a connected and reliable +account of O'Laughlin's whereabouts during the whole of the time. They +thought he spent most of the time in company with one or the other of +them; but they admitted that he had had a long interview with Booth at +his room at the National Hotel on Friday, the 14th. It was positively +proven, however, that he was at the house of Secretary Stanton on the +occasion of the reception given to General Grant on the night of the +13th; that he seemed to be in a state of partial intoxication, and +pushed himself through the crowd into the hall inquiring for General +Grant, saying he wanted to see him. He was told by the Secretary's son +that that was no occasion for him to see him, and to step out onto the +pavement where the carriage stopped, and he could see him. He stood +for some time in the hall looking in through the door at the General. +He also said he wanted to see Stanton, and being asked if it was the +Secretary he wished to see, he said it was. The Secretary was pointed +out to him, but he did not go to him. His manner was so impertinently +obtrusive and rude that he was finally requested to leave, and was +escorted out of the house by the son of the Secretary. Mr. Stanton +at first thought him to be intoxicated, but upon conversing with him +concluded he was not. It would appear from all this that the part +Booth had assigned to him was the assassination of General Grant, and +that his visit to the house of the Secretary was for the purpose of +so acquainting himself with the form and features of the General as +to be able readily to identify him. Had not the General been called +away on that Friday afternoon,--had he accompanied the President to +the theatre, as he had intended doing,--there is scarcely a doubt +that "Peanuts" would have had two horses to hold, or that some other +arrangements would have been made for General Grant's assassination +that would have made O'Laughlin a companion of Booth in his flight. + +We have now seen the development of Booth's plot, and its partial +success, but, as to the real object of it, its entire failure. The +thing proposed by the head conspirators, whose agents we have been +following up in their efforts for its accomplishment, failed of its +realization. They had hoped by the policy of assassination to put the +rapidly waning cause of the confederacy on its feet again under new and +more favorable auspices. + +The cause, at the time of this attempt to thus give it aid, was already +lost on the field of military conflict beyond hope of recovery. The +whole people, North and South, saw that the war was at an end; that the +brief day of the so-called Southern Confederacy was over--that its sun +had set; and great as must have been the disappointment of those who +had so fruitlessly plunged the country into the greatest civil war that +history records, they were quite content to accept and make the best of +their failure. + +Both parties were glad that the contest had been decided, and of the +opportunity to lay down their arms, and return to the pursuits of +peaceful life. Had not Booth kept himself as full of whiskey as he was +of his fiendish purpose, had he given himself an opportunity to scan +the situation in a duly sober frame of mind, we think it even more than +probable he would have abandoned the whole project as useless. But both +he and his associates were free and constant drinkers, and by their +frequent visits to saloons, as shown by the whole run of the testimony +before the Commission, it would seem probable that they scarcely ever +drew an absolutely sober breath, and so could not realize the true +situation of the cause they sought to serve. + +[Illustration: MICHAEL O'LAUGHLIN.] + +The Canada conspirators are in like manner, according to all the +testimony, shown to have been free drinkers. All of their diabolical +schemes were most probably the products of minds acting under the +influence of alcoholic stimulants, and this may in some degree account +for the obtundity of their moral perceptions. It has been said by one +who was personally cognizant of the fact, that alcohol precipitated +the rebellion, and that its leaders in both branches of Congress kept +themselves constantly under the excitement of alcoholic stimulants and +so were made reckless of consequences. + + +_Arrest of Dr. Samuel A. Mudd._ + +It will be remembered that in giving the history of Booth's flight, +we found him and Herold at the house of Dr. S. A. Mudd, at about four +o'clock on the morning of the 15th of April, they having ridden thirty +miles in about six hours after leaving Washington. They would no doubt +have stopped at Mudd's, even had Booth not needed his services as a +surgeon, for a short respite and refreshment, as the doctor was, as +we shall hereafter see, a co-conspirator with Booth. Booth's broken +leg had by this time become very painful, and this made it necessary +that he should stop to have it dressed. Mudd dressed his leg, as he +himself said, as well as he could with the means at his command, and +giving them refreshments, he placed Booth in a chamber upstairs where +he remained until about three o'clock in the afternoon. Mudd and Herold +went out, as Mudd said, to find a carriage in which to take Booth on +his journey; but it is more likely Mudd was showing Herold a by-way +toward the Potomac, at the point where they expected to cross, whilst +Booth was resting. + +About one o'clock on that afternoon, Lieutenant Dana, with a squad of +cavalry, passed down toward Bryantown in pursuit of Booth, and as there +was no doubt a sharp look-out kept from the house of Dr. Mudd, which +stood about a quarter of a mile from, and in full view of, the road, +they were by this admonished of their danger and resumed their flight +as soon as they could after the soldiers passed. Thus Mudd got them off +of his hands, and started them on their way to his friend, Samuel Cox. +On Tuesday, the 18th of April, Mudd was first interviewed, and then +denied that there had been any body at his house on the 15th; but upon +being pressed with questions, he finally said that two strangers had +come to his house about four o'clock on Saturday morning on horseback, +one of them having a broken leg, and that he had taken them in, dressed +the leg, and had a crutch made for the man, and that they had left +after breakfast, telling in what direction they had gone, but giving a +false cue. He denied knowing either of them, and said they were entire +strangers to him, going on to give a minute description of the men and +their horses as though desirous of giving all the information he could, +but with an appearance and manner that created distrust. Being asked +if he knew Booth, he said he had been introduced to him at church in +the fall before, but had no other acquaintance with him. Being asked +if the man whose leg he had dressed was not Booth, he said he was not. +When told by the officer that he would have to search the house, his +wife went upstairs and brought down a boot that Mudd had removed from +Booth's foot by ripping it down in front, and it was seen that on the +inside of the boot leg, near the top, was written, "J. Wilkes," and +also the maker's name. Mudd was interviewed two or three times before +his arrest, and prevaricated every time so much that he frequently +contradicted himself. It was noticed that he was never at home when +called for, but was not far off, as he always made his appearance in +a short time when sent for by his wife. He was finally placed under +arrest; and upon the photograph of Booth being shown to him, and being +asked if that looked like Booth, he said he thought not, but finally +concluded there was some resemblance to Booth across the eyes. He was +taken to Washington and held as a prisoner. Mudd was a physician, +living on a farm. He had had a considerable number of slaves at the +breaking out of the rebellion, most of whom had left him during the +previous winter. His father also, living in the neighborhood, was a +large land and slave holder, and Mudd's disloyalty was no doubt of the +rabid type. His home was a place of resort for returned rebel soldiers +and recruiting parties, and he had a place of concealment in the pines +near his house, where they were sheltered and cared for, the doctor +sending their food to them by his slaves; and if, at any time, any of +these parties ventured to his house to take their meals, a slave was +always placed on watch to give notice of the approach of any one. + +The letter of introduction to Dr. Mudd which Booth had, as related +by Arnold, had no doubt been presented in the fall, at the time Mudd +admitted having been introduced to him at church; and from that time +their intimacy commenced. This was in November, 1864. + +About the 23d of December, 1864, Mudd visited Booth in Washington, and +introduced him to John H. Surratt, under the following circumstances: +Wiechmann and Surratt were on the street together, when Wiechmann +heard some one call, "Surratt! Surratt!" and turning round, they were +met by Dr. Mudd and Booth. Mudd introduced Booth to Surratt, and then +Surratt introduced both of them to Wiechmann. They went, by invitation +of Booth, to the National Hotel, where Booth had a room, and were +served by him with wine and cigars. Mudd went out into a passage and +called Booth. They remained out of the room for a short time, and +conversed in a low tone of voice. Upon their return to the room Booth +called Surratt, and the three went out again into the passage, and +were engaged for some time in a private conference. Upon their return, +Mudd made an explanation, by way of apology, to Wiechmann, saying that +Booth wanted to buy his farm, but he did not care to sell. Booth also +apologized, giving the same excuse. The three then took seats around +a table, when Booth took an envelope from his pocket, and upon this, +with his pencil, commenced drawing lines, as if marking roads. Whilst +engaged in doing this the three were conversing in so low a tone that +Wiechmann could not hear what was said. + +Mudd made one or two other visits to Washington during the winter, and +his business seemed always to be with Booth and Surratt. At least, he +was always found in their company. + +According to one of Mudd's various statements, Booth and Herold left +his house between three and four o'clock in the afternoon. It will be +noted that he at first denied their having been there at all. Then +he admitted that two strangers had been there on Saturday morning; +that he had dressed a broken leg for one of them, and had a crutch +made for him, and they left after breakfast. That they remained until +after Dana and his party passed down to Bryantown, there is no doubt; +and that they left as soon as possible, assisted by Mudd, after the +soldiers passed, as we have heretofore seen. Mudd, after his conviction +and sentence, whilst being conveyed to the Dry Tortugas, admitted, +voluntarily, to Captain Dutton that he knew Booth when he came to his +house on the morning of the 15th of April; and also that he went to +Washington in December by appointment with Booth, to introduce him to +Surratt. He might just as well have admitted his complicity in the +conspiracy. Mudd's expression of countenance was that of a hypocrite. +He had the bump of secretiveness largely developed; and it would +have taken months of favorable acquaintanceship to have removed the +unfavorable impression made by the first scanning of the man. He had +the appearance of a natural born liar and deceiver. + +We have now Mrs. Mary E. Surratt, Edward Spangler, Lewis Payne, David +E. Herold, Samuel Arnold, Michael O'Laughlin, George A. Atzerodt, and +Dr. Samuel Mudd under arrest and held for trial by the government under +the charge of being co-conspirators with John H. Surratt, Booth, and +others yet to be named, and still others unknown and who never will be +known. The evidence yet to be adduced makes it clear that there were +quite a number of these conspirators in Washington at the time of the +assassination who were never discovered, encouraging by their presence, +and aiding and abetting, Booth and his associates. + +There are good reasons for believing that the purpose of Booth and his +fellow-conspirators was known to many, both in Canada and the United +States, who were interested in the destruction of our government. It +may yet happen that a sufficient amount of evidence may be found to +justify this, or some other writer, in making explicit charges that are +for the present withheld. + +[Illustration: GEORGE E. ATZERODT.] + +In regard to the persons above named who were put upon their trial, +the writer will only say that, in giving an account of the grounds of +arrest in each case, he has stated the facts proven by unimpeached +witnesses before the Commission, whose testimony governed the decisions +of the court in their respective cases, and that his statements of the +facts in evidence will be found to be fully vindicated by a critical +examination and study of the testimony as given by Pittman in his +official report of the trial. He feels sure that no one, with that +report before him, can impeach the account he has given of the parts +acted by each one of the prisoners named in this great tragedy; and +upon these facts must rest the judgment of mankind, as did the judgment +of the court. + + + + +CHAPTER VII. + +QUESTIONS PRELIMINARY TO THE TRIAL + + +_What Sort of Trial should be given, Civil or Military?_ + +The first question that presented itself to the government in regard to +these prisoners was, as to what kind of a trial should be given them, +whether civil or military? The civil courts were open in the District +of Columbia at the time, and had been all through the war. There was +no question that a form of trial could be had in the civil courts; but +there was at the same time as little question that, under existing +circumstances, such a trial would only result in a miscarriage of +justice. The great crime had been committed during the existence of a +state of war, and the courts were only able to carry on their functions +under the protection of the arms of the government. + +This ægis being withdrawn, the administration of justice through the +civil courts would have been an impossibility, even in the capital +of the nation; and with this protection it was equally impossible +to secure the demands of justice through the civil courts in cases +involving the issues of the war, as a jury of partisans could not be +expected to decide impartially if all belonged to one party, and if +divided on party lines, they could not be expected to decide at all. +The latter alternative was the only one on which a jury could have been +impaneled, under the rules of law, at that time, in the District of +Columbia. Outside of the soldiery there were as many enemies as friends +of the government in the population of the district, to say the least, +and many of these enemies were passing under the guise of friends. In +this state of things it was obvious that it would be futile to send +these prisoners before a civil tribunal for trial. The government +had evidence that a great conspiracy existed, the purpose of which +was to aid the rebel cause by a series of assassinations, and that +what had happened was in pursuance of that plan, but only its partial +accomplishment. The extent of this conspiracy had not been fully +revealed, but its spirit and purpose were known, and both wisdom and +good policy required that it should be met with the utmost promptitude +and suppressed with no faltering hand. These persons had been arrested +by the military police, and were held as prisoners in military custody. +They were held not as prisoners of war, but as _secret active enemies_ +of the government, guilty of a crime the purpose of which was to aid +the rebellion, and this being their purpose, it took them out of the +realm of _civil_, into the realm of _martial_, law. Their crime was +regarded as an act of war, inasmuch as its purpose was to aid the +existing armed rebellion. The means by which they thus sought to give +it aid were morally reprehensible, and such as had long been rejected +by the enlightened sentiment of the civilized and Christian nations +of the earth. The crime was a blow at the life of the nation, in the +person of its chosen head, and was committed in the nation's capital, +and within the intrenched lines and fortifications thereof; and so it +was decided that the prisoners were properly subject to a trial by a +military commission. + +President Lincoln's order of September 25th, 1862, had not been +rescinded and was still in force, and under this order the prisoners +were, from the purpose of their crime, subject to a military +trial. They could not, under the articles of war, be sent before a +court-martial for trial, but could, _under martial law, which is only +the common law in a state of war_, be tried by a military commission. + +The chief conspirators, on whom rested the responsibility of the plot, +were still at large, and in an attitude of desperate hostility towards +the government. The extent of their plans, and the means at their +command for their execution, could not be known, and so it was a matter +of the utmost importance to deal with the prisoners in the most summary +manner consistent with the ends of justice. The President requested +the attorney general, Hon. James A. Speed, a Kentuckian by birth, to +give his official opinion as to whether these persons implicated in +this crime could be tried before a military tribunal, or must be tried +before a civil court. As the reply of the Attorney General furnishes +an exhaustive discussion of the different conditions existing under a +state of peace and a state of war, and shows that whilst in a state of +peace the Constitution throws its shield of protection over the life, +liberty, and property of the citizen, even the humblest, its provisions +cannot afford protection to these in a state of war, and that martial +law, or the common law of war comes in in the place of the Constitution +to ameliorate as much as possible the miseries of war, and secure, as +far as possible, the ends of justice and mercy; and as it constitutes +a most important and interesting document worthy of the careful study +of every young man who desires to become well informed on the most +important questions of our national life, I shall give it a place +entire, and commend it to careful perusal and study. + + +_Opinion of the Attorney General._ + + The President was assassinated at a theatre in the city + of Washington. At the time of the assassination a civil + war was flagrant,--the city of Washington was defended by + fortifications regularly and constantly manned, the principal + police of the city was by federal soldiers, the public offices + and property in the city were all guarded by soldiers, and the + President's house and person were, or should have been, under + the guard of soldiers. Martial law had been declared in the + District of Columbia, but the civil courts were open and held + their regular sessions, and transacted business as in times + of peace. Such being the facts, the question is one of great + importance,--important because it involves the constitutional + guarantees thrown about the rights of the citizen, and because + the security of the army and government in time of war is + involved; important, as it involves a seeming conflict between + the laws of peace and war. Having given the question propounded + the patient and earnest consideration its magnitude and + importance require, I will proceed to give the reasons why I am + of the opinion that the conspirators not only may but ought to + be tried by a military tribunal. A civil court of the United + States is created by a law of Congress, under and according + to the Constitution. To the Constitution and the law we must + look to ascertain how the court is constituted, the limits of + its jurisdiction, and what its mode of procedure. A military + tribunal exists under and according to the Constitution in + time of war. Congress may prescribe how all such tribunals are + to be constituted, what shall be their jurisdiction and mode + of procedure. Should Congress fail to create such tribunals, + then, under the Constitution, they must be constituted + according to the laws and usages of civilized warfare. They may + take cognizance of such offences as the laws of war permit; + they must proceed according to the customary usages of such + tribunals in time of war, and inflict such punishments as are + sanctioned by the practice of civilized nations in time of war. + In time of peace, neither Congress nor the military can create + any military tribunals, except such as are made in pursuance + of that clause of the Constitution which gives to Congress the + power "to make rules for the government of the land and naval + forces." I do not think that Congress can, in time of war or + peace, under this clause of the Constitution, create military + tribunals for the adjudication of offenses committed by persons + not engaged in, or belonging to, such forces. + + This is a proposition too plain for argument. But it does not + follow that because such military tribunals cannot be created + by Congress under this clause that they cannot be created at + all. Is there no other power conferred by the Constitution + upon Congress or the military under which such tribunals may + be created in time of war? That the law of nations constitutes + a part of the law of the land must be admitted. The laws of + nations are expressly made laws of the land by the Constitution + when it says that "Congress shall have power to define and + punish piracies and felonies committed on the high seas, and + offences against the law of nations." To define is to give the + limits or precise meaning of a word or thing in being; to make + is to call into being. Congress has power to define, not to + make, the laws of nations; but Congress has power to make rules + for the government of the army and navy. From the very face of + the Constitution, then, it is evident that the laws of nations + do constitute a part of the laws of the land. But very soon + after the organization of the federal government, Mr. Randolph, + then attorney general, said: "The law of nations, although not + specifically adopted by the Constitution, is essentially a + part of the law of the land. Its obligation commences and runs + with the existence of a nation, subject to some modifications + on points of indifference." The framers of the Constitution + knew that a nation could not maintain an honorable place among + the nations of the world that does not regard the great and + essential principles of the law of nations as a part of the law + of the land. Hence Congress may define those laws but cannot + abrogate them, or, as Mr. Randolph says, may "modify on some + points of indifference." + + That the laws of nations constitute a part of the laws of the + land, is established from the face of the Constitution upon + principle and by authority. But the laws of war constitute + much the greater part of the law of nations. Like the other + laws of nations, they exist and are of binding force upon the + departments and citizens of the government, though not defined + by any law of Congress. No one that has ever glanced at the + many treatises that have been published in different ages of + the world by great, good, and learned men, can fail to know + that the laws of war constitute a part of the law of nations, + and that those laws have been prescribed with tolerable + accuracy. Congress can declare war. When war is declared it + must be under the Constitution, carried on according to the + known usages and laws of war among civilized nations. Under the + power to define these laws, Congress cannot abrogate them, or + authorize their infraction. + + The Constitution does not permit this government to prosecute a + war as an uncivilized and barbarous people. As war is required + by the frame-work of our government to be prosecuted according + to the known usages of war among the civilized nations of the + earth, it is important to understand what are the obligations, + duties, and responsibilities imposed by war upon the military. + Congress, not having defined, as under the Constitution it + might have done, the laws of war, we must look to the usage + of nations to ascertain the powers conferred in war, on whom + the exercise of these powers devolve, over whom, and to what + extent do these powers reach, and in how far the citizen and + the soldier are bound by the legitimate use thereof. The power + conferred by war is, of course, adequate to the end to be + accomplished, and not greater than what is necessary to be + accomplished. The law of war, like every other code of laws, + declares what shall not be done, and does not say what may be + done. + + The legitimate use of the great power of war, or rather the + prohibitions upon the use of that power, increase or diminish + as the necessity of the case demands. When a city is besieged + and hard pressed the commander may exert an authority over the + non-combatants which he may not when no enemy is near. All wars + against a domestic enemy, or to repel invasions, are prosecuted + to preserve the government. If the invading force can be + overcome by the ordinary civil police of a country, it should + be done without bringing upon the country the terrible scourge + of war; if a commotion or insurrection can be put down by the + ordinary process of law, the military should not be called out. + A defensive foreign war is declared and carried on because the + civil police is inadequate to repel it; a civil war is waged + because the laws cannot be peacefully enforced by the ordinary + tribunals of the country through civil process and by civil + officers. Because of the utter inability to keep the peace and + maintain order by customary officers and agencies in time of + peace, armies are organized and put into the field. They are + called out and invested with the powers of war to prevent total + anarchy and to preserve the government. + + Peace is the normal condition of a country, and war abnormal, + neither being without law, but each having laws appropriate to + the condition of society. The maxim _enter arma silent leges_ + is never wholly true. The object of war is to bring society out + of its abnormal condition; and the laws of war aim to have that + done with the least possible injury to persons and property. + Anciently, when two nations were at war the conqueror had, or + asserted, the right to take from his enemy his life, liberty, + and property: if either was spared it was a favor, or act of + mercy. By the laws of nations, and of war as a part thereof, + the conqueror was deprived of this right. + + When two governments, foreign to each other, are at war, or + when a civil war becomes territorial, all of the people of + the respective belligerents become by the law of nations the + enemies of each other. As enemies they cannot hold intercourse, + but neither can kill or injure the other except under a + commission from their respective governments. So humanizing + have been, and are, the laws of war, that it is a high offense + against them to kill an enemy without such commission. The laws + of war demand that a man shall not take human life except under + a license from his government; and under the Constitution of + the United States no license can be given by any department of + the government to take human life in war, except according to + the law and usages of war. Soldiers regularly in the service + have the license of the government to deprive men, the active + enemies of their government, of their liberty and lives: their + commission so to act is as perfect and as legal as that of a + judge to adjudicate; but the soldier must act in obedience to + the laws of war, as the judge must in obedience to the civil + law. A civil judge must try criminals in the mode prescribed + in the Constitution and the law; so, soldiers must kill or + capture according to the laws of war. Non-combatants are not to + be disturbed or interfered with by the armies of either party + except in extreme cases. + + Armies are called out and organized to meet and overcome the + active acting public enemies. But enemies with which armies + have to deal are of two classes. 1. Open, active participants + in hostilities, as soldiers who wear the uniform, move under + the flag, and hold the appropriate commission from their + government, openly assuming to discharge the duties and + meet the responsibilities and dangers of soldiers, they are + entitled to all belligerent rights, and should receive all + the courtesies due to soldiers. The true soldier is proud to + acknowledge and respect those rights, and ever cheerfully + extends these courtesies. 2. Secret, but active participants, + as spies, brigands, bushwhackers, jayhawkers, war-rebels, and + assassins. In all wars, and especially civil wars, such secret, + active enemies rise up to annoy and attack an army, and must + be met and put down by the army. When lawless wretches become + so impudent and powerful as not to be controlled and governed + by the ordinary tribunals of a country, armies are called out + and the laws of war invoked. War has never been and can never + be conducted on the principle that an army is but a _posse + comitatus_ of a civil magistrate. An army, like all other + organized bodies, has a right, and its first duty is to protect + its own existence, and the existence of all its parts, by the + means and in the mode usual among civilized nations when at + war. The question arises, then, do the laws of war authorize + a different mode of proceeding and the use of different means + against secret active enemies from those used against open + active enemies? As has been said, the open enemy or soldier in + time of war may be met in battle and killed, wounded, or taken + prisoner, or so placed by the lawful strategy of war as that he + is powerless. Unless the law of self-preservation absolutely + demands it, the life of a wounded enemy or a prisoner must be + spared. + + Unless pressed thereto by the extremest necessity, the laws + of war condemn and punish with great severity harsh or + cruel treatment to a wounded enemy or a prisoner. Certain + stipulations and agreements, tacit or express, betwixt the + open belligerent parties are permitted by the laws of war, + and are held to be of a very high and sacred character. Such + is the tacit understanding, or it may be usage of war, in + regard to flags of truce. Flags of truce are resorted to as a + means of saving human life, or alleviating human suffering. + When not used with perfidy, the laws of war require that they + should be respected. The Romans regarded embassadors betwixt + belligerents as persons to be treated with consideration and + respect. Plutarch, in his life of Cæsar, tells us that the + barbarians in Gaul, having sent some embassadors to Cæsar, he + detained them, charging fraudulent practices, and led his army + to battle, obtaining a great victory. When the senate decreed + festivals and sacrifices for the victory, Cato declared it to + be his opinion that Cæsar ought to be given into the hands + of the barbarians, that so the guilt which this breach of + faith might otherwise bring upon the state might be expiated + by transferring the curse on him who was the occasion of it. + Under the Constitution and laws of the United States, should a + commander be guilty of such a flagrant breach of law as Cato + charged upon Cæsar, he would not be delivered to the enemy, but + would be punished after a military trial. + + The many honorable gentlemen who hold commissions in the army + of the United States, and have been deputed to conduct war + according to the laws of war, would keenly feel it as an insult + to their profession of arms for any one to say they could not + or would not punish a fellow soldier who was wantonly guilty of + cruelty to a prisoner, or perfidy towards the bearer of a flag + of truce. The laws of war permit capitulations of surrender and + paroles. They are agreements betwixt belligerents, and should + be scrupulously observed and performed. They are contracts + wholly unknown to civil tribunals. Parties to such contracts + must answer any breaches thereof to the customary military + tribunals in time of war. If an officer of rank, possessing + the pride that becomes a soldier and a gentleman, who should + capitulate to surrender his forces and property under his + command and control, be charged with a fraudulent breach of + the terms of surrender, the laws of war do not permit that he + should be punished without a trial, or, if innocent, that he + should have no means of wiping out the foul imputation. If a + paroled prisoner is charged with a breach of his parole, he may + be punished, if guilty, but not without a trial. He should be + tried by a military tribunal, constituted and proceeding as the + laws and usages of war prescribe. + + The law and usage of war contemplate that soldiers have a high + sense of personal honor. The true soldier is proud to feel and + know that his enemy possesses personal honor, and will conform + and be obedient to the laws of war. In a spirit of justice, + and with a wise appreciation of such feelings, the laws of war + protect the honor and character of an open enemy. When, by the + fortunes of war, one open enemy is thrown into the hands and + power of another, and is charged with dishonorable conduct + and a breach of the laws of war, he must be tried according + to the usages of war. Justice and fairness say that an open + enemy to whom dishonorable conduct is imputed has a right to + demand a trial. If such a demand can be rightfully made, surely + it cannot be rightfully refused. It is to be hoped that the + military authorities of this country will never refuse such + a demand because there is no act of Congress that authorizes + it. In time of war the law and usages of war authorize it, + and they are a part of the law of the land. One belligerent + may request the other to punish for breaches of the laws of + war, and, regularly, such a request should be made before + retaliatory measures are taken. Whether the laws of war + have been infringed or not is, of necessity, a question to + be decided by the laws and usages of war, and is cognizable + before a military tribunal. When prisoners of war conspire to + escape, or are guilty of a breach of appropriate and necessary + rules of prison discipline, they may be punished, but not + without trial. The commander who should order every prisoner + charged with improper conduct to be shot or hung would be + guilty of a high offense against the laws of war, and should + be punished therefor after a military trial. If the culprit + should be condemned and executed, the commander would be as + free from guilt as if the man had been killed in battle. It + is manifest from what has been said, that military tribunals + exist under and according to the laws of war, in the interest + of justice and mercy. They are established to save human life + and to prevent cruelty as far as possible. The commander of an + army in time of war has the same power to organize military + tribunals and to execute their judgments that he has to set + his squadrons in the field and fight battles. His authority + in each case is from the laws and usages of war. Having seen + that there must be military tribunals to decide questions + arising in time of war betwixt belligerents who are open and + active enemies, let us next see whether the laws of war do + not authorize such tribunals to determine the fate of those + who are active but secret participants in the hostilities. In + Mr. Wharton's "Elements of International Law," he says: "The + effect of a state of war, lawfully declared to exist, is to + place all the subjects of each belligerent power in a state of + natural hostility. The usage of nations has modified this maxim + by legalizing such acts of hostility only as are committed by + those who are authorized by the express or implied command + of the State, such as the regularly commissioned naval and + military forces of the nation, and all others called out in + its defense, or spontaneously defending themselves in case of + necessity, without any express authority for that purpose." + Cicero tells us in his offices, that by the Roman feudal law no + person could lawfully engage in battle with the public enemy + without being regularly enrolled, and taking the military oath. + This was a regulation sanctioned both by policy and religion. + The horrors of war would indeed be greatly aggravated if every + individual of the belligerent States were allowed to plunder + and slay indiscriminately the enemies' subjects without being + in any manner accountable for his conduct. _Hence, it is in + land-wars irregular bands of marauders are liable to be treated + as lawless banditti, not entitled to the protection of the + mitigated usages of war as practiced by civilized nations._ + + In speaking upon the subject of banditti, Patrick Henry said + in the Virginia Convention: "The honorable gentleman has + given you an elaborate account of what he judges tyrannical + legislation, and an _ex-post facto_ law (in the case of Josiah + Philips); he has misinterpreted the facts. That man was + not executed by a tyrannical stroke of power, nor was he a + Socrates; he was a fugitive murderer and an outlaw; a man who + commanded an _infamous banditti_, and _at a time when the war + was at the most perilous stage_ he committed the most cruel + and shocking barbarities; he was an enemy to the human name. + Those who declare war against the human race may be struck + out of existence as soon as apprehended. He was not executed + according to those beautiful legal ceremonies which are pointed + out by the law in criminal cases. The enormity of his crime + did not entitle him to it. I am truly a friend to legal forms + and methods; but, sir, the occasion warranted the measure. A + pirate, an outlaw, or a common enemy to all mankind may be + put to death at any time. It is justified by the law of war + and of nations." No reader, not to say student, of the law of + nations can doubt that Mr. Wheaton and Mr. Henry have fairly + stated the laws of war. Let it be constantly borne in mind that + they are talking of the law in a state of war. These banditti + that spring up in time of war are respecters of no law, human + or divine, of peace or of war, are _hostes humani generis_, + and may be hunted down like wolves. Thoroughly desperate and + perfectly lawless, no man can be required to peril his life in + venturing to take them prisoners; as prisoners no trust can + be reposed in them. But they are occasionally made prisoners. + Being prisoners, what is to be done with them? If they are + public enemies, assuming and exercising the right to kill, and + are not regularly authorized to do so, they must be apprehended + and dealt with by the military. No man can doubt the right + and duty of the military to make prisoners of them, and being + public enemies it is the duty of the military to punish them + for any infractions of the laws of war. + + But the military cannot ascertain whether they are guilty + or not without the aid of a military tribunal. In all wars, + and especially in civil wars, secret but active enemies are + almost as numerous as open ones. That fact has contributed to + make civil wars such scourges to the countries in which they + rage. In nearly all foreign wars the contending parties speak + different languages and have different habits and manners, + but in most civil wars that is not the case; hence there is + a security in participating secretly in hostilities that + induces many to thus engage. War prosecuted according to the + most civilized usage is horrible, but its horrors are greatly + aggravated by the immemorial habits of plunder, rape, and + murder practiced by secret but active participants. Certain + laws and usages have been adopted by the civilized world in + wars between nations that are not of kin to one another, for + the purpose and to the effect of arresting or softening many + of the necessary cruel consequences of war. How strongly bound + are we, then, in the midst of a great war where brother and + personal friend are fighting against brother and friend, to + adopt and be governed by these usages. A public enemy must or + should be dealt with in all wars by the same laws. The fact + they are public enemies being the same, they should deal with + each other according to those laws of war that are contemplated + by the Constitution. + + Whatever rules have been adopted and practiced by the + civilized nations of the world in war to soften its hardships + and severity should be adopted and practiced by us in this + war. That the laws of war authorize commanders to create and + establish military commissions, courts or tribunals for the + trial of offenders against the laws of war, whether they be + open or secret participants in the hostilities, cannot be + denied. That the judgments of such tribunals may have been + sometimes harsh, and sometimes even tyrannical, does not + prove that they ought not to exist, nor does it prove that + they are not constituted in the interest of justice and mercy. + Considering the power that the laws of war give over secret + participants in hostilities, such as banditti, guerrillas, + spies, etc., the position of a commander would be miserable + indeed if he could not call to his aid the judgments of such + tribunals; he would become a mere butcher of men without the + power to ascertain justice, and there can be no mercy where + there is no justice. War in its mildest form is horrible; but + take away from the contending armies the ability and right to + organize what is now known as a Bureau of Military Justice, + they would soon become monster savages unrestrained by any and + all ideas of law and justice. Surely no lover of mankind, no + one that respects law and order, no one that has the instinct + of justice or that can be softened by mercy, would in time + of war take away from the commanders the right to organize + military tribunals of justice, and especially such tribunals + for the protection of persons charged or suspected of being + secret foes and participants in hostilities. It would be a + miracle if the records and history of this war do not show + occasional cases in which those tribunals have erred; but they + will show many, very many cases in which human life would have + been taken but for the interposition and judgments of these + tribunals. Every student of the laws of war must acknowledge + that such tribunals exert a kindly and benign influence in time + of war. Impartial history will record the fact that the Bureau + of Military Justice, regularly organized during this war, has + saved human life and prevented human suffering. The greatest + suffering patiently endured by soldiers, and the hardest + battles gallantly fought during this protracted struggle, + are not more creditable to the American character than the + establishment of this bureau. + + This people have such an educated and profound respect for + law and justice, such a love of mercy, that they have in the + midst of this greatest of civil wars systematized and brought + into regular order tribunals that before this war existed + under the law of war, but without general rule. To condemn the + tribunals that have been established under this bureau is to + condemn and denounce the war itself, or, justifying the war, to + insist that it shall be prosecuted according to the harshest + rules, and without the aid of laws, usages, and customary + agencies for mitigating those rules. If such tribunals had not + existed before, under the laws and usages of war, the American + citizen might as proudly point to their establishment as to our + inimitable and inestimable Constitutions. It must be constantly + borne in mind that such tribunals and such a bureau cannot + exist except in time of war, and cannot then take cognizance + of offenders and offenses where the civil courts are open, + except offenders and offenses against the laws of war. But it + is insisted by some, and doubtless with honesty, and with a + zeal commensurate with their honesty, that such tribunals can + have no constitutional existence. The argument against their + constitutionality may be shortly, and I think, fairly stated + thus: Congress alone can establish military or civil judicial + tribunals. As Congress has not established military tribunals, + except such as have been created under the articles of war, + and which articles are made in pursuance of that clause in the + Constitution which gives to Congress the power to make rules + for the government of the army and navy, any other tribunal is + and must be plainly unconstitutional, and all its acts void. + This objection, thus stated, or stated in any form, begs the + question. It assumes that Congress alone can establish military + judicial tribunals. Is that assumption true? + + We have seen that when war comes, the laws and usages of war + come with it, and that during the war they are a part of the + laws of the land. Under the Constitution, Congress may define + and punish offenses against those laws, but in default of + Congress defining those laws and prescribing punishment for + their infraction, and the mode of proceeding to ascertain + whether an offense has been committed, and what punishment is + to be inflicted, the army must be governed by the laws and + usages of war as understood and practiced by the civilized + nations of the world. It has been abundantly shown that these + tribunals are constituted by the army in the interest of + justice and mercy, and for the purpose and to the effect of + mitigating the horrors of war. + + But it may be insisted that though the law of war, being part + of the law of nations, constitute a part of the laws of the + land, that those laws must be regarded as modified so far, and + whenever they come in direct conflict with plain constitutional + provisions. The following clauses of the constitution are + principally relied upon to show the conflict betwixt the laws + of war and the Constitution. "The trial of all crimes, except + in cases of impeachment, shall be by the jury, and such trial + shall be held in the State where the said crime shall have + been committed; but when not committed within any State, the + trial shall be at such place or places as the Congress may by + law have directed." "No person shall be held to answer for a + capital, or otherwise infamous crime, unless on a presentment + or indictment of a grand jury, except in cases arising in + the land or naval forces, or in the militia when in actual + service, in time of war or public danger; nor shall any person + be subject for the same offense to be twice put in jeopardy of + life or limb; nor shall be compelled in any criminal case to be + witness against himself, nor be deprived of life, liberty or + property without due process of law, nor shall private property + be taken for public use without just compensation" (Article V. + of the amendments). "In all criminal prosecutions the accused + shall enjoy the right of a speedy and public trial by an + impartial jury of the State and district wherein the crime + shall have been committed, which district shall have previously + been ascertained by law, and be informed of the nature and + cause of the accusation; to be confronted with witnesses + against him, to have compulsory process for obtaining witnesses + in his favor, and to have the assistance of counsel for his + defense" (Article VI. of the amendments). These provisions of + the Constitution are intended to fling around the life, liberty + and property of a citizen all the guarantees of a jury trial. + + These constitutional guarantees cannot be estimated too highly, + or protected too sacredly. The reader of history knows that for + many weary ages the people suffered for the want of them; it + would not only be stupidity but madness in us not to preserve + them. No man has a deeper conviction of their value, or a + more sincere desire to preserve and perpetuate them, than I + have. Nevertheless, these sacred and exalted provisions of the + Constitution must not be read alone and by themselves, but must + be read and taken in connection with other provisions. The + Constitution was framed by great men--men of learning and large + experience, and it is a wonderful monument of their wisdom. + Well versed in the history of the world, they knew that the + nation for which they were framing a government would, unless + all history were false, have wars foreign and domestic. Hence + the government framed by them is clothed with the power to make + and carry on a war. As has been shown, when war comes the laws + of war come with it. Infractions of the laws of nations are + not denominated _crimes_, but _offenses_. Hence the expression + in the Constitution that Congress shall have power to define + and punish offenses against the law of nations. Many of the + _offenses_ against the law of nations for which a man may lose + his life, his liberty, or his property are not crimes. It is an + offense against the law of nations to break a lawful blockade, + and for which a forfeiture of the property is the penalty, + and yet the running of a blockade has never been considered a + crime; to hold communication or intercourse with the enemy is a + high offense against the laws of war, and for which those laws + prescribe punishment, and yet it is not a _crime_; to act as a + spy is an offense against the laws of war, and the penalty for + which, in all ages, has been death, and yet it is not a crime; + to violate a flag of truce is an offense against the laws of + war, and yet it is not a crime of which a civil court can take + cognizance; to unite with banditti, jayhawkers, guerrillas, + or any other unauthorized marauders is a high offense against + the laws of war; the offense is complete when the band is + organized or joined. The atrocities committed by such a band + do not constitute the offenses, but make the reasons, and + sufficient reasons they are, why such banditti are denounced by + the laws of war. Some of the offenses against the laws of war + are crimes, and some are not. Because they are crimes they do + not cease to be offenses against the laws of war; nor because + they are not crimes or misdemeanors do they fail to be offenses + against the laws of war. Murder is a crime, and the murderer, + as such, must be proceeded against in the form and manner + prescribed by the Constitution. In committing the murder an + offense may also have been committed against the laws of war; + for that offense he must answer to the laws of war, and the + tribunals legalized by that law. There is, then, an apparent + but no real conflict in the constitutional provisions. + + Offenses against the laws of war must be dealt with and + punished under the Constitution, as the laws of war, they being + a part of the law of nations, direct; crimes must be dealt with + and punished as the Constitution, and laws made in pursuance + thereof, may direct. Congress has not undertaken to define the + code of war nor to punish offenses against it. In the case of a + spy, Congress has undertaken to say who shall be deemed a spy + and how he shall be punished. But every lawyer knows that a + spy was a well known offender under the laws of war, and that + under, and according, to these laws he could have been tried + and punished without an act of Congress. This is admitted by + the act of Congress when it says that he shall suffer death + "according to the laws and usages of war." The act is simply + declaratory of the law. That portion of the Constitution + which declares that no "person shall be deprived of his life, + liberty or property without due process of law" has such + direct reference to and connection with trials for _crime_ and + _criminal_ prosecutions, that comment upon it would seem to be + unnecessary. Trials for offenses against the laws of war are + not embraced nor intended to be embraced in these provisions. + If this is not so, then every man who kills another in battle + is a murderer, for he deprived a "person of life without that + due process of law" contemplated by this provision; every + soldier that marches across a field in battle array is liable + to an action for trespass, because he does so without that + due process of law. The argument that flings around offenders + against the laws of war these guarantees of the Constitution + would convict all the soldiers of our army of murder; no + prisoners could be taken and held; the army could not move. + + The absurd consequences that would of necessity flow from such + an argument show that it cannot be the true construction--it + cannot be what was intended by the framers of that instrument. + One of the prime motives for the Union and a federal government + was to confer the powers of war. If any provisions of the + Constitution are so in conflict with the power to carry on + war as to destroy and make it valueless, then the instrument, + instead of being a great and wise one, is a miserable failure, + a _felo de se_. If any man should sue out a writ of _habeas + corpus_, and the returns show that he belonged to the army + or navy, and was held to be tried for some offense against + the rules and articles of war, the writ should be dismissed, + and the party remanded to answer to the charges. So, in time + of war, if a man should sue out a writ of _habeas corpus_, + and it is made appear that he is in the hands of the military + as a prisoner of war, the writ should be dismissed, and the + prisoner remanded to be disposed of as the laws and usages of + war require. If the prisoner be a regular unoffending soldier + of the opposing party to the war, he should be treated with + all the courtesy and kindness consistent with safe custody; if + he has offended against the laws of war he should have such + a trial, and be punished as the laws of war require. A spy, + though a prisoner of war, may be tried, condemned, and executed + by a military tribunal without a breach of the Constitution. A + bushwhacker, a jayhawker, a bandit, a war rebel, an assassin, + being public enemies, may be tried, condemned, and executed as + offenders against the laws of war. + + The soldier that would fail to try a spy or a bandit after his + capture would be as derelict in duty as if he were to fail to + capture; he is as much bound to try and execute, if guilty, as + he is to arrest; the same law that makes it his duty to pursue + and kill or capture makes it his duty to try according to the + usages of war. The judge of a civil court is not more strongly + bound, under the Constitution and the law, to try a criminal, + than is the military to try an offender against the laws of + war. The fact that the civil courts are open does not affect + the right of the military tribunal to hold as a prisoner and + to try. The civil courts have no more right to prevent the + military, in time of war, from trying an offender against the + laws of war than they have a right to interfere and prevent a + battle. A battle may be lawfully fought in the very presence of + the court; so a spy, a bandit, or other offender against the + law of war, may be tried, and tried lawfully, when and where + the civil courts are open and transacting business. The law of + war authorizes human life to be taken without legal process; + or that legal process contemplated by those provisions of + the Constitution that are relied upon to show that military + judicial tribunals are unconstitutional. + + Wars should be prosecuted justly as well as bravely. One enemy + in the power of another, whether he be an open or a secret + one, should not be punished or executed without a trial. If + the question be one concerning the laws of war, he should + be tried by those engaged in the war; they, and they only, + are his peers. The military must decide whether he is, or is + not, an active participant in hostilities. If he is an active + participant in the hostilities it is the duty of the military + to take him, without warrant or other judicial process, and + dispose of him as the laws of war direct. It is curious to see + one and the same mind justify the killing of thousands of men + in battle because it is done according to the laws of war, and + yet condemning that same law when, out of regard for justice, + and with the hope of saving life, it orders a military trial + before the enemy are killed. The love of law, of justice, and + the wish to save life and suffering should impel all good men + in time of war to uphold and sustain the existence and actions + of such tribunals. The object of such tribunals is obviously + intended to save life, and when their jurisdiction is confined + to offenses against the laws of war, that is their effect. They + prevent indiscriminate slaughter; they prevent men from being + punished or killed on mere suspicion. The law of nations, which + is the result of the wisdom and experience of ages, has decided + that jayhawkers, banditti, etc., are offenders against the laws + of nature and of war, and as such amenable to the military. Our + Constitution has made those laws a part of the law of the land. + Obedience to the Constitution and the law, then, requires that + the military should do their whole duty; they must not only + meet and fight the enemies of the country in open battle, but + they must kill or take the secret enemies of the country and + try and execute them according to the laws of war. + + The civil tribunals of the country cannot rightfully interfere + with the military in the performance of their high, arduous, + and perilous but lawful duties. That Booth and his associates + were secret active public enemies no mind that contemplates + the facts can doubt. The exclamation used by him when he + escaped from the box onto the stage, after he fired the fatal + shot, _sic semper tyrannis_, and his dying message, "Say to my + mother that I died for my country," show that he was not an + assassin from private malice, but that he acted as a public + foe. Such a deed is expressly laid down in Vattel, in his work + on the law of nations, as an offense against the laws of war + and a great crime: "I give then the name of assassination to + a treacherous murder, whether the perpetrators of the deed be + the subjects of the party whom we cause to be assassinated + or of our own sovereign, or that it be executed by any other + emissary introducing himself as a suppliant, a refugee, or a + deserter, or in fine as a stranger" (Vattel, 339.) Neither the + civil nor the military department of the government should + regard itself as wiser and better than the Constitution and + the laws that exist under or are made in pursuance thereof. + Each department should, in peace and in war, confining itself + to its own proper sphere of action, diligently and fearlessly + perform its legitimate functions, and in the mode prescribed by + the Constitution and the law. Such obedience to and observance + of law will maintain peace when it exists, and will soonest + relieve the country from the abnormal state of war. + + My conclusion, therefore, is, that if the persons who are + charged with the assassination of the President committed the + deed as public enemies, as I believe they did, and whether + they did or not is a question to be decided by the tribunal + before which they are tried, they not only can, but ought to be + tried before a military tribunal. If the persons charged have + offended against the laws of war, it would be especially wrong + for the military to hand them over to the civil courts, as it + would be wrong in a civil court to convict a man of murder who + had in time of war killed another in battle. + + JAMES SPEED, + _Attorney General_. + +The foregoing discussion of the constitutional aspects of the question +will no doubt be regarded by most people as somewhat tedious, and +perhaps outside of the legal profession will be read, much less +carefully studied, by but few. Yet by those who study it, it will be +found to be a most profound and masterly analysis of the questions +involved, viz., those of military and civil jurisdiction as provided +for in the Constitution, and to fully justify the opinion given as the +conclusion of the argument. + +We cannot too highly revere the Constitution, as it is that which gives +permanence, security, and prosperity to our national life; yet there +is a power greater than the Constitution--a power that by authority +expressed or understood reserves the right to amend, alter, or abolish +its provisions. That power is the sovereignty that resides in the +people. Self preservation is a national, as much as an individual +instinct, and self preservation is the first law of nature. + +A government that has a right to live has a right to the use of all +the means that may be found indispensable to the perpetuation of its +existence. When war comes the laws of war come with it as a matter of +necessity; because war, being an abnormal state of society, brings with +it conditions that render inoperative and useless the means provided +for the safety and security of the life, liberty, and property of the +citizen, as guaranteed by the Constitution and laws. These interests +are too sacred to be left wholly unprotected; and so the civilized +nations of the world have adopted those rules which the wisdom and +experience of mankind have found necessary for their protection in time +of war. These rules, or laws, we denominate the laws of war. If the +experience of mankind should dictate modifications of, or additions +to, those rules for the better protection of these sacred interests of +life, liberty, and property, it would be as proper to amend these as +it is proper and competent to amend statute law, or to alter, amend, +or abolish constitutions. Such additions or alterations, if wisely +made, receive the sanction of mankind, and thus become a part of the +unwritten law, having in them the authority of this sanction. + +In dealing with this question, however, it was not found necessary +that anything new should be devised, as the laws of war were found to +authorize all that was necessary to the adjudication of the question, +and to furnish the means and appliances for securing the ends of +justice. + +The nature of the offense charged against these prisoners placed them +under the domain of martial law, as they were shown by their own acts +and declarations to be secret, active enemies of the government, the +purpose of their crime being to give aid to the existing rebellion. For +this reason the government left them in the hands of the military to +be dealt with according to the laws of war; and the President, being +_ex-officio_ Commander-in-Chief of the army and navy, ordered the +Assistant Adjutant General of the army to detail a military commission, +and send the accuse before it for a speedy trial. + + + + +CHAPTER VIII. + +A MILITARY COMMISSION--ITS NATURE, CONSTITUTION, DUTIES, AND +JURISDICTION. + + +A military commission, as we have seen, is a judicial tribunal +authorized by and constituted under the laws of war during a state +of war. It consists of a definite number of commissioned officers +designated by the order of detail. Its jurisdiction is limited, and +its duties are also prescribed by that order. It is a military court +detailed to try offenders against the laws of war, and clothed with +power to decide both on the law and evidence in the case, and to +prescribe the punishment due to the offense. It is constituted to act +under a presiding officer, who is also designated in the order of +detail. It has the assistance of a judge advocate with whom it consults +in regard to any questions of law or of evidence that may arise. + +The office of a judge advocate does not exactly correspond with that +of a states attorney in a civil court, for at the same time that it is +his duty to see that the case of the government and the evidence are +fairly presented, it is as much his duty to see that the accused shall +have a fair and impartial trial. The party on trial has the right to +have counsel of his own choice, and the government must secure the +attendance of such witnesses in his defense as he may designate. The +rules of law and of evidence are very nearly the same as those which +prevail in the civil courts. A military commission combines, to a great +extent, the functions of both court and jury, as it has to decide on +questions of law and evidence as a court, and on the guilt or innocence +of the accused, in the light of law and evidence, as a jury. Again, in +rendering a sentence, in case of conviction, it exercises the functions +of a court. The oath taken by the members of the detail, and which +constitutes it a court, requires them to diligently try the case and +judge and decide impartially, according to the law and evidence. Thus +it will be seen that the rights of the accused are carefully guarded, +and every precaution taken to make it certain that justice shall be +done. This is the purpose as much in the constitution of a military as +of a civil court. The only object of its constitution is to protect the +innocent and condemn and punish the guilty, and thus secure the ends +of justice and mercy. It is a benign provision of military law, and +entitled to the highest respect and honor. Its decisions and sentences, +however, must have the approval of the President of the United States +to give them validity. + + + + +CHAPTER IX. + +CONSTITUTION OF THE COMMISSION, AND TRIAL. + + +The order of the President required the Assistant Adjutant General +of the army to detail nine competent military officers to serve as +a commission for the trial of the parties in custody, and also that +the Judge Advocate General should proceed to prefer charges against +them for their alleged offenses, and bring them to trial before the +Commission, under the conduct of the Judge Advocate General as the +recorder thereof, in person, and assisted by such assistant, or +special judge advocates as he might select, and that the trial should +be conducted with all diligence, consistent with the ends of justice. +Brevet Major General Hartranft was assigned to duty, by the President's +order, as Special Provost Martial General for the occasion. The +following officers were designated by the Assistant Adjutant General as +the detail for the court:-- + +Major General David H. Hunter, U.S.V., to preside over the Commission. + +Major General Lewis Wallace, U.S.V. + +Brevet Major General August V. Kautz, U.S.V. + +Brigadier General Albion P. Howe, U.S.V. + +Brigadier General Robert S. Foster, U.S.V. + +Brevet Brigadier General Cyrus Comstock, U.S.V. + +Brigadier General T. M. Harris, U.S.V. + +Brevet Colonel Horace Porter, Aide-de-Camp. + +Lieutenant Colonel David R. Clendennin, Eighth Illinois Cavalry. + +Brigadier General Joseph Holt, Judge Advocate General United States +Army, Judge Advocate and Recorder of the Commission, aided by such +special or assistant judge advocates as he might designate. + +[Illustration: T. M. Harris. August V. Kautz. J. A. Ekin. Hon. Jno. A. +Bingham. Chas. H. Tompkins. R. S. Foster. D. R. Clendenin. + +D. Hunter. Lew Wallace. A. D. Howe. Hon. J. Holt. H. L. Burnett. + +MEMBERS OF THE MILITARY COMMISSION.] + +The details for the Commission were made on the 6th of May, 1865, and +it was ordered to meet at Washington City on the 8th of May, or as +soon thereafter as possible. The Commission held its first meeting on +the 9th of May, at ten o'clock A.M., all the members being +present, also the Judge Advocate General. + +The Hon. John A. Bingham, and Brevet Colonel H. L. Burnett, Judge +Advocate, were introduced by the Judge Advocate General as assistant +or special judge advocates. The accused, David E. Herold, George A. +Atzerodt, Samuel Arnold, Lewis Payne, Michael O'Laughlin, Edward +Spangler, Mary E. Surratt, and Samuel A. Mudd were brought into court, +and being asked whether they desired to employ counsel replied in +the affirmative. To afford them an opportunity to do so, the court +adjourned to meet on the 10th day of May, at ten o'clock A.M. +At the assembling of the court on the 10th, the Judge Advocate read +a special order from the Assistant Adjutant General, E. D. Townsend, +relieving General Comstock and Brevet Colonel Porter from service on +the Commission, and substituting for them Brevet Brigadier General +James A. Ekin, U. S. V., and Brevet Colonel C. H. Tompkins, U. S. A. + +All the members being present, the Commission proceeded to the trial +of the parties accused as above named, who were brought into court, +and having the order detailing the Commission read to them, they were +asked if they had any objection to any member named therein, to which +they all replied, severally, that they had not. The members of the +Commission were then duly sworn by the Judge Advocate General in the +presence of the accused. The Judge Advocate General and the assistant +judge advocates were then duly sworn by the president of the court in +the presence of the accused. + +Ben Pittman, R. Sutton, D. F. Murphy, R. R. Hitt, J. J. Murphy, +and Edward V. Murphy were sworn by the Judge Advocate General, in +the presence of the accused, as reporters to the Commission. The +accused were then severally arraigned on the following charge and +specifications:-- + + + _Charge and Specifications against David E. Herold, George + A. Atzerodt, Lewis Payne, Michael O'Laughlin, Edward Spangler, + Samuel Arnold, Mary E. Surratt, and Samuel A. Mudd._ + + _Charge._--For maliciously, unlawfully, and traitorously, and + in aid of the existing armed rebellion against the United + States of America, on or before the 6th day of March, A.D. + 1865, and on divers other days between that day and the + 15th day of April, A.D. 1865, combining, confederating, and + conspiring together with one John H. Surratt, John Wilkes + Booth, Jefferson Davis, George N. Sanders, Beverly Tucker, + Jacob Thompson, William C. Cleary, Clement C. Clay, George + Harper, George Young, and others unknown, to kill and murder + within the military department of Washington, and within the + fortified and intrenched lines thereof, Abraham Lincoln, + late, at the time of said combining, confederating, and + conspiring President of the United States of America and + Commander-in-Chief of the army and navy thereof; Andrew + Johnson, now Vice-President of the United States aforesaid; + William H. Seward, Secretary of State of the United States + aforesaid; and Ulysses S. Grant, Lieutenant General of the + army of the United States aforesaid, then in command of the + armies of the United States under the direction of the said + Abraham Lincoln; and in pursuance of, and in prosecuting said + malicious, unlawful, and traitorous conspiracy aforesaid, and + in aid of said rebellion, afterwards, to wit, on the 14th + day of April, A.D. 1865, within the military department at + Washington aforesaid, and within the fortified and intrenched + lines of said military department, together with said John + Wilkes Booth and John H. Surratt, maliciously, unlawfully, and + traitorously murdering the said Abraham Lincoln, then President + of the United States and Commander-in-Chief of the army and + navy of the United States as aforesaid; and maliciously, + unlawfully, and traitorously assaulting with intent to kill and + murder the said William H. Seward, then Secretary of State of + the United States as aforesaid; and lying in wait with intent + maliciously, unlawfully, and traitorously to kill and murder + Andrew Johnson, then being Vice-President of the United States; + and the said Ulysses S. Grant, then being Lieutenant General, + and in command of the armies of the United States as aforesaid. + + _Specifications._--In this, that they, the said David E. + Herold, Edward Spangler, Lewis Payne, Michael O'Laughlin, + Samuel Arnold, Mary E. Surratt, George A. Atzerodt, and Samuel + A. Mudd, together with the said John H. Surratt and John Wilkes + Booth, incited and encouraged thereunto by Jefferson Davis, + George N. Sanders, Beverly Tucker, Jacob Thompson, William + C. Cleary, Clement C. Clay, George Harper, George Young, and + others unknown, citizens of the United States aforesaid, and + who were then engaged in armed rebellion against the United + States of America, within the limits thereof, did, in aid of + said armed rebellion, on or before the 6th day of March, A.D. + 1865, and on divers other days and times between that day + and the 15th day of April, A.D. 1865, combine, confederate, + and conspire together at Washington City, within the + military department of Washington, and within the intrenched + fortifications and military lines of the said United States, + there being unlawfully, maliciously, and traitorously to kill + and murder Abraham Lincoln, then President of the United + States aforesaid, and Commander-in-Chief of the army and navy + thereof; and unlawfully, maliciously, and traitorously to kill + and murder Andrew Johnson, now Vice-President of the said + United States, upon whom, on the death of the said Abraham + Lincoln, after the 4th day of March, A.D. 1865, the office of + President of the said United States and Commander-in-Chief of + the army and navy thereof would devolve; and to unlawfully, + maliciously, and traitorously kill and murder Ulysses S. + Grant, then Lieutenant General, and under the direction of + Abraham Lincoln, in command of the armies of the United States + aforesaid; and unlawfully, maliciously, and traitorously to + kill and murder William H. Seward, then Secretary of State of + the United States aforesaid, whose duty it was by law, upon the + death of the said President and Vice-President of the United + States aforesaid, to cause an election to be held for electors + of President of the United States; the conspirators aforesaid, + designing and intending by the killing and murder of the said + Abraham Lincoln, Andrew Johnson, Ulysses S. Grant, and William + H. Seward, as aforesaid, to deprive the army and navy of the + said United States of a constitutional commander-in-chief; and + to deprive the armies of the United States of their lawful + commander; and to prevent a lawful election of President and + Vice-President of the United States aforesaid; and by the + means aforesaid to aid and comfort the insurgents engaged in + armed rebellion against the said United States as aforesaid, + and thereby to aid in the subversion and overthrow of the + Constitution and laws of the said United States. + + And being so combined, confederated and conspiring together in + the prosecution of said unlawful and traitorous conspiracy, on + the night of the 14th day of April, A.D. 1865, at the hour of + about ten o'clock and fifteen minutes P.M., at Ford's Theatre + on Tenth Street, in the City of Washington, and within the + military department and military lines aforesaid, John Wilkes + Booth, one of the conspirators aforesaid, in pursuance of + said unlawful and traitorous conspiracy, did then and there + unlawfully, maliciously, and traitorously, and with intent to + kill and murder the said Abraham Lincoln, discharge a pistol + then held in the hands of him, the said John Wilkes Booth, the + same being then loaded with powder and a leaden ball, against + and upon the left and posterior side of the head of the said + Abraham Lincoln; and did thereby then and there inflict upon + him, the said Abraham Lincoln, then President of the United + States and Commander-in-Chief of the army and navy thereof, + a mortal wound whereof afterwards, to wit, on the 15th day + of April, A.D. 1865, at Washington City aforesaid, the said + Abraham Lincoln died; and thereby, then and there, and in + pursuance of said conspiracy, the said defendants, and the + said John Wilkes Booth and John H. Surratt did, unlawfully, + traitorously and maliciously, and with intent to aid the + rebellion as aforesaid, kill and murder the said Abraham + Lincoln, President of the United States, as aforesaid. And in + further prosecution of the unlawful, and traitorous conspiracy + aforesaid, and of the murderous and traitorous intent of said + conspiracy, the said Edward Spangler, on the said 14th day + of April, A.D. 1865, at about the same hour of that day as + aforesaid, within the said military department and military + lines aforesaid, did aid and assist the said John Wilkes Booth + to obtain entrance to the box in the said theatre, in which + said Abraham Lincoln was sitting at the time he was assaulted + and shot as aforesaid by John Wilkes Booth; and also did, then + and there, aid said Booth in barring and obstructing the door + of the box of said theatre, so as to hinder and prevent any + assistance to, or rescue of, the said Abraham Lincoln against + the murderous assault of the said John Wilkes Booth; and did + aid and abet him in making his escape after the said Abraham + Lincoln had been murdered in manner aforesaid. + + And in further prosecution of said unlawful, murderous, and + traitorous conspiracy, and in pursuance thereof, and with the + intent as aforesaid, the said David E. Herold did, on the + night of the 14th day of April, A.D. 1865, within the military + department and military lines aforesaid, aid, abet, and assist + the said John Wilkes Booth in the killing and murder of the + said Abraham Lincoln, and did, then and there, aid, abet, and + assist him, the said John Wilkes Booth, in attempting to escape + through the military lines aforesaid, and did accompany and + assist the said John Wilkes Booth in attempting to conceal + himself and escape from justice after killing and murdering + said Abraham Lincoln as aforesaid. + + And in further prosecution of said unlawful and traitorous + conspiracy, and of the intent thereof, as aforesaid, the said + Lewis Payne did, on the same night of the 14th day of April, + A.D. 1865, about the same hour of ten o'clock and fifteen + minutes P.M., at the city of Washington, and within the + military department and military lines aforesaid, unlawfully + and maliciously make an assault upon the said William H. + Seward, Secretary of State, as aforesaid, in the dwelling house + and bed-chamber of him, the said William H. Seward, and the + said Payne did, then and there, with a large knife held in + his hand, unlawfully, traitorously, and in pursuance of said + conspiracy, strike, stab, cut, and attempt to kill and murder + the said William H. Seward, and did thereby, then and there, + and with the intent aforesaid, with said knife inflict upon the + face and throat of the said William H. Seward divers grievous + wounds. And the said Lewis Payne, in further prosecution of + said conspiracy, at the same time and place last aforesaid, + did attempt, with the knife aforesaid, and a pistol held in + his hand, to kill and murder Frederick W. Seward, Augustus + H. Seward, Emrick W. Hansel and George F. Robinson, who were + striving to protect and rescue the said William H. Seward from + murder by the said Lewis Payne, and did, then and there, with + said knife and pistol held in his hands, inflict upon the head + of the said Frederick W. Seward, and upon the persons of said + Augustus H. Seward, Emrick W. Hansel, and George F. Robinson, + divers grievous and dangerous wounds, with intent then and + there to kill and murder the said Frederick W. Seward, Augustus + H. Seward, Emrick W. Hansel, and George F. Robinson. + + And in further prosecution of said conspiracy and its + traitorous and murderous designs, the said George A. Atzerodt + did, on the night of the 14th of April, A.D. 1865, and about + the same hour of the night aforesaid, within the military + department and military lines aforesaid, lie in wait for Andrew + Johnson, then Vice-President of the United States aforesaid, + with the intent unlawfully and maliciously to kill and murder + him, the said Andrew Johnson. + + And in further prosecution of the conspiracy aforesaid, and + of its murderous and treasonable purposes aforesaid, on the + nights of the 13th and 14th of April, A.D. 1865, at Washington + City, and within the military department and military lines + aforesaid, the said Michael O'Laughlin did, then and there, + lie in wait for Ulysses S. Grant, then lieutenant general and + commander of the armies of the United States as aforesaid, with + intent then and there to kill and murder the said Ulysses S. + Grant. + + And in further prosecution of said conspiracy, the said Samuel + Arnold did, within the military department and the military + lines aforesaid, on or before the 6th day of March, A.D. 1865, + and on divers other days and times between that day and the + 15th day of April, A.D. 1865, combine, conspire with, and + aid, counsel, abet, comfort, and support the said John Wilkes + Booth, Lewis Payne, George A. Atzerodt, Michael O'Laughlin, and + their confederates in said unlawful, murderous and traitorous + conspiracy, and in the execution thereof aforesaid. + + And in further prosecution of said conspiracy, Mary E. Surratt + did, at Washington City and within the military department and + military lines aforesaid, on or before the 6th day of March, + A.D. 1865, and on divers other days and times between that + day and the 20th day of April, A.D. 1865, receive, entertain, + harbor, and conceal, aid and assist the said John Wilkes + Booth, David E. Herold, Lewis Payne, John H. Surratt, Michael + O'Laughlin, George A. Atzerodt, Samuel Arnold, and their + confederates, with knowledge of the murderous and traitorous + conspiracy aforesaid, and with the intent to aid, abet, and + assist them in the execution thereof, and in escaping from + justice after the murder of the said Abraham Lincoln as + aforesaid. + + And in further prosecution of said conspiracy the said Samuel + A. Mudd did at Washington City and within the military + department and military lines aforesaid, on or before the 6th + day of March, A.D. 1865, and on divers other days and times + between that day and the 20th day of April, A.D. 1865, advise, + encourage, receive, entertain, harbor and conceal, aid and + assist the said John Wilkes Booth, David E. Herold, Lewis + Payne, John H. Surratt, Michael O'Laughlin, George A. Atzerodt, + Mary E. Surratt, and Samuel Arnold, and their confederates, + with knowledge of the murderous and traitorous conspiracy + aforesaid, and with the intent to aid, abet, and assist them + in the execution thereof and in escaping from justice after + the murder of the said Abraham Lincoln, in pursuance of said + conspiracy in manner aforesaid. By order of the President of + the United States. + + J. HOLT, _Judge Advocate General_ + + +_Charge and Specifications Indorsed._ + +"Copy of the within charge and specification delivered to David E. +Herold, George A. Atzerodt, Lewis Payne, Edward Spangler, Michael +O'Laughlin, Samuel Arnold, Mary E. Surratt, and Samuel A. Mudd, on the +8th day of May, 1865. + + [Signed] + "J. F. HARTRANFT, + + "_Brevet Major General and + Special Provost Marshal General_." + + +The accused severally plead as follows:-- + +To the specification, "Not guilty." + +To the charge, "Not guilty." + +The Commission then proceeded to consider the rules and regulations +by which its proceedings should be governed or conducted. The +prisoners were served, as we have seen, with a due notice of the +offenses with which they were charged, and required to be confronted +with the witnesses against them. They were allowed the benefit of +counsel of their own choice and compulsory attendance of witnesses +in their defense. In short, they were accorded every condition that +was necessary to a fair and impartial trial. In this case the only +qualification required of the counsel selected or employed by the +accused in their defense was, that they should submit or file evidence +of having taken the oath required by an act of Congress, or should take +said oath before being permitted to appear in the case. + +The examination of witnesses was conducted on the part of the +government by the Judge Advocate and by counsel on the part of the +accused. The evidence was taken down by short-hand reporters who +were sworn to record the evidence faithfully and truly, and not to +communicate the same, or any part of the proceedings on the trial, +except by authority of the presiding officer. They were required to +furnish a copy of the evidence taken each day to the Judge Advocate, +and also a copy to prisoners' counsel. No reporters except the official +reporters were allowed access to the court-room. The Judge Advocate, +however, was allowed to furnish to the agent of the Associated Press, +at his discretion, a copy of such testimony and proceedings as might +be published during the trial without injury to the public and to the +ends of justice. All other publication of the evidence and of the +proceedings during the trial was forbidden, and was to be dealt with +as a contempt of court. The testimony being closed, the case was to +be immediately summed up by one judge advocate, selected by the Judge +Advocate General, to be followed or opened, if the Judge Advocate +General so selected, by counsel for the prisoners, and the argument +closed by one judge advocate. + +The argument being closed, the court was to proceed immediately +to deliberate and make its determination. The provost marshal was +required to have the prisoners present during the trial, and was held +responsible for their safe keeping. Their counsel was permitted to +hold communication with them in the presence, but not in the hearing, +of the guard. Counsel for the prisoners were required to furnish +immediately a list of witnesses required for the defense of their +respective clients to the Judge Advocate General, who procured their +attendance in the usual manner. At the meeting of the Commission on +May the 11th, Samuel A. Mudd asked permission to introduce Frederick +Stone, Esq., and Thomas Ewing, Jr., Esq., as his counsel. Mary E. +Surratt asked to introduce Frederick Aiken, Esq., and John W. Clampitt, +Esq., as her counsel, which applications were granted by the court. At +its meeting on May 12th, David E. Herold asked to introduce Frederick +Stone, Esq., as his counsel; Samuel Arnold asked to introduce Thomas +Ewing, Jr., Esq., as his counsel; George A. Atzerodt asked to introduce +William E. Doster, Esq., as his counsel; Michael O'Laughlin applied +for permission to introduce Walter S. Cox, Esq., as his counsel; Lewis +Payne asked to introduce William E. Doster, Esq., as his counsel; +Edward Spangler applied for permission to introduce Thomas Ewing, Jr., +Esq., as his counsel; which applications were granted, and Messrs. +Doster and Cox, having first taken the oath prescribed by act of +Congress approved July 2d, 1862, in open court, appeared accordingly. +The accused, Mary E. Surratt, applied for permission to introduce +Hon. Reverdy Johnson as additional counsel for her, and permission +being granted, he appeared accordingly. The admission of Mr. Johnson +was objected to by the author, a member of the court, on the ground +that he had very light views of the obligations of an oath, and in +proof of this, reference was made to an open letter to the people of +Maryland, written a few months previously by the honorable gentleman, +in which he advised them to take the oath prescribed by the late +Constitutional Convention of that State as a qualification for the +exercise of the right of suffrage in the adoption or rejection of the +amended Constitution, in which letter he took the ground that as the +convention had transcended its power in prescribing such an oath, +which in effect was intended to exclude all disloyal persons from +participation in this right of citizenship, it carried in it no moral +obligation; and that they might therefore take it as a matter of +indifference, even though they were disloyal. The honorable gentleman +at first treated this objection to his appearance with great _hauteur_ +of manner, and appeared to be astonished that an obscure officer in +the army, whom nobody knew, should presume to arraign a man in his +position as incompetent to appear before such a court. He was answered +by the president of the Commission, who said, that had not General +Harris raised this objection he had intended doing so himself. The +honorable gentleman, seeing that there was danger of his exclusion from +the court, and that it could not be bluffed, immediately came down +from his high horse, and in a very respectful manner entered into a +lengthy explanation of the letter referred to, which explanation did +not put a better face on the matter, but as he in closing emphatically +declared that he did recognize the moral obligation of an oath, the +objection was withdrawn, and he was admitted and appeared accordingly. +The accused severally then asked, for the time, to withdraw their plea +of "Not guilty," heretofore filed, so that they might plead to the +jurisdiction of the court. + +This being granted, they offered the following plea to the jurisdiction +of the court:-- + +"---- ----, one of the accused, for plea says that this court has no +jurisdiction in the proceedings against him, because he says he is not, +and has not been, in the military service of the United States. + +"And for further plea, the said ---- ---- says that loyal civil courts, +in which all the offenses charged are triable, exist, and are in full +and free operation in all the places where the several offenses charged +are alleged to have been committed. + +"And for further plea, the said ---- ---- says that the court has no +jurisdiction in the matter of the alleged conspiracy, so far as it +is charged to have been a conspiracy to murder Abraham Lincoln, late +President of the United States, and William H. Seward, Secretary of +State, because he says said alleged conspiracy, and all acts alleged +to have been done in the formation and in the execution thereof, are +in the charge and specifications alleged to have been committed in +the City of Washington, in which city are loyal civil courts in full +operation, in which all said offenses charged are triable. + +"And the said ---- ---- for further plea says this court has no +jurisdiction in the matter of the crime of murdering Abraham Lincoln, +late President of the United States, and William H. Seward, Secretary +of State, because he says said crimes and acts done in execution +thereof are, in the charge and specifications, alleged to have been +committed in the City of Washington, in which city are loyal civil +courts, in full operation, in which said crimes are triable." + +In answer to this plea the judge advocate presented the following +replication:-- + + "Now come the United States, and for answer to the special plea + by one of the defendants, ---- ----, plead to the jurisdiction + of the Commission in this case, say that this Commission has + jurisdiction in the premises to try and determine the matters + in the charge and specifications alleged and set forth against + the said defendant, ---- ----. + + "J. HOLT, + "_Judge Advocate General_." + +The court was then cleared for deliberation, and on being reopened +the Judge Advocate announced that the pleas of the accused had been +overruled by the Commission. The accused then made application for +severance as follows:-- + +"---- ----, one of the accused, asks that he be tried separate from +those who are charged with him, for the reason that he believes his +defense will be greatly prejudiced by a joint trial." + +The Commission overruled the application for severance. The accused +then severally plead:-- + +To the specifications, "Not guilty." + +To the charge, "Not guilty." + +The considerations on which the motion for severance was overruled +were, that the charge alleged a conspiracy on the part of the persons +accused and on trial, with others unknown, unlawfully, maliciously, and +traitorously to kill and murder the President and others. The fact of +entering into a conspiracy to do unlawful acts gives to the associated +body, in law, an individuality; personality is merged in the common +purpose of those thus combining themselves together, and so the +declaration or act of any one of them, touching the accomplishment of +the common purpose, becomes the declaration or act of all. The guilt is +equally shared by all. If the government could not sustain the charge +of a conspiracy, then none of the accused could be found guilty of +entering into a conspiracy as alleged. The fact of a conspiracy being +established, it only remained to be shown in each case that the accused +was a member of it; proving this, he would be held to be a sharer in +the guilt, although not present at the commission of the crime; but +failing to establish the fact of his belonging to the conspiracy, his +innocence must be legally admitted. In other words he could not be +found guilty. There can in law be no severance of an individuality; and +so the application for a separate trial was denied, or overruled. + +On the demurrer to the jurisdiction of the court, the Commission held +that it could not admit this to be a question that it could properly +take under its consideration. To the executive department of the +government alone belonged the decision of this question as to the +kind of trial that the accused should have; and the President, after +maturely considering it in the light of the Constitution and the +related facts, and after having submitted it to his Attorney General +for his opinion, accepting that opinion as the correct conclusion +of his very exhaustive argument, embracing all the Constitutional +questions involved, had determined that these parties were offenders +against the laws of war, as their offense was the act of secret, active +participants in the existing hostilities, and committed with a deep +political intent, the purpose of which was to give aid to the existing +rebellion, and so, justly, under the Constitution, subjecting them +to _law martial_, and trial by a military commission. The President, +being _ex-officio_ Commander-in-Chief of the armies of the United +States, had the right to order a detail of officers to constitute such +court, and by order to specify the duties required of them. Their +duty as officers of the army required of them simply obedience to the +orders of the President of the United States and to those over them +in the organization of the military arm of the government. To this +they were bound by the solemn obligations of their official oath. To +have entertained this question would have been an act of disobedience, +subjecting them to discipline; to have refused to serve would have been +an act of mutiny. The officers composing this court were, according +to the biographers of President Lincoln (Nicolay and Hay) "not only +officers high in rank, but of unusual weight of character"; they had +been thoroughly schooled in military discipline, and so recognized the +duty of obedience to orders as the first duty of a soldier. It was not +any part of their duty to discuss the wisdom, propriety, or legality +of an order before entering upon the act of obedience. Their duty was +simply to obey, and for this they were properly held responsible. +The order of detail assigned to them the specific duty of trying the +accused under the charge and specifications prepared against them by +the government, and so, as loyal, obedient soldiers, loving their +country and having faith in its government, they had nothing to do but +to enter upon and discharge the duties for which they had been detailed. + +As before stated, the Hon. Reverdy Johnson, a United States Senator +from Maryland, volunteered to defend Mrs. Mary E. Surratt, selecting +her for his client that he might have the benefit, for the purpose of +his argument, of the sympathy which we all naturally feel for her sex. +It was not his purpose to defend her any more than any other one or all +of the prisoners, as he addressed himself simply to the task of arguing +the question of jurisdiction. His real object was, evidently, to get +himself before the Commission, that he might arraign the martyred +President before the country and before the world, and denounce his +acts for the prosecution of the war as unconstitutional and tyrannical +usurpations of power. He made a lengthy, and from the stand-point of +the right of secession, able argument against the right to try these +cases before a military tribunal. The Commission was made up largely of +men sufficiently versed in constitutional law, as well as the laws of +nations and of war, to be little influenced by his sophistries. Their +position towards the government on these questions had placed them +where they were, as officers in its military service, and they could +not be swerved from the loyal discharge of their duty. The reply of +the Hon. John A. Bingham to the sophistries of the honorable senator, +is a masterpiece of logical reasoning, as also of forensic eloquence +and legal acumen, and will well repay the careful study, not only of +every student of law, but of every young man who has an ambition to +become intelligent in matters of public interest, involving the rights, +duties, and privileges of the citizen in time of peace and in time of +war. + +It will be found not only thoroughly learned and exhaustive of all +questions involved, as a legal argument, but also the very embodiment +of patriotic devotion to our free institutions of government, and to +the cause of civil liberty, justice, humanity, and moral progress. + +The Commission was diligently engaged in the trial of the prisoners +from the 11th day of May until the 30th day of June, a period of about +seven weeks being consumed in hearing the testimony and the motions and +arguments of counsel. As I have given, in narrative form, the facts +proven against each of the accused, as they stood unimpeached and +uncontroverted by testimony given in defense, in giving the history of +their arrest, it is unnecessary that I should give it formally, as it +appears upon the record of the trial. + +After maturely deliberating on the evidence adduced in the case of each +of the accused, the findings of the Commission were as follows:-- + +In the case of David E. Herold: Of the specification guilty; except +"combining, confederating, and conspiring with Edward Spangler," as to +which part thereof not guilty. Of the charge guilty; except the words +of the charge, "combining, confederating, and conspiring with Edward +Spangler," as to which not guilty. And the Commission did, therefore, +sentence him, the said David E. Herold, to be hanged by the neck until +he be dead, at such time and place as the President of the United +States should direct, two-thirds of the Commission concurring therein. + +In the case of George A. Atzerodt: After mature consideration of +the evidence adduced, the Commission found the accused, of the +specification guilty; except "combining, confederating, and conspiring +with Edward Spangler," of this not guilty. Of the charge guilty; except +"combining, confederating, and conspiring with Edward Spangler," +of this not guilty. And the sentence of the Commission was that he +be hanged by the neck until he be dead, at such time and place as +the President of the United States might direct, two-thirds of the +Commission concurring therein. + +In the case of Lewis Payne, the Commission found him, of the +specifications guilty; of the charge guilty; with the same exceptions +as in the case of Atzerodt; and sentenced him to be hung as above, +two-thirds of the Commission concurring therein. + +In the case of Mary E. Surratt, the Commission found her, of the +specifications guilty, and of the charge guilty; except as to +"receiving, sustaining, harboring, and concealing Samuel Arnold and +Michael O'Laughlin"; and except as to "combining, confederating, and +conspiring with Edward Spangler," and of this not guilty; and sentenced +her to be hanged by the neck until she be dead, at such time and place +as the President of the United States should direct, two-thirds of the +Commission concurring therein. + +In the case of Michael O'Laughlin, the Commission found him guilty +of the specifications, except the words thereof, "And in further +prosecution of the conspiracy aforesaid, and of its murderous and +treasonable purposes aforesaid, on the night of the 13th of April, +A.D. 1865, at Washington City, and within the military department and +military lines aforesaid, the said Michael O'Laughlin did, then and +there, lie in wait for Ulysses S. Grant, then Lieutenant General and +commander of the armies of the United States, with intent, then and +there, to kill and murder the said Ulysses S. Grant"; of said words not +guilty. Of the charge guilty, except "combining, confederating, and +conspiring with Edward Spangler"; of this not guilty. O'Laughlin was +sentenced by the Commission to be imprisoned at hard labor for life, at +such place as the President might direct, two-thirds of the Commission +concurring therein. In the case of Edward Spangler, the Commission +found him guilty of the charge and specifications, with exceptions +similar to the above, and sentenced him to be imprisoned at hard labor +for the term of six years, at such place as the President might direct, +two-thirds concurring therein. + +In the case of Samuel Arnold, the decision of the Commission was, +that he was guilty of the charge and specifications, with exceptions +similar to the above, and that he should be imprisoned for life at +hard labor at such place as the President should direct, two-thirds +concurring. + +In the case of Samuel A. Mudd, the Commission found him guilty of the +charge and specifications, with similar exceptions, as the evidence +required, and sentenced him to be imprisoned at hard labor for life, as +above. + +The findings and sentences of the Commission were approved by the +President, and those of the accused who were sentenced to imprisonment +at hard labor were ordered by him to be sent to the military prison at +the Dry Tortugas, and they were transported there accordingly. + +In the case of those who were sentenced to death, the President +ordered their execution to take place on the 7th day of July, one week +after they were convicted and sentenced by the court, and they were +accordingly executed. + +After the conviction and sentence of Mrs. Surratt, Judge Bingham, at +the request of a member of the court, drew up the following petition: +"To the President: The undersigned, members of the military commission +appointed to try the persons charged with the murder of Abraham +Lincoln, etc., respectfully represent that the Commission have been +constrained to find Mary E. Surratt guilty upon the testimony of the +assassination of Abraham Lincoln, late President of the United States, +and to pronounce upon her, as required by law, the sentence of death; +but in consideration of her age and sex, the undersigned pray your +Excellency, if it is consistent with your sense of duty, to commute her +sentence to imprisonment for life in the penitentiary." + +This petition was signed by five members (a majority) of the court, and +although not constituting a part of the record, was presented along +with the record by the Judge Advocate General to the President. The +record was carefully considered and discussed by the President and a +full cabinet, when, without a dissenting voice, the sentences of the +Commission were confirmed, and the prayer of the petition was rejected. + +Mrs. Surratt's counsel then sued out a writ of _habeas corpus_ to +take her out of the hands of the military authorities, and thus to +secure for her a civil trial, or perhaps an entire release, after the +President had approved the findings and sentence of the court. + +The President had set the 7th day of July, 1865, as the day for the +execution of those who had been sentenced to death, and had given +orders accordingly to the military officer under whose charge they had +been placed. On the forenoon of that day, on the application of Mrs. +Surratt's counsel, Judge Wylie, of the Supreme Court of the District of +Columbia, endorsed on her application:-- + + "Let the writ issue as prayed, returnable before the criminal + court of the District of Columbia, now sitting at the hour of + ten o'clock A.M., this 7th day of July, 1865. + + [Signed] + "ANDREW WYLIE, + + "_A Justice of the Supreme Court of the District of Columbia_. + + "July 7th, 1865." + +This writ was served on General Hancock, who had custody of, and was +charged with the execution of the prisoners, and who, accompanied by +Attorney General Speed, appeared before Judge Wylie in obedience to the +writ, on which the following return was made:-- + + HEADQUARTERS MIDDLE MILITARY DIVISION, + WASHINGTON, D. C., July 7th, 1865. + + To Hon. ANDREW WYLIE, _Justice of the Supreme Court of the + District of Columbia_:-- + + I hereby acknowledge the service of the writ hereto attached + and return the same, and respectfully say that the body of + Mary E. Surratt is in my possession under and by virtue of + an order of Andrew Johnson, President of the United States, + and Commander-in-Chief of the army and navy, for the purposes + in said order expressed, a copy of which is hereto attached + and made part of this return; and that I do not produce said + body by reason of the order of the President of the United + States, indorsed upon said writ, to which reference is hereby + respectfully made, dated July 7th, 1865. + +The order of the President, made a part of the above return, is as +follows:-- + + EXECUTIVE OFFICE, July 7th, 1865, 10 o'clock A.M. + + To Major General W. S. HANCOCK, _Commander, etc._:-- + + I, ANDREW JOHNSON, President of the United States, + do hereby declare that the writ of habeas corpus has been + heretofore suspended in such cases as this, and I do hereby + especially suspend this writ, and direct that you proceed to + execute the order heretofore given upon the judgment of the + military commission, and you will give this order in return to + the writ. + + ANDREW JOHNSON, _President_. + +The court ruled that it yielded to the suspension of the writ of +_habeas corpus_ by the President of the United States. + +Thus ended the contest over the jurisdiction of the military +commission. It has never been revived with success and never will be, +as the sound sense of every patriotic American, whose heart beats true +to the cause of liberty, justice, good morals, and good government, +rests on the arguments that determined this trial by a military +commission as its sanction, both by our inimitable Constitution and +by the laws of war. In the light of these arguments, this trial will +ever hereafter have the authority of a precedent, should another crisis +arise involving the principles on which it rests. It was only those +whose sympathies were with the rebellion who demurred to it at the +time, and whose yelp is occasionally heard, even at this late day, but +on a very cold trail. + +The sentence of the Commission was executed on the 7th day of July, +1865, in accordance with the President's order, by General Hancock, in +the yard of the old Capitol prison. Thus the trial and the execution +were alike at the hands of the military; and thus the authority and +justice of the government were vindicated, and a solemn warning was +given to all traitors to desist from schemes of assassination; a +warning which, as we shall yet see, taught them a salutary lesson, and +in some measure brought them to their senses. + +We shall now turn our attention to the persons just now referred to, +some of whom were known, but many were unknown. Before doing this, +however, it seems due to our history at this point to say a word about +Booth's co-conspirator, John H. Surratt, who would seem to have dropped +out of sight in the narrative I have given of the arrest and trial of +the conspirators. + +It will be remembered that he carried the dispatches from the Richmond +government to the Canada conspirators, sanctioning the arrangements +that had been made by them to secure the assassinations they had +planned; that he arrived with these dispatches at Montreal on the +6th of April; and that the execution of the plot was at once entered +upon, those of the conspirators who were to take an active part +preparing immediately and starting for Washington, boasting openly of +what they would do when they should have reached their destination. +Some of these were known, and will be hereafter referred to by name; +but there would seem to have been a number of them whose names were +never learned. John H. Surratt came back, either alone or in company +with some of them. That he was in Washington, aiding and abetting, on +the day and night of the assassination, was positively sworn to by +one of the witnesses who was well acquainted with him; and from the +concurrence of testimony, there is good reason to believe that he was +one of the two parties with whom Booth was in communication on the +sidewalk in front of the theatre, as heretofore narrated, and that +he acted as monitor, calling the time for Booth. He seems, however, +to have had the bumps both of cautiousness and secretiveness largely +developed, and so kept himself as much as possible out of sight in +the transaction in which he was no doubt, at the same time, an active +participant. He most probably left Washington on the first train after +the work was done, as we have no trace of him again until we find him +at Burlington, Vt., on his way to Canada, on the 18th of April. As +it is my purpose to devote a chapter or two to his case especially, +I shall not, at this time, pursue it any further; but as he was +undoubtedly a very active and important factor in the conspiracy, and +escaped justice merely by escaping capture at the time, and so securing +a civil trial after the war was over, a history of his case naturally +comes within the scope of my plan, and will serve to illustrate what I +have already said in relation to the existing facts in regard to the +population of the District of Columbia that would have rendered a civil +trial futile in the cases brought before the Commission. + + + + +CHAPTER X. + + EVIDENCE IN REGARD TO ATROCITIES NOT EMBRACED IN THE CHARGE AND + SPECIFICATIONS, FOR WHICH DAVIS AND HIS CANADA CABINET WERE + RESPONSIBLE. + + +It will have been noticed that in its charge and specifications +against the prisoners on trial the government charged Jefferson Davis, +George N. Sanders, Beverly Tucker, Jacob Thompson, William C. Cleary, +Clement C. Clay, George Harper, George Young, and others unknown, +with combining, confederating, and conspiring together with one John +H. Surratt and John Wilkes Booth to kill and murder Abraham Lincoln, +Andrew Johnson, William H. Seward, and Ulysses S. Grant; and in the +specifications it is alleged that David E. Herold, Edward Spangler, +Lewis Payne, Michael O'Laughlin, Samuel Arnold, Mary E. Surratt, +George Atzerodt, and Samuel A. Mudd, together with the said John H. +Surratt and John Wilkes Booth, incited and encouraged thereunto by +Jefferson Davis, George N. Sanders, Beverly Tucker, Jacob Thompson, +William C. Cleary, Clement C. Clay, George Harper, George Young, and +others unknown, did kill and murder Abraham Lincoln, and assault +violently with intent to kill William H. Seward. In this the government +distinctly and unequivocally charged Jefferson Davis and his allies +with inciting and encouraging the prisoners on trial to the commission +of this great crime, with the political intent of giving aid to their +sinking cause. They were not arraigned before the Commission, for they +were not in custody; but they were arraigned before the world. The +Commission was then not called upon to render a finding in their case; +but the government was called upon to present to the world through +the Commission the evidence on which its grave charge against these +men, who had rendered themselves conspicuous before the world, was +founded. Its honor and dignity made this obligatory upon it. A careful +reading of the charge and specifications on which the assassins were +arraigned and tried will show that it was competent for the government +to present, on that trial, the evidence in its possession on which +it charged Jefferson Davis, Jacob Thompson, Clement C. Clay, Beverly +Tucker, George N. Sanders, William C. Cleary, George Young, George +Harper, and others, as being inciters to this crime. This evidence was +so conclusive of their guilt as charged, that had they been before the +Commission they could only have escaped conviction by impeaching the +government's witnesses. + +Before entering upon the consideration of the evidence a few prefatory +remarks seem to be necessary. At an early period of the rebellion +Jefferson Davis and his cabinet felt the necessity of sending some of +the strongest men of the Confederacy to establish their headquarters +in Canada, to look after the interests of the rebel cause, both at +home and abroad, and to render assistance to that cause in every way +that they could. Amongst its agents thus sent to Canada we find Jacob +Thompson of Mississippi, who had been Secretary of the Interior during +Buchanan's administration; Clement C. Clay, who had been a United +States Senator from Alabama; Beverly Tucker, who had been a circuit +judge in Virginia; George N. Sanders, William C. Cleary, George +Young, George Harper, and others of less note, acting in subordinate +capacities under the above conspicuous leaders and agents. + +These agents had been domiciled within the territory of a neutral +government to carry on belligerent operations, contrary to the laws of +nations and also of war; and the operations planned by them from time +to time, and sometimes executed, were of the highest moral turpitude. +The fact that, although the government of Canada held the position of +a neutral power as between the belligerents, yet its people, in the +proportion of five to one, sympathized with the rebellion, made it very +favorable to the execution of the schemes of these Southern emissaries. +They also occupied a position that geographically was most favorable to +their purposes. They were within easy and constant communication with +the enemies of the government that were to be found in every Northern +State, and at the same time were able to afford a place of refuge for +rebel prisoners who were able to find means of escape from Northern +prisons. Canada was a place where disloyal refugees and persons accused +of offenses against the government congregated all through the war; and +so Jefferson Davis's Canada Cabinet was never at a loss for material +for carrying out its plans without regard to their character. They +were constantly surrounded by desperate and reckless men, who were in +deep sympathy with them in their desperate purpose to overthrow the +government, and like them, ready to engage in anything that might give +aid in carrying out that purpose. From the head of the rebel government +on down through the ranks of this class of its agents, there appears +to have been no restraint from any moral consideration. The honorable +men of the Confederacy were found, to a large extent, in the ranks of +its soldiers engaged in open warfare. The assassination plot was the +last card of these desperate men; it was preceded by many others in +which the laws of war and the laws of morals were utterly ignored. We +will, therefore, in the first place, present some of the most flagrant +of these, in regard to which the evidence makes Jefferson Davis and +his Canada Cabinet responsible, in order that from these revelations +we may be thoroughly informed of their utter disregard of every moral +consideration, and that we may thus be prepared for the conclusions to +which the evidence of their complicity in, and responsibility for, the +assassination plot point. + +To show the utter lack of moral appreciation, the entire disregard of +all moral requirements, and contempt for the enlightened Christian +sentiment of the world as embodied in the accepted codes of martial and +international law, and that the assassination plot was only in keeping +with their other schemes to aid the rebel cause, I deem it necessary +to dwell at some length on the statement of these schemes, as shown +by the testimony before the Commission. The St. Albans raid, under +the lead of Lieutenant Bennett H. Young (made a lieutenant for this +occasion only, and that by the filling up for him of a Commission that +was sent to Clay, in blank, by the rebel secretary of war, and to be +thus conferred by him, at his discretion, on the persons he engaged in +such expeditions, as a protection in case of a trial for extradition), +was simply a hostile expedition planned by these conspirators, who +organized a squad of about twenty escaped Confederate soldiers from the +prisons in which they had been confined, and placed them under command +of Young, armed with one of these commissions for his protection. This +bogus lieutenant was instructed to pass through the New England States +with his command, and escape by the way of Halifax, burning towns +and farm-houses as he went; and by robbing and plundering to secure +all the money he could, and whatever else he could convert to the +use of the Confederate government. He made a foray into Vermont; set +fire to the town of St. Albans; robbed two banks, securing about two +hundred thousand dollars; and then, finding himself confronted by such +opposition that he was unable to proceed, was compelled to retreat into +Canada, being so closely pursued that he and a good part of his command +were made prisoners. They were committed to jail to await a trial for +extradition. + +This was simply a guerilla raid, organized on neutral territory, not +for the purpose of engaging in open and honorable warfare against an +armed foe, but to burn and plunder the property of unarmed people, +who were non-combatants engaged in the pursuits of peaceful life. +Young's commission, however, enabled him to defeat the demand for his +extradition, as he was not captured until he had regained that neutral +territory on which, in violation of the law of nations, his expedition +had been organized. It is easy to see from this where the sympathies +of the Canadian court that tried this case lay. Pending this trial for +extradition, Clay became very uneasy for fear the commission conferred +by him on Young might not prove a sufficient protection, and so he sent +Richard Montgomery, who was in the employ of the United States in its +department of secret service, and who had so well wormed himself into +the confidence of the Canada Cabinet as to be employed by them on this +mission, with a letter to James A. Seddon, the rebel secretary of war, +urging him by every consideration he could think of to give a direct +sanction to Young's act, and to demand in the name of the Confederate +government that he should be released. + +This letter was carried to Richmond by Montgomery, after having been +exhibited to the Secretary of War of the United States. I refer to +this as showing the status of Montgomery with these agents of the +Confederate government in Canada, and as evidence of his having gained +their entire confidence; and so he was in a position to be a witness, +before the Commission, as being informed of their plans and of their +doings. In response to this argument and earnest appeal of Clay, the +rebel government shouldered the responsibility of the St. Albans raid, +and shielded the raiders against extradition. The following is a copy +of Lieutenant Young's instructions from the rebel government:-- + + CONFEDERATE STATES OF AMERICA, + WAR DEPARTMENT, + RICHMOND, VA., June 16th, 1864. + + TO Lieutenant BENNETT H. YOUNG:-- + + LIEUTENANT:--You have been temporarily appointed first + lieutenant in the provisional army for special service. You + will proceed without delay to the British Provinces, where you + will report to Messrs. Thompson and Clay for instructions. + + You will, under their direction, collect together such + Confederate soldiers who have escaped from the enemy, not + exceeding twenty in number, as you may deem suitable for the + purpose, and will execute such enterprises as may be entrusted + to you. + + You will take care to commit no violation of the local law, and + to obey implicitly their instructions. + + You and your men will receive from these gentlemen + transportation and the customary rations and clothing, or + commutation therefor. + + JAMES A. SEDDON, + _Secretary of War_. + VA. June 16th. + +Here we have the response to Clay's letter, and everything fixed up for +the defense of Young and his men after the act had been committed, the +papers being antedated to meet the requirements of the case. + +During the progress of this trial for the extradition of the raiders, +Thompson, Clay, Tucker, and Sanders necessarily held a kind of +professional intercourse with the counsel representing the United +States. Sanders, on one occasion, became full of self-importance, as +also, probably, of whiskey, when his discretion forsook him, and he +gave vent to the vaunting and boasting of a braggadocio. He said this +raid was not the last that would occur, but it would be followed by the +depleting of many other banks and the burning of other towns on the +frontier, and that many Yankee sons of ---- (using a coarse and vulgar +expression) would be killed. He said they had their plans perfectly +organized, and men ready to sack and burn Buffalo, Detroit, New York, +and other places, and had deferred them for a time, but would soon see +the plans wholly executed; and any preparations that could be made by +the government to prevent them, would not, though they might delay them +for a time. He claimed to be acting as the agent of the Confederate +government, and we have seen that it assumed the responsibility. +Several other raids of like character were planned, but were prevented +by preparations which the government was enabled to make by being +informed of them in advance by persons engaged in its secret service, +or by other friends in Canada, who, being in the confidence of the +conspirators, became informed as to their plans. + +These plans involved a warfare against non-combatants; a war, as we +shall see, of poisoning reservoirs, of burning towns and cities by +wholesale; a war of the destruction of men, women, and children; +burning of hospitals, churches, and private dwellings; a war for the +destruction of life and property; in short, a war against humanity. +The City of New York came in for a large share of their consideration. +The destruction of the Croton dam was an enterprise that seemed very +desirable to them, and for which they planned; and had the rebel armies +been able to keep the field a little while longer, this would no doubt +have been attempted and perhaps accomplished. The poisoning of the +reservoirs supplying the city with water seemed very desirable to them, +and was much discussed. This was one of the hobbies of the infamous Dr. +Blackburn and a Mr. M. A. Pallen of Mississippi, who had been a surgeon +in the rebel army. They had made a calculation of the capacity of the +reservoirs supplying the city, and had calculated the amount of poison +required to make an ordinary draught of water fatal to life. Amongst +the poisons they had considered arsenic, strychnine, and prussic acid +as available. Blackburn thought the project feasible. Thompson feared +it would be impossible to collect so large a quantity of poisonous +matter without exciting suspicion and leading to the detection of the +parties engaged in it. Pallen and others thought it could be managed +in Europe. This matter was fully and freely discussed in June, 1864, by +Blackburn, Pallen, Thompson, Sanders, and Cleary. + +The moral question involved in the destruction, by poison, of the +entire population of the American commercial metropolis,--men, +women, and children,--did not enter into their thoughts; it was, in +fact, a scheme dear to their hearts; the difficulties attending its +accomplishment were the only things that gave them any trouble. + +This is that same Dr. Blackburn who, with the approbation of Thompson +and his gang, made an effort in the summer of 1864 to spread pestilence +in Washington City, and in other cities occupied by federal troops, +as far south as could be reached, by means of clothing infected with +yellow fever and with small-pox. + +Conover testified to this positively and circumstantially as one of +their many wicked schemes to spread consternation over the North, and +so demoralize the people that they would be willing to make peace on +any terms. + +As this last scheme is so monstrous in character that it can only be +believed on the fullest proof, I give the testimony of Godfrey Joseph +Hyams before the Commission, in full. + +"I am a native of London, Eng., but have lived south nine or ten years. +During the past year I have resided in Toronto, Can. About the middle +of December, 1863, I made the acquaintance of Dr. Blackburn. I was +introduced to him by the Rev. Stewart Robinson at the Queen's Hotel +in Toronto. I knew him by sight previously, but before that had no +conversation with him. I knew that he was a Confederate and was working +for the rebellion. Dr. Blackburn was then about to take south some men +who had escaped from the federal service, and I asked to go with him. +He asked me if I wanted to go south and serve the Confederacy. I said I +did. He then told me to come upstairs to a private room, as he wanted +to speak to me. He took me upstairs, and after we had entered his room +he pledged his word as a freemason, and offered his hand in friendship, +that he would never deceive me. He said he wanted to confide to me an +expedition. I told him I would not care if I did. He said I would make +an independent fortune by it, at least one hundred thousand dollars, +and get more honor and glory to my name than General Lee, and be of +more assistance to the Confederate government than if I was to take one +hundred thousand soldiers to reinforce General Lee. I pledged my word +that I would go if I could do any good. He then told me he wanted me +to take a certain quantity of clothing, consisting of shirts, coats, +and underclothing, into the States, and dispose of them by auction. I +was to take them to Washington City, to Norfolk, and as far south as I +could possibly go, where the federal government held possession and had +the most troops, and to sell them on a hot day or of a night; that it +did not matter what money I got for the clothing, I had just to dispose +of them in the best market where there were the most troops, and where +they would be most effective, and then come away. He told me I should +have one hundred thousand dollars for my services, sixty thousand +dollars of it directly after I returned to Toronto; but he said that +would not be a circumstance to what I should get. He said I might make +ten times one hundred thousand dollars. I was to stay in Toronto, and +go on with my legitimate business until I heard from him. He told me +to keep quiet, and if I moved anywhere I was to inform Dr. Stewart +Robinson where I went to, and he would telegraph for me, or write to me +through him. Sometime in the month of May, 1864, I went to my work and +worked on until the 8th day of June, '64; it was on a Saturday night; I +had been out to take a pair of boots home to a customer of mine; when I +returned home my wife had a letter for me from Dr. Blackburn, which Dr. +Stewart Robinson had left in passing there. I read the letter, and went +out to see Dr. Robinson. I asked him what I was to do about it. He said +he did not know anything about it; that he did not want to furnish any +means to commit an overt act against the United States government. He +advised me to borrow from Mr. Preston, who keeps a tobacco manufactory +in Toronto, enough money to take me to Montreal, and there get money +from Mr. Slaughter, according to the directions contained in Dr. +Blackburn's letter. This letter instructed me to proceed from Montreal +to Halifax to meet Dr. Blackburn; it was dated Havana, May 10th, 1864. +I went to Halifax to a gentleman by the name of Alexander H. Keith, +Jr., and remained under his care until Dr. Blackburn arrived in the +steamer 'Alpha,' on the 12th of July, 1864. When Dr. Blackburn arrived +he sent to the Farmer's Hotel, where I was staying, for me. I went +to see him, and he told me that the goods were on board the steamer +'Alpha,' and that the second officer on the steamer would go with me +and get the goods off, as they had been smuggled in from Bermuda. Mr. +Hill, the second officer, told me to get an express wagon and take it +down to Cunard's steamboat wharf. I did so, and there got eight trunks +and a valise. I was directed to take them to my hotel, and put them +in a private room. I put them in Mr. Doran's private sitting-room. I +then went around to Dr. Blackburn, and told him I had got the goods off +the steamer. He told me that the five trunks tied up with ropes were +the ones for me to take, and asked me if I would take the valise into +the States and send it by express, with an accompanying letter, as a +donation to President Lincoln. I objected to taking it, and refused +to do so. I then took three of the trunks and the valise around to +the hotel. He was then staying at the Halifax Hotel. The trunks had +Spanish marks upon them, and he told me to scrape them off, and that +Mr. Hill would go with me the next morning and make arrangements with +some captain of a vessel to take them. There were two vessels there +running to Boston, and I was to make an arrangement with either of them +to smuggle the trunks through to Boston. The next morning I went down +with Mr. Hill to the vessels. Mr. Hill had a private conversation with +Captain McGregor, the captain of the first vessel, to whom we applied +to take the goods, and he refused. + +"We then went to see Captain O'Brien of the bark 'Halifax.' Hill told +him that I had some presents in my trunks, consisting of silks, satin +dresses, etc., that I wanted to take to my friends. The Captain and +Mr. Hill had a private conversation, and when the Captain came out he +consented to take them. I was to give him a twenty-dollar gold piece +for smuggling them in. I put them on board the vessel that day and he +stowed them away. The vessel lay five days at Boston before he could +get a chance to get them off, but finally he succeeded in getting them +off, and expressed them to Philadelphia, where I received them and +brought them to Baltimore. I then took out the goods, which were very +much rumpled, and smoothed them out and arranged them, bought some new +trunks, and repacked them and brought them to this city. Dr. Blackburn, +by way of caution, asked me before leaving if I had had the yellow +fever, and on my saying 'no,' he said, 'You must have a preventive +against taking it. You must get some camphor and chew it, and get some +strong cigars, the strongest you can get; and be sure to keep gloves +on your hands when handling the things.' He gave me some cigars that +he said he had brought from Havana, which he said were strong enough +for anything. When I arrived in this city, I turned over five of the +trunks to Messrs. W. L. Wall & Company, commission merchants in this +city, and four to a man by the name of Myers, from Boston, a sutler +for Siegel's or Weitzel's division. He said he had some goods which he +was going to take to New Berne, N.C., and I told him that I had a lot +of goods that I wanted to sell, and, to make the best market I could +for them, I would turn them over to him on commission. I also told him +I would shortly have more, and mentioned that I had disposed of some +to Wall & Company, of this city. Dr. Blackburn told me, when I was +making arrangements, that I should let the parties to whom I disposed +of my goods know that I would have a big lot to sell, as it was in +contemplation to get together about a million dollars' worth of goods +and dispose of them in that way. Dr. Blackburn stated that his object +in having these goods disposed of in different cities was to destroy +the armies, or anybody that they came in contact with. All these goods, +he told me, had been carefully infected in Bermuda with yellow fever, +small-pox, and other contagious diseases. + +"The goods in the valise, which were intended for President Lincoln, +I understood him to say had been infected with yellow fever and +small-pox. This valise I declined taking charge of and turned it over +to him at Halifax Hotel, and I afterwards heard that it had been +sent to the President. On the five trunks that I turned over to Wall +& Company I got an advance of one hundred dollars. Among these five +trunks there was one that was always spoken of by Blackburn to me as +'Big No. 2,' which he said I must be sure to have sold in Washington. +On disposing of the trunks I immediately left Washington, and went +straight through until I got to Hamilton, Canada. In the waiting-room +there I met Mr. Holcomb and Clement C. Clay. They both rose, shook +hands with me, and congratulated me upon my safe return, and upon my +making a fortune. They told me I should be a gentleman for the future, +instead of a working man and a mechanic. They seemed perfectly to +understand the business in which I had been engaged. + +"Mr. Holcomb told me that Dr. Blackburn was at the Donegan Hotel, in +Montreal, and that I had better telegraph to him stating that I had +returned. As Dr. Blackburn had requested me to telegraph to him as soon +as I got into Canada, I did so, and the next night, between eleven and +twelve o'clock, Dr. Blackburn came up and knocked at the door of my +house. I was in bed at the time. I looked out of the window, and saw +Dr. Blackburn there. Said he, 'Come down, Hyams, and open the door; you +are like all damned rascals who have been doing something wrong--you're +afraid that the devil is after you.' He was in company with Bennett +H. Young. I came down and let him in. He asked me how I had disposed +of the goods and I told him. 'Well,' said he 'that is all right as +long as "Big No. 2" went into Washington; it will kill them at sixty +yards distance.' I then told the doctor that everything had gone wrong +at my home in my absence; that I needed some funds; that my family +needed money. He said he would go to Colonel Jacob Thompson and make +arrangements for me to draw upon him for any amount of money that I +required. He then said that the British authorities had solicited his +services in attending the yellow fever that was then raging in Bermuda; +that he was going on there; and that as soon as he came back he would +see me. I went up to Jacob Thompson the next morning, and told him what +Dr. Blackburn had said. He said 'Yes'; Dr. Blackburn had been there +and had made arrangements for me to draw one hundred dollars whenever +it was shown that I had made disposition of the goods according to his +directions. I told him I needed money; that I had been so long away +from home that everything I had was gone, and I wanted money to pay +my rent, etc. He said, 'I will give you fifty dollars now, but it is +against Dr. Blackburn's request; when you show me that you have sold +the goods, I will give you the balance.' He asked me to give him a +receipt, which I did: 'Received of Jacob Thompson the sum of fifty +dollars on account of Dr. Blackburn.' That was about the 11th or 12th +of August last. The next day I wrote to Messrs. Wall & Company, of +Washington, desiring them to send me an account of the sales, and the +balance due me. When I received their answer, I took it to Colonel +Thompson. He then said he was perfectly satisfied I had done my part, +and gave me a check for fifty dollars on the Ontario Bank. I gave him +a receipt: 'Received of Jacob Thompson one hundred dollars in full +on account of Dr. Luke P. Blackburn.' I told Thompson of the large +sum which Dr. Blackburn had promised me for my services and that he +and Mr. Holcomb had both told me that the Confederate government had +appropriated two million dollars for the purpose of carrying it out; +but he would not pay me any more. When Dr. Blackburn returned from +Bermuda, I wrote to him at Montreal, and told him I wanted some money, +and that he ought to send me some; but he made no reply to my letter. I +was then sent down to Montreal with a commission for Bennett H. Young, +to be used in his defense in the St. Albans raid case. I there met Dr. +Blackburn. He said I had written some hard letters to him, abusing him, +and that he had no money to give me. He then got into his carriage at +the door and rode off to some races, I think, and never gave me any +more satisfaction. As I wanted money before leaving for the States, +I went to the Clifton House, Niagara. Dr. Blackburn told me he had +no money with him then, but that he would go to Mr. Holcomb and get +some, as he had Confederate funds with him. Blackburn said that when I +returned he would get the money for the expedition from either Holcomb +or Thompson, it did not matter which. From this, and from Holcomb and +Clay both shaking hands with me and congratulating me at Hamilton upon +my safe return, I thought, of course, they knew all about it. I do not +know that Dr. Stewart Robinson knew of the business in which I was +engaged, but he took good care of me while I was at Toronto, in the +fall, and until Dr. Blackburn wrote for me in the spring; and when he +gave me Dr. Blackburn's letter, he told me to borrow the money from Mr. +Preston to take me to Montreal, as he said he did not want to commit +an overt act against the Government of the United States himself. Mr. +Preston lent me ten dollars to go to Montreal. On arriving at that +place, according to the directions of Dr. Blackburn's letter, I went +to Mr. Slaughter to get the means to take me to Halifax. Mr. Slaughter +was short of funds, and had only twenty dollars that he could give me. +He said that I had better go to Mr. Holcomb, who was staying at the +Donegan Hotel, and he would give me the balance. I went to the Hotel +and sent up my name, and he sent for me to come up. I told him I wanted +some money to take me to Halifax; he asked me how much I wanted; I told +him as much as would make up forty dollars; he said 'You had better +take fifty dollars,' but as I did not want that much I only took enough +to make forty dollars. When I came to Washington to dispose of my +goods, which was on the 5th of August, 1864, I put up at the National +Hotel, registered my name as J. W. Harris, under which name I did +business with Wall & Company." + +Here we have a straightforward, circumstantial account of the efforts +made and the means used to spread pestilence and death amongst citizens +and soldiers alike, in the capital of the nation, and in other cities +and camps, a special consignment, supposed to contain the contagion +of yellow fever and small-pox, being sent as "a donation to President +Lincoln." This was for the purpose of taking his life, and at the +risk of the lives of his household. Blackburn, Clay, Thompson, and +Holcomb were the originators of the plan, and as guilty as the infamous +scoundrel, Hyams, who, to gratify his desire for revenge on them for +their perfidy in putting him off with a mere pittance of the promised +reward for his services in the matter, comes before the Commission and +reveals the whole history of their infamy. No one who reads his story +will doubt that he was a conscienceless scoundrel, who, for the hope of +obtaining a large sum of money, according to their promise, was willing +to make himself an instrument in the wholesale and indiscriminate +destruction of human life. But monster as he was, he was not more a +monster than was each one of his employers. He was evidently a man +well qualified for the task in which he was employed; in the first +place destitute of conscience, and then a man of a good degree of +intelligence, shrewdness, and knowledge of affairs. Granting that he +was selected by Dr. Robinson, and recommended by him to Dr. Blackburn, +he could not have made a better selection had he had full knowledge +of the work cut out for him to do. And when we consider Blackburn's +perfidy in his dealings with him, pledging his faith as a freemason and +giving him his hand in friendship, assuring him that he would never +deceive him; then building him up in the idea that he would receive +one hundred thousand dollars, and perhaps ten times that amount as his +reward; and then, after he had performed a service that put his own +life in jeopardy, to put him off with a mere pittance of the amount +promised, we cannot wonder that a man constituted as Hyams was should +divulge the terrible secret in revenge for the shabby treatment he had +received at their hands. + +See how Clay and Holcomb meet him on his return! They understand all +about the character of his mission, congratulate him on his safe +return, and on the fact that from thenceforth he was not to be known as +a laboring man and a mechanic, but as a gentleman. + +No wonder that he, when for the pitiful sum of one hundred dollars he +had signed for Thompson a receipt in full on account of Dr. Blackburn, +vowed to have revenge. How true it is that there must be honor even +amongst the worst of villains, in order that they may hang together. +They broke faith with Hyams, and Hyams revealed circumstantially, and +fully, their great crime against humanity. We have now seen these men +planning to poison the water supply of New York City to the extent of +fatality to its whole population, men, women, and children,--helpless +age, and more helpless infancy doomed to death by the scope of their +plan; and now, we have found them engaged in an effort to spread +pestilence with the same purpose of the indiscriminate destruction of +human life. What worse can they do? Can we after this be surprised at +anything they may undertake? It will not avail to say that a man who +could be hired to do such a thing as this is unworthy of credence, even +under oath, and so that his testimony is not to be received. Hyams' +story bears on its face the marks of a truthful narrative of the facts, +just as they occurred, and it does not follow that because a man is a +confessed scoundrel he is incapable of telling the truth. No adequate +motive for falsehood in this case can be assigned. Had his employers +kept faith with him, he would no doubt have kept their terrible secret, +and it would have been buried with him. That they did not, only becomes +a reason for his disclosure of the facts, not for his fabrication of +falsehoods. But then his statement as to how he disposed of the goods +in Washington City is fully confirmed by the testimony of Wall & +Company, who produced an account of the transaction agreeing exactly, +in date and amount, with that given by Hyams, and also in regard to his +_alias_ of J. W. Harris. It was also corroborated by the National Hotel +register of that date. + +Conover testified to this as one of the schemes planned by Thompson +and his gang, and Hyams gives a full account of the manner of its +execution. For some reason the infection was a failure in Washington +City; but not so with the goods sent by Myers, the sutler, to New +Berne, N.C. It will be recollected that an epidemic of yellow fever +broke out there in the latter part of the summer of 1864, that swept +away large numbers of people, both citizens and soldiers. No doubt this +epidemic was due to the infection carried in the clothing that Myers +received from Hyams, to be sold on commission; and that in the great +day of final account these men will find themselves arraigned as the +murderers of all those who fell as the victims of their hellish plot, +before a tribunal that is infinitely perfect in its knowledge and just +in its decisions. + + +_Plot to Burn New York City and its Attempted Execution._ + +The plot to burn the city of New York was attempted to be carried out +on the 25th of November, 1864. I will give the history of this attempt +as narrated in his confession, by Robert C. Kennedy, one of the gang +of incendiaries sent there for that purpose, who was arrested, tried, +found guilty, condemned, and hanged for his crime. Before his execution +he made a full confession as follows:-- + + "After my escape from Johnson's Island I went to Canada, + where I met a number of Confederates. They asked me if I was + willing to go on an expedition. I replied: 'Yes, if it is in + the service of my country.' They said: 'It is all right,' but + gave me no intimation of its nature, nor did I ask for any. + I was then sent to New York, where I stayed some time. There + were eight men of our party, of whom two fled to Canada. After + we had been in New York three weeks we were told that the + object of our expedition was to retaliate on the North for the + atrocities in the Shenandoah Valley. It was designed to set + fire to the city on the night of the Presidential election; but + the phosphorus was not ready, and it was put off until the 25th + of November. I was stopping at the Belmont House, but moved + into Prince Street. I set fire to four places--in Barnum's + Museum, Lovejoy's Hotel, Tammany Hotel, and the New England + House. The others merely started fires in the house where each + one was lodging, and then ran off. Had they all done as I did, + we would have had thirty-two fires and played a huge joke on + the fire department. I know that I am to be hung for setting + fire to Barnum's Museum, but that was only a joke. I had no + idea of doing it. I had been drinking and went in there with a + friend, and, just to scare the people, I emptied a bottle of + phosphorus on the floor. We knew it would not set fire to the + wood, for we had tried it before, and at one time had concluded + to give the thing up. There was no fiendishness about it. + After setting fire to my four places, I walked the streets all + night, and went to the Exchange Hotel early in the morning. We + all met there that morning and the next night. My friend and I + had rooms there, but we sat in the office nearly all the time + reading the papers, while we were watched by the detectives, + of whom the hotel was full. I expected to die then, and if I + had it would have been all right; but now it seems rather hard. + I escaped to Canada and was glad enough when I crossed the + bridge in safety. I desired, however, to return to my command, + and started with my friend for the Confederacy _via_ Detroit. + Just before entering the city he received an intimation that + the detectives were on the look-out for us, and giving me the + signal he jumped from the cars. I did not notice the signal, + but kept on and was arrested in the depot. I wish to say that + the killing of women and children was the last thing thought + of. We wanted to let the people of the North understand that + there were two sides to this war, and that they could not + be rolling in wealth and comfort while we at the South were + bearing all the hardships and privations. In retaliation for + Sheridan's atrocities in the Shenandoah Valley, we desired to + destroy property; not the lives of women and children, although + that would, of course, have followed in its train." + + Done in the presence of + LIEUT. COL. MARTIN BURKE and + J. HOWARD, JR. + March 24th, 1865, 10.30 P.M. + +Kennedy, in the presence of death, made this free and full confession, +carefully confining himself to the narration of his own and the +acts of his fellow incendiaries. He does not tell who planned this +enterprise of death and destruction for the great metropolis of the +country, and whilst honestly confessing his own part in it, is very +careful not to compromise anybody else. But we are not left without +information as to who were the employers of him and his gang; and +here again Thompson and his fellow agents of the rebel government +in Canada are made to appear as its originators, and must be held +responsible, not only for the attempt thus made to destroy New York by +fire, but also for the worst consequences that could have happened had +their attempt proven successful.[3] Kennedy says they did not desire +to destroy the lives of women and children, although that would of +course have followed in its train. Thompson, Clay, Cleary, Sanders, +and any others that had any hand in setting this expedition on foot, +could not fail to know what would necessarily follow in its train if +successful, but were not deterred by the knowledge of the fact that +it involved not merely the destruction of property, but of necessity +also the destruction of women and children; for the firing of a city +like New York in many places, simultaneously, if successful in its +object, the destruction of the city, must necessarily result in the +same kind of indiscriminate destruction of human life that resulted +at New Berne, from the dissemination of pestilence sent there in the +clothing that that inhuman fiend, Dr. Blackburn, had carefully infected +and sent there for that very purpose. In the early ages of the world +war meant the indiscriminate destruction of all that belonged to the +enemy. The spirit of war then was to exterminate the foe. Prisoners of +war were slaughtered after the battle was ended. Women and children +were killed or carried into slavery. Men had not learned to exercise +mercy in war. It meant universal destruction of life, and confiscation +of the property of the enemy. It meant even the confiscation of the +territory or country in which he lived. It is so yet among the savage +tribes of the earth. With them the murder of a woman about to become a +mother is nothing, and the dashing out of the brains of her children +against a stone or a tree, before her eyes, yields to them a fiendish +satisfaction. Civilized nations, however, do not so carry on war, and +the laws of war do not permit this mode of warfare. The annals of no +age of the world, or of the most rude and savage people of the earth, +afford examples more atrocious than those planned and executed, or +attempted to be executed, by these agents of Jefferson Davis in Canada, +and by other agents, as we shall see, whose deeds were sanctioned and +paid for by Davis and his Secretary of State Benjamin. + +The prison-pen at Andersonville was evidently planned for the +destruction of the lives of the prisoners of war that were sent +there; and if any escaped death, it was intended that they should be +so physically injured that they could never again render any service +to the Union cause. In a country abounding in forest shade and pure +water, there can be no excuse given for locating a prison-pen in a +little intervale, wholly destitute of shade, where men without tents or +shelter of any kind were huddled together by the thousands, with a very +meagre supply of water, for a long time, even for quenching thirst, and +none at all for the purposes of cleanliness, and what they had for the +former purpose being contaminated with all the filth from the drainage +of the town just above. + +It is evident that this location was made with a view to the +destruction of life and the ruin of health. Then, for the further +carrying out of this purpose, the rations supplied were not only wholly +insufficient in quantity, but most unwholesome in quality, exactly +adapted to aid the effects of miasmatic exposure, and foul water, in +bringing on stomach and bowel troubles and low forms of fever, which +were kept up until life was literally drained out, and death from +exhaustion ensued. Here, without any sympathetic medical assistance or +proper medicine, men were dying daily by the fifties and the hundreds, +and the survivors becoming mere ghostly spectres; whilst the inhuman +monster, Wirtz, stood gloating over the scene in devilish glee, and +his inhuman guards were constantly on the look-out for pretexts to +shoot down their fellowmen, as though the terrible harvest of death, +secured by their arrangements and management of this graveyard of the +living, was too meagre, and required their bullets to enrich it. Such +was Andersonville. The purpose of its location and management are too +obvious to need remark; and for all this, Jefferson Davis and his +Secretary of War are to be held responsible. Far be it from me to bring +up this matter for the purpose of giving a fresh impulse to sectional +enmity. I only do it to show the low moral status of those who were +responsible for the conduct of the war on the side of the rebellion, in +order that from all this we may be prepared for the evidence presented +to the world through the Commission, sustaining the grave charges of +the government. + +There was no doubt an element, perhaps a large element of the +population of the Southern States, that was in full sympathy with +this policy; but such a policy could only have been abhorrent to the +honorable foe who bravely confronted us on the field of conflict. +It was the stay-at-home-and-fight element that sanctioned these +atrocities. War is cruel when conducted on the strictest rules of +civilized warfare. War is destructive; it is harsh and unrelenting. +Foeman must meet foeman with his steel. It is a game in which human +life is always the price of success and the cost of failure. The enemy +must be met and overcome; his resources must be reached and cut off if +it can be done, thus starving him into submission, as a more humane way +of getting the victory over him than by taking his life. But amongst +civilized people no enemy is to be deprived of life but the armed +and active foe in the field, in honorable and open combat, except +for crime. The lives of women, children, prisoners of war, and of +non-combatants generally, must be held sacred. Thus we see how much the +horrors of war have been mitigated by the more enlightened sentiments +and Christian morality of the world's present state of civilization. +When these shall have done their perfect work, wars will cease. The +time will yet come when men shall learn war no more. May God hasten the +day. + +In charging Jefferson Davis, and those associated with him in the +conduct of the war with an utter disregard of the laws of war, and of +being guilty of atrocities that are only matched in savage life, I wish +again to make a distinct disclaimer in behalf of those who fought, and +of those who conducted his operations in the field. Whilst I abhor +their construction of the Constitution and theory of the union of the +States as destructive of the hopes of liberty and of free government, +tending continually to disintegration, and making the idea of a nation +an impossibility, I admire and honor the courage and bravery with which +they maintained their theory, and accord to them the honor, as well as +the courage of true soldiers. + +To them the idea of winning success by the means we have had under +consideration, and for which we have found the political leaders +of the rebellion responsible, including the highest officer of the +Confederacy, would have been as abhorrent as to myself. Not a word +that I have written can tarnish the fame of the true soldier; and I +have carefully avoided charging anything against even the politicians +of the Confederacy that is not sustained by indisputable evidence. +Considered morally, their methods can never be justified; yet it was +by these methods, with assassination added, that the political leaders +of the rebellion sought to obtain success, and because of this, must +for all time in history fall under the condemnation of the enlightened +Christian conscience of the world. That they were guilty of all these +things has been abundantly proven; but as we shall see, the evidence +has not yet been exhausted. They attempt to shield themselves under the +claim of justifiable retaliation. Retaliation for what? They answer, +"The atrocities committed by Sheridan in the Shenandoah Valley." Let us +consider this question for a moment. It was the fortune of the writer +to be serving under Sheridan at the time these alleged atrocities were +committed, and to be an eye-witness of them. What did Sheridan do? He +burnt all the stack-yards and barns containing grain and hay, and all +the mills and factories found in the valley from above Harrisonburg +on down to near Winchester, or perhaps lower down than that. He also +appropriated all the horses, cattle, sheep, etc., that could have been +made available for the support and aid of an enemy. He dealt merely +with property, and that such property alone as would have enabled +General Lee again to have threatened the national capital by an +invading foe by this route, as he had twice, or oftener, done before, +thus making it necessary to employ a large force from our army in +guarding this route. General Grant determined to render this division +of his forces unnecessary, by rendering the valley impracticable to +Lee by this destruction of the abundant supplies that it furnished, +in order that he might have the benefit of Sheridan's forces in his +investment of Richmond. + +It was simply the destruction of property by which the rebellion could +sustain itself, and thus prolong its existence, in order to shorten the +war, and thus save the expenditure of human life. There was no property +destroyed or confiscated but such as could be used for the subsistence +and movements of an army. It was simply a question of shortening the +war, and thus economizing human life by the destruction of property, +and so was a measure fully justified by the laws and usages of war. +Sheridan acted under Grant's orders in this matter, and his acts were +only atrocious as war itself is atrocious, and can never serve as a +justification of schemes that in every instance involved the lives of +non-combatants, and even of women and children. All of this destruction +of property in the Shenandoah Valley by Sheridan was done, and +accounted for, strictly in accordance with the laws and usages of war, +and has never been challenged by the civilized nations of the world as +an unwarranted atrocity. It was harsh in the extreme; but as a military +necessity it was justifiable. It included in its object mercy towards +the lives of men. + +As the cause of the Confederacy began to lose ground in the summer +of 1864, and the signal success of our arms made it clear that it +would not be able to maintain the fight to a successful close, the +political leaders became desperate and reckless as to the means to +which they resorted. The City Point explosion, the burning of a number +of steamboats on the Ohio and Mississippi rivers, and the burning of a +soldiers', or United States, hospital at Louisville, Ky., were amongst +the occurrences of that eventful summer. The following extract from +the report of John Maxwell to Captain Z. McDaniel, commanding Torpedo +Company, explains the City Point explosion:-- + +"Captain: I have the honor to report that in obedience to your order, +and with the means and equipments furnished me by you, I left this city +(Richmond) 26th July last for the line of the James River, to operate +with the 'hozological torpedo' against the enemy's vessels navigating +that river. I had with me Mr. R. K. Dillard, who was well acquainted +with the localities, and whose services I engaged for the expedition. + +"On arriving in Isle of Wight County, on the 2d of August, we +learned of immense supplies of stores being landed at City Point; and +for the purpose, by stratagem, of introducing our machine upon the +vessels there discharging stores, started for that point. We reached +there before day-break on the 9th of August last, having travelled +mostly by night, and crawled upon our knees to pass the east picket +line. Requesting my companion to remain behind about half a mile, I +approached cautiously the wharf, with my machine and powder covered by +a small box. Finding the captain had come ashore from a barge then at +the wharf, I seized the occasion to hurry forward with my box. Being +halted by one of the wharf sentinels, I succeeded in passing him by +representing that the captain had ordered me to convey the box on +board. Hailing a man from the barge, I put the machine in motion, and +gave it in his charge. He carried it aboard. The machine contained +about twelve pounds of powder. Rejoining my companion we retired to a +safe distance to witness the effect of our effort. + +"In about an hour the explosion took place. Its effect was communicated +to another barge beyond the one operated upon, and also to a large +wharf building containing their stores (enemy's), which was totally +destroyed. The scene was terrific, and the effect deafened my companion +to an extent from which he has not recovered. My own person was +severely shocked, but I am thankful to Providence that we have both +escaped without injury. We obtained and enclose slips from the enemy's +newspapers, which afford their testimony of the terrible effects of the +blow. The enemy estimate the loss of life at fifty-eight killed and +one hundred and twenty-six wounded, but we have reason to believe it +greatly exceeded that. + +"The pecuniary damage we heard estimated at four millions of dollars; +but of course we can give you no account of the extent of it exactly. I +may be permitted, Captain, here to remark _that a party of ladies_, it +seems, were killed by this explosion. It is saddening to me to realize +the fact that the terrible effects of war [he should have added as thus +conducted] induce such consequences; but when I remember the ordeal to +which our own women have been submitted, and the barbarities of the +enemy's crusade against us and them, my feelings are relieved by the +reflection that whilst this catastrophe was not _intended_ by us, it +amounts only, in the providence of God, to _just retribution_." + +Hear the pious scoundrel salving his conscience with the old cry of +"just retribution!" + +The following will explain the agency by which boats on the Ohio and +Mississippi rivers, and the United States Hospital at Louisville, +Ky., were burned. It is the testimony of Edward Frazier before the +Commission:-- + +"I am a steamboat man, and have been making St. Louis my home for the +last nine or ten years. During 1864 I knew of the operations of Tucker, +Minor Majors, Thomas L. Clark, and Colonel Barrett, of Missouri, for +burning boats carrying government freight, transports, and other +vessels on the Ohio and Mississippi and other rivers. These men were +in the service of the Confederate Government. I knew of the following +steamboats having been burned by the operations of these parties: the +'Imperial,' 'Hiawatha,' the 'Robert Campbell,' the 'Louisville,' the +'Daniel G. Taylor,' and others, besides some in New Orleans that I +do not know the names of. The 'Imperial' was one of the largest and +finest transports on the western waters. In the case of the burning +of the 'Robert Campbell,' which was destroyed in the stream when +under way, at Milikin's Bend, twenty-five miles above Vicksburg, +there was a considerable loss of life. The agent who destroyed this +boat was on board. These boats were all owned by private individuals. +The operations of these men were to include government hospitals, +store-houses, and everything appertaining to the enemy. A United States +hospital at Louisville was burned in June or July of 1864. I do not +know who burned it, but a man named Dillingham claimed compensation for +it. I was in Richmond from the 20th to the 25th or 26th of August last, +when I had an interview with the rebel Secretary of War, the Secretary +of State, and Mr. Jefferson Davis. Thomas L. Clark, Dillingham, and +myself, called there in connection with the boat burning, and put in +claims to Mr. James A. Seddon, the rebel Secretary of War. Mr. Clark +introduced me to Mr. Seddon. He told me that he had thrown up that +business, that it was now in the hands of Mr. Benjamin. We went to +him, and Mr. Benjamin looked at the papers we brought him, and asked +me if I knew anything about them. I told him that I did, and that I +believed they were all right. He asked me if I was from St. Louis. I +told him I was. He then asked Mr. Clark if he knew me to be all right, +and he said I had been represented to him by Mr. Majors as being all +right. Mr. Benjamin told us all three to call the next day. We did +so, when he said he had shown these papers to Jefferson Davis, and he +(Benjamin) wanted to know if we would not take thirty thousand dollars +and sign receipts in full. We told him we would not. Mr. Benjamin +then said that if Dillingham was to claim this in Louisville, he +wanted a statement of it. We went back to the hotel, and I wrote the +statement myself. It read that Mr. Dillingham had been hired by General +Polk, and that he had been sent to Louisville expressly to do that +work; namely, to burn the hospital. It was then talked over with Mr. +Benjamin, and we made a settlement with him for fifty thousand dollars; +thirty-five thousand dollars down in gold, and fifteen thousand dollars +on deposits, to be paid in four months, provided the claims proved +correct. The money was paid by a draft on Columbia for thirty-four +thousand, eight hundred dollars, in gold, and two hundred dollars in +gold we got in Richmond. We received the gold on the draft at Columbia. +Whilst in Richmond, Mr. Benjamin told me that Mr. Davis wanted to +see me. I went in with Mr. Benjamin to see Mr. Davis, and we sat and +talked. The conversation first was about what was called the Long +Bridge, between Nashville and Chattanooga. Mr. Davis wanted to know +what I thought about destroying it. He said they had been thinking of +it, and of sending some one to have it done. I told him I knew of the +bridge, though I did not, for I had never been there, but did not know +what to think about destroying it. He said I had better study it over. +Finally I told him I thought it could be done. Mr. Benjamin, I believe +it was, first remarked that he would give four hundred thousand dollars +if that bridge was destroyed, and asked me if I would take charge of +it. I told him I would not unless the passes were taken away from those +men that were now down there, and Mr. Davis said it should be done. +The conversation then turned on the burning of the steamboats. I told +Mr. Davis that I did not think it was any use burning steamboats, and +he said no, he was going to have that stopped. The next day I saw an +order taking away passes issued on or before the 23d of August. These +passes were permits to do this kind of work. I presume Mr. Davis knew +that the money I received was for the work that I had done; he knew +that I had received money there. Mr. Davis seemed fully aware of what +we had done, and he did not condemn it. Mr. Majors and Barrett belonged +to an organization known as the 'O. A. K.', or 'Order of American +Knights.'" The witness was asked to state, if he thought proper to +do so, whether he was also a member of that order; but he declined +to say. "I understood" (said the witness) "that Colonel Barrett held +the position of adjutant general of this organization, of the Sons +of Liberty, for the State of Illinois. I do not know that Majors and +Barrett were in Chicago in July last, but Mr. Majors left St. Louis +either in June or July, to go to Canada, and I presume went there by +way of Chicago." + +Here again, we see the moral plane on which Davis and Benjamin worked +for the success of the Confederacy. We find them employing and paying +agents for burning boats, midstream, regardless of the destruction +of the lives of non-combatants, including, most likely, women and +children amongst the passengers aboard; burning a hospital filled +with sick, wounded, and dying soldiers, who, according to the laws of +civilized warfare, are entitled to the sacred protection of even the +enemy, whether in or out of their territory and possession. We have now +found Davis and his agents in Canada planning and carrying out schemes +for assassination or murder by wholesale, by spreading pestilence, +poisoning of reservoirs, burning cities, hospitals, and boats on their +way loaded with passengers, and by the use of explosives murdering +women. Human life, under any imaginable conditions of existence, +received no consideration at their hands if its sacrifice held out to +them any prospect of advancing their cause. + +Another foul plot to murder prisoners of war held in Libby Prison, +right under the eyes of Davis and his Cabinet, is detailed as follows +by Erastus W. Ross, a witness before the Commission:-- + +"I was in the service of the rebel government. I was conscripted and +detailed as a clerk at Libby Prison, and never served in the army. In +March, 1864, General Kilpatrick was making a raid in the direction of +Richmond. About that time the prison was mined. I saw the place where I +was told the powder was buried under the prison; it was in the middle +of the building. The powder was put there secretly in the night. I +never saw it, but I saw the fuse. It was put in the office. I was away +at my uncle's the night that the powder was put there, and was told of +it the next morning by one of the colored men at the prison. There were +two sentinels near the place to prevent any person approaching it. The +excavation made was about the size of a barrel head, and the earth was +thrown up loosely over it. Major Turner, the commandant of the prison, +had charge of the fuse. He told me that the powder was there, and that +the fuse was to set it off; that it was put there for the security of +the prisoners, and if the army got in it was to be set off for the +purpose of blowing up the prison and the prisoners. The powder was +secretly taken out in May, and the whole building was then shut up. +The prisoners had all been sent to Macon, Ga. I suppose the powder was +placed there by the authority of General Winder or the Secretary of +War. Major Turner said he was acting under the authority of the rebel +war department, though I never saw any written orders about it." + +John Latouche testified as follows: "I was first lieutenant in Company +B, Twenty-fifth Virginia Battalion, C. S. A. I was detailed to post +duty in Richmond to regulate the details of the guards of the military +prisons there, and in March, 1864, I was on duty at Libby Prison. Major +Turner, the keeper of the prison, told me that he was going to see +General Winder about the guard. On his return he told me that General +Winder himself had been to see the Secretary of War, and that they were +going to put powder under the prison. In the morning of the same day +the powder was brought. There were two kegs of about twenty-five pounds +each, and a box which contained about as much as the kegs. A hole was +dug in the centre of the middle basement, and the powder was put down +there. The box when put in just came level with the ground, and the +place was covered over with gravel. I did not see any fuse to it then. +I placed a sentry over this powder so that no accident might occur, and +the next day Major Turner, who had charge of the fuse, showed it to +us in his office; he showed it to everybody there. It was a long fuse +made of gutta-percha, such a one as I had never seen before. In May, I +think it was, Major Turner went South, and all of the prisoners were +sent out of the Libby building proper to the south; and General Winder +sent a note down to the office with directions to take up the powder +as privately or as secretly as possible. I forget his exact words. The +note was delivered into my hands for the inspector of the prison, to +whom I either gave or sent it. I afterward heard Major Turner say that +in the event of the raiders coming into Richmond he would have blown up +the prison. I understood him to say those were his orders." + +We are not left, however, to infer that this gunpowder plot, by +which the lives of twelve hundred Union officers held as prisoners +of war were to have been sacrificed in case Colonel Dahlgren should +have gotten into the city for the purpose of their liberation, was +authorized by the head of the rebel government. + +The box turned over by General Johnson to General Schofield, containing +the archives of the Confederate government, contained the proof that +Jefferson Davis ordered these preparations to be made, and that his +subordinates had orders to carry the plot into execution in the event +of the contingency above referred to. These archives also showed that +in this he was sustained by the committee of the rebel congress on +the conduct of the war. Pollard, also, in his history of the "Lost +Cause," attempts to justify this plot. In all this we see the debasing +influence of human bondage on the moral sense of a people. Who, except +under the influence of such a demoralization, could have planned for +the wholesale sacrifice of their prisoners of war? + +Here we have Mr. Seddon, the rebel Secretary of War, of course not on +his own responsibility, but under the orders of his superior, Jefferson +Davis, ordering the officer in charge of the prisoners of war in their +possession to mine the building in which they were confined, and in +the event of a Yankee raid entering the city, to blow up the building, +and thus murder, at one fell swoop, all the prisoners in it to prevent +their being rescued and taken back into the service. Need we wonder +that an administration that could deliberately prepare to murder its +prisoners of war rather than suffer their liberation under the fortunes +of war, should have deliberately planned for the destruction of its +prisoners by the starvation and cruelties of Andersonville? + +It gives me no pleasure to rehearse these things, but it is due to the +truth of history that they should be known. I desire to see a speedy +and complete reconciliation of these two sections of our country; and +I have always rejoiced that we who faced each other on the fields of +deadly conflict, have, from the time of the surrender of Lee's army, +been ready to meet each other as friends and brothers and fellow +citizens of a common country. The sight witnessed at Appomattox of the +soldiers of our army emptying their haversacks to satisfy the wants of +men who but the hour before stood confronting them as foes, but who +now had laid down their arms, worn out and famishing, was a glorious +exhibition of the best side of our nature, and plainly said that +though we had been enemies in war in peace we would be friends, and +foreshadowed the speedy reconciliation that has followed our terrible +strife, so far as the soldiers of the two armies are concerned. I +charge none of these things on these men. I fix the responsibility +for these things on the political leaders of the rebellion, and not +even on them indiscriminately but only on such of them as are named in +the charge and specifications under which, through the medium of the +Commission, they were arraigned before the world, and the evidence of +their guilt was produced. It is to show that the government in so doing +completely vindicated its dignity and honor that I write. + +If the acts of public men render them infamous in history, the +responsibility rests in their bad exercise of that freedom of will that +makes us responsible beings.[4] And in human affairs, bad examples +should be held up as warnings, just as good examples should be held up +for imitation and encouragement. + +We shall now approach a little more closely to the consideration of +the responsibility of Jefferson Davis and his Canada Cabinet for +the assassination of Abraham Lincoln; and will show, we think, by +incontestible evidence, that they were co-conspirators with Booth and +his gang, or rather, that they originated and concocted the plan, and +that Booth and his followers were merely their hired assassins for the +accomplishment of their purposes. + + + + +CHAPTER XI. + +EVIDENCE PRESENTED BY THE GOVERNMENT TO SUSTAIN ITS CHARGE AND +SPECIFICATIONS. + + +The following letter was found in the box turned over by General Joseph +A. Johnson, at Charlotte, N.C., to General Schofield, and said to +contain the archives of the Confederate government:-- + + MONTGOMERY, WHITE SULPHUR SPRINGS, VA. + + TO HIS EXCELLENCY, _the President of the Confederate States of + America_:-- + + DEAR SIR:--I have been thinking for some time that I + would make this communication to you, but have been deterred + from doing so on account of ill health. I now offer you my + services, and if you will favor me in my designs, I will + proceed, as soon as my health will permit, to rid my country of + some of her deadliest enemies, by striking at the very heart's + blood of those who seek to enchain her in slavery. I consider + nothing dishonorable having such a tendency. All I ask of you + is to favor me by granting me the necessary passes, etc., on + which to travel while in the jurisdiction of the Confederate + government. I am perfectly familiar with the North, and feel + confident I can execute anything I undertake. I am just + returned from within their lines. I am a lieutenant in General + Duke's command, and I was on the raid last June in Kentucky + under General John H. Morgan. I and all of my command excepting + about three or four, and two commissioned officers, were taken + prisoners; but finding a good opportunity, while being taken to + prison, I made my escape from them. Dressing myself in the garb + of a citizen, I attempted to pass through the mountains, but + finding that impossible, narrowly escaping two or three times + from being retaken, I shaped my course north, and went through + to the Canadas, from where, by the assistance of Colonel + Holcomb, I succeeded in making my way around and through the + blockade; but having yellow fever, etc., at Bermuda, I have + been rendered unfit for service since my arrival. I was reared + up in the State of Alabama, and educated in its university. + Both the Secretary of War and his assistant, Judge Campbell, + are personally acquainted with my father, William J. Alston, of + the fifth Congressional District of Alabama, having served in + the time of the old Congress, in the years 1849-50 and 1851. If + I do anything for you, I shall expect your full confidence in + return. If you do this, I can render you and my country very + important service. Let me hear from you soon. I am anxious to + be doing something, and having no command at present, all, or + nearly all, being in garrison, I desire that you favor me in + this a short time. I would like to have a personal interview + with you, in order to perfect the arrangements before starting. + + I am, very respectfully, + Your obedient servant, + LIEUTENANT W. ALSTON. + +This letter, it will be observed, is without date; but the box in +which it was found was marked, "Adjutant and Inspector General's +Office; letters received July to December, 1864." Lieutenant Alston +was captured in Kentucky in June, 1864, and so, in making his escape +through Canada, made the acquaintance of the rebel agents there, just +at the time that they were full of the assassination scheme. It was +probably from his intercourse with them that he became infatuated +with this idea, although he does not give them the credit of it. He +seems to have been an ambitious youth who desired to impress the rebel +President with the idea that this was an original scheme of his own. +Mark how unblushingly he opens his mind to Davis in presenting his +plot! It is nothing less than "striking at the heart's blood of some +of his country's deadliest foes," of whom everybody then knew that +Abraham Lincoln was universally regarded in the South as chief. It is a +plain offer to aid his country's cause by entering upon the policy of +assassinating the loyal men of the country whose official duty required +them to put down the rebellion. He considers nothing dishonorable that +tends to accomplish this. He does not merely propose to strike at the +heart's blood of Abraham Lincoln. No; like the Canada conspirators, +he has a more comprehensive scheme. Did Jefferson Davis feel insulted +by being thought capable of giving his sanction to such a foul and +dishonorable proposition? Let us see. + +The following is his endorsement put upon it:-- + + INDORSEMENT. + + A. 1. 390. Lieut. W. Alston, Montgomery, Sulphur Springs, Va. + (no date). Is Lieutenant in General Duke's command. Accompanied + raid into Kentucky and was captured, but escaped into Canada, + from whence he found his way back. Been in bad health. Now + offers his services to rid the country of some of its deadliest + enemies. Asks for papers to permit him to travel within the + jurisdiction of this government. Would like to have an + interview and explain. Respectfully referred, by direction of + the President, to the Honorable Secretary of War. + + BURTON N. HARRISON, + _Private Secretary_. + + Received November 19th, 1864. + Recorded book A.A.G.O., December 16th, 1864. + A.G. for attention. + By order of J. A. CAMPBELL, A.S.W. + +The handwriting of the private secretary of Jefferson Davis, Burton +N. Harrison, and of the Assistant Secretary of War, J. A. Campbell, +in the endorsements, was verified before the Commission by Lewis W. +Chamberlain, who had been a clerk in the war department at Richmond, +and was well acquainted with the handwriting of both of these gentlemen. + +From the consideration given by the rebel President, as shown by +these careful and favorable endorsements, would it be unreasonable +to conclude that Lieutenant Alston was granted the interview that he +desired, and that, armed with the permission and authority of the rebel +chief, he became one of the active participants in the closing scenes +of the drama? + +We have other evidence that at this very time the mind of Jefferson +Davis was turned in this direction, and that he was inciting his agents +in Canada to turn their attention to a grand political scheme of +wholesale assassinations. + +To show the moral obtundity of the political stay-at-home-and-fight +rebels about this time, I will reproduce an advertisement of this +proposition to assassinate President Lincoln and the other civil +officers of the government, that was published in the _Selma_ (Alabama) +_Dispatch_, in December, 1864, under the caption-- + + "MILLION DOLLARS FOR ASSASSINATION + + "One million dollars wanted to have peace by the 1st of March. + If the citizens of the Southern Confederacy will furnish me + with the cash, or good securities for the sum of one million + dollars, I will cause the lives of Abraham Lincoln, William + H. Seward, and Andrew Johnson to be taken by the 1st of March + next. This will give us peace, and satisfy the world that + cruel tyrants cannot live in a land of liberty. If this is not + accomplished, nothing will be claimed beyond the sum of fifty + thousand dollars in advance, which is supposed to be necessary + to reach and slaughter the three villains. I will give, myself, + one thousand dollars towards this patriotic purpose. Every one + wishing to contribute will address Box X, Cahawba, Alabama. + December 1st, 1864." + +This advertisement was proven by compositors in the _Dispatch_ +office to have been put in that paper by Mr. G. W. Gale, a lawyer of +considerable reputation, and that the copy was in his handwriting, +which was well known at that office. My impression is that several of +the Richmond papers reproduced this advertisement, as also many other +papers in the Confederacy. The treasonable purpose to overthrow the +Constitution by the assassination of the President, Vice-President, and +Secretary of State shows that the plan had been maturely considered +in the light of the conditions that would render it most effective in +securing the object in view, and that it was a deep political scheme to +give the rebellion a new lease of life, and put it on its feet again +under more favorable conditions for success. I have already given +incidentally, and in a fragmentary way, glimpses of the testimony on +which the charges of the government were founded. I will now present in +a connected form the testimony bearing on the question. + +Richard Montgomery testified before the Commission that Thompson said +to him in the summer of 1864 that he had his friends all over the +North, and that he could have anybody put out of his way that he chose; +that he would only have to point out the man that he considered in his +way, and his friends would remove him, and would consider it no crime +when done for the cause of the Confederacy. Clay also, on being told +by Montgomery what Thompson had said, replied, "That is so; we are all +devoted to our cause and ready to go any lengths--to do anything in the +world to serve our cause." Thompson said his friends would do this and +not let him know anything about it if necessary. That this was not mere +bragadocio is evident from the fact that Montgomery was accepted by +Thompson as a confederate in full sympathy with himself, and entitled +to his fullest confidence. + +Merritt testified that he first heard of the assassination plot in +October or November, 1864, when he was told by Young, in reply to an +inquiry of Merritt in regard to a contemplated raid: "We have something +on the _tapis_ of much more importance than any raids we have made, or +can make." He said, "It was determined that Old Abe should never be +inaugurated." He said they had plenty of friends in Washington; and +speaking of Mr. Lincoln, he called him a damned old tyrant. Merritt +was afterwards introduced to George N. Sanders by Colonel Steele, and +in the course of the conversation that ensued, Steele said, "the damned +old tyrant will never serve another term if he is elected." Sanders +replied, "he (Lincoln) would have to keep himself mighty close if he +did serve another term." In January, 1865, Thompson told Montgomery +that a proposition had been made to him to rid the world of the tyrant +Lincoln, Stanton, Grant, and some others. He said he knew the men +that made the proposition to be bold, daring men, and able to execute +anything they would undertake without regard to cost. He said he was in +favor of the proposition, but had concluded to defer giving his answer +until he should have consulted with his government at Richmond; and +that he was only waiting for their approval; adding that he thought it +would be a great blessing to the people, both North and South, to have +these men killed. Beverly Tucker, in a conversation with Montgomery +after the assassination, recounting the many wrongs the South had +received at the hands of Mr. Lincoln, said, "that he deserved his +death, and it was a pity he had not met it long ago; that it was too +bad that the boys had not been allowed to act when they wanted to." + +Conover testified that he saw Booth in Montreal about the latter part +of October, 1864. He was strutting about the St. Lawrence Hall, playing +billiards, etc., but occasionally was to be seen in confidential +intercourse with Sanders and Thompson. + +Whilst in Canada at this time the plot to assassinate was fully decided +upon, as will be shown by the "Selby letter" subjoined. This letter was +picked up in a street car in New York by a couple of ladies, one of +whom, Mrs. Mary Hudspeth, testified before the Commission as follows: +"In November last, after the presidential election, and on the day that +General Butler left New York, as I was riding on the Third Avenue cars +in New York City, I overheard a conversation of two men. They were +talking most earnestly. One of them said he would leave for Washington +day after to-morrow. The other was going to Newburg or New Berne that +night. One of the two was a young man with false whiskers. This I +observed when a jolt of the car pushed his hat forward and at the same +time pushed his whiskers, by which I observed that the front face was +darker than it was under the whiskers. Judging by his conversation, he +was a young man of education. The other, whose name was Johnson, was +not. I noticed that the hand of the younger man was very beautiful, and +showed that he had led a life of ease and not of labor. + +"They exchanged letters whilst in the car. When the one who had the +false whiskers put back the letters in his pocket, I saw a pistol in +his belt. I overheard the younger one say that he would leave for +Washington the day after to-morrow. The other was very angry because it +had not fallen on him to go to Washington. Both left the cars before +I did. After they had left, my daughter, who was with me, picked up +a letter which was lying on the floor of the car, immediately under +where they sat, and gave it to me, and I, thinking it was mine, as I +had letters of my own to post at the Nassau Street Post-office, took +it without noticing that it was not one of my own. When I got to the +brokers, where I was going with some gold, I noticed an envelope with +two letters in it. These are the letters, and both were contained in +one envelope. After I examined the letters and found their character, +I took them first to General Scott, who asked me to read them to him. +He said he thought they were of great importance, and asked me to take +them to General Dix. I did so. The letters are as follows:-- + + "DEAR LOUIS:--The time has at last come that we have + all so wished for, and upon you everything depends. As it was + decided before you left, we were to cast lots. Accordingly + we did so, and you are to be the Charlotte Corday of the + nineteenth century. When you remember the fearful, solemn vow + that was taken by us you will feel there is no drawback--_Abe_ + must _die_, and _now_. You can choose your weapons--the + cup, the _knife_, the _bullet_. The cup failed us once, and + might again. Johnson, who will give _this_, has been like an + enraged demon since the meeting because it has not fallen + upon him to rid the world of the monster. He says the blood + of his gray-haired father and his noble brother call on him + for revenge, and revenge he will have; if he cannot wreak it + upon the fountain head, he will upon some of the blood-thirsty + generals. Butler would suit him. As our plans were all + concocted and well arranged, we separated; and as I am writing + on my way to Detroit, I will only say that all rests upon + you. You know where to find your friends. Your disguises are + so perfect and complete, that without _one_ knew _your face_ + no police telegraphic despatch would catch you. The English + gentleman, Harcourt, must not act hastily. Remember he has ten + days. Strike for your home, strike for your country; bide your + time, but strike sure. Get introduced, congratulate him, listen + to his stories--not many more will the brute tell to earthly + friends. Do anything but fail, and meet us at the appointed + place within the fortnight. Inclose this note, together with + one of poor Leenea. I will give the reason for this when + we meet. Return by Johnson. I wish I could go to you, but + duty calls me to the West; you will probably hear from me in + Washington. Sanders is doing us no good in Canada. + + "Believe me your brother in love, + "CHARLES SELBY." + + + "ST. LOUIS, October 21st, 1864. + + "DEAREST HUSBAND:--Why do you not come home? You left + me for ten days only, and now you have been from home more than + two weeks. In that long time, only sent me one short note--a + few cold words--and a check for money, which I did not require. + What has come over you? Have you forgotten your wife and child? + Baby calls for papa until my heart aches. We are _so lonely + without you_. I have written to you again and again, and, as a + last resource, yesterday wrote to Charlie, begging him to see + you and tell you to come home. I am so ill--not able to leave + my room; if I was, I would go to you wherever you were, if in + _this world_. Mamma says I must not write any more, as I am too + weak. Louis, darling, do not stay away any longer from your + heart-broken wife, + + "LEENEA." + +General Dix sent these letters to the War Department at Washington. +They were given to President Lincoln, who put them in an envelope, +marked it "Assassination," and laid it away in his desk, where it was +found after his death. Mrs. Hudspeth testified that she picked these +letters up on the day that General Butler left New York. General Butler +had orders to leave on the 11th of November, but upon application got +permission to remain until the 14th. Booth left Washington on the early +morning train on November 11th, which would put him into New York on +the afternoon of that day. Here he met his co-conspirator, Johnson, on +the cars, and in exchanging letters with him, dropped these letters +without noticing it. The Leenea letter was to have been returned by +Johnson. He was to leave for Washington on the day after to-morrow, +which, reckoning from the 11th, would be the 13th. The hotel register +accounts for him again at Washington on the 14th in the early part of +the evening. That the young man described by Mrs. Hudspeth was John +Wilkes Booth was shown by her recognition of his photograph, shown to +her in the presence of the Commission, when she declared that that was +the same face.[5] + +It was also shown by the testimony of Samuel Knapp Chester, the +actor, that Booth was in New York about this time, laboring with +Chester in the most urgent manner to draw him into the conspiracy. +It is true he represented to him that the purpose was to capture the +President, and carry him a prisoner to Richmond; that this feat was +to be performed at Ford's Theatre in Washington, and that Chester's +part in it would be the easy one of simply opening the door of exit +on a given signal; but can any sane man believe that this was his +purpose? The impracticability of this proposition could not but have +been as apparent to Booth as it was to Chester, who begged Booth, +finally, to never mention the subject to him again. It is evident Booth +intended to withhold from Chester his real purpose until he could get +him irrevocably committed to the conspiracy. The letter which he had +dropped, and which I have given above, reveals the real purpose of the +conspiracy. It will be seen by this letter that it was in contemplation +at that time to act at once, or at least as soon as a good opportunity +should be found, or could be made. He who was "to be the Charlotte +Corday of the nineteenth century" had his choice as to the weapons he +should use; but whether it should be the cup, the knife, or the bullet, +it simply meant death. Why was not the purpose carried out at that time +as arranged for at the meeting to which the letter refers? As will be +shown by the subsequent testimony, the assassins were restrained from +present action by the agents of the rebel government in Canada, who +desired to have explicit sanction to the arrangements they had made as +to the compensation, and authority for the expenditure it involved. + +Let us see now how the testimony connects the rebel agents in Canada +with this meeting that was held in the latter part of October, or +first of November, 1864, and with its conclusions, which resulted in +arrangements for these assassinations. Montgomery testified that in +January, 1865, Jacob Thompson told him that a proposition had been made +to him to rid the world of the tyrant Lincoln, Stanton, Grant, and some +others. The men who had made the proposition, he said, he knew to be +bold, daring men, and able to execute anything they would undertake +without regard to cost. He said he was in favor of the proposition but +had determined to defer his answer until he had consulted with his +government at Richmond, and he was then only waiting their approval, +adding that he thought it would be a blessing to the people, both +North and South, to have these men killed. A few days after the +assassination, Montgomery had a conversation with Beverly Tucker in +Montreal. He said a great deal about the wrongs the South had received +at the hands of Mr. Lincoln, and that he deserved his death, and it +was a pity he had not met with it long ago. He said "It was too bad +that the boys had not been allowed to act when they wanted to." Thus we +see that "the boys" were kept back from the execution of the plot for +which they had made ready late in October, or early in November, at the +meeting referred to in the Selby letter, by Thompson and his clique, +who had concluded to defer it until they should have obtained the +sanction of their government at Richmond to their arrangements, which +no doubt involved the expenditure of a large sum of money. Montgomery +at this time related a portion of the conversation with Thompson, given +above, to William C. Cleary, who was Thompson's confidential secretary, +when Cleary told him that Booth was one of the men to whom Thompson +referred; and speaking of the assassination, he said "It was too bad +that the whole work had not been done," adding, "They had better +look out; we have not done yet." Cleary told Montgomery during this +conversation that Booth had been there visiting Thompson twice in the +winter; the last time he thought was in December. + +That Cleary was well acquainted with all that Thompson, Tucker, and +Clay were doing is clear from the relation he sustained to Thompson; +and Thompson himself told Montgomery that Cleary was posted in all his +affairs, and that if he (Montgomery) sought him at any time when he was +absent, he could confide his business to Cleary. + +Conover testified that he called on Thompson, in the early part of +February, 1865, to make some inquiry about the intended raid on +Ogdensburg, when Thompson said to him, "There is a better opportunity, +a better chance to immortalize yourself and save your country." Conover +replied that he was willing to do anything to save the country. +Thompson then said, "Some of our boys are going to play a grand joke +on Abe and Andy." Upon Conover asking him for a further explanation, he +said, "It was to kill them, or, rather, to remove them from office." +He said, "it was only removing them from office; that the killing of +a tyrant was no murder." He told Conover then, or subsequently, that +he had conferred a commission on Booth for this purpose, and would +commission all who engaged in it, so that whether it succeeded or +failed, if they escaped to Canada, they could not be claimed under +the extradition treaty. The Confederate government kept these Canada +agents supplied with commissions in blank, to be filled up by them +at their pleasure, to cover cases like these. In this conversation +of Thompson with Conover, in February, in which he was endeavoring +to enlist Conover in the plot, he argued that killing a tyrant in +such a case was no murder, and asked him if he had ever read the work +entitled, "Killing no Murder," a letter addressed by Colonel Titus to +Oliver Cromwell. Mr. Hamlin was to have been included in the scheme, +had it been put into execution before the 4th of March. In a subsequent +conversation in April, Mr. Hamlin was omitted, and Vice-President +Johnson put in his place. We here again see the political intent of +this scheme, in that it was the office, not the man, that was really +the subject of the blow. + +Merritt testified to an interview he had with Harper, Caldwell, +Randall, Charles Holt, and a man called "Texas," at the Queen's +Hotel, in Toronto, on the 6th of April, 1865. Harper said they were +"going to the States, and were going to kick up the damnedest row +that had ever been heard of." He said to Merritt, an hour or two +afterwards, that "if he (Merritt) did not hear of the death of Old +Abe, and the Vice-President, and General Dix in less than ten days he +might put him down as a damned fool." We have now had abundant proof +that Thompson, Clay, Tucker, Sanders, Cleary, etc., were guilty of +combining, confederating, and conspiring with Booth, and the others, +to assassinate Abraham Lincoln, Andrew Johnson, William H. Seward, +etc.; that this plot originated with them, and that they diligently +prosecuted the work of preparation for it from October, 1864, until +its denouement, in April, 1865. It appears to have engrossed their +minds; it was the great subject of conversation in all of their secret +conclaves, the great burden of all their thoughts, the very height of +their ambition. + +Let us next see to what extent the head of the rebel Confederacy, +Jefferson Davis, is implicated in it by the evidence. We have +already seen by his favorable reception of the Alston letter and the +endorsement he put upon it, that there was nothing in his mind or +moral nature that revolted at its base, cowardly, and dishonorable +proposition to "strike at the very heart's blood of some of our +country's deadliest foes." On the contrary, he refers it to his +Assistant Secretary of War, marked "For attention." + +Having obtained this index to the state of his mind, we find ourselves +prepared to receive the testimony of Dr. J. B. Merritt as to a letter +read by Sanders in a meeting of rebels in Montreal, about the middle +of February, 1865, at which ten or fifteen persons were present, +amongst whom were Sanders, Colonel Steele, Captain Scott, George Young, +Byron Hill, Caldwell, Ford, Benedict, Kirk, and Merritt. Sanders said +he had received the letter from "the President of our Confederacy" +(meaning Jefferson Davis). The substance of this letter was, that if +the confederates in Canada and in the States were willing to submit to +be governed by such a tyrant as Lincoln he did not wish to recognize +them as friends and associates, and he expressed his approbation of +any measures they might take to accomplish this object. It is true Dr. +Merritt did not see Davis's signature to the letter, and would not +have known it had he seen it, but the letter was first read openly by +Sanders, and then handed to the others, several of whom read it, and +none questioned either its author or authenticity. Colonel Steele, +Young, Hill, and Captain Scott read it, and no objection was raised. +After reading this letter, Sanders went on to name a number of persons +who were ready and willing, as he said, to engage in the undertaking +to remove the President, Vice-President, the cabinet, and some of the +leading generals, and said there was any amount of money to accomplish +the purpose. Amongst the persons whom he said thus stood ready to +engage in this work, he named Booth, George Harper, Charles Caldwell, +one Randall, and Harrison (by which name Surratt was known), and +one or two others, one of whom they called "Plug Tobacco," or "Port +Tobacco." I will here remark that Atzerodt was sometimes called by this +latter name. Sanders said that Booth was heart and soul in this project +of assassination, and felt as much as any person could feel, for the +reason that he was a cousin to Beall, who was hung in New York. He said +that if they could dispose of Mr. Lincoln it would be an easy matter to +dispose of Mr. Johnson; he was such a drunken sot it would be an easy +matter to dispose of him in some of his drunken revelries. + +When Sanders read the letter he also spoke of Mr. Seward. "I inferred," +says Dr. Merritt, "it was partially the language of the letter. It was, +I think, that if the President, Vice-President, and Mr. Seward could be +disposed of, it would be satisfying the people of the North that they +(the Southerners) had friends in the North, and that peace could be +obtained on better terms than could be otherwise obtained." + +It will be remembered that Booth sent to Chester fifty dollars in a +letter when trying to get him into the conspiracy, and that at their +final interview in February, Chester positively refused to have +anything to do with it, and returned to Booth the fifty dollars he +had received. Booth took the money, saying at the same time he would +not do so only he was short of funds. He had told Chester that there +was plenty of money in the affair, and that if he would join he would +never want for money again as long as he lived. He said, however, as +an excuse for taking back the fifty dollars he had sent him, that he +was very short of funds, and that he, or some one, would have to go to +Richmond to replenish. Wiechmann testified that John H. Surratt left +Washington for Richmond on the 27th of March, and returned on the 3d of +April; that on his return he showed him nine, or eleven, twenty-dollar +gold pieces and sixty dollars in currency. Wiechmann was on intimate +terms of personal intercourse with Surratt, lived in the same house +with him, and was with him daily when at home, and expressed himself as +quite certain that he had no gold when he left Washington. He was not +engaged in any business by which he could make money. His mother had +a very limited income from the rent of her farm and tavern, and kept +boarders to enable her to make ends meet; yet her son was constantly +spending money in traveling about, and so must have been supplied by +his Canada friends, whom he visited occasionally; and the chief calls +he had for expenditure appear to have arisen from his prosecution of +their schemes. Returning thus from Richmond to Washington on the 3d of +April, he left the same evening, according to Wiechmann, for Canada. + +Conover testified that he saw him in Montreal on the 6th or 7th of +April, in Mr. Thompson's room, and he learned from their conversation +that Surratt had just brought despatches from Richmond to Mr. Thompson. +One despatch was from Mr. Benjamin, the rebel Secretary of State, +and one, which Conover thought was a cipher despatch, from Jefferson +Davis. Conover had previously been solicited by Thompson to participate +in this work of assassination, and so was freely admitted to their +secret councils. After reading these letters from Davis and Benjamin, +Thompson, laying his hands on them, said, "This makes the thing all +right," referring to the assent of the rebel authorities. Mr. Lincoln, +Mr. Johnson, the Secretary of War, Mr. Stanton, and the Secretary +of State, Mr. Seward, Judge Chase, and General Grant were to be the +victims. Mr. Thompson said this would leave the government entirely +without a head; that there was no provision in the Constitution of the +United States by which they could elect another President if these men +were removed. The long waited for authority to use funds which the +rebel government had placed to the credit of Mr. Thompson having been +now secured in the despatch from Mr. Benjamin, and his chief, Jefferson +Davis, no time was lost in putting the ball in motion. Mr. Thompson +had over six hundred thousand dollars to his credit in the Ontario +Bank of Montreal, and within two days after receiving these letters, +he drew on his deposit for over two hundred thousand dollars. Conover +saw Surratt in Montreal from the 6th or 7th to the 9th of April, and +having been admitted to their confidence by Thompson, on his receiving +the despatches, was accepted by Surratt as being one of themselves, and +so he was under no restraint in conversing with Conover. From the whole +of his conversation Conover inferred that he was to take his part, +whatever that might be, in the conspiracy. We have already learned +from Merritt's testimony, that after Surratt's return to Canada on the +6th of April there was an immediate bustle amongst those in Canada who +were to go to Washington to take part in the plot, and that they began +to leave on the 8th. The sinews of war having been furnished, there was +great eagerness, expressed and apparent, to be off for the execution +of the plot, and great boasting on the part of those who went as to +what they were going to do. Having set their hired assassins in motion, +Thompson and his gang stood waiting in a great state of expectancy for +the result. Conover testified that on the day before, or the very day +of the assassination, he had a conversation with William C. Cleary +about the rejoicing in the States over the surrender of Lee and the +capture of Richmond. Cleary remarked that they "would put the laugh on +the other side of their mouths in a day or two." "The conspiracy was at +that time talked of amongst them about as freely as one would speak of +the weather." + +Jefferson Davis received his first intelligence of the assassination +at Charlotte, N.C., on the 19th of April, in a telegram from General +Breckinridge, as follows:-- + + "GREENSBORO', April 19, 1865. + + "_His Excellency President Davis_:-- + + "President Lincoln was assassinated in the theatre at + Washington on the night of the 11th inst. Seward's house was + entered on the same night and he was repeatedly stabbed, and is + probably mortally wounded. + + [Signed] + "JOHN C. BRECKINRIDGE." + +Davis received this telegram whilst haranguing in his grandiloquent +style the crowd that had gathered about him, trying to convince them +that they were not whipped, and would yet succeed. At the conclusion +of his speech, he read the telegram to his auditors; and after the +manifestations of delight at the news had subsided, he made this +comment: "Well, if it were done, it were better it were well done." + +On the following day, when dining at the house of the witness, Mr. +Lewis F. Bates, with General Breckinridge, who had come to pay him a +visit, upon General Breckinridge saying in regard to the assassination +that he regretted it very much--that it was very unfortunate for +the people of the South at that time--Davis replied, "Well, General, +I don't know; if it were done at all, it were better that it were +well done; and if the same had been done to Andy Johnson, the beast, +and Secretary Stanton the job would then be complete." Mark the +disappointment of the man, and his bitter dissatisfaction with the +result of the plot to which he had so recently given his sanction! The +telegram informed him of the death of President Lincoln at the hands +of an assassin, and gave him strong grounds to conclude that Secretary +Seward had been put out of the way in the same way, and was dead; but +this does not satisfy him. The work had not been well done because +"Andy Johnson" still lived, and so they had failed in their purpose to +subvert the government. Hear him growl, "It were better it were well +done; and if the same had only been done to Andy Johnson, the beast, +and to Secretary Stanton, the job would then have been complete," and +we might have taken fresh courage. His co-conspirators in Canada, when +informed of the result, gnashed their teeth in rage and disappointment. +They expressed their regret that "the boys had not been allowed to act +when they wanted to," and swore "they were not done with them yet." At +first their attitude was that of defiance, and their expressions of +regret at their failure to completely carry out their plot were mingled +with threatenings as to what they would yet do. They boasted while the +trial was going on that they had their friends at court, and were kept +posted from day to day as to what was going on. The promptness of the +government in bringing its prisoners before a military commission for +trial, making it obvious that there was to be no fooling in the case, +together with their continued disasters in the field, ending in the +speedy collapse of the rebellion and the capture of Jefferson Davis, +brought them to their senses, and to a realization of their own danger; +and so they at once commenced to destroy all documentary evidence of +their guilt. They declared in the presence of Montgomery, and also of +Merritt, that they had destroyed all their papers, lest some Yankee +should steal them and they should be brought up in a possible future +trial as evidence against them. + +Now, let us consider what is lacking in this testimony to make the +evidence of Davis's complicity in this crime complete. Nothing, +manifestly, but the letters referred to in the testimony; the first, +that read by Sanders, and credited by him to Davis, inciting his +friends in Canada to the commission of this crime, and pointing out +specifically whom he would have them put out of the way; and the +second, carried by Surratt to Thompson, on which Thompson laid his +hand and exclaimed, "This makes the thing all right!" But the absence +of this missing link in the chain of evidence against him is accounted +for, and that in a way that makes the chain even stronger, if possible, +than if we were able to produce these documents. + +His co-conspirators in Canada declare to two witnesses and in the +presence of a third, George B. Hutchinson, that they have destroyed all +their papers; giving as the reason for so doing, the fear that some +"Yankee son of a b--h" might steal them, and they should be used as +evidence against them. + +They burn their papers and then silently steal away. _Exeunt omnes._ + + + + +CHAPTER XII. + +THE GOVERNMENT WITNESSES AGAINST DAVIS AND HIS ASSOCIATES IN THIS CRIME. + + +Inasmuch as the testimony given above so completely sustains the charge +and specifications made by the government against Jefferson Davis, +George N. Sanders, Jacob Thompson, Beverly Tucker, Clement C. Clay, +William C. Cleary, _et al_, that had they been before the Commission +their successful defense could only have been made by impeachment of +the witnesses against them, I will now show that this could not have +been done. The principal witnesses in this department of the trial, in +which the Commission was only used as a medium through which to present +to the world, before whom the charges were made, the evidence on which +they rested, were Richard Montgomery, Sanford Conover, and Dr. James +B. Merritt. Richard Montgomery was originally a citizen of the city of +New York, and was in the employ of the government in its department +of secret service. He was sent to Canada, in the summer of 1864, to +acquire information of the plans and purposes of the rebels assembled +in Canada. + +He acted faithfully toward the government in this service, imparting to +it all the information he obtained from time to time that was of any +importance. + +He was a man of intelligence, good character, and was trusted by the +government. There was no attempt made before the Commission to impeach +his character for credibility. Of course the purpose of his mission to +Canada required him to gain the confidence of the men whose movements +he had been sent to watch, and a knowledge of whose plans and purposes +it was his duty to obtain. To do this it was necessary not only that +he should conceal from them his real character and mission, but that +he should be known to them as a man holding the same opinions and +actuated by the same purposes as themselves. To gain fully their +confidence was necessary to the success and usefulness of his mission. +This he could only do by making them believe that his sentiments +and purposes were in unison with their own. Of course this involved +duplicity and falsehood, yet it is held to be allowable in war, because +it may be made to contribute to success. A great deal of the strategy +in war consists in deceiving the enemy; and if it is ever allowable +by falsehood to deceive, it was certainly allowable by falsehood to +deceive those who were playing false to their government to accomplish +its overthrow. They were secretly concocting their schemes for the +accomplishment of this purpose; and to be forearmed against them, it +was necessary to be forewarned of them. This could only be done by this +kind of deception, which is the same in its nature as that practiced +by every spy. But spies are used by both parties to the conflict in +every war. War is in its very nature atrociously wicked; and so, its +ethics cannot be made to conform to the accepted morality that ought +to govern peaceful life. But whilst war is wicked and ought never to +be provoked, it is yet justifiable when it becomes necessary to the +preservation of the life of a nation. Upon the aggressor in this case +the responsibility belongs. On him the guilt falls. A defensive war is +always justifiable; and so, according to the code of military ethics, +everything that is necessary to its successful prosecution is also +justifiable. This secret service department has always been considered +one of these indispensable necessities; and it has never been regarded +as a just ground of impeachment of a man's character for truthfulness +and honesty that he has been found engaged in this kind of service. +Indeed the very nature of the duties of this service call for a man of +sterling integrity, in order that the information obtained through him +may have the quality of reliability. + +That Richard Montgomery succeeded fully in gaining the confidence of +these Canada rebels is shown by the fact that they made him a medium +of communication between themselves and the Richmond government. His +character is further shown by the fact that when they paid him one +hundred and fifty dollars for carrying despatches to Richmond he +credited the government with it on his expense account. And that he +acted faithfully in the discharge of his duties to his government is +shown by the fact that he always submitted the despatches sent by +him to the authorities at Washington, where copies of them were kept +when they were allowed to pass. This is sufficient evidence that he +was in a position to learn the facts to which he testified, and also +presumptive evidence of the credibility of his statements. The force of +his evidence could only have been broken by undoubted proof that he was +a man that could not be believed under oath. + +Dr. James B. Merritt was a native of Canada by accident, having been +born there whilst his parents were there on a visit, but had been all +his life a citizen of the State of New York. He went to Canada in the +spring of 1864, and practiced his profession at Windsor and Dumfries. +He passed amongst the rebels in Canada as a sympathizer of the Southern +cause, and was accepted by them as a good rebel, and was fully taken +into their confidences. They talked freely to him, and revealed their +plans to him without hesitation or reserve. His testimony, as we +have seen, is very specific, and relates to facts of the greatest +importance. He testified that his sympathies had always been with his +government, and that his object in dissembling in his intercourse with +the Canada rebels was to be able to impart information to the United +States government when he deemed it of sufficient importance to justify +or require its communication. + +That he did thus voluntarily, and without compensation, furnish +valuable information to the government was shown. He had thus +communicated to the Provost Marshal at Detroit the plot to burn New +York City. It was also shown that he had made an effort to communicate +the knowledge he had obtained, after the meeting of the 6th of April, +at which John H. Surratt delivered to Thompson the despatches he had +brought from Richmond, as to the parties starting from Canada to +Washington to assist in the work of assassination. There was sufficient +evidence of his loyalty and usefulness to the government, and his +credibility was not assailed. He was a self-constituted secret service +man, working without compensation, and so entitled to all the more +honor. + +Sanford Conover, known to the conspirators as James Watson Wallace, +was born and educated in New York City. He had been living in the +South for five or six years when the rebellion broke out, and was +conscripted into the rebel service from near Columbia, S.C., early +in 1863, but was detailed and served as a clerk in the rebel war +department at Richmond for six months. His sympathies being on the side +of the Union, he embraced the first good opportunity he could find +to desert, and ran the blockade from Richmond, walking most of the +way. He rode on the cars as far as Hanover Junction, and then walked +up through Snickersville to Charlestown, and from there to Harper's +Ferry, and so on to Washington, reaching there in the latter part of +December, 1863. Whilst in Washington he became a correspondent of the +New York _Tribune_, and went to Canada in that capacity in October, +1864. He testified that he received compensation from the _Tribune_ for +his services as correspondent, but had never received anything from +either the United States or the Confederate government, and that his +sympathies had always been with the Union cause. The fact that he was +not willing to remain in the safe and easy position of a clerk in the +rebel war department, but chose rather to take the hazard of deserting, +fully confirms his sworn statements as to his political sympathies. He +also was a self-constituted secret service agent of the United States, +serving without pay. He seems to have been peculiarly successful in +working himself into the confidence of Davis's agents in Canada, who +admitted him to their conferences and revealed fully and freely to him +all of their plans. His testimony is specific and conclusive as to +their guilt. After he had testified before the Commission he was sent +back to Canada by the Judge Advocate General to get the official report +of the St. Albans trial, to be used in evidence. Arriving in Montreal, +he was received in the most friendly manner by the conspirators, +who had not the least idea that he had been a witness before the +Commission, and so they went on with their confidences as to what they +would yet do, declaring they were not done yet, etc. But after he +had been there a day or two, his testimony, which had hitherto been +withheld, was published in the New York papers, and this revealed to +them the fact that Sanford Conover was their James Watson Wallace. + +Of course they were like demons in their rage when they saw that he had +revealed all of their doings. He was at once virtually made a prisoner +by twelve or fifteen men armed to the teeth, who confronted him with +his testimony before the Commission. Conover found himself suddenly +and unexpectedly placed in a situation of great difficulty and danger, +escape being impossible, and so he denied that he had been before the +Commission as a witness. + +They then required him to make a denial under oath, and set a lawyer +at work to put this disavowal in the most imposing shape, whilst they +sent for an officer to administer the oath, informing Conover that he +must appear to the officer not only to be willing, but anxious to swear +to this disclaimer, in which they make him say he had been personated +before the Commission by some infamous scoundrel, who had sworn to a +tissue of falsehoods, and telling him that if he manifested the least +hesitation or unwillingness his life would pay the forfeit. He at +first, in order to get away from them, proposed that he would go to the +hotel and prepare the paper that they required. O'Donnell told him that +would not do, and that he would shoot him down like a dog if he did +not do as they required. Conover still declining, Sanders said to him, +"Wallace, you see what kind of hands you are in; I hope you will not be +so foolish as to refuse." Seeing there was no other way of escape from +them, Conover finally did what they required. They then had a lawyer, +by the name of Kerr, to write out and sign and be qualified to a very +formal affidavit covering the whole case, to the effect that he was +present and saw Conover swear to the disavowal referred to, and that +he did it willingly, and appeared anxious to do so, in justice to his +own character. These affidavits they at once published to the world +through the Canada papers, and with them also published the following +advertisement, as if from Conover:-- + + Five hundred dollars reward will be given for the arrest, so + that I can bring to punishment, in Canada, of the infamous and + perjured scoundrel who recently personated me under the name of + Sanford Conover, and deposed to a tissue of falsehoods before + the Military Commission at Washington. + + JAMES W. WALLACE. + +They also wrote and published over his name, as if from him, the +following letter:-- + + _To the Editor of the Evening Telegraph:--_ + + Sir:--Please publish my affidavit now handed you, and the + subjoined advertisement. I will obtain and furnish others for + publication hereafter. I will add that if President Johnson + will send me a safe conduct to go to Washington and return + here, I will proceed thither and go before the military court + and make _profert_ of myself, in order that they may see + whether or not I am the Sanford Conover who swore as stated. + + MONTREAL, June 8th, 1865. + JAMES W. WALLACE. + +Conover not returning to Washington at the time he was expected, it was +realized that he had been put in jeopardy by the premature publication +of his testimony, and so it became the duty of the United States to +follow him with its protecting arm, and he was rescued through the +intervention of General Dix. + +Being thus rescued, he came again before the Commission and testified +circumstantially to all of the above facts, and thus exposed the +effort of the conspirators to break the force of his testimony by an +affidavit extorted by violence whilst he was virtually a prisoner, and +supported by that of Kerr, who may not have known that he testified to +a falsehood, as the coercion was used before he was sent for, and still +held over the head of Conover by the threat that if he manifested the +least hesitation or unwillingness before Kerr his life would pay the +forfeit. The testimony of Conover as to the circumstances under which +this affidavit was extorted from him, was substantiated, as also his +character, by Nathan Auser, who testified as follows:-- + +"I reside in New York, and am acquainted with Sanford Conover, who has +just testified. I have known him eight or ten years; his character +for integrity and usefulness is good as far as I know. I recently +accompanied him to Montreal, in Canada, and was present at an interview +which he had with Beverly Tucker, George N. Sanders, and that clique of +rebel conspirators. + +"After we went into O'Donnell's room, at Montreal, Mr. Cameron gave +each of us a paper containing the evidence Mr. Conover gave here in +Washington before the Commission, when he denied it. They told him he +must sign a written paper to that effect, and if he did not he would +not leave the room alive. O'Donnell said that he would shoot him like +a dog if he did not. Mr. Conover was first going to his hotel to write +the paper; at first they agreed to this, but when they got as far as +St. Lawrence Hall they made up their minds they would not let him do +this himself, and when they went upstairs at St. Lawrence Hall they +would not let me go up. There were, I think, twelve or fifteen of the +conspirators together; among them Sanders, Tucker, O'Donnell, General +Carroll, Pallen, and Cameron. They all accompanied him for the purpose +of preventing his escape and obliging him to do what they required." + +Thus was their attempt to break the force of Conover's testimony by +fraud and violence exposed, and they were left in a more pitiable +condition than if they had not made the effort. Conover stands in a +better light as a witness than he did before it was made. + +The question will naturally suggest itself to the intelligent reader, +why, if these men knew of the purpose and preparations referred to as +the result of the reception of the despatches from Richmond at the +hands of Surratt, did they not inform the authorities at Washington? +Accepting the fact that they had all the knowledge on this subject +which is implied in their testimony, and that they were loyal to the +government, as they declared themselves to be under oath, this would +seem plainly to have been their duty. + +The counsel for the defense were not slow to perceive this fact, and +sought to weaken their standing before the Commission by asking them +this very question. The answers elicited, however, only served to +strengthen their testimony. In answer, Dr. Merritt stated as follows: +"On Saturday the 8th of April I was at Galt, five miles from which +place Harper's mother lives, and I ascertained there that Harper and +Caldwell had stopped there and had started for the States. When I found +they had left for Washington, probably for the purpose of assassinating +the President, I went to Squire Davidson, a justice of the peace, to +give information and have them stopped. + +"He said that the thing was too ridiculously or supremely absurd +to take any notice of; it would only appear foolish to give such +information and cause arrests to be made on such grounds; it was so +inconsistent that no person would believe it; and he declined to issue +any process. I then called upon the judge of the court of assizes, +made my statement to him, and he said I should have to go to the grand +jury." + +In his answer it is made to appear that Dr. Merritt made an earnest +effort to have this information imparted to the government, and did all +that we can reasonably think that he ought to have done. + +His testimony is corroborated by that of Squire Davidson, who made a +statement to the government after the assassination, of this interview +that Merritt had sought with him and of the purpose of it; and it +was upon this information that Dr. Merritt was brought before the +Commission as a witness. + +In answer to this question, Conover testified as follows: "I +communicated to the New York _Tribune_ the contemplated assassination +of the President, and the intended raid on Ogdensburg. The +assassination plot they declined to publish because they had been +accused of publishing sensational stories. The assassination plot I +communicated in March last, and also in February, I think,--certainly +before the 4th of March. My reasons for communicating the intended +assassinations to the _Tribune_, and not directly to the government, +was that I supposed that the relations between the editor and +proprietor of the _Tribune_ and the government were such that they +would lose no time in giving information on the subject. In regard +to the conspiracy, as well as to some other secrets of the rebels in +Canada, I requested Mr. Gay, of the _Tribune_, to give information to +the government, and I believe he has formerly done so." + +Here again we find that the witness Conover fulfilled his duty, which, +under the circumstances in which his testimony places him in regard +to the matter, any reasonable man could have required of him. And his +position was also strengthened before the Commission by the answer +elicited. + +Lewis F. Bates, who testified as to Jefferson Davis's remarks to his +auditors on reading to them the telegram from General Breckinridge, +informing him of the assassination of the President, etc., and of +his remarks to General Breckinridge on the following day at the +dinner table, was a resident of Charlotte, N.C., where he had been +for a little over four years. He was superintendent of the Southern +Express Company for the State of North Carolina. He was a native of +Massachusetts. The responsible position in which we find him vouches +for his standing as a reliable man amongst those who knew him. His +character was further established before the Commission by the +testimony of a witness who was acquainted with him, James E. Russell, +as follows: "I reside in Springfield, Mass. I have known Lewis F. Bates +for about twenty-five years. For the last five years I have not known +anything of his whereabouts, until I learned from him that he had been +living in Charlotte, N.C. He was in business as a baggage-master on the +Western Railroad, Massachusetts, while I was conductor, and I never +heard anything against his reputation for truth." + +Burton N. Harrison, private secretary to Jefferson Davis, in an article +entitled, "An Extract from a Narrative, written not for publication, +but for the entertainment of my children only," published in the +_Century Magazine_, New Series, Vol. V., pp. 136 and 137, says: "In +pursuance of the scheme of Stanton and Holt to fasten upon Mr. Davis +charges of a guilty foreknowledge of, and participation in, the murder +of Mr. Lincoln, Bates was afterwards carried to Washington and made to +testify (before the military tribunal, I believe, where the murderers +were on trial) to something about that speech [referring to Davis's +speech at Charlotte, N.C.]. As I recollect the reports of the testimony +published at the time, they made the witness say that Mr. Davis had +approved of the assassination, either explicitly or by necessary +implication; and that he added, 'If it was to be done it is well it was +done quickly,' or words to that effect. If any such testimony was given +it is false and without foundation; no comment upon or reference to the +assassination was made in that speech. I have been told the witness has +always stoutly insisted he never testified to anything of the kind, but +that what he said was altogether perverted in the publication made by +the rascals in Washington. Col. William Preston Johnston tells me he +has seen another version of the story, and thinks Bates is understood +to have fathered it in a publication made in some newspaper after his +visit to Washington; it represents Bates as saying that the words above +mentioned as imputed to Mr. Davis were used by him, not, indeed, in +the speech I have described, but in a conversation with Johnston at +Bates's house. Johnston assures me that, in that shape, too, the story +is false; that Mr. Davis never used such words in his presence, or +any words at all like them. He adds that Mr. Davis remarked to him at +Bates's house, with reference to the assassination, that Mr. Lincoln +would have been much more useful to the Southern States than Andrew +Johnson, the successor, was likely to be; and I myself heard Mr. Davis +express the same opinion at that period." On p. 145, same article, he +says: "It was at that cavalry camp we first heard of the proclamation +offering one hundred thousand dollars for the capture of Mr. Davis upon +the charge, invented by Stanton and Holt, of participation in the plot +to murder Mr. Lincoln. Colonel Pritchard had himself just received it, +and considerately handed a printed copy of the proclamation to Mr. +Davis, who read it with a composure unruffled by any feeling other than +scorn. The money was several years afterwards paid to the captors. +Stanton and Holt, lawyers both, very well knew that Mr. Davis could +never be convicted upon an indictment for treason, but were determined +to hang him anyhow, and were in search of a pretext for doing so." +And again in conclusion he says, "To have been a prisoner in the +hands of the government of the United States, and not to have been +brought to trial upon any of the charges against him, is sufficient +refutation of them all. It indicates that the people in Washington +knew the accusations could not be sustained." Had Mr. Harrison adhered +to his original purpose of simply entertaining his children with this +article it would have been much to his credit. It seems, however, that +upon reading and re-reading it he came to regard it as too clever a +production, and of too much public importance, to be restricted to so +narrow a sphere, and so he publishes this lengthy extract from it in +the _Century_. The article, as it appears in the _Century_, is mostly +devoted to an account of the flight of Mr. Davis and his family from +Richmond, and their progress southward until captured. + +We have simply extracted from this article that part which from the +nature of the subject claims our attention, as it relates to the +testimony of Lewis F. Bates before the Commission. Let us first notice +Mr. Harrison's assumption that Secretary Stanton and General Holt had +concocted a scheme to fasten on Jefferson Davis a guilty complicity in +the murder of Mr. Lincoln. This charge Mr. Harrison makes with brazen +effrontery, but does not bring a scintilla of evidence to sustain it. +Here are two high officers of the government,--the Secretary of War, +and the head of the Department of Military Justice,--men of unsullied +personal and official reputation, charged with concocting a scheme to +take the life of Jefferson Davis on a trumped-up charge, and sustained +by false testimony. The Secretary of War, as was his duty, employed +every agency in his power to ferret out the conspirators, and in the +progress of his investigations turned over to the Judge Advocate +General all the facts that came to his knowledge, together with the +names of the persons by whom they could be proven. These persons were +brought before the Judge Advocate and carefully examined as to what +they knew, and so became witnesses before the Commission, when they +were found to have knowledge of facts bearing on the great crime that +had been committed. + +That any witness was in any manner coerced, or required to render +testimony that had been prepared for him by these officers as charged, +will only be believed by those who are ignorant of the personal +and official character of these noble, patriotic, men, or those +who, like Mr. Harrison, are willing to thus calumniate on their own +responsibility. That Mr. Bates was testifying under any manner of +duress will not be believed by any member of the Commission who is yet +living, and who can recall the appearance and manner of the witness +in giving his testimony. He was evidently telling just what he had +seen and heard, and did it willingly. The charge of Mr. Harrison, that +Bates was carried to Washington and made to testify, rests simply on +the authority of Mr. Burton N. Harrison, whilom private secretary to +Jefferson Davis, unsustained by any evidence. + +The evidence given by Bates was taken down, as delivered, by a +stenographer, and read to him before he was discharged, and its +correctness admitted by him, as witnessed by his signature. This +testimony was published in the newspapers, and also in the official +record of the trial. What excuse, then, can Mr. Harrison give for +quoting it as he recollected it, and so failing to give anything like a +correct version of his testimony? + +The testimony of Bates was that Mr. Davis, whilst addressing the people +from the steps of Bates's house, received a telegram from General +Breckinridge informing him of the assassination of President Lincoln, +and that an attempt had been made on the life of William H. Seward, +and that he was repeatedly stabbed and probably mortally wounded, +and that in concluding his speech he read the telegram aloud, and +made this remark, "If it were to be done it were better it were well +done." The witness added, "I am quite sure that these are the words he +used." And again, "A day or two afterward Jefferson Davis and John C. +Breckinridge were present at my house, when the assassination of the +President was the subject of conversation. In speaking of it, John C. +Breckinridge remarked to Davis that he regretted it very much, that it +was very unfortunate for the people of the South at that time. Davis +replied, 'Well, General, I don't know; if it were to be done at all, +it were better that it were well done, and if the same had been done +to Andy Johnson, the beast, and to Secretary Stanton, the job would +then be complete.' No remark was made at all as to the criminality +of the act, and from the expression used by John C. Breckinridge I +drew the conclusion that he simply regarded it as unfortunate for +the people of the South at that time." Here is Bates's testimony as +it stands recorded, and was also published at the time.[6] Why did +not Mr. Harrison address himself to this testimony instead of giving +his version of it from memory, and confounding it with newspaper +reports as to what Bates claimed to have been his testimony, and thus +finding an opportunity to substitute Col. William P. Johnston for +General Breckinridge, thus contradicting it through Johnston? General +Breckinridge was the only man who could have contradicted Bates's +testimony. If he ever did do this it has not come to the knowledge +of the writer. Bates's testimony cannot be set aside in the manner +attempted by Mr. Harrison. + +The charge made by the government on that trial against Jefferson Davis +of inciting and encouraging the assassins, implicating him thus far in +the murder of Mr. Lincoln, was only made upon the evidence before it, +and which we have already presented at length. + +It was not a trumped-up charge for the purpose of gratifying malice, or +with a view to the taking of the life of Mr. Davis unjustly in revenge, +but a charge made in good faith, and sustained by evidence that has +never been overthrown. + +The conclusion of Mr. Harrison, that the government conceded that its +charge against Mr. Davis was unfounded in that it did not prosecute it +when it had him in custody as a prisoner, is a _non sequitor_. + +The rebellion was declared to be at an end shortly after the trial +of the assassins. The proclamation of martial law ceased with the +proclamation of peace. Civil law took the place of martial law with +the issuance of the proclamation that the rebellion was at an end. +The work of reconstruction belonged to the political department of +the government, and the benign policy of condoning the past, and only +securing guarantees for the future was wisely adopted; this security is +found in the fourteenth amendment to the Constitution, and illustrates +the tempering of justice with mercy as had never been before done in +the history of the race. It can never be claimed that the government +abandoned its charge made against any of these parties because it did +not bring them to trial when it had it in its power to do so. The +charges as made have never been withdrawn. They stand in the records +of that trial, and the evidence on which the charges were based has +been presented to the world and the question of the guilt or innocence +of the parties has been referred to the decision of an enlightened and +impartial public sentiment and to the judgment of the world. + +But we will now consider the credibility of this testimony from another +standpoint. Here we have three witnesses,--Conover, Montgomery, and +Merritt,--strangers to each other, testifying as to the facts known +to each one separately, and they completely corroborate each other. +There could have been no possible collusion, and yet their testimony +is the same. It is, as it were, the continued story of one man, +who is consistent with himself at every point. The purposes of the +conspirators and their plans through a period of several months are +the same, whether they come to us through Conover, Montgomery, or +Merritt. "Out of the abundance of the heart the mouth speaketh." The +assassination plot was that which engrossed their thoughts. They were +continually scheming for its accomplishment; it was the thing dear to +their hearts and was the constant theme of their tongues. + +The witnesses corroborate each other in showing that this was the case. +In regard to the fact testified to by both Montgomery and Merritt, +that the conspirators stated they were destroying their papers, we +have the additional testimony of George B. Hutchinson, who testified +as follows: "On the 2d of June, and on the morning of the 3d, 1865, I +saw Dr. Merritt in conversation with Beverly Tucker, at St. Lawrence +Hall, in Montreal. I heard Beverly Tucker say in reply to a remark of +Dr. Merritt, that he had burned all the letters for fear that some +'Yankee son of a b--h' might steal them out of his room and use them in +testimony against him. They were at the time speaking about this trial, +and the charges against them. They were talking to Dr. Merritt as to +one to whom they gave their confidence." + +Who, in the light of all the facts given in this testimony, which +fulfills all the conditions, on down to the crucial test of +credibility--that of the concurrence of three witnesses, who were +entire strangers to each other, in the statement of all the essential +facts--can doubt that all these men implicated in the charge and +specifications preferred by the government were equally guilty +with John H. Surratt and John Wilkes Booth of the assassination +accomplished, and that attempted; as, also, of the others planned. It +matters not that for good and sufficient reasons they were never called +to account by the government, when it had it in its power to do so; +they yet stand, and must forever stand, condemned by an intelligent and +candid world. If their guilt is not proven I do not see how it would be +possible to prove anything. + + + + +CHAPTER XIII. + +A CRITICISM OF NICOLAY AND HAY. + + +Nicolay and Hay in their "Life of Lincoln" (see _Century Magazine_ +for January, 1890, p. 439), say: "The surviving conspirators, with +the exception of John H. Surratt, were tried by a military commission +sitting in Washington in the months of May and June. + +"The charges against them specified that they were 'incited and +encouraged' to treason and murder by Jefferson Davis and the +Confederate emissaries in Canada. This was not proven on the trial; +the evidence bearing on the case showed frequent communication between +Canada and Richmond and the Booth coterie in Washington, and some +transactions in drafts at the Montreal Bank where Jacob Thompson and +Booth kept their accounts. It was shown by the sworn testimony of a +reputable witness that Jefferson Davis at Greensboro', on hearing +of the assassination, expressed his gratification at the news; but +this, so far from proving any direct complicity in the crime, would +rather prove the opposite, as a conscious murderer usually conceals +his malice. Against all the rest, the facts we have briefly stated +were abundantly proved," etc. In a foot-note they add: "When captured +by General Wilson he (Jefferson Davis) affected to think he cleared +himself of suspicion in this regard by saying that Johnson was more +objectionable to him than Lincoln--not noticing that the conspiracy +contemplated the murder of both." From this there would seem to have +been some doubt in the mind of the writer on the question of Davis's +innocence. Again, they say: "Davis, in speaking to General Wilson +about this charge, said that he regarded the charge of treason as +likely to give him more trouble than this." Of course he relied on the +sagacity of his co-conspirators in Canada for the destruction of all +documentary evidence against him, and so he felt that his guilt could +not be proven. The writer has the highest regard for these authors, and +a very high appreciation of the manner in which they have handled their +great subject. The history of several of the last years of the life of +Abraham Lincoln is inseparably linked with the history of his country, +and that the most momentous period of its history. To do justice to the +subject of their memoir required a vast amount of the most painstaking +research, and a general overhauling of the political history of the +country over a period of a dozen or more years. + +This was a work of great labor, involving a careful examination +of a multitude of documents and records. They had that familiar, +personal acquaintance with Mr. Lincoln, growing out of their official +relations to him, that enables them to form a correct estimate of his +intellectual and moral character, and of the innermost feelings and +governing motives of his life. They have done their work faithfully +and well, and have presented Mr. Lincoln in his true character, and +made manifest his wonderful astuteness, his wisdom, forbearance, +charity, gentleness, and toleration toward his fellowmen, as well as +his _firmness_ and fidelity to the right, to the gaze of an admiring +world. It is with feelings of regret that faithfulness to my purpose +of giving a true history of the great conspiracy which culminated in +his death requires me to take issue with them in their treatment of +this case. It will be evident to all my readers who have read and +carefully considered the evidence presented by the government to +sustain its charge against Jefferson Davis and his confederates in +Canada, that authors who were familiar with it could never have come to +the conclusion so confidently expressed by these authors when they say, +"This was not proved on the trial." The abstract of the evidence which +they then proceed to give, shows an equal degree of unfamiliarity with +it. It consists merely in a confused jumbling of a few comparatively +unimportant facts, leaving unnoticed and untouched the great mass of +relevant and conclusive testimony that I have presented. The account +which they give of the manner in which Davis received the news of +the assassination does not consist at all with the testimony. They +say: "It was shown by the sworn testimony of a reputable witness +that Jefferson Davis at Greensboro', on hearing of the assassination, +expressed his gratification at the news; but this, so far from proving +any direct complicity in the crime, would rather prove the opposite, as +a conscious murderer usually conceals his malice." + +Jefferson Davis received the news of the assassination at Charlotte, +not at Greensboro'. Breckinridge telegraphed the news to him from +Greensboro'. It is the testimony of Lewis F. Bates to which they +refer. But my readers, who have so lately read Mr. Bates' testimony, +I am sure will not recognize it in the account which these authors +give of it; and as they have failed in giving us a true account of the +testimony, we cannot wonder if they draw an erroneous conclusion from +it inferentially. It will be remembered that all the expressions that +escaped from the rebel chief on that occasion were those of deep-felt +dissatisfaction and bitter disappointment. A free rendering of his +language on that occasion would amount to just this: "It might just as +well not have been done at all, since the job was not thoroughly done. +If Andy Johnson, the beast, and Stanton had only been included, the job +would then have been complete. It would have been of some account to +us." His whole speech and demeanor on that occasion show him to have +been a co-conspirator, fully aware of the scope of their plot, and +displeased at the incompleteness of the "job." + +Again, on page 432 of the _Century_ for January, 1890, we find the +following: "He (Booth) was a fanatical secessionist; had assisted at +the capture of John Brown, and had imbibed, at Richmond and other +Southern cities where he had played, a furious spirit of partisanship +against Mr. Lincoln and the Union party. + +"After the re-election of Mr. Lincoln, which rung the knell of the +insurrection, Booth, like many of the secessionists North and South, +was stung to the quick by disappointment. He visited Canada, consorted +with the rebel emissaries there, and at last--whether or not at their +instigation cannot certainly be said--conceived a scheme to capture +the President and take him to Richmond. He spent a great part of the +autumn and winter inducing a small number of loose fish of secession +sympathies to join him in this fantastic enterprise. He seemed always +well supplied with money, and talked largely of his speculations in +oil as a source of income; but his agent afterwards testified that +he never realized a dollar from that source--that his investments, +which were inconsiderable, were a total loss. The winter passed away, +and nothing was accomplished. On the 4th of March, Booth was at the +capitol, and created a disturbance by trying to force his way through +the line of policemen who guarded the passage through which the +President passed to the east front of the building. His intentions +at this time are not known. He afterwards said he lost an excellent +chance of killing the President that day. There are indications in the +evidence given on the trial of the conspirators that they suffered some +great disappointment in their schemes in the latter part of March; +and a letter from Arnold to Booth, dated 27th March, showed that some +of them had grown timid of the consequences of their contemplated +enterprise, and were ready to give it up. He advised Booth, before +going farther, to go and see how it would be taken at R----d. But timid +as they might be by nature, the whole group was so completely under +the ascendency of Booth that they did not dare disobey him when in his +presence; and after the surrender of Lee, in an excess of malice and +rage which was akin to madness, he called them together and assigned +each his part in the _new crimes_ [the italics are ours], the purpose +of which had arisen suddenly in his mind out of the ruins of the +abandoned abduction scheme. This plan was as brief and simple as it was +horrible. Powell, _alias_ Payne, the stalwart, brutal, simple-minded +boy from Florida, was to murder Seward; Atzerodt, the comic villain of +the drama, was assigned to remove Andrew Johnson; Booth reserved for +himself the most difficult and most conspicuous role of the tragedy; it +was Herold's duty to attend him as a page, and aid in his escape." + +In this rather long extract, in which the situation is pictured with a +facile pen, there are two assumptions that are wholly irreconcilable +with the evidence. + +The first is, that the plot was at first to capture the President and +carry him to Richmond, whether with or without the approbation of the +Canada conspirators, our author's assume cannot be known. + +The evidence does not show that such a plot was really entertained +either by Booth or his co-conspirators in Canada. Conover testified +that he heard this scheme discussed at a meeting of the latter +in February; but it does not appear that it was ever considered +practicable, or was really entertained by them. The proposition was too +quixotic to receive the serious consideration of rational, intelligent +men. All the testimony in regard to the Canada conspirators shows that +they were all the time from October, 1864, devoting all their thoughts +to securing the assassination, not only of the President, but also of +the others named in the charge and specifications, and that by nothing +but the assassination of all of these men could the political end which +they sought be secured. This assumption of our authors is shown by the +testimony to be wholly untenable. The next assumption to which I take +exceptions is equally untenable in the light which the testimony throws +on the subject. It is, that the assassination was the result of a hasty +impulse of rage and disappointment, akin to madness; that a new crime +was thus conceived, which grew out of the ruins of the abduction plot, +which I have already sufficiently shown was never entertained by any +of the parties. So far from being the result of a hasty impulse, the +testimony clearly proves that it had been long entertained, and that +they had all been planning, preparing, and arranging for its execution +for months. + +It is greatly to be regretted that such popular, and usually reliable, +authors, should have allowed themselves on this occasion to write thus +loosely, and express opinions and conclusions so much at variance with +the testimony. It tends to obscure the truth of history, and to the +formation of an erroneous public opinion. + +The conclusion at which I have arrived, and expressed without +hesitation, as to the guilt of Davis and his Canada Cabinet in this +matter, stands untouched by that expressed by these authors, because +it is manifest that they not only had never studied, but were quite +unfamiliar with, the evidence on which alone a right judgment can be +based. + +All I ask of my readers is, that they will scan carefully what I have +given as having been fairly deduced from the testimony before the +Commission, or to study the testimony itself as given in Pittman's +official report of the trial, and then judge between us. + + + + +CHAPTER XIV. + +JACOB THOMPSON'S BANK ACCOUNT. WHAT BECAME OF THE MONEY? + + +The testimony before the Commission developed the fact that the Canada +Cabinet was kept well supplied with money, and that Jacob Thompson was +the Judas that carried the bag. + +His treasury was kept replenished by Southern bills of exchange on +Liverpool. Robert Anson Campbell, first teller of the Ontario Bank of +Montreal, Canada, appeared before the Commission and gave testimony as +to Thompson's transactions with his bank as follows: "I know Mr. Jacob +Thompson very well. His account with the Ontario Bank I hold in my +hand. It commenced May 30th, 1864, and closed April 11th, 1865. Prior +to May 30th, he left with us sterling exchange, drawn on the rebel +agents at Liverpool, for collection. The first advice we had was May +30th, when there was placed to his credit £2,061 17_s._ and 1-1/2_d._, +and £20,618 11_s._ 4_d._, amounting to $109,965.63. The aggregate +amount of the credits is $649,873.28, and there is a balance still left +to his credit of $1,766.23; all the rest has been drawn out. Since +about the 1st of March he has drawn out $300,000, in sterling exchange +and deposit receipts. On the 6th of April last there is a deposit +receipt for $180,000. The banks in Canada give deposit receipts, which +are paid when presented, upon fifteen days notice. On the 8th of April +he drew a bill of £446 12_s._ 1_d._, and on the same day £4,000, +sterling. On the 24th of March he drew $100,000 in exchange; at another +time, $19,000. This sterling exchange was drawn to his credit, and also +the deposit receipts. + +"Mr. Jacob Thompson has left Montreal since the 14th of April last. I +heard him say he was going away. He used to come to the bank two or +three times a week, and the last time he was in he gave a check to the +hotel keeper, which I cashed, and he then left the hotel. His friends +stated to me that he was going to Halifax, overland. Navigation was not +open then, and I was told he was going overland to Halifax, and thence +to Europe. I thought it strange at the time that he was going overland, +when by waiting two weeks longer he could have taken a steamer; and +it was talked of in the bank among the clerks. The account was opened +with Jacob Thompson individually. The newspaper report was that he was +financial agent of the Confederate States. We only knew that he brought +Southern sterling exchange bills, drawn on Southern agents in the old +country, and brought them to our bank for collection. How they came +to him we did not know. He was not, as far as I know, engaged in any +business in Canada requiring these large sums of money. + +"He had other large money transactions in Canada. I knew of one +transaction of $50,000, that came through the Niagara District Bank, at +St. Catherines, a check drawn to the order of Mr. Clement C. Clay, and +deposited by him in that bank; they sent it to us, August 16th, 1864, +to put to their credit. + +"Thompson has several times bought from us United States notes or +greenbacks. On August 25th he bought $15,000 in greenbacks, and on +July 14th, $19,125. This was the amount he paid in gold, and at that +time the exchange was about 55. I could not say what the amount of +greenbacks was, but that is what he paid for it in gold. On March 14th +last he bought $1,000 worth of greenbacks at 44-3/4, for which he +paid $552.20 in gold. On the 20th of March he bought £6,500 sterling +at 9-1/2. He also bought drafts on New York in several instances. J. +Wilkes Booth, the actor, had a small account at our bank. I had one +or two transactions with him, but do not remember more at present. He +may have been in the bank a dozen times; and I distinctly remember +seeing him once. He has still left to his credit $455, arising from a +deposit made by him, consisting of $200, in $20 Montreal bills, and +Davis's check on Merchant's Bank of $255. Davis is a broker, who kept +his office opposite the St. Lawrence Hall, and is, I think, either from +Richmond or Baltimore. + +"When Booth came into the bank for this exchange he bought a bill of +exchange for £61 and some odd shillings, remarking, 'I am going to run +the blockade, and in case I should be captured can my capturers make +use of the exchange?' I told him they could not unless he endorsed the +bill, which was made payable to his order. He then said he would take +$300, and pulled out that amount, I think, in American gold. I figured +up what $300 would come to at the rate of exchange. I think it was +9-1/2, and gave him a bill of exchange for £61 and some odd shillings." + +The bills of exchange found on Booth's body at the time of his capture +were here exhibited to the witness, who said, "These are the Ontario +Bank bills of exchange that were sold to Booth, bearing date October +27th, 1864." + + +_Testimony of Daniel S. Eastwood._ + +THE BEN WOOD DRAFT. + +The following is the testimony of Daniel S. Eastwood, in regard to +Jacob Thompson's bank account, and serves to account for $25,000 of his +expenditures: "I am assistant manager of the Montreal branch of the +Ontario Bank, Canada. I was officially acquainted with Jacob Thompson, +formerly of Mississippi, who has for some time been sojourning in +Canada, and have knowledge of his account with our bank, a copy of +which was presented to this Commission by Mr. Campbell, our assistant +teller. + +"The moneys to Mr. Thompson's credit accrued from the negotiation +of bills of exchange, drawn by the secretary of the treasury of +the so-called Confederate States on Frazier Trenholm & Company, of +Liverpool. They were understood to be the financial agents of the +Confederate States at Liverpool, and the face of the bills, I believe, +bore that inscription. Among the dispositions made from that fund, +by Jacob Thompson, was $25,000 paid in accordance with the following +requisition:-- + + 4329. + MONTREAL, Aug. 10th, 1864. + + Wanted from the Ontario Bank, 3 days' sight, + On New York, + Favor of BENJAMIN WOOD, Esq. + + $25,000 + For ------- current funds. + $10,000 + Deliv. 60 p. c. + Ex. $15.00 + + A. M. + +"The '$10,000' underneath the $25,000 is the purchase money in gold of +$25,000 worth of United States funds. + +"At Mr. Thompson's request the name of Benjamin Wood was erased (the +pen being just struck through it), and my name as an officer of the +bank written immediately beneath it, that the draft might be negotiable +without putting any other name to it. + +"I have in my hand, it having been obtained from the cashier of the +City Bank in New York, the original draft for the $25,000 on which that +requisition was made by Mr. Thompson, in the name of Benjamin Wood. It +reads:-- + + $25,000. THE ONTARIO BANK. No. 4329. + + MONTREAL, 10th of August, 1864. + + At three day's sight please pay to the order of D. S. + EASTWOOD, in current funds, twenty-five thousand dollars + value received, and charge the sume to account of this branch. + + +----------+ + | U. S. | To Cashier City Bank, H. Y. STANUS, + | Internal | New York. _Manager._ + | Revenue | + | 2 cent | INDORSED. + | Stamp. | + +----------+ Pay to Hon. BENJAMIN WOOD, Esq., or order. + D. S. EASTWOOD. + B. WOOD. + +"I have found this draft in the hands of the payee of the City Bank +in New York, and I understand from the cashier it has been paid. Mr. +Thompson was frequently in the habit of drawing moneys in the name of +an officer of the bank, so as to conceal the person for whom it was +really intended. + +"A good deal of Thompson's exchange was drawn in that way, so that +there is no indication, except from the bank or the locality on which +the bill was drawn, to show where use was made of the funds. Large +amounts were drawn for, at his instance, on the banks of New York, but +we were not acquainted with the use they were put to. + +"The Ben. Wood, to whom the draft was made payable, is, I believe, +the member of Congress, and the owner of the New York _News_." Jacob +Thompson's bank account, already in evidence, was handed to the +witness, who said: "This is a copy of Jacob Thompson's banking account +with us, as testified to by Robert Anson Campbell. I see in the +account entries of funds that were used for purpose of exchange on New +York, and also on London. The item $189,999, on the 6th of April, 1865, +was issued in deposit receipts, which may be paid anywhere." + +In answer to a question by Mr. Aiken, counsel for defense, the witness +said: "I do not remember any drafts cashed at our bank in favor of +James Watson Wallace, Richard Montgomery, or James B. Merritt. I have +no recollection of the names." + +Evidence of George Wilkes: "I am acquainted with Benjamin Wood, of +New York, and am familiar with his handwriting. The signature at the +back of that bill of exchange I should take to be his. At the date of +this bill Benjamin Wood was a member of Congress of the United States. +He was editor and proprietor of the New York _News_, so he told me +himself. The paper, I have heard, has been recently managed by John +Mitchell, late editor or assistant editor of the Richmond _Examiner_ +and the Richmond _Enquirer_." The endorsement was further proven to be +in the handwriting of Ben. Wood by the testimony of Abram D. Burrell. +This testimony not only accounts for $25,000 paid to Ben. Wood, then +a member of Congress from New York City, for services rendered to the +rebel cause in the halls of legislation, or attempted to be there +rendered, but more particularly in the management of the New York +_News_. In his capacity as a legislator as well as that of editor, Ben. +Wood made himself conspicuous as a traitor to his country, and thus he +was rewarded by Jacob Thompson for his services to the rebel cause. The +testimony also throws light on Jacob's method of doing business in a +secret, underhanded manner, in order that the object and purport of his +transactions being thus concealed from public knowledge he could engage +in any wicked scheme without detection. Witness has drafts for $180,000 +on the 6th of April, all being put in such form that they could not +well be traced, and so that it could not well be ascertained who were +the payees, or where paid, or whether they were ever paid at all. They +were probably held by this skilfull secret financier in such shape +that, upon the failure to fulfill the contract and then come forward +and claim the reward, they reverted to the Hon. Jacob Thompson. + +The testimony of these witnesses reveals several very important facts +bearing on the subject of our investigations. First, it is shown that +the rebel agents in Canada were kept well supplied with money by +the Richmond government, their credits in the Canada banks arising +from Southern bills of exchange on the rebel agents at Liverpool. +Now the question arises, for what purpose was this money placed at +their disposal? They were sent by the rebel government to Canada to +work for the success of the rebellion in ways and by means which have +been disclosed by the testimony. Of course, then, they were supported +whilst in Canada by the Richmond government, and it is reasonable to +suppose at a fixed salary that had been agreed upon in advance. Then, +of course, their personal expenses had to be met, and as they were by +no means parsimonious in their habits, this item alone would make a +considerable draft on their treasury. Then they employed a good many +men, escaped rebel soldiers and other rebel refugees at various times +to execute various schemes concocted by them to aid the rebellion. + +One witness stated that they said they had eight hundred men secreted +in Chicago, in the summer of 1864, to aid in a plan to liberate the +rebel prisoners at Camp Douglass, which plan was frustrated by the +government being informed of it in advance by friends in Canada who +were cognizant of the plot. Of course the expenses of all of these men +had to be met, and no doubt liberal compensation made to those who were +entrusted with the execution of the plot. So, also, the plot to burn +the city of New York, the St. Albans raid, and various other schemes of +like character cost a good deal of money. Of course they defrayed all +of the expenses of the trial of the St. Albans raiders for extradition. +The scheme of spreading disease and death through infected clothing, in +which Dr. Blackburn was employed as their agent, no doubt cost them a +good round sum. It will be remembered that Blackburn employed Godfrey +Joseph Hyams as his agent to get the infected clothing sold at such +places in the United States as he indicated, under the promise of one +hundred thousand dollars; and although he and Thompson chiselled Hyams +out of nine hundred and ninety-nine thousand nine hundred dollars +of this, it is quite reasonable to suppose that Blackburn received +large pay for his risk and trouble in going to Bermuda and carefully +infecting this clothing. + +The witness, Montgomery, testified that he heard Clay say, in speaking +of these enterprises, that "they always had plenty of money to pay for +anything that was worth paying for." We have seen from the testimony +that Booth, and we have good reason to infer that Surratt also, were +kept plentifully supplied with money from the time that a definite +arrangement was made with them to take charge of the assassination job +in the latter part of October, 1864, until the final accomplishment, +so far as it was accomplished, of their plot. We have seen that they +were both without occupation, or legitimate source of income, during +all that time, and that they were actively engaged in preparation +for their work, and were going in a style of prodigality in their +expenditures, travelling a great deal, boarding not only themselves, +but also several of the hired assistants, at hotels in Washington, +without regard to cost, even stipulating in the case of Payne that his +meals should be served to him in his room. Then they were every way +profligate in their habits, especially in drinking and smoking--both +costly vices--and also in purchasing horses and hiring them kept at +livery stables; and still further in hiring horses of livery men for +their excursions about the suburbs of the city in perfecting their +plans for escape. Again, Booth always had money to use in drawing into +the plot, and in holding assistants. No doubt the fifty dollars sent +to Arnold in a letter came from Booth; and we know he sent in a letter +fifty dollars to Chester to induce him to join him, and although he +allowed Chester to return this money it was not until he had fully +satisfied himself that it was useless to press Chester any further on +the subject. They were evidently as profuse in their promises of reward +to their co-conspirators whom they hired as Blackburn was to Hyams. +Booth offered to deposit three thousand dollars for a retainer's fee to +Chester; and, in addition to this, assured him that if he would go into +the conspiracy he would never want for money as long as he lived. Even +so worthless a fellow as Atzerodt had been fed with the idea that he +would soon have as much gold as would keep him a gentleman the balance +of his life. + +Now, where was all this money to come from? Evidently from Jacob +Thompson's bank account. The evidence of the bank teller shows that the +bill of exchange which was found on Booth's body after his death was +the same bought of him by Booth. This bill of exchange was dated Oct. +27, 1864. + +It will be remembered that the Selby letter (the Selby being, no doubt, +an _alias_, as they were all sailing under _aliases_) reveals the fact +that it was at that meeting of the conspirators in Montreal, about the +last of October, 1864, that the plot was matured, and arrangements +made for carrying it into effect. No doubt this arrangement made +between the Canada Cabinet and Booth and his fellow assassins involved +a large expenditure of money--such an amount, that when the "Cabinet" +came to consider the matter over they shrunk from the responsibility +and called a halt until they could get the sanction of the Richmond +government in such a form that they could have a voucher to show for +this expenditure. Hence, their after regret that "the boys had not +been allowed to act when they wanted to." This sanction was delivered +to them by Surratt on the 6th of April, when Thompson, placing his +hand on the despatches, exclaimed, "This makes the thing all right!" +It would be a very singular coincidence, indeed, on the theory that +Davis, Thompson, and the others in Canada were not in the conspiracy, +that on this very day Thompson drew on his bank account for $180,000 +by a deposit receipt; and that on the 8th, two days later, he drew +for £446 12_s._, 1_d._, and then again on the same day for £4,000 +sterling, amounting in the aggregate to over two hundred thousand +dollars. Assuming this to have been the cost of the assassinations for +which Booth and Surratt had made themselves responsible, and that on +which they were counting to keep them well supplied with money all the +balance of their lives, the question arises what became of this money? +Of course their hired assassins were only to be paid when they had +fulfilled their contract. The money was subject to this contingency; +hence there was, no doubt, a provisional arrangement by which Thompson +held control over the reward promised them, and, when we look at the +final result of the thing, we can readily see that the money, in the +end, reverted to Thompson. + +There is another very remarkable coincidence revealed in this +testimony; that is, the fact of Thompson's leaving Canada on the 14th +of April, 1865, for Europe, travelling overland to Halifax, when by +waiting two weeks longer he could have gone by steamer. This was such +an unusual circumstance as to require explanation, and excited remarks +amongst the clerks in the bank at the time. If we have been led by the +evidence to the conclusion that the government fully sustained its +charge and specification against Jacob Thompson, we can at once explain +this coincidence of his leaving Montreal for Europe by the overland +route to Halifax on the very day on which he expected the plot to be +consummated. He could not afford to wait for the opening of navigation, +lest his flight might be impeded by arrest, and a warrant or demand for +his extradition on the charge that he was a member of the conspiracy. +"The wicked flee where no man pursueth." A guilty conscience is its +own accuser. This remarkable coincidence, equally with the other, is +presumptive evidence of his guilt. + +Booth kept his bank account in the same bank with Thompson, and there +is every reason to believe that his credits were from money supplied +to him by Thompson. When he drew the bill of October 27th, which was +found on his person after his death, he explained that he was going to +run the blockade. We have seen what he meant by that; and this gives +additional evidence that the assassination plot was fully matured, as +shown by the Selby letter, at that time, and that on the part of Booth, +acting under the latitude of discretion contained in that letter, he +was only biding his time, waiting and watching for, and seeking to +make, an opportunity; and that had he not been restrained by Thompson +until he could get authority from Richmond that would serve him as a +voucher for the large outlay of money involved, he would have acted +long before he finally did. + +Now the question comes up, what became of the money deposited to +Thompson's credit by the Confederate government in the banks of Canada? +We have seen that he had deposited to his credit in the Ontario Bank +of Montreal $649,873.28, and have learned that he had, in addition to +this, large transactions in other Canada banks. The reduction of his +account in the Montreal bank of over $200,000 by the drafts of the 6th +and 8th of April, we have every reason to believe was dependent upon +contingencies for their payment which were never fulfilled, and so this +large amount reverted to Thompson. The Confederate government died +suddenly and unexpectedly about this time, leaving no executor with +will annexed, and no one to look after its assets, or court authorized +to appoint an administrator; and so it would seem that in this case +Jacob Thompson was not only a man that had achieved notoriety, but +that he also had riches thrust upon him. Perhaps he and Clay, Tucker, +Sanders, Cleary, and Holcombe held a court in equity, and distributed +amongst them the assets thus accidentally left in their hands. + + + + +CHAPTER XV. + +THE CASE OF MRS. SURRATT. + + +So earnest and persistent have been the efforts of rebel priests, +politicians and editors to pervert public opinion in regard to the +case of Mrs. Surratt that it becomes necessary to devote some special +consideration to it even at the expense of some repetition. Immediately +after her execution a wild howl was set up by these people for the +purpose of making political capital out of the sympathy and tender +feeling which we all have for her sex. Her innocence was boldly +asserted, and the government was denounced for her execution. They +suppressed or set at naught all the evidence against her, and made +many false statements to subserve the purpose they had in view. +These efforts were only made by those who had been the enemies of +the government during the war--who had either asserted the right of +secession, or denied the right of the government to coerce (to use +their own expression) a State into submission to its authority. + +[Illustration: MRS. MARY E. SURRATT.] + +Because President Lincoln felt that the obligations of his official +oath required him to maintain the authority of the government and to +preserve the Union they had all through the terrible struggle in which +he was engaged been his bitter enemies. They were actuated by a spirit +of malignant hatred of the Union cause, and stood ready to oppose and +denounce every measure that the President had found necessary to the +success of his purpose and work. Their hostility to the government +was only rendered more intense by its success in putting down the +rebellion, and so they were ready to seize on this occasion, that they +might, out of it, make political capital. This effort has never been +abandoned, and the case of Mrs. Surratt continues to be worked for all +that it is worth by that portion of the Northern press that inherits +the old copperhead animus. + +To fully understand the case of Mrs. Surratt we must make her +acquaintance as early as 1863. We find her at that time living at +Surrattsville, in Prince George County, Md., ten miles below Washington +City. The villa called Surrattsville consisted simply of a country +tavern owned and occupied by Mrs. Surratt. She was a widow with three +children, two sons and a daughter. The elder son had gone to Texas and +had volunteered in the rebel service. The younger son, John H. Surratt, +a young man of nineteen, had left St. Charles College in the summer +of 1861, not to volunteer as a soldier, but to engage in the secret +service of the Confederacy. There was a United States post-office at +Surrattsville; and this young man, in addition to his duties as a +Confederate spy and carrier of despatches for the rebel government, +handled Uncle Sam's mail and delivered it to his neighbors. From all +this we can readily gather the attitude of Mrs. Surratt toward the +government. On the trial of John H. Surratt, John F. Tibbetts testified +that in 1863 he was carrying the mail from Washington to Charlotte +Hall, and that he stopped at Surrattsville to deliver the mail at that +office. On one occasion, whilst waiting for the mail there, he heard +Mrs. Surratt say that she would give one thousand dollars to any one +that would kill Lincoln. He also testified that when there was a Union +victory he heard her son say in her presence that, "The d--d Northern +army and the leader thereof ought to be sent to hell." + +Here we see the deep and traitorous hostility to the government of +these people who were in its service under the obligations of an +official oath. In the fall of 1864 Mrs. Surratt removed to Washington, +taking the house 541 on H Street. She rented her Surrattsville property +to a man by the name of Lloyd. What prompted this change is not known +to the writer. Her son had so won the confidence of Jefferson Davis and +Judah P. Benjamin that he had for a considerable time been entrusted +by them, not only with important despatches, but also with large sums +of money sent to their agents in Canada.[7] Indeed, this seems to have +been the only employment in which he was then engaged; and at this +time the assassination plot, as we have seen, was engaging the serious +attention both of Davis and his agents in Canada, and that both Surratt +and Booth were in the confidence of these men, though they were as yet +not personally acquainted with each other. + +Booth arranged with Dr. S. A. Mudd to come to Washington to introduce +him to Surratt, which he did on the 23d day of December, 1864. Their +acquaintanceship ripened into the closest intimacy with a rapidity that +was due to a common sympathy and a common purpose. They were from that +time much together, and Booth at once became a frequent and constant +visitor at the house of Mrs. Surratt.[8] From this time on the evidence +begins to accumulate, showing her to be informed of the work in which +they were engaged, and to have fully entered into their scheme as a +helper.[9] There were a number of boarders in her house. These merely +received the ordinary civilities of personal intercourse from Booth; +but with John and his mother his intercourse was always of a private +and confidential character. + +Booth's habit was to come into that house, and after the common-place +civilities to tap John on the shoulder and ask him to spare him a +moment of his time, when they would retire to an upstairs room and +remain in conference sometimes for two or three hours. In John's +absence (and he was frequently away) Booth would ask Mrs. Surratt to +grant him a private interview, which she always did. What business +could this man, who had been so recently introduced to the family, +have had that required so much and such strict privacy? Whatever it +was, Mrs. Surratt was trusted by him equally with her son. We have +now presented the state of things in that house between these parties +as shown by undisputed testimony, and will proceed to show from the +further evidence in the case what the business was that they had on +hand. + +Shortly after John H. Surratt made the acquaintance of Booth, Atzerodt +became a frequent visitor at Mrs. Surratt's.[10] The first time he +came he inquired for "John H. Surratt or Mrs. Surratt." How did he know +of Mrs. Surratt in such a way that he could make her the alternative +of John? In the early part of March Payne called at the Surratt house, +and inquired for John H. Surratt, but when told that he was not at home +he asked to see Mrs. Surratt.[11] He was an entire stranger, but knew +enough, not only about John but also about his mother, to make her the +alternative in the absence of her son. He passed under the _alias_ of +Wood on this visit. Mrs. Surratt took him in for the night, and got +her boarder, Wiechmann, to take him to his room, where she had his +supper served to him. Would she thus have acted toward a stranger of +whom she knew nothing? It is not to be believed. Payne carried the key +to her hospitality in some secret sign that had been adopted by these +conspirators. Toward the last of March Payne called again, giving the +name of Payne and claiming to be a Baptist preacher. He remained in the +house this time for three days, and on one of these days was surprised +by Wiechmann coming into his room, where he found John H. Surratt and +Payne fencing with bowie-knives, and with revolvers lying on the bed; +there were also four sets of new spurs. Wiechmann spoke about what he +had seen to Mrs. Surratt, saying "that he did not like the look of +things," when she said, "Oh, you need not be disturbed about it; John +rides a good deal in the country, and has to carry these things to +protect himself."[12] + +It was during this visit that Booth, Surratt, Payne, Atzerodt, Herold, +and one or two others, started out on an expedition from which they +returned under circumstances of disappointment and rage, as heretofore +recounted, and, of the import of which Mrs. Surratt was seen to have +been fully informed, as she was weeping, and declined going to her +dinner. Upon the failure of this expedition Booth went to New York and +Payne to Baltimore. The plot, however, was not abandoned; and for its +future prosecution it seemed desirable to Booth and Surratt to transfer +Payne to Washington, and that in the most secret manner, and there to +keep him hidden away until he was wanted. They procured a room for him +at the Herndon House, representing him to be a delicate gentleman, and +stipulating that his meals should be served to him in his room.[13] It +came to the knowledge of Wiechmann that Booth and Surratt had placed +some one in that house, and he was naturally curious to know whom it +was. Atzerodt let the secret out, and when Wiechmann spoke of its being +Payne who was quartered in the Herndon House, Mrs. Surratt asked him +how he knew. When he gave Atzerodt as the source of his information she +manifested some displeasure. But we are not left to infer from this +that she had been informed of the disposition that had been made of +Payne, for a night or two after that, when returning from an evening +service at St. Patrick's Church, in company with Wiechmann and three +or four young ladies, she stopped when they came to the Herndon House, +and asked the party to wait on her a few minutes whilst she should go +in and see Payne.[14] They waited on this interview for about twenty +minutes. Thus we see that she was notified of every move that was made +in preparation for the assassination. + +Not only were Booth, Atzerodt, and Payne visitors at Mrs. Surratt's, +but also the notorious rebel spy and blockade runner, Mrs. Slater, +_alias_ Brown, was one of her visitors. This woman stayed all night +with her toward the latter part of March, 1865, and was accompanied by +Mrs. Surratt and her son John when she left on the next morning, Mrs. +Surratt going as far as Surrattsville, whilst her son accompanied her +to Richmond in place of a Mr. Howell whom she had expected to have +for her escort, but who had been arrested, and so Surratt took his +place.[15] + +On one occasion Mrs. Surratt sent Mr. Wiechmann to Booth with a +message that she wanted to see him on private business, to which Booth +responded. + +On the Tuesday before the assassination Mrs. Surratt asked Wiechmann +to drive her down to Surrattsville, and upon his consenting to do so +she sent him to Booth to request the use of his horse and buggy for the +trip. Booth told Wiechmann that he had sold his horse and buggy, but +he gave him ten dollars with which to procure one.[16] As they were +on their way down they met Mrs. Surratt's tenant, Lloyd, on the road, +when Mrs. Surratt requested Wiechmann to stop. Lloyd, recognizing her, +got out of his buggy and came to the side of Mrs. Surratt's buggy, on +which she was sitting, when she leaned her head out toward him and +conversed with him in so low a tone that Wiechmann did not hear what +was said;[17] but Lloyd testified that she told him to "have those +shooting-irons handy, as they would be called for before long." The +shooting-irons to which she referred were the two Spencer carbines +that had been carried to Surrattsville some time previous by J. H. +Surratt, Atzerodt, and Herold, and which John H. Surratt and Lloyd +had hidden away, as related heretofore. Thus we see that Mrs. Surratt +was kept posted in regard to every move that was made; that she knew +that these arms had been deposited there, the purpose for which they +had been left there, and that they would be called for soon. We can +now understand Booth's generosity in furnishing her ten dollars to +pay for a conveyance--she carried his message to Lloyd. On the day +of the assassination she again got Wiechmann to drive her down to +Surrattsville, no doubt at Booth's request, and perhaps at his expense. +She gave to Wiechmann ten dollars with which to procure a conveyance, +and as he passed out of her house on this errand he met Booth at the +front door, in the act, as it were, of ringing the door bell.[18] +When Wiechmann returned, in passing to his room, he saw Booth in the +parlor conversing with Mrs. Surratt. Booth sent by her to Lloyd, on +this occasion, a field-glass and a message to have the two carbines +ready, together with this glass and two bottles of whiskey, as they +would be called for that night. Lloyd was absent from home when they +arrived at Surrattsville, and did not return until late in the evening. +Mrs. Surratt dilly-dallied until he returned, and then snatched an +opportunity for a private interview with Lloyd in his back yard, where +he had driven. She then delivered to him the field-glass and Booth's +message to have the shooting-irons, etc., ready as they would be called +for that night, as they were, by Booth and Herold, about midnight. +Lloyd swore that this was the message which she delivered to him during +that interview in the back yard.[19] + +Can any one doubt now that Mrs. Surratt was fully posted in every +particular of the assassination plot, that she was fully trusted by +Booth and her son, and was in sympathy with their purpose and willing +to do all she could in aiding its accomplishment,--that she was, in +fact, a co-conspirator? + +On the night of the assassination, about three o'clock in the morning, +a party of detectives called at Mrs. Surratt's house for the purpose +of searching it to see whom they could find there, and demanded +admittance. When informed of their visit and the purpose of it by +Wiechmann, she said, "For God's sake let them in. I have been expecting +the house to be searched."[20] How many people in Washington were +expecting detectives to come that night to search their houses? Not +one who was innocent of crime. Two nights later the inmates of this +house--Mrs. Surratt, her daughter, and Miss Fitzpatrick--were put +under arrest by the military police; and whilst they were waiting for +a conveyance at near the hour of midnight the assassin Payne rang the +door bell, and was taken in and placed under arrest by the officer +in charge. When Mrs. Surratt was confronted by Payne she held up her +hand and solemnly said, "Before God I do not know him, and never saw +him."[21] It will be remembered that he had within the last three weeks +to that time stayed in her house for three days and nights, and he was +a man of such marked personality that he could not have been so easily +forgotten. The defense, in her case, attempted to account for this by +an alleged infirmity of sight, but they were unable to establish by +testimony any infirmity of sight beyond what is common to her age of +about forty-five.[22] It will be remembered that Payne had been hiding +and skulking for three days and nights, and of all the houses in +Washington her's was the only one to which he felt that he could go and +entrust the secret of his presence. + +He could, under the circumstances in which he was placed, only have +given this confidence to a co-conspirator. Having now given a brief +synopsis of the testimony on which Mrs. Surratt was found guilty by +the Commission, it will be in order for my readers to form their own +conclusions as to her guilt or innocence. The writer only desires +to say that additional testimony going to show the justice of the +finding of the Commission in her case came out incidentally on the +trial of John H. Surratt, and will also be found in the affidavit of +L. J. Wiechmann, made after the military trial, in which he recounts +a number of circumstances that had escaped his memory when on the +witness stand, and which recurred to him in his subsequent reflections +on the case. The testimony of Sergeants Dye and Cooper, given on the +trial of Surratt, was that in passing Mrs. Surratt's house about ten +minutes after the murder, a lady which Dye (having seen Mrs. Surratt +at the military trial) believed to have been her, raised a window, and +thrusting her head out, asked them what was wrong down town.[23] + +Here we have her sitting in her parlor at about twenty-five minutes +after ten o'clock waiting anxiously to hear some news. There was as yet +no excitement on the street to awaken curiosity. These two soldiers +believed they were the first persons to pass that house after the +assassination; the street was entirely quiet; as they passed along +they met two policemen shortly after passing the house 541, where Mrs. +Surratt lived, who had not yet heard the news; yet here was a woman +expecting to hear some news; who hailed the first passers-by after the +fatal, and evidently appointed, hour to inquire what was wrong down +town. It was also proven by a servant of good character, Susan Ann +Jackson, that she had on that night served supper in the dining-room, +after the family and boarders had left, to a man whom Mrs. Surratt +called her son, and whom this witness identified as the prisoner at the +bar.[24] We can now see why she was anxiously awaiting the news. + +On the trial of Surratt a good deal of the testimony introduced to show +the existence of a conspiracy to assassinate the President, and that +the prisoner was a member of this conspiracy, implicated his mother in +it equally with himself. Most of the witnesses that had been brought +before the Commission to prove the existence of such a conspiracy, and +that Mary E. Surratt was an active member of it, were again produced +on this trial. As the witnesses Lloyd and Wiechmann were the most +important of these, their testimony being completely conclusive of the +guilt both of the the prisoner and his mother, great efforts were made +to discredit, especially, the testimony of Wiechmann; but this could +not be done by any of the methods known to the law. He stood the test +of every effort and came out unscathed from a bitter and most hostile +cross-examination that occupied a day and a half. Every effort was made +to make him contradict himself as to his present testimony in chief, as +also to his testimony given two years before at the military trial, but +without avail. No false witness could possibly have come out of such a +fiery ordeal unscathed. Truth is always consistent with itself, and one +truth is always consistent with every other correlated truth, and for +this reason a witness that keeps the truth can never be entrapped. + +He was contradicted, it is true, by negative testimony as to some +points in his evidence. Persons who were in the same room with him at +the time that certain declarations were made to which he testified +swore that they did not hear them. But such testimony is of no value. +If one person in company with many others in a room were to swear that +he heard the clock strike, his testimony as to that fact could not be +discredited by that of all the others swearing that they did not hear +it strike. Positive testimony cannot be overthrown, or even shaken, +by negative. Witnesses were also brought to prove that he had made +different statements, and some to prove that he had virtually admitted +that he had testified falsely as to Mrs. Surratt, and that he had been +held under duress by certain officers of the government and required to +state in his testimony what they dictated to him. These efforts also +proved failures, as a close, scrutinizing cross-examination made it +apparent that these witnessess had been suborned, and were delivering +a cooked-up testimony. After every effort had been made that could be +devised by the ingenuity of counsels, Wiechmann stood before the court, +the jury, and the country, as an honest, conscientious, truthful man. +He was also a man of superior talent, education, and intelligence. In +short, he established a character that must challenge the admiration of +every candid mind. + +The attempt was also made to overthrow Lloyd's testimony, but without +success. His testimony was assailed principally on the ground that +he was drunk when he returned to his home on that evening, the 14th +of April, when Mrs. Surratt snatched an opportunity to get a private +interview with him, by going out to him in his back yard, as soon +as he drove up, and there delivering to him the message to which +he testified, and also gave him Booth's field-glass. Lloyd himself +admitted that he was pretty drunk on that occasion, but he was not so +drunk but that he could carry out Mrs. Surratt's instructions to the +very letter. He got the carbines and all the other things and placed +them where they would be handy when called for, so that they could be +delivered without detaining the parties long when they should be called +for.[25] He was also on hand at the time they called, and ready to get +these things for them. It is evident Lloyd knew the purpose of all +this. When called on by the soldiers and detectives who were in pursuit +of Booth and Herold the next morning, he denied that there had been +anybody there during that night. He knew nothing. But when he found a +chain of ascertained facts about to fasten upon him, in great fear and +trepidation he made a clean breast of it, and told all. He then gave as +a reason for his course in denying all knowledge of the matter, that +he knew he could not tell all that he knew without implicating Mrs. +Surratt, and that he did not want to do that. + + +_Note and Affidavit of L. J. Wiechmann._ + + Col. H. L. BURNETT, _Judge Advocate_, Cincinnati, Ohio:-- + + COLONEL:--I stated before the Commission at Washington + that I commenced to board with Mrs. Surratt in November, 1864. + As a general thing I remained at home during the evenings, and + consequently I heard many things which were then intended to + blind me, but which now are as clear as daylight. The following + facts, which have come to my recollection since the renditon of + my testimony, may be of interest:-- + + AFFIDAVIT OF LOUIS J. WIECHMANN. + + I once asked Mrs. Surratt what her son John had to do with + Dr. Mudd's farm; why he made himself an agent for Booth? (She + herself had told me that Booth desired to purchase Mudd's + farm.) Her reply was, that Dr. Mudd and the people of Charles + County had got tired of Booth, and that they had pushed him on + John. Before the 4th of March she was in the habit of remarking + that _something_ was going to happen to "Old Abe" which would + prevent him from taking his seat; that General Lee was going to + execute a movement which would startle the _whole world_. What + that movement was she never said. A few days after I asked her + why John brought such men as Herold and Atzerodt to the house, + and why he associated with them? "Oh, John wishes to make use + of them for his _dirty work_," was her reply. On my desiring to + know what the dirty work was, she answered that "John wanted + them to clean his horses." He had two at that time. And once, + when she sent me to Brooks, the stable keeper, to inquire about + her son, she laughed, and remarked that "Brooks considered John + H. Surratt and Booth and Herold and Atzerodt a party of young + gamblers and sports, and that she wanted him to think so." + Brooks has told me since the trial that such was actually the + case, and that at one time he saw John H. Surratt with three + one-hundred-dollar notes in his possession. + + When Richmond fell and Lee's army surrendered, when Washington + was illuminated, Mrs. Surratt closed her house and wept. Her + house was gloomy and cheerless. To use her own expression, + it was "indicative of her feelings." On Good Friday I drove + her into the country, ignorant of her purpose and intentions. + We started at about half-past two o'clock in the afternoon. + Before leaving, she had an interview with John Wilkes Booth in + the parlor. On the way down she was very lively and cheerful, + taking the reins into her own hands several times and urging + on the steed. We halted once, and that was about three miles + from Washington, when, observing that there were pickets along + the road, she hailed an old farmer and wanted to know if they + would remain there all the night. On being told that they were + withdrawn about eight o'clock in the evening, she said "she was + glad to know it." On the return I chanced to make some remark + about Booth, stating that he appeared to be without employment, + and asking her when he was going to act again. "Booth is done + acting," she said, "and is going to New York very soon, never + to return." Then turning round, she remarked: "Yes, and Booth + is crazy on one subject, and I am going to give him a good + scolding the next time I see him." What that "one subject" + was Mrs. Surratt never mentioned to me. She was very anxious + to be at home at nine o'clock, saying that she had made an + appointment with some gentleman who was to meet her at that + hour. I asked her if it was Booth. She answered neither yes + nor no. When about a mile from the city, and having from the + top of a hill caught a view of Washington swimming in a flood + of light, raising her hands, she said: "I am afraid all this + rejoicing will be turned into mourning, and all this glory into + sadness." I asked her what she meant. She replied that after + sunshine there was always a storm, and that the people were + too proud and licentious, and that God would punish them. The + gentleman whom she expected at nine o'clock, on her return, + called. It was, as I afterwards ascertained, Booth's last visit + to Mrs. Surratt, and the third one that day. She was alone with + him for a few minutes in the parlor. I was in the dining-room + at the time, and as soon as I had taken tea I repaired thither. + Mrs. Surratt's former cheerfulness had left her. She was now + very nervous, agitated, and restless. On my asking her what + was the matter, she replied that she was very nervous and did + not feel well. Then looking at me, she wanted to know which + way the torch-light procession was going that we had seen on + the avenue. I remarked that it was a procession of the arsenal + employees, who were going to serenade the President. She said + that she would like to know, as she was very much interested + in it. Her nervousness finally increased so much that she + chased myself and the young ladies, who were making a great + deal of noise and laughter, to our respective rooms. When the + detectives came, at three o'clock the next morning, I rapped at + her door for permission to let them in. "For God's sake, let + them come in! I expected the house to be searched," she said. + + When the detectives had gone, and her daughter, almost frantic, + cried out: "Oh, ma! Just think of that man (John Wilkes Booth) + having been here an hour before the assassination! I am afraid + it will bring suspicion on us." + + "Anna, come what will," she replied, "I am resigned. I think + that John Wilkes Booth was only an instrument in the hands of + the Almighty to punish this proud and licentious people." + + (Signed) + LOUIS J. WIECHMANN. + + Sworn and subscribed before me this 11th day of August, 1865. + + (Signed) + CHAS. E. PANCOAST, + _Alderman_. + + + + +CHAPTER XVI. + +FATHER WALTER. + + +From the time of the trial of the conspirators by a military +commission, and of the execution of Mrs. Surratt by the order of +President Johnson, Father Walter, a secular priest of Washington +City, has made himself conspicuous by his efforts to pervert public +opinion on the result of the trial of the conspirators by the +Commission. Whilst rebel lawyers, editors, and politicians have boldly +assailed the lawfulness of the Commission, and have denounced it as +an unconstitutional tribunal, and have characterized the trial as a +"Star Chamber" trial, as a contrivance for taking human life under a +mockery of a judicial procedure, but with no purpose of securing the +ends of justice, Father Walter and other priests whose sympathies were +with the Southern Confederacy have earnestly seconded their efforts by +the invention and circulation of cunningly devised falsehoods. Father +Walter has every now and then bobbed up with the assertion of Mrs. +Surratt's entire innocence. Knowing that not one in a thousand of our +people has ever read the testimony on which she was convicted, he feels +that he can boldly assert that "there was not evidence enough against +her to hang a cat." He has also become bold enough to state as facts +what the evidence shows to be falsehoods. As an example of this: in an +article in the "Catholic Review" he asserts in regard to Mrs. Surratt's +trip to Surrattsville on the afternoon of the day of the assassination +that she had ordered her carriage for the trip, which was purely on +private business, on the forenoon of that day, and before it was known +that the President would go to the theatre. Why, if this was true, was +it not proven in her defense? There was no such testimony produced. The +testimony on this point against her was that shortly after two o'clock +on that afternoon she went up stairs to Wiechmann's room, tapped at +the door, and when it was opened she said to Mr. Wiechmann, "I have +just received a letter from Mr. Calvert that makes it necessary for me +to go to Surrattsville to-day and see Mr. Nothey. Would you be so good +as to get a conveyance and drive me down?" Upon Wiechmann's consenting +to do so, she handed him a ten dollar bill with which to procure a +conveyance. Surely there is no evidence here that a carriage had been +ordered already, as Wiechmann was left free to procure a conveyance +where he might see fit. + +Wiechmann went down stairs, and as he opened the front door he saw John +Wilkes Booth, who was in the act, as it were, of pulling the front door +bell. Booth entered the house. + +When young Wiechmann returned, after having procured the buggy, he went +up to his own room after some necessary articles of clothing, and as he +again descended the stairs and passed by the parlor door he observed +that Booth was in the parlor conversing with Mrs. Surratt. In a little +while Booth came down to the front door steps, and waved his hand in +token of adieu to Wiechmann, who was standing at the curb. + +When Mrs. Surratt came and was in the act of getting into the buggy, +she remembered that she had forgotten something, and said, "Wait a +moment, until I go and get those things of Mr. Booth's." She returned +from the parlor with a package which was done up in brown paper, the +contents of which the witness did not see, but which was afterwards +shown to have been the field-glass which Booth carried with him in his +flight. This glass Booth sent to Lloyd by Mrs. Surratt, with a message +to have it, with the two carbines and two bottles of whiskey, where +they would be handy, as they would be called for that night. Lloyd +swore that this was the message delivered to him by Mrs. Surratt in the +private interview she sought with him in his back yard on his return +home that evening, and that in accordance with these instructions he +delivered them to Booth and Herold about midnight that night.[26] +Now let us see about the private business on which she professed to +be going, and on which she claimed on her trial that she went. The +letter from Mr. Calvert was a demand for money that she owed him, and +was written at Bladensburg on the 12th of April. On the afternoon of +the 14th she presented herself to Wiechmann and claimed that she had +just received it. It would seem very strange that it took this letter +two days to reach her at a distance of only six miles. She claimed +that she must go and see Mr. Nothey, who owed her, and get money +from him to pay her debt to Mr. Calvert. Mr. Nothey lived five miles +below Surrattsville, and as she claimed that she had just received +Mr. Calvert's letter it was impossible that she could have made any +arrangement with Nothey to meet her at Surrattsville that day. She did +not meet him there, neither did she go to his house to see him. When +she arrived at Surrattsville she took Wiechmann into the parlor at the +hotel and asked him to write a letter for her to Mr. Nothey, which he +did at her dictation; and this she sent to Mr. Nothey by a Mr. Bennett +Gwinn, a neighbor of his, who happened to be passing down. + +Now, in view of all these facts, can any one see how her private +business was in any way subserved by her trip to Surrattsville on +that afternoon? She could as easily have written to Mr. Nothey from +Washington as from Surrattsville. A postage stamp, a sheet of paper and +an envelope would have saved her six dollars, the cost of her trip, and +would have served her business just as well. The truth is that this +talk of going on private business of her own was all a fabrication, +first to deceive Mr. Wiechmann as to the object of her trip, and then +to be used, should it become necessary, in her defense. We have already +seen what her real business was. + +Father Walter falsifies again in the article referred to in saying that +she did not see Lloyd on that afternoon, but delivered the things to +his sister-in-law, Mrs. Offutt.[27] Both Lloyd and his sister-in-law +testified to her interview with him in his back yard, and Lloyd +testified as to what passed between them on that occasion. + +It would seem that Father Walter is going on the theory that we have +gotten so far past the time, and that the testimony has been so far +forgotten that he can foist upon the public any statement that he may +please to fabricate. We would kindly remind the reverend Father that +no ultimate gain can be derived from an effort to suppress the truth. +Neither can it be obliterated by our prejudices. We may misconstrue +facts, but we cannot wipe them out by a mere stroke of the pen; and a +fact once made can never be recalled. But I am not yet done with this +Father. He prefaces his article in the "Review" with the statement that +he heard Mrs. Surratt's last confession, and that whilst his priestly +vows do not permit him to reveal the secrets of the confessional, +yet from knowledge in his possession he is prepared to assert her +entire innocence of this most atrocious crime. He means that we shall +understand that were he at liberty to give her last confession to +the world he could say that she then and there asserted her entire +innocence. + +Will Father Walter deny that under the teachings of the Roman Catholic +Church he had an absolute right, with her consent, to make her +confession public on this point? Nay more, could not Mrs. Surratt have +compelled him to do so in vindication of her own good name, and of the +honor of the church of which she was a member? And having this consent, +was it not his most solemn duty to proclaim her confessed innocence in +every public way, through the press, and even from the very steps of +the gallows? + +Why was not that confession made public? Why was it not reduced to +writing and signed with her own hand? Why has it not in its entirety +been given to the world? Why must the public wait twenty-seven years, +and instead of having the full confession be required to content +itself, in so great a case, with a mere assertion from the reverend +Father, based on his alleged knowledge? Aye, just there's the rub! + +That confession of Mrs. Surratt's would have proved very interesting +reading, and might have let in a flood of light on some places that are +now very dark; it would, indeed, have shown how far Mrs. Surratt was +involved in the abduction and assassination plots, and to what degree +she was the willing or unwilling tool of her son, and of John Wilkes +Booth. That confession would have shown the object of Booth's visit to +her on the very day and eve of the murder. It would have explained +what she had in her mind when she carried Booth's field-glass into the +country, and told Lloyd to have the "shooting-irons" and two bottles of +whiskey ready on that fateful night of the 14th of April. And if she +did not explain satisfactorily every item of testimony which bore so +heavily against her, then her last confession was worth nothing. + +Father Walter never had at any time Mrs. Surratt's consent to make her +confession public, and he dare not do so now after twenty-seven years +have elapsed since he shrove his unfortunate penitent. + +Why, we repeat, did not Father Walter do this? He was interesting +himself very much in her behalf in trying to get her a reprieve; why +did he not use this as an argument with the President in her behalf +that in her final confession she asserted her innocence? Why did he +wait until the sentence had been confirmed by the President and a full +cabinet without a dissenting voice, and then had been carried into +execution, before he put into circulation the story of her confessed +innocence? And why does he refer to his priestly vows as his excuse +for this conduct, when he knows full well that having gained Mrs. +Surratt's consent to make her confession public as an entirety, these +vows imposed upon him no such restrictions? In vindication of the +Commission, and also of the court of review,--the President and his +cabinet,--we submit that the evidence shows her to have been guilty, no +matter what she might have said in her final confession. + +Perhaps she had been led to believe that President Lincoln was an +execrable tyrant, and that his death was no more than that of the +"meanest nigger in the army." Her remarks to her daughter the night +her house was searched indicate the views she took of the subject. +"Anna, come what will, I am resigned. I think that Booth was only an +instrument in the hands of the Almighty to punish this wicked and +licentious people."[28] To one who could have taken this view of the +case, Booth's act could not have been regarded as a crime; and she who +rendered him all the aid she could would feel no guilt. They were only +co-operating with the Almighty in the execution of his vengeance. On +the trial of John H. Surratt, Mr. Merrick brought Father Walter on to +the stand and asked him if he had heard the last confession of Mrs. +Surratt, to which the Father answered, "I did. I gave her communion on +Friday and prepared her for death." + +Mr. Merrick in his argument before the jury said: "I asked him 'Did she +tell you as she was marching to the scaffold that she was an innocent +woman?' I told him not to answer that question before I desired him +to. He nodded his head, but did not answer that question, because he +had no right, as the other side objected." Now what was the object of +all this? Mr. Merrick brought the Father on to the stand and asked him +a question that had not the slightest relevancy to any issue before +that jury. He knew, of course, that the prosecution would object, and +that the question could not be answered. It was a direct question, and +could have been answered by, "She did" or "She did not." Why does not +the Father answer at once? He had been cautioned not to do so until +desired, and so he waits for the prosecution to object and estop him +from answering the question. Mr. Merrick, however, in his argument +assumes that the Father stood ready to say that, "She solemnly declared +her entire innocence to me in her last confession," and throws the +responsibility on the other side for not getting this answer. The +argument was this: "You see that Father Walter stood ready to testify +to this fact, but the prosecution objected, and so he could not do it." + +Now, what has become of the Father's priestly vows behind which he has +always been hiding? Or was all this a mere piece of acting, to give the +counsel a point from which to denounce the government, the Commission, +and all who were concerned in visiting justice upon the assassins? + +We believe it to be true that the laws of his church did not forbid +him to make public, with her consent or command, her last confession +on this point, and that the Father in making the statements he does +at this late day is simply practicing sleight-of-hand upon the +public. It is a very strange circumstance, too, that whilst Payne, +Arnold, O'Laughlin, Atzerodt, and even John H. Surratt admitted +their connection with one or the other of the conspiracy plots, Mrs. +Surratt has not left one word or line after her to explain away the +incriminating evidence brought against her. The reason is plain; she +could not have explained anything without involving herself and her +son, and giving away the whole case. + +For twenty-six years Father Walter and his rebel co-adjutors have kept +a paragraph going the rounds of the papers, stating as a fact that +all the members of the Commission but one are dead, and that they +died miserable deaths, which marked them as the subjects of heaven's +vengeance, and that some of them perished from the violence of their +own hands, being crazed with remorse. + +The truth is that at this writing, April, 1892, all of the members +of the Commission are alive except General Hunter and General Ekin. +General Hunter lived to over four score years, and General Ekin to +seventy-three. The present writer is nearly seventy-nine and is still +able to vindicate the truth in the interest of a true history of his +period. Is it not high time that the American people should be fully +informed as to this most important episode in their history, in order +that they may not be misled by men who were not the friends, but the +enemies, of our government in its struggle for its preservation and +perpetuation? + + + + +CHAPTER XVII. + +CONCLUSION. + + +Now come the United States and challenge an intelligent and candid +world to say whether or not, in the light of all this evidence, they +have vindicated their dignity and honor by showing that they had just +grounds for charging Jefferson Davis, George N. Sanders, Beverly +Tucker, Jacob Thompson, William C. Cleary, Clement C. Clay, George +Harper, George Young, and others unknown, with combining, confederating +and conspiring together with one John Wilkes Booth and John Harrison +Surratt to kill and murder Abraham Lincoln, Andrew Johnson, William +H. Seward, and Ulysses S. Grant, with the intent to subvert the +Constitution and overthrow the government of the United States in aid +of the then existing rebellion and as a means of giving it success; and +that further, as specified, they, together with John H. Surratt, John +Wilkes Booth, David E. Herold, George A. Atzerodt, Lewis Payne, Mary +E. Surratt, Edward Spangler, Samuel Arnold, Michael O'Laughlin, and +Dr. Samuel A. Mudd, did, on the night of the 14th day of April, 1865, +murder Abraham Lincoln, and did attempt to murder William H. Seward, +and did lie in wait to murder Andrew Johnson, in pursuance of said +conspiracy, and in the purpose and intent thereof, as therein alleged. +And they further say, that if, in the light of all this evidence, +any persons shall feel like erecting a monument to the memory of +Jefferson Davis, this is a free country; let them do so, and take the +consequences that cannot fail to result to their reputation and memory +in the minds of a patriotic, intelligent, and right-minded people, +reared up under the influences and advantages of our free and liberal +institutions of civil administration, and of their uplifting power and +elevating influences on the people, who must, under these favoring +conditions, ultimately reach the true ideal of human development. + + + + +CHAPTER XVIII. + +FLIGHT AND CAPTURE OF JOHN H. SURRATT. + + +The presence of John H. Surratt in Washington City on the day of the +assassination was proven before the Military Commission by a single +witness. This witness, however, was a man who was personally acquainted +with him, and who swore positively to having seen him on that day. His +testimony was given about a month after the event, and the circumstance +was fresh in his memory. He stated the time of the day when, and the +place where, he saw him; described his dress, the kind of hat he was +wearing, etc., etc. He was clear in his statements, could have had no +motives for swearing falsely, and it is scarcely possible that he could +have been mistaken. From the description given by Sergeant Dye of the +man who acted as monitor, calling the time three times in succession +at short intervals, the last time calling "Ten minutes past ten," in +front of the theatre, it will be remembered that the writer came to the +conclusion that this was John H. Surratt. This conclusion was verified +by this same witness on the trial of Surratt. Sergeant Dye had taken +a seat on the platform in front of the theatre, and just before the +conclusion of the second act of the play had his attention arrested by +an elegantly-dressed man, who came out of the vestibule, and commenced +to converse with a ruffianly-looking fellow. Then another joined them, +and the three conversed together. The one who appeared to be the the +leader said, "I think he will come out now," referring, as the witness +supposed, to the President. The President's carriage stood near the +platform on which the witness was sitting, and one of the three passed +out as far as the curbstone and looked into the carriage. It would +seem that they had anticipated the possibility of his departure at the +close of the second act, and had intended to assassinate him at the +moment of his passing out of the door. Quite a crowd of people came +out at the conclusion of the act, and Booth and his companions stood +near the door, awaiting the opportunity which they sought. When most +of the crowd had returned into the theatre, and the would-be assassins +saw that the President would remain until the close of the play, they +then began to prepare for his assassination in the theatre. The writer +concludes, from a careful consideration of all the circumstances, that +this was a provisional arrangement, in case their plan to murder him at +the door should fail. + +Booth and the ruffianly-looking fellow kept their stations by the +door, to make sure of not missing the opportunity of which they had +planned to avail themselves, whilst the other stepped up and looked at +the clock in the vestibule, and called the time. He then immediately +walked rapidly up the street. He returned in a few minutes, and looking +at the clock again called the time, and again walked away rapidly up +the street. Very soon he returned again, and called the time louder +than before, "Ten minutes past ten!" and walking rapidly away, did not +return. + +Booth had left the side of his companion before this long enough to +go into the saloon, where he drank a glass of whiskey, and then, as +soon as the time had been called the third time, went at once into the +theatre, and in less than ten minutes thereafter fired the fatal shot. +It is evident that it had been arranged between Booth and Payne that +the assassination of Secretary Seward should be concurrent with that of +President Lincoln; and that a system of signals had been arranged, of +which the man who called the time was acting as monitor. The suspicions +of Sergeant Dye having been aroused by the conduct of these three men, +he naturally scanned them very closely, and testified that he had a +good view, not only of the person, but of the face and features of +the man who called the time, and had his image indelibly impressed +on his memory. Upon being confronted by Surratt on his trial, he +unhesitatingly and positively declared that he was the man. In addition +to Reed and Dye, who testified before the Commission, there were nine +others who testified on the trial of Surratt to having seen him that +day in the City of Washington. All of these persons, except four, were +personally acquainted with him, and could not have been mistaken, as +they were able to give the time of day when, and the place where, they +saw him, as also, in the case of most of them, to describe his person, +dress, hat, moustache, etc., etc., without any discrepancies in their +testimony. + +The other four, though not acquainted with him, identified him before +the jury, more or less positively, as the man they had seen. It is +worthy of remark that though they all testified with more or less of +particularity in their descriptions of his person, his dress, his hat, +his moustache, and as to the time of day when, and the place where, +they had seen him, there was nothing incongruous or contradictory in +their testimony. One witness, a colored woman, Susan Ann Jackson, +who was in service at Mrs. Surratt's at the time, and had been for +three or four weeks previous to the assassination, testified that +under the direction of Mrs. Surratt she had made tea for the prisoner +after the family and boarders had left the table on the night of the +assassination, and that Mrs. Surratt had said to her on that occasion, +"This is my son," and had asked her if he did not look like Annie. She +said this was the first and only time she had seen him until she met +him on his trial, and then she positively identified him as the man +she had waited upon that night. The time was impressed on her memory +by its being Good Friday, and the night of the assassination. Several +of the witnesses who testified to his presence in the city on that +day also testified that they saw him in company with Booth, and one, +at least, with Booth and O'Laughlin. Surratt himself told his old +acquaintance, St. Marie, with whom he renewed his acquaintanceship in +the ranks of the Papal Zouaves at Velletri, in Italy, that he left +Washington early on the morning of the 15th of April, disguised as an +English tourist; and that he had a very hard time to make his escape. +As the trains leaving Washington for Baltimore on the morning of the +15th were thoroughly scrutinized by the police before being permitted +to leave, it is uncertain whether Surratt's disguise sufficed to get +him through, or whether he went a part or all of the way to Baltimore +on horseback. There was some evidence on this trial tending to the +conclusion that he had escaped from the city on horseback. The next +place we get track of him in his flight is at the railroad depot at +Burlington, Vt., on the early morning of the 18th of April. Here he +turns up with a rough-looking man, no doubt the ruffianly-looking +fellow who was seen with him and Booth in front of the theatre on the +night of the assassination. They had crossed Lake Champlain on a boat +that ran from White Hall to Rouse's Point, on the night of the 17th, +and landed at Burlington, in order to take the train to Montreal. This +was the first trip the boat had made that season, and it was four hours +late in reaching Burlington, arriving there about midnight. They had to +wait for the morning train, which was due at four o'clock A.M. +of the 18th. They requested permission to sleep at the depot, and the +night watchman allowed them to sleep on the benches. He awakened them +in time for the train, and after daylight, when sweeping the floor, he +found a handkerchief under the bench where the taller of the two had +slept, and upon examining it after it was fairly light found it marked, +"J. H. Surratt 2." At Essex Junction, where they changed trains for St. +Albans, these two travellers made the change, and were found by the +conductor on his passing through the train standing on the platform +outside. He asked them for their fare, and was told that they had no +money. Surratt did all the talking. He represented that they were +laboring men, had been at work in New York, and had been unfortunate +and lost their money. He said they were now making their way back to +Canada, and were ready to promise that if he would carry them through +they would send him the fare as soon as they reached their friends. The +conductor reminded them of the necessity of having money if they would +travel. + +Surratt disguised his speech, trying to use the dialect of a Canadian; +but when he became excited from fear of being put off the train he +forgot his Cannuck, and talked in good square English. The conductor +also noticed that his hands were not those of a laboring man, and +so concluded that the men were traveling _incognito_. This was on +the early morning of the 18th of April. They arrived at St. Albans +for breakfast. At the table they found everybody excited, and upon +Surratt's inquiring what it meant, his next neighbor at the table, an +old gentleman, informed him that the President had been assassinated, +to which Surratt replied that "The news was too good to be true." The +old gentleman then handed him a paper, and on looking it over he saw +his own name given as one of the assassins. He dropped the paper, and +found that he did not want any more breakfast. On passing out into the +next room, he heard some one say that Surratt must be in town, or had +passed through, as his handkerchief had been found in the street; when, +upon feeling for his handkerchief, he found that he had lost it. They +then left the place as quickly as possible, narrowly escaping arrest. +He understood that his handkerchief had been picked up in the street of +St. Albans, and no doubt, in the excitement, the news had taken that +shape, but, as we have seen, he lost it at Burlington depot, and so the +news must have been telegraphed to St. Albans. + +[Illustration: JOHN H. SURRATT.] + +It is not known how they traveled from St. Albans to Montreal, but it +is most probable that they walked across the country. We find Surratt's +name on the hotel register at Montreal, where he arrived at about +two o'clock on the 18th of April, he having been absent from that +place from the 12th. This had been to him an eventful week, full of +difficulties and hazards; but he may now feel safe, as he has reached +the abode of the chief conspirators, his employers, and is ready to +claim his reward. He can feel that he is in the midst of sympathizing +friends. But, alas! a criminal can never feel safe. An angry God +is ever on the track of the guilty conscience. As it was with the +first murderer, so it must be with every murderer,--a fugitive and a +vagabond he is compelled to be. He had hardly recorded his name on +the hotel register when he was informed that detectives were on the +look-out for him, and he was at once spirited away to the house of a +Mr. Porterfield. This man was a Southerner, who belonged to Thompson's +cabal, but who had abjured his allegiance to his country and taken +the oath of allegiance to the Queen of England, and had thus become a +British subject. He knew all about the conspiracy, and the means that +had been employed to carry it into effect; and was waiting and watching +anxiously for the return of his co-conspirators that had been sent +to Washington on their mission of assassinations. He at once took +Surratt into his house, and kept him secreted there for several days. +Finding the detectives who were in pursuit of the fugitive vigilant and +determined in their search, Porterfield became fearful that he could +not keep his charge concealed, and so made arrangements to get him into +a place of greater security. + +At this point we meet with a new element amongst the Canada +conspirators, viz., the Roman Catholic priesthood. Porterfield had +arranged with Father Boucher to take his charge in custody, and keep +him concealed. This Father was rector of the parish of St. Liboire, +a newly-settled place, about forty-five miles from Montreal--an +out-of-the-way place, and so a good place in which to hide him away. +The arrangements had been made in advance with this Father to take +charge of Surratt, and keep him secreted at his house. He was conveyed +there by one Joseph F. Du Tilley, who seems to have been priest +Boucher's right hand man. The stratagem to get him away from Montreal +was as follows: two carriages drove up in front of Porterfield's house +late in the afternoon, when two persons, dressed as nearly as possible +alike, went out together; one of these got into one of the carriages, +and the other into the other, when they drove away in different +directions. Father Boucher appeared at the trial of Surratt as a +voluntary witness for the defense, and without any apparent sense of +shame convicted himself, by his own testimony, of being an accomplice +after the fact. We think that the testimony he gave warrants the +conclusion, also, that another priest, Father La Pierre, placed himself +in the same category. Both of these Fathers took Surratt into their +houses, and kept him concealed,--the first for three, and the latter +for two months,--knowing him to be charged with being a conspirator to +the assassination of the President of the United States. + +Father Boucher's parish being in an out-of-the-way country place, +it was only necessary that he should constantly exercise a prudent +vigilance in behalf of his charge. He was visited frequently by his +friends whilst staying with Boucher; at one time three or four of +these came together, and stayed three or four days with him. The time +was spent in hunting, sporting, and revelry. It was very remarkable, +however, that Father Boucher could not remember the names of any of +these friends. Being a volunteer witness for the defense, he could +not give their names without implicating persons whom he did not +desire to compromise; hence, no doubt, his convenient Jesuitical +failure of memory. Perhaps he could not have given their names without +injury to the cause he desired to help. He could only say that some +of their names were English names, using the word English in contra +distinction from French or French-Canadian, in which sense it implied +not really English, but American,--Beverly Tucker for instance, perhaps +Porterfield, and likely, also, La Pierre. As two of these, Beverly +Tucker and La Pierre, along with Boucher, accompanied Surratt from +Montreal to Quebec, and did not leave him until they had seen him safe +on board the ocean steamer, "Peruvian," when he finally was sent to +Europe, it would seem highly probable that we have rightly surmised who +were his visitors on the occasion referred to. Surratt was not kept in +close confinement by Father Boucher, but his safety from discovery and +arrest was looked after with cunning vigilance. At length the time came +when it was thought safe and advisable to transfer the fugitive back to +Montreal. This was affected as secretly as had been his removal from +that place to the parish of St. Liboire. + +Father La Pierre now took him in charge. He had provided for him a +secluded upstairs room at his father's house, _right under the shadow +of the bishop's window_. This Father had been a visitor of Surratt at +the lonely parish of St. Liboire, and now took him under his especial +protection. He kept him concealed, and never allowed him to go out +until after nightfall, and then never alone, but always accompanied +him. La Pierre thus kept his charge safely from the latter part of +July until the 5th of September, 1865. During all of this time he was +visited regularly twice a week, on Mondays and Thursdays, by Father +Boucher, who always remained over night with him at each visit. How +can we account for this great interest taken by these two priests in +secreting the murderer of the head of the greatest nation on earth, +and that with a full knowledge that he stood charged with this crime, +and that a great reward was offered for his apprehension? How can we +consider them less guilty, in a moral point of view, than Surratt +himself? + +But at length a time came when it was thought safe and advisable to +send him abroad. + +Early in September Father La Pierre sought an interview with Dr. Lewis +J. A. McMillen, surgeon on board the ocean steamer "Peruvian," which +was to sail on the 16th of that month from Quebec for Liverpool, and +made arrangements to put in his care for the passage a friend of his +by the name of McCarthy, who, for certain reasons, desired to embark +secretly on the voyage. The doctor took a steamer at Montreal, on the +15th, to join his ship, which was to sail on the following day. + +Boucher and La Pierre conveyed Surratt in a covered carriage, and +went with him on board the same steamer on which the doctor had taken +passage. La Pierre was in disguise, inasmuch as he was dressed in +citizen's dress. They had also disguised Surratt by coloring his hair, +painting his face, and putting spectacles over his eyes. On the passage +from Montreal to Quebec, they kept him locked up in the state-room +occupied jointly by him and Father La Pierre. When they reached Quebec +and went on board the transport that was to convey them to the ocean +steamer "Peruvian," in which they were to sail, the doctor was there +introduced to Beverly Tucker, who had also felt enough of interest +in Surratt's case to induce him to accompany him from Montreal to +Quebec, and who stood in that relation to his case in the knowledge +of Fathers La Pierre and Boucher that they could safely take him into +their confidence in their plans for conveying Surratt out of the +country. This trio saw Surratt safely on board the "Peruvian," and then +bade him good-by. The interest thus manifested by Tucker in getting +Surratt safely away confirms the testimony given before the Military +Commission, showing him to have been justly charged by the government +with being a member of the great conspiracy. Before parting from his +charge Father La Pierre requested Dr. McMillen to let Surratt stay in +his room until after the vessel should have sailed. + +Surratt is not an innocent man carrying a good conscience, that +enables him to look every man he meets squarely in the face. He is a +fugitive and a vagabond, carrying the weight of a terrible crime in +his memory--a weight that neither time nor distance can efface. He is +haunted by his fears, having before him the vision of a detective and +of capture; and so he skulks and hides from the phantom of an American +detective which he cannot banish from his mind. + +The vessel being now on her way, and in British waters, the fugitive +ventured forth, and naturally sought the company of the surgeon of +the vessel in whose care he had been placed, and whom he regarded +as his friend. His social nature yearned for companionship, and all +the more as a means of relief from a guilty conscience. Does he now +enjoy a sense of security? To him this is impossible. He scanned +closely every passenger he met, that phantom of a detective being +ever present to his imagination. He sees a gentleman whom he takes to +be an American. He seeks his friend McMillen, and discloses to him +his fears, saying: "I think that man is an American detective." Upon +being asked by the doctor what he had done that he should be afraid +of a detective, he replied: "If you knew all the things I have done, +it would make you stare." Murder is a crime that will out. It imposes +a weight of guilt upon the conscience that will, at some unguarded +moment, let the fearful secret slip through the door of the lips +that are most firmly closed by a purpose of concealment. The doctor +reassured him, by reminding him that he was on board a British ship +sailing on British waters, and that he had nothing to fear from an +American detective. Surratt then drew a small four-barrelled revolver +from his vest pocket, and remarked: "I don't care; this will settle +him." The doctor now began to feel a great interest in his charge, +arising from the suspicion that he was John H. Surratt. The voyage +across the Atlantic occupied nine or ten days. The fugitive was so +full of his terrible secret that he could not keep quiet. Every day +he sought opportunities to converse with the doctor privately, and at +every interview the history of his crimes kept leaking out. He was +nervous, and constantly haunted by his fears; so that he could never +hear any one coming up behind him without starting and looking around. +Amongst his important revelations to the doctor were the following: +that he had for a considerable time previously to the assassination +been a bearer of despatches from Richmond to the Confederate agents +in Canada; that he had at one time carried to them from Richmond +thirty thousand dollars, and at another time seventy thousand dollars; +that he arrived in Montreal the last time on the 6th of April, with +despatches from Davis and Benjamin, thus confirming the testimony of +Conover and Merritt before the Military Commission. These despatches +he claimed to have delivered to Thompson. After the military trial, +and previous to the trial of Surratt, the witness, Conover, had been +convicted of perjury; but this does not discredit the testimony he +gave before the Commission, as it was confirmed by other witnesses who +stand unimpeached, and is here also confirmed by Surratt himself in +regard to one of its most important points. It will be remembered that +Conover testified to having been present at a meeting of the Canada +conspirators in Montreal, on the 6th of April, 1865, and that John H. +Surratt, who was present, had just arrived from Richmond, bringing a +cipher despatch from Jefferson Davis, and also a despatch from his +Secretary of State, Benjamin, and that Thompson, laying his hand on +these despatches, said: "This makes the thing all right"; and that +active measures were at once entered upon for putting the assassination +plot into effect. Now Surratt comes to McMillen five months later, on +the face of the broad Atlantic, and confirms Conover's testimony in its +major part. He also related to the doctor the particulars of his trip +to Richmond late in March, 1865, when he was accompanied by a woman, +who by other testimony was shown to have been Mrs. Slater, _alias_ +Brown, the rebel spy and blockade runner. The arrangement was made +whilst he was in Canada for him to meet her in New York and accompany +her to Richmond, which he did, passing through Washington. In this +statement the testimony of Wiechmann is confirmed. Surratt related +to the doctor the difficulty they had in crossing the Potomac. They +were hailed by a gun-boat, and called upon to surrender. They said +they would do so, but waited for the small boat that had been sent +to bring them in to come alongside, when they suddenly arose, poured +a volley into the crew of the small boat, and then, in the confusion +that ensued, made their escape. There were twelve or fifteen crossing +with him at the time, and all were armed with revolvers. Having +gotten within the Confederate lines south of Fredericksburg, they were +being pushed along by negroes on a hand-car when they met five or six +forlorn, half-starved Union soldiers, who had made their escape from a +rebel prison and were striking for freedom. At the suggestion of this +wicked woman they shot them down, and passed on, leaving them lying on +the ground. + +He also related to the doctor the plot, at one time discussed, to +capture the President and carry him to Richmond, but said it was found +to be impracticable, and so was abandoned. He claimed that Booth and +himself had spent ten thousand dollars in preparations for carrying out +their plot. When we remember that neither Booth nor Surratt had any +means of their own, and yet were carrying on an enterprise that called +for so large an outlay of money, we may well ask who stood behind them +and furnished the funds? + +But if we take all of the testimony we have before us into +consideration we need have no difficulty in answering this question. +Jacob Thompson was the treasurer of the concern, and his government +kept him amply supplied with means. It will be remembered that Clay +said, "We have plenty of money to pay for anything that is worth paying +for." After the assassination Surratt was in some way supplied with +money to support him for a year, and carry him to Italy. In regard to +the assassination, Surratt told McMillen that he received a letter from +Booth at Montreal, in the beginning of the week of the assassination, +which was written in New York, calling him to Washington at once, as +it had become necessary to change their plans and to act quickly. He +started at once, and telegraphed Booth at New York City from Elmira, +but found that he had already gone to Washington. In regard to his +escape from Washington after the assassination, he related all of the +incidents that have already been given in regard to his experience at +St. Albans, the loss of his handkerchief, his hasty departure from that +place, etc., etc. + +Every day during the voyage, he was filling McMillen's ears with these +stories, and as they neared the end of the voyage he began to revolve +in his mind whether he would land on the Irish coast or go on to +Liverpool. He asked McMillen which he had better do, but McMillen, who +must have known by this time who this McCarthy was, declined to give +him any advice. Surratt finally said he would go on to Liverpool, but +could not dismiss from his mind the fear that he might there meet a +detective awaiting his arrival. Pulling out his revolver, he said, "If +he did, this would settle him." Upon McMillen making the reply that +"they would make short work of it with him in England if he should do +such a thing as that," he said, "It is for that very reason I would do +it, for I would rather be hung by an English than a Yankee hangman, and +I know I would be hung should I be taken back to the United States." +Upon sighting the coast of Ireland he exclaimed, "Here is a foreign +country at last! I only wish that I may live two years to go back to +the United States and serve Andy Johnson as we served Lincoln." + +When the "Peruvian" was about to land her passengers and mail at an +Irish port, Surratt sent for McMillen, and upon the latter expressing +surprise at finding him dressed, and prepared to land, saying that "he +thought he had concluded to go on with them to Liverpool," Surratt +replied, "that he had thought the matter over carefully, and had +concluded that it would be safer for him to land there, as it was then +nearly midnight." McMillen then said to him, "You have been telling me +a great many things, and I have come to the conclusion that the name by +which you were introduced to me is not your true name. Will you be kind +enough to tell me who you are?" The fugitive then whispered in his ear, +"I am Surratt." He then asked the doctor to send for the barkeeper, +and before leaving the ship drank so freely of brandy that the doctor +found it necessary to request the chief officer at the gangway to take +him by the arm and see him safely on shore. On the Wednesday following, +Surratt called on the doctor at his boarding house in Birkenhead, +opposite the city of Liverpool, and requested him to go over with him +to the city to find a house to which he had been directed to go. The +doctor had, on the previous day (which was the day after the "Peruvian" +had landed in Liverpool), visited the Vice-Consul of the United States, +Mr. Wildings, and made a sworn statement of the facts that Surratt had +revealed to him, his purpose being to aid the United States in securing +his arrest. He told the Vice-Consul that he was only making a partial +statement of Surratt's confessions during the voyage, deeming it only +important that the government should be informed of Surratt's arrival +in Liverpool. The doctor testified, on Surratt's trial, that Mr. +Wilding told him that he had been informed by Mr. Adams, the American +Minister at London, that the government was not going to prosecute +Surratt; that it hadn't anything against him. + +Of all this Surratt was ignorant, and the doctor went with him, as +requested, across the river from Birkenhead to Liverpool, and finding +a cab, gave the driver directions where to take him, and then parted +from him. Surratt visited him again before the doctor started on the +return voyage, and requested him to see a party in Montreal, and bring +him some money. The doctor did as requested, but the person on whom he +was requested to call said he had no money for him. The rebellion had +collapsed; the plot had failed of its purpose, as it had also failed +in part of its fulfillment; and now Surratt was to suffer the fate of +Hyams--be shaken off and disowned. On the doctor's return to Liverpool +Surratt called on him, but only to learn that there was no money for +him. This was the last time that McMillen saw him until he saw him on +his trial. + +Surratt is next found in Italy, in the army of the Pope, where he had +enlisted as a soldier in the ninth company of Zouaves about the middle +of April, 1866. He had found friends after his escape from Washington, +who had supported him, kept him secreted, watched over his safety, +planned his trip from Montreal to Italy, and furnished him money for +the expenses of his journey; friends who, no doubt, were accomplices +before, as well as after, the fact, for we find them waiting and +watching for his return to Montreal after the assassination, and ready +to hurry him off into seclusion. He was to them a stranger; only known +to them as a fugitive from his country, charged with the highest crime +that a man could commit,--a blow at the nation's life, by murdering the +nation's head,--a crime against liberty and humanity. These could not +have been his friends for mere personal reasons, but from sympathy in +the general purpose of this great crime,--the subversion of our free +institutions. + +Certainly he may now feel safe, being hid away under the _alias_ of +Watson, in the ranks of the Papal Zouaves, in the town of Velletri, +in Italy, forty miles from Rome. But no! Here he meets Henry Benjamin +St. Marie, an old acquaintance of his, and now a fellow-soldier in his +company. + +About the 18th or 19th of June, 1866, during an afternoon's walk, he, +in his confidences with his old acquaintance, tells of the events of +the 14th of April, 1865, and of the difficulty he had in making his +escape from Washington on the morning of the 15th. He said he left +disguised as an English traveler and succeeded in making his way out. + +The American Consul was informed of his whereabouts, and upon the +matter being brought to the notice of the Pope through Cardinal +Antonelli, an order was issued for his arrest and delivery to the +United States authorities. He was thus arrested by his comrades in the +service, and kept under guard, but succeeded in making his escape from +his guards (if we may believe the story), by making a bold dash down a +precipice, at the risk of his life. Having thus escaped he made his way +to Naples, and thence to Alexandria, in Egypt. What must have been his +surprise on reaching the latter place to find an officer awaiting his +arrival, and ready to make him a prisoner. He was put in chains, placed +on board the United States man-of-war ship "Swatara," and brought back +to Washington, where he was held to answer for his crime. + + + + +PART II. + +REVIEW OF THE TRIAL OF JOHN H. SURRATT. + + + + +CHAPTER I. + +INDICTMENT AND TRIAL. + + +On the 4th day of February, 1867, the grand jury for the county of +Washington, District of Columbia, found an indictment against John H. +Surratt for the murder of Abraham Lincoln. The indictment contained +four counts. The first count charged him with the murder of one Abraham +Lincoln at the county of Washington, District of Columbia, on the 14th +day of April, 1865. The second count charged that John H. Surratt and +John Wilkes Booth did, on the 14th day of April, 1865, make an assault +upon one Abraham Lincoln in the county and district aforesaid, and that +John Wilkes Booth did murder the said Abraham Lincoln. + +The third count charged that John H. Surratt and John Wilkes Booth, +David E. Herold, George A. Atzerodt, Lewis Payne, Mary E. Surratt, and +others to the jury unknown, did, on the 14th day of April, 1865, in +the county and district aforesaid, make an assault upon one Abraham +Lincoln, and that he was murdered by the hand of John Wilkes Booth. + +The fourth count charged that John Wilkes Booth, John H. Surratt, +David E. Herold, George A. Atzerodt, Lewis Payne, Mary E. Surratt, +and divers other persons to the jury unknown, on the 14th day of +April, 1865, at the county of Washington, District of Columbia, did +unlawfully and wickedly combine, confederate, and conspire and agree +together feloniously to kill and murder one Abraham Lincoln, and that +the said John Wilkes Booth, John H. Surratt, David E. Herold, George A. +Atzerodt, Lewis Payne, Mary E. Surratt, and other persons to the jurors +unknown, did, on the 14th day of April, 1865, in pursuance of said +unlawful conspiracy, make an assault, and that the said John Wilkes +Booth, in pursuance of said unlawful and wicked conspiracy, did kill +and murder one Abraham Lincoln. + +It will be noticed that the legal allegations designating the crime +used in this indictment are the same as are used in the charge and +specifications on which Surratt's co-conspirators were arraigned and +tried before the Commission, except that the word "traitorously," +there used, is omitted in this indictment. This indictment in its +first count charged the prisoner on trial with the murder of Abraham +Lincoln. This was done on the principle that when two or more persons +conspire together to do an unlawful act, or to do that which is lawful +by unlawful means, the act of any one of the parties thus conspiring, +in pursuance of said conspiracy becomes the act of all. They are held +equally guilty in law. To make this count good, it was only necessary +to prove the existence of a conspiracy to do this murder--that it was +done by one of the conspirators, and that the person indicted was a +member of said conspiracy at the time the murder was committed, and +that he aided and abetted and performed his part, whatever that might +be, in accomplishing the object of the conspiracy. The second count +charges that Surratt and Booth murdered Abraham Lincoln, and that the +murder was actually accomplished by the hand of Booth. This implies +that they acted together for the accomplishment of the crime and would +be made good only by proving the presence of John H. Surratt at the +time and place of its commission, and that he was there aiding and +abetting Booth in the alleged murder. The third count simply enlarges +the conspiracy by designating others known to have been included in its +membership, alleging also, that there were still others belonging to +it, who were unknown to the jury, and that in pursuance of its object +and purpose the murder was done by the hand of one of its members. + +The fourth count more distinctly and emphatically alleges the +combining, confederating, conspiring, and agreeing together of these +persons to do this murder, and that it was so done by one of its +members, viz., Booth. This would require proof to be made of such +combination and agreeing together to commit this crime on the part of +the persons named in the indictment; that the crime was perpetrated, +and that the prisoner was a member of said conspiracy at the time of +its perpetration. It will be remarked that in addition to the word +"traitorously," used in the charge and specifications against the +members of this conspiracy who were tried before the Commission, the +political purpose of the conspiracy, as there alleged, is here omitted. + +The real purpose of the conspiracy was to aid the existing rebellion +in its purpose and effort to overthrow the government by assassinating +the President, Vice-President, Secretary of State, and the general in +command of the armies of the United States. + +The parties tried before a military commission were tried under +the laws of war, during a state of war, and were brought under the +jurisdiction of a military tribunal because they were _secret active_ +enemies of the government, and were engaged in an effort to aid the +rebellion. This required that the word traitorously should be used, and +that the treasonable purpose of the conspiracy should be alleged. This +member of the conspiracy was indicted for his participation in this +crime; but he had made good his escape, and had not been brought within +the jurisdiction of the authorities that could hold him to account +until long after the rebellion had been suppressed, and peace had been +declared; and under the political policy which had been adopted by the +government in dealing with the question of treason and traitors in +connection with the war, he could only be indicted for his crime, as +it was a violation of civil law. Hence these omissions in framing this +indictment. + +The case is unique in the history of American jurisprudence. A number +of his co-conspirators had been tried before a military commission +under an arraignment that fully set forth, not only the crime of +murder and a conspiracy to murder, but also the fact that it involved +much more than the mere killing of a man--a private individual--that +it was a conspiracy to murder the President of the United States, a +treasonable conspiracy to subvert the government. It was a blow aimed +at the nation's life. He who murders the humblest citizen sets at +naught God's image impressed on man at his creation, and so commits +a crime not only against a fellow man and a crime against society, +but a crime against God. When Noah became the new head and progenitor +of the race after the flood, God, who had just destroyed the world of +mankind because they had filled the world with violence and blood, gave +this law: "Whoso sheddeth man's blood by man shall his blood be shed; +_for in the image of God created he him_." God is also the author of +civil government, as we read in the thirteenth of Romans: "Let every +soul be subject to the higher powers, for there is no power but of +God. The powers that be are ordained of God." Here we learn that civil +government is the ordinance of God; and so he who assassinates a ruler, +not only sets at naught God's image in man, but despises his ordinance +for the welfare, protection, and peace of society. + +This treasonable aspect of his crime, although it could not, for the +reasons stated, be embraced in his indictment, yet, as we shall see, +was a matter of which the court and jury could take judicial cognizance. + +Here we have a man on trial for participation in the murder of a +President; yet, in his indictment, he is only charged with the murder +of one Abraham Lincoln. His fellow conspirators had been convicted +of murdering Abraham Lincoln, President of the United States, and +Commander-in-Chief of the armies and navy of the United States, and of +attempting to kill William H. Seward, Secretary of State of the United +States, and lying in wait to kill Andrew Johnson, Vice-President of +the United States, and Ulysses S. Grant, commander in the field of +the armies of the United States, for the purpose of overthrowing the +government of the United States in aid of the existing rebellion. Under +this charge they had been condemned and some of them executed. This was +the result of a military trial in time of war. + +This trial had been denounced by every rebel sympathizer in the land. +Great lawyers and statesmen had argued with vehemence that these +assassins had been tried by an unconstitutional tribunal. The dead +President had been denounced as a tyrant, and usurper of authority; one +who had trampled under foot the Constitution he had sworn to protect +and defend by proclaiming martial law, and suspending the writ of +_habeas corpus_; and even in prosecuting a war to compel rebellious +States to submit to the lawful authority of the government, and now +they would tie up the hands of the government by insisting that it +could only try these traitorous assassins, constitutionally, before a +civil court. The country stood divided on this contention, just as it +did on the issues of the war, and partisan feeling ran as high in this +discussion as it did on the right of secession or the right of the +government to compel submission to its authority. + +The sophistry of this reasoning, when applied to a time of war, was +made apparent by the results of this trial of John H. Surratt before a +civil court, in time of peace. No government could protect itself under +such a construction of the Constitution, because no government could +ever convict a traitorous assassin before a jury made up of its enemies +as well as its friends. + +This trial necessarily aroused the passions and prejudices engendered +by the war that gave occasion for the crime of the prisoner, and could +not be conducted on a strictly judicial and legal basis. It was just +as impossible now, almost two years after the close of the war, as +it would have been at the time of the trial by a military commission +of Surratt's fellows in crime; and a conviction by a jury in a civil +court was just as impossible now as it would have been then because a +jury of partisans embracing those of both sides politically can never +be expected to come to an agreement in a case that appeals to their +partisan feelings. This case was unique then, because it was the first +case of a man on trial before a civil court for the murder of the civil +head of the nation, the President of the United States, and although +since that time another has been tried, convicted, and executed, for +the murder of a President, the case of Surratt is still unique in +this, that his crime was overshadowed by a higher crime out of which +it grew--the crime of treason--of being engaged in a treasonable +conspiracy to overthrow his government, and yet the circumstances +surrounding the case were such that this could not be alleged in the +indictment, but were of such a nature that this phase of his crime +could not be excluded from view. + +On the day appointed for the trial of John H. Surratt a very large +number of people assembled, and all were deeply interested in his +case. The court house was crowded, and it was remarked by a most +intelligent observer that the appearance and spirit of the crowd wore +more of the air of a political convention than that of men assembled +to participate in, and witness, the solemn scene of a fellow-being on +trial for his life. + +The trial was before Judge Fisher of the Criminal Court of the county +of Washington, and District of Columbia, a man of great legal ability, +sterling patriotism, and high moral character. The trial was a very +lengthy one, and was hotly contested at every point by counsel for +and against the prisoner. He was defended by lawyers who had made an +enviable local reputation for ability in their profession. The District +Attorney and his assistant were aided in the prosecution by that pure +patriot and eminent jurist, Judge Edwards Pierrepont, of New York, who +had been retained for that purpose by Attorney General Stanbury and +William H. Seward, Secretary of State, and also by A. G. Riddle, Esq. + +A deep partisan spirit was manifested by the defense from the first +opening of their mouths to the close of the case. Every effort was made +to drive the presiding judge from his fearless duty, but without avail. +He stood firm as the adamantine rock. He was not only well qualified +by his knowledge of law for his high position, but was also impartial, +honest, and brave in his decisions on the very numerous questions of +law and evidence that were raised by counsel during the trial. His +carriage during that most notable trial must command the admiration of +both friend and foe; and his decisions will ever command the respect of +courts and lawyers. + +The 10th day of June, 1867, was the day that had been set for calling +up this case. The United States was represented by the District +Attorney, E. C. Carrington, Esq., his assistant, Nathaniel Wilson, +Esq., and associate counsel, Messrs. Edwards Pierrepont and A. G. +Riddle. The prisoner was represented by Messrs. Joseph H. Bradley, R. +T. Merrick, and Joseph H. Bradley, Jr. At the earnest solicitation +of the Secretary of State and the Attorney General, and upon their +representation that the trial would not last more than a week, Judge +Pierrepont had consented to assist in the prosecution. He had just +taken his seat in the convention which had met at Albany to make a +new constitution for the state of New York and in which he had been +appointed on the judiciary committee, and left his place there to take +a part in this trial. He was a Democrat in politics, but loyal to the +government in its struggle for the perpetuation of its life. He had +filled a judicial position in his own State, was a man of great legal +acumen, and was noted for his patriotism and purity of character. + +At ten o'clock on the 10th day of June, 1867, the Court said: +"Gentlemen, this is the day assigned for the trial of John H. +Surratt, indicted for the murder of Abraham Lincoln, late President +of the United States. Are you ready to proceed?" To this Mr. Bradley +responded, "The prisoner is ready, Sir, _and has been from the +first_." In this answer we have sounded forth the key-note to the +spirit and policy of the defense. That candor and honesty of purpose +which always characterize a judicial frame of mind, would have found +their sufficient expression in the first clause of this reply. The +addition of the declaratory clause, "And has been from the first" was +not mere surplusage, but had in it the distinct and manifest intent +of boldly assuming in advance, and in the face of all the adverse +facts, the entire innocence of the prisoner. The purpose was at this +first moment of opportunity to present the prisoner to the jury and +to the country as one who was only anxious for an opportunity to +exculpate himself from all guilt. The reader, if he chance to be of an +imaginative turn of mind, will be able when he reads this clause of +the reply of the learned counsel to see the assumed air of assurance +and self-importance, and to hear the arrogant and confident tone of +voice with which it was uttered. But without thus giving license to +our imagination, the addition of that clause to Mr. Bradley's reply, +when contrasted with the efforts of the prisoner to escape and evade a +trial, creates an impression of a sinister design that is calculated to +throw a taint of suspicion over all which is to follow in the line of +the defense. We shall have abundant occasion, as we proceed with the +review of this trial, to show that the suspicion which has been thus +created is fully justified. + +John H. Surratt, as was shown by the evidence on the trial, was in +Washington on the 14th day of April, 1865, performing his part in the +great crime. He was there aiding and abetting Booth, and co-ordinating +the agencies employed in the execution of the plot, in order that +all of the assassinations embraced in it might be simultaneously +accomplished. Acting first as a counsellor and then as monitor, passing +rapidly up and down the street to keep himself in communication with +the fiends who were to do the work; calling the time loud enough to be +heard at some distance; then going up the street to ascertain whether +his warning could be heard by Payne, and the last time with a face +deadly pale and manifesting a degree of nervous excitement, inseparable +from the commission of such a crime, he called the fatal hour, "Ten +minutes past ten!" and vanished from sight. He has gone, but he has +left an image imprinted on the mind and memory of Sergeant Dye that can +never be effaced. He now becomes a fugitive in disguise, and hies away +to Canada to join the hellish clan that first conceived and then led +him into his crime. Here he was at once taken in charge by sympathising +friends, who kept him hidden away for five months and then, under a +disguise and an _alias_, sent him across the Atlantic, and finally to +Italy. + +Here he is found in the Pope's army, and being charged with his crime, +which he has already confessed in words as well as by flight, is +arrested, escapes from his guards, flies to Naples and thence to Egypt, +is met and arrested at Alexandria, and brought back to the scene of +his crime, and is now put upon his trial. When asked if he is ready, +he replies through his counsel, "I am ready, and have been from the +first." Why, then, did he leave the city of his home, his mother and +sister and all of his youthful associations, in the early morning of +the 15th of April, 1865? Why did he fly to Canada disguised as an +English tourist? Why did he hide in Canada for almost half a year, and +then, in disguise, and under an _alias_, flee to Europe? Why did he +escape from his guards in Italy at the risk (?) of his life, and flee +to Egypt? Why, if innocent, did he flee to the ends of the earth, and +never cease his flight until his way was hedged before him and further +flight was impossible? Was it because he was innocent and desired an +opportunity to prove his innocence to the world? In the presence of +all these facts, what a mistake it was to say, "And has been from the +first." In how much better taste it would have been to have simply +replied, "The prisoner is ready, your honor." + +The District Attorney replied as follows: "If your honor please, I am +happy to be able to announce that the government is ready to proceed +with the trial. Before we proceed, however, sir, to impanel a jury, we +desire to submit a motion to the court, which motion we have reduced to +writing. With the permission of the court I will now proceed to read it +to your honor. It is as follows:-- + + IN THE SUPREME COURT OF THE DISTRICT OF COLUMBIA. + + UNITED STATES AGAINST JOHN H. SURRATT. + + Indictment, Murder. + + "And now, at this day, to wit, on the 10th day of June, A.D. + 1867, come the United States and the said John H. Surratt, + by their respective attorneys; and the jurors of the jury + impanelled and summoned also come; and hereupon the said United + States, by their attorney, challenge the array of the said + panel, because he saith that the said jurors comprising said + panel were not drawn according to law, and that the names from + which said jurors were drawn were not selected according to + law, wherefore he prays judgment, and that the said panel may + be quashed." This motion, if your honor please, is sustained + by an affidavit which I hold in my hand, and which, with the + permission of your honor, I will now proceed to read. We think + after this affidavit shall have been read it will be found + unnecessary to introduce any oral testimony." + +The motion to quash this panel, it will be observed, rests on two +allegations: first, that the names were not drawn according to law; +and, second, that the names from which the jury had been drawn were +not selected according to law. These allegations were fully sustained +by the affidavit of Samuel E. Douglas, register of Washington City, +which was presented and read by the District Attorney, and more fully +afterwards, upon his oral examination. The law governing the question +was found in an act of Congress of June 16th, 1862, entitled, "An act +providing for the selection of jurors to serve in the several courts of +the District of Columbia." + +Under the provisions of this act the register of the city of +Washington, the clerk of the city of Georgetown, and the clerk of the +levy court of the county of Washington, District of Columbia, was each +required to make out a list of names of persons deemed by him to be +most suitable for the duty of jurors, having respect to the exemptions +and qualifications specified in the act. + +The law required that such lists should be made out annually on, +or before, the first day of February. The register of the city of +Washington was to make out a list of names from which four hundred +should be selected: the clerk of the city of Georgetown was to make out +a list of names from which eighty were to be selected; and the clerk +of the levy court of the county of Washington was to make out a list +from which forty were to be selected, and that such lists should be +preserved, and any names that had not been drawn for service during the +year might be transferred to the list made up for the subsequent year. + +Having thus made out their respective lists, these officers were +required to meet together and jointly select from their respective +lists the number specified for each one. The names thus selected were +then to be written on separate and similar pieces of paper, folded, or +rolled up, so that the name could not be seen; and then deposited in +a box provided for the purpose. The box was required to be thoroughly +shaken and sealed, and was then by these three officers to be delivered +into the custody of the clerk of the court of Washington County for +safe keeping. These officers were required to meet at the City Hall, +in Washington City, at least ten days before the commencement of each +term of the circuit court or of the criminal court, and there the clerk +of the circuit court was to publicly, and in their presence, break the +seal of the box and proceed to draw out the number of names required; +and if it was a grand jury court, the first twenty-three names drawn +were to constitute the grand jury, and the next twenty-six names +drawn were to constitute the petit jury for that term. The jury or +juries required, having been drawn, the box was again to be sealed and +delivered to the clerk of the circuit court. + +The affidavit of Samuel E. Douglas, register of the city of Washington, +was offered with the motion to sustain its allegations. This affidavit +was supplemented by the oral examination of Mr. Douglas, under oath. +The affidavit and oral examination developed the facts that no such +lists had been made out and preserved as required; also that there +had been no joint action of these three officers in the selection of +names, but that each one had written his respective number of names and +deposited them in the box, without exhibiting them to the other two. +There had been no joint selection as the law required. + +Still further, the fact was developed that these offices had not sealed +the box as required, but had delivered it to the clerk of the circuit +court to be sealed by him. It was further shown that the names had been +drawn, not by the clerk of the circuit court, but by the clerk of the +city of Georgetown. + +It will be seen at a glance that the affidavit and oral examination +of Mr. Douglass fully sustained the allegations of the motion of +the District Attorney, and that the utter disregard of all the most +essential requirements of the law could have easily been made to +subserve a corrupt purpose. Without charging fraud in the case, we can +easily see how the clerk of the city of Georgetown, who drew this jury, +and who had no right to put his hand in the box, could have carried in +his own hand names of his own selection for that special purpose, and +from this store to have drawn a jury without taking a single name from +the box. + +The substance of the affidavit and oral examination of Mr. Douglass +having been incorporated with the motion of the District Attorney, the +defense made the following replication:-- + + UNITED STATES } + VS. } _In the Criminal Court of the + JOHN H. SURRATT.} District of Columbia, No. ----._ + + And thereupon, the defendant saith the said motion is bad in + law and in substance. The facts stated do not constitute any + ground in law for a challenge of the array. + + BRADLEY & MERRICK, _for defense_. + +_Mr. Pierrepont._--We join in the demurrer. + +The question now before the court was simply one of law and of fact, +and whether the facts in the case admitted by all, constituted such a +violation of the law as justified and required the setting aside of the +array. It would seem that it ought to have been easily settled, and the +fact the motion was hotly contested by the defense through a discussion +of three days continuance, would seem to indicate that for some reason +they had a special desire to have their case tried by that particular +jury. The argument was opened by Mr. Merrick for the defense. His +argument was first addressed to the construction of the statute, and to +the contention that the facts alleged and admitted did not constitute +such a violation of the law as would justify the setting aside of the +array. And then as there was no statute in regard to the quashing of +the panel the question was argued on the principles of the common law, +and many decisions were invoked, both in England and in this country, +to show that the failure of the officers to comply with the law was not +such as would vitiate what they did. + +The question was ably discussed on both sides, and ingeniously on +the part of the defense, which did not confine itself to the legal +discussion of the question, but made it the occasion for manifesting +its spirit and attitude toward the government by insinuations and +innuendo. Thus, Mr. Merrick said, "I hope the United States is looking +for the attainment of justice in this case; I trust nothing may be +developed in this case looking towards anything else. I trust the +government will tread the high and honorable path which leads to the +attainment of simple and, I may add, speedy justice. And entertaining +this hope, I suggest to your honor, whether it is probable a jury, +against whose qualification nothing is alleged, who were summoned +without regard to this case, and before it was anticipated it might be +tried, are not better fitted to do justice then another summoned in +anticipation of the case,--a case not of an ordinary private nature, +but one of great public interest, in which, while the United States as +a government, I trust, will tread in the highways I have spoken of, +there are individuals occupying offices in the government who may be +disposed to tread lower paths which we will have to follow. + +"May it please your honor, I shall say no more upon this motion than to +add that after the most careful examination I have been able to give +to it, the honest conclusion to which I have come is, that the ground, +probably, upon which the motion rests, is to be found in the act of +1853, page 160, 10 Statutes at Large, which act provides that where a +criminal case is on trial in this court and a jury has been impanelled, +and another term begins during the progress of the trial, the cause +shall continue; but leaves it exceedingly questionable whether unless +the jury is fully impanelled before the end of the term, the cause can +be tried. That other term begins Monday next, and unless a jury in this +case is impanelled before Saturday night it is questionable whether +this case will be tried for many days or many years." + +To this sly insinuation that the government felt that it had an +elephant on its hands, and that the motion was a dilatory one thus made +so early in the case to influence both the jury and public opinion, +Judge Pierrepont replied as follows: "They will discover before we +proceed much further, that the United States are as zealous, as +earnest, and as eager to try this cause as the other side, and they +will discover before it is through that the public mind will be set +right with regard to a great many subjects about which there have been +active, numerous, and unfounded reports. Since I have been here in this +city for these past few days, it has been circulated in nearly all the +journals of this country that the United States dared not bring forward +the diary found upon the murderer of the President, because that diary +would prove things they did not want to have known. All these things +will be proved to be false, and all the papers, about the suppression +of which so much has been said, will be exhibited here on the trial of +this case. We are anxious that it should be proceeded with at once. 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 even being reached for the purpose +of seeing whether he would not exercise clemency; whereas, the truth, +and the truth of 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. This, and a +thousand other of these false stories, will be all set at rest forever +in the progress of this trial; and the gentlemen may feel assured +that not only are we ready but that we are desirous of proceeding +at once with the case." The insinuation of Mr. Merrick, having been +thus bravely and fully met, the defense felt it necessary to shift +its ground, and so Mr. Bradley, in the course of his argument, found +another reason for the motion of the prosecution to quash the panel, +which he artfully put forth in the form of an insinuation as follows: +"I think I can see where this thing is drifting. It is not delay that +is sought, but they have another motive more powerful than delay. It is +to get another jury in the place of this honest jury already summoned. +Why, sir, the gentleman talks about the misgivings in the public +prints. I do not know that he has seen what I hold in my hand,--an +article from this place denouncing this jury because sixteen of them +are Catholics, as they say, but there it is--such an article has been +written and published in the New York _Herald_. I know, too, that the +same article, published yesterday morning, foreshadows the fact that +these gentlemen were to come into court on the day they did, and make +the identical motion that they have submitted here." + +_Mr. Merrick._ "And states the ground of the motion?" + +_Mr. Bradley._ "Yes Sir, states the ground of the motion. It looks to +me as though it came from very near home." + +_Mr. Pierrepont._ "What does it state as the ground of the motion?" + +_Mr. Bradley._ "There it is, just the same ground precisely as was +stated here that it was not a lawful panel." + +_Mr. Pierrepont._ "Oh!" (laughingly.) + +Thus we get a glimpse at the outside pressure that was brought to +bear on this trial by a constant fusilade of falsehoods couched +in cunningly-devised paragraphs that they might gain a general +circulation through the press of the country for the purpose not only +of influencing the jury in this case, but also of misleading and +perverting public opinion. + +The fact brought out in this paragraph is somewhat remarkable. It +might have been a mere chance that sixteen out of the twenty-six drawn +for the jury happened to be Catholics, but we cannot help feeling a +suspicion that had the law been a little more closely followed it might +have been otherwise. + +To the insinuation of Mr. Bradley, the District Attorney replied as +follows: "I do not rise for the purpose of arguing the motion before +the court, but with the permission of your honor, and my learned +friend, simply to say a word or two in regard to a certain statement +in one of the newspapers of the day to which my attention has just +been called. It is an item in the New York _Herald_, purporting to be +telegraphed from this city. + +The article is not very complimentary to myself, but as my friend is +spoken of in very high terms, I am not disposed to quarrel with the +writer, for, as a generous-hearted man, I am more anxious for the +reputation of my friend than I am for my own. What is intimated in +it, I would not think of sufficient importance to be called to the +attention of the court, were it not that allusion has been made to it +here by the learned counsel who last addressed your honor. + +He stated that there was some reason not made known for this motion +which we have submitted. I deem it due to myself to say--" + +_Mr. Bradley._ "I beg your pardon if I have said anything wrong. I +thought it was a fair retort on what was said by Judge Pierrepont." + +_The District Attorney._ "Notwithstanding the disclaimer of the +gentleman to impute any wrong motive to us in submitting the motion +now before your honor, I think, inasmuch as public reference has been +made to it here, it is due to my position before the country to say +a word. I will here say, then, that there is no one who would more +earnestly and sincerely deprecate any appeal to religious prejudices +than myself. Politicians may speak, think, and act as they please, but +for my part I would drive from the halls of justice the demon of party +spirit and religious fanaticism. I trust in God the day will never come +when a judge, or a jury, will be influenced in the discharge of the +most solemn duty that can possibly be devolved upon human beings by +political or religious considerations." + +At the assembling of the court on the morning of the 13th, Judge +Fisher delivered an exhaustive opinion on the motion before him. As +it is somewhat lengthy I shall only give its concluding paragraph. +"Believing, therefore, that the substantial requirements of the +act of Congress in this case providing for the selection of a fair +and impartial jury, have not been complied with, but entirely set +at naught, and that there has been grave default on the part of the +officers whom that act has substituted in the place of the marshal, +for the purpose of having them exercise a united judgment in the +selection of all the persons whose names are to go in the jury box, I +am constrained to allow the motion of challenge in this case. I do not +consider the fact that the present panel were improperly drawn by the +clerk of Georgetown, who had no right to put his hand into the box, +because the objection which I have allowed lies even deeper than that. +It is, therefore, ordered by the Court that the present panel be set +aside, and that the Marshal of the District of Columbia do now proceed +to summon a jury of talesmen." + +Judge Fisher subsequently said: "My order is that the Marshal summon +twenty-six talesmen." The process of securing a jury from talesmen +occupied the next four days, and about two hundred talesmen were +summoned before a panel could be secured. + +Many of those summoned by the marshal were excused on showing +sufficient grounds; a very large number were found disqualified on +their _voire dire_; and perhaps all of the challenges, or nearly so, to +which the parties were entitled, were exhausted, and it was not until +the evening session of the 16th of June, that the jury was impaneled to +try the case. + +When a panel of twenty-six jurors had been secured, counsel for the +prisoner, through Mr. Merrick, said: "If your honor please, we are now +ready to proceed to empanel the jury. Before doing so, however, we +think it our duty, in behalf of the prisoner, to file our challenge to +the present array. Your honor has virtually decided the question, and +we do not desire to take up any time in its argument. We simply wish +that it may be filed so that it can be passed upon." + +The challenge in word and form is as follows:-- + + IN THE SUPREME COURT OF THE DISTRICT OF COLUMBIA. + + THE UNITED STATES VS. JOHN H. SURRATT. + + In the Criminal Court, March Term, 1867. + + And the said Marshal of the District of Columbia, in obedience + to the order of the Court, made in this case on the 12th of + June instant, this day makes return that he hath summoned, and + now hath in court here twenty-six jurors, talesmen, as a panel + from which to form a jury to try the said cause, and the names + of the twenty-six jurors so returned being called by the clerk + of said court, and they having answered to their names as they + were called, the said John H. Surratt, by his attorneys, doth + challenge the array of the said panel, because he saith it doth + plainly appear by the records and proceedings of the Court in + this cause that no jurors have ever been summoned according + to law to serve during the present term of this Court, and + no names of jurors, duly and lawfully summoned, have been + placed in the box provided for in the fourth section of the + act of Congress, entitled, "An Act providing for the Selection + of Jurors to serve in the Several Courts of the District," + approved 16th of June, 1862, on or before the 1st day of + February, 1867, to serve for the ensuing year, wherefore he + prays judgment that the panel now returned by the said Marshal, + and now in court here, be quashed. + + MERRICK, BRADLEY & BRADLEY, + _Attorneys for Surratt_. + +This motion was made as a foundation for carrying the case up on a writ +of error in the event of the conviction of the prisoner. + +On Monday, the 18th of June, the case was opened by Mr. Nathaniel +Wilson, Assistant District Attorney, as follows: "May it please your +honor and gentlemen of the jury, you are doubtless aware that it is +customary in criminal cases for the prosecution at the beginning of a +trial to inform the jury of the nature of the offense to be inquired +into, and of the proof that will be offered in support of the charges +of the indictment. By making such a statement I hope to aid you in +clearly ascertaining the work that is before us, and in apprehending +the relevancy and significance of the testimony that will be produced +as the case proceeds. + +"The grand jury of the District of Columbia have indicted the prisoner +at the bar, John H. Surratt, as one of the murderers of Abraham +Lincoln. It has become your duty to judge whether he be guilty or +innocent of that charge,--a duty than which one more solemn or +momentous never was committed to human intelligence. You are to turn +back the leaves of history to that red page on which is recorded in +letters of blood the awful incidents of that April night on which +the assassin's work was done on the body of the Chief Magistrate of +the American republic,--a night on which for the first time in our +existence as a nation, a blow was struck with the fell purpose not +only of destroying human life, but the life of the nation, the life +of liberty itself. Though more than two years have passed by since +then, you scarcely need witnesses to describe to you the scene in +Ford's Theatre as it was visible in the last hour of the President's +conscious life. It has been present to your thoughts a thousand times +since then. A vast audience were assembled, whose hearts were throbbing +with a new joy, born of victory and peace, and above them the object of +their gratitude and reverence,--he who had borne the nation's burdens +through many and disastrous years,--sat tranquil and at rest at last, a +victor indeed, but a victor in whose generous heart triumph awakened no +emotions save those of kindliness, of forgiveness, and of charity. To +him, in that hour of supreme tranquility, to him in the charmed circle +of friendship and affection, there came the form of sudden and terrible +death. + +"Persons who were then present will tell you that at about twenty +minutes past ten o'clock that night, the night of the 14th of April, +1865, John Wilkes Booth, armed with pistol and knife, passed rapidly +from the front door of the theatre, ascended to the dress circle, and +entered the President's box. By the discharge of a pistol he inflicted +a death wound, then leaped upon the stage, and passing rapidly across +it, disappeared into the darkness of the night. + +"We shall prove to your entire satisfaction, by competent and credible +witnesses, that at that time the prisoner at the bar was then present, +aiding and abetting that murder; and that at ten minutes past ten +o'clock that night he was in front of that theatre in company with +Booth. You shall hear what he then said and did. You shall know that +his cool and calculating malice was the director of the bullet that +pierced the brain of the President and the knife that fell upon the +venerable Secretary of State. You shall know that the prisoner at the +bar was the contriver of that villainy, and that from the presence of +the prisoner, Booth, drunk with theatric passion and traitorous hate, +rushed directly to the execution of their mutual will. We shall further +prove to you that their companionship upon that occasion was not an +accidental or unexpected one, but that the butchery that ensued was the +ripe result of a long premeditated plot, in which the prisoner was the +chief conspirator. It will be proved to you that he is a traitor to the +government that protected him; a spy in the employ of the enemies of +his country in the years 1864 and 1865; passed repeatedly from Richmond +to Washington, from Washington to Canada, weaving the web of his +nefarious scheme, plotting the overthrow of this government, the defeat +of its armies, and the slaughter of his countrymen; and as showing +the venom of his intent,--as showing a mind insensible to every moral +obligation and fatally bent on mischief,--we shall prove his gleeful +boasts that during these journeys he had shot down in cold blood, weak +and unarmed Union soldiers, fleeing from rebel prisons. It will be +proved to you that he made his home in this city the rendezvous for the +tools and agents in what he called his "bloody work," and that his hand +deposited at Surrattsville, in a convenient place, the very weapons +obtained by Booth while escaping, one of which fell or was wrenched +from Booth's death grip, at the moment of his capture. + +"While in Montreal, Canada, where he had gone from Richmond, on the +10th of April, on the Monday before the assassination, Surratt received +a summons from his co-conspirator, Booth, requiring his immediate +presence in this city. In obedience to that pre-concerted signal, he +at once left Canada, and arrived here on the 14th. By numerous, I had +almost said a multitude, of witnesses, we shall make the proof to be +as clear as the noonday sun, and as convincing as the axioms of truth, +that he was here during the day of that fatal Friday, as well as +present at the theatre at night, as I have before stated. We shall show +him to you on Pennsylvania Avenue, booted and spurred, awaiting the +arrival of the fatal moment. + +"We shall show him in conference with Herold in the evening; we shall +show him purchasing a contrivance for disguise an hour or two before +the murder. + +"When the last blow had been struck, when he had done his utmost to +bring anarchy and desolation upon his native land, he turned his back +upon the abomination he had wrought, he turned his back upon his home +and kindred, and commenced his shuddering flight. + +"We shall trace that flight, because in law flight is the criminal's +inarticulate confession, and because it happened in this case as it +always happens, and always must happen, that in some moment of fear or +of elation, or of fancied security, he, too, to others, confessed his +guilty deeds. He fled to Canada. We will prove to you the hour of his +arrival there and the route he took. He there found safe concealment, +and remained there several months, voluntarily absenting himself from +his mother. In the following September he took his flight. Still in +disguise, with painted face, and painted hair, and painted hand, he +took ship to cross the Atlantic. In mid-ocean he revealed himself and +related his exploits, and spoke freely of his connection with Booth +in the conspiracy relating to the President. He rejoiced in the death +of the President, he lifted his impious hand to heaven and expressed +the wish that he might live to return to America and serve Andrew +Johnson as Abraham Lincoln had been served. He was hidden for a time in +England, and found there sympathy and hospitality; but soon was made +again an outcast and a wanderer by his guilty secret. From England he +went to Rome, and hid himself in the ranks of the Papal army in the +guise of a private soldier. Having placed almost the diameter of the +globe between himself and the dead body of his victim, he might well +fancy that pursuit was baffled, but by the happening of one of those +events which we sometimes call accidents, but which are indeed the +mysterious means by which Omnicient and Omnipotent justice reveals and +punishes the doers of evil, he was discovered by an acquaintance of +his boyhood. When denial would not avail he admitted his identity, and +avowed his guilt in these memorable words: 'I have done the Yankees as +much harm as I could. We have killed Lincoln, the nigger's friend.' + +"The man to whom Surratt made this statement, did as it was his high +duty to do--he made known his discovery to the American minister. There +is no treaty of extradition with the Papal States; but so heinous +is the crime with which Surratt is charged, such bad notoriety had +his name obtained, that his Holiness the Pope and Cardinal Antonelli +ordered his arrest without waiting for a formal demand from the +American government. Having him arrested, he escaped from his guards +by a leap down a precipice--a leap impossible to any but one to whom +conscience made life valueless. He made his way to Naples, and then +took passage in a steamer that carried him across the Mediterranean Sea +to Alexandria, in Egypt. He was pursued, not by the 'blood hounds of +the law,' that seem to haunt the imagination of the prisoner's counsel +[this refers to a remark made by Mr. Merrick when discussing the motion +to quash the panel], but by the very elements, by destruction itself, +made a slave in the service of justice. The inexorable lightning +thrilled along the wires that stretch through the waste of waters that +roll between the shores of Italy and the shores of Egypt, and spake in +his ear its word of terrible command; and from Alexandria, aghast and +manacled, he was made to turn his face towards the land he had polluted +by the curse of murder. He is here at last to be tried for his crime. + +And when the facts which I have stated have been proved, as proved +they assuredly will be, if anything is ever proved by human testimony, +and when all the subterfuges of the defense have been disproved, +as disproved they assuredly will be, we, having done our duty in +furnishing you with that proof of the prisoner's guilt, in the name +of the civilization he has dishonored, in the name of the country he +has betrayed and disgraced, in the name of the law he has violated and +defied, shall demand of you that retribution, though tardily, shall yet +surely be done, upon the shedder of innocent and precious blood." + +Before the hearing of evidence was entered upon, the prisoner presented +the following petition to the Court:-- + + "_To the Honorable, the Justices of the Supreme Court of the + District of Columbia, holding the Criminal Court in March Term, + 1867._ + + "The petition of John H. Surratt shows that he has been put + upon his trial in a capital case in this court; that he has + exhausted all his means, and such further means as have been + furnished him by the liberality of his friends, in preparing + for his defense, and he is now unable to procure the attendance + of his witnesses. He therefore prays your honor for an order + that process may issue to summon his witnesses, and to compel + their attendance at the cost of the government of the United + States, according to the statute in such cases made and + provided." + +This petition was signed, sworn to in open court, and attested by the +clerk according to law, and was granted by the court. + +The government introduced eighty-five witnesses in chief to sustain +the various counts in the indictment, and ninety-six in rebuttal. The +defense introduced ninety-eight witnesses to overthrow the testimony of +the witnesses in chief on the part of the government, and twenty-three +in surrebuttal, making in all three hundred and two witnesses that +were examined during the trial. The examination of these witnesses +occupied the period of thirty-nine days. The hearing of the evidence +commenced on the 17th of June, and was concluded on the 26th of July. +The arguments in the case were concluded on the 7th of August, and on +that day Judge Fisher delivered his charge to the jury and gave them +the case. On Saturday, the 10th day of August, just two months from +the commencement of the trial, the jury reported that they stood about +equally divided in favor of conviction and acquittal, and that there +was no prospect of their being able to agree. + +The Court inquired whether anything was to be said why the jury should +not now be discharged. Mr. Bradley said: "The prisoner gave no consent +to any discharge of the jury. If they were to be discharged he wants it +understood that it was against his will and protest." + +The District Attorney, on behalf of the government, left the whole +matter with the Court. + +The Court remarked that this was the third communication of a similar +tenor he had received from the jury. If he thought there was any +possibility of their coming to an agreement as to the guilt or +innocence of the prisoner, he would have no objections to keeping them +out longer, but supposing from the statement made by them, no such +result could be expected, he directed the jury now to be discharged. +The prisoner was then remanded to the custody of the Marshal. + +A second indictment was found against him for the murder of Abraham +Lincoln, and the District Attorney entered a _nolle prosequi_ on this. +Thus the prisoner was set at large. + +The result of this trial by a civil court made it clear that no verdict +could be expected from any jury that could be obtained under the +law, and so the case was not further prosecuted. It does not come +within the scope of the author's plan to review in detail this great +mass of evidence. Neither is it necessary. It is sufficient for him +to say that the charges contained in the indictment were fully proven +by the testimony in chief of the witnesses for the government, and +that this testimony was not impaired in any essential point by the +efforts of the counsel for the defense in their cross-examination of +these witnesses, nor yet by the testimony offered by the defense. It +will be found upon a careful and candid scrutiny to fully sustain the +statements herein-before given as to the conduct of Surratt in his +relations to the transaction. No one can carefully read the masterly +summing up of the evidence, and the fair and honest interpretation +of it by Judge Pierrepont in his concluding argument, without being +thoroughly convinced that Surratt was a prominent and active member of +the conspiracy, and that he took an active hand through a period of +more than three months in preparing for the execution of its purposes, +as also in its final accomplishment. The evidence was shown to prove +conclusively the fact that from the time of his introduction to Booth, +on the 23d of December, 1864, to the time of the assassination, their +associations were of the most intimate and confidential character; +that they were much together, and co-operated in bringing together +in Washington City the other members of the conspiracy, on whom they +relied for important parts in the final act. It was shown that the +house of Mrs. Surratt, the mother of the prisoner, was the place of +rendezvous for Booth, Atzerodt, and Payne, and that her house at +Surrattsville, occupied by her tenant, Lloyd, was made the place of +deposit for arms to be used by Booth and Herold in their flight after +the murder; that these were placed there by Surratt, and that his +mother also had knowledge, not only of this fact, but of the purpose +for which they had been provided, and of the time they would be called +for, and was used by the conspirators to convey to her tenant, Lloyd, +the notification to have them ready, as they would be called for that +night.[29] + +It was here, on this civil trial, that "the scales of justice fell," +and not, as alleged by the prisoner's counsel, at the trial before the +Military Commission. + +The District Attorney and His able assistant, Judge Pierrepont, had +both expressed their confidence in the ability of the civil courts to +compass the ends of justice; but the result of this trial showed that +in a crime committed to further political party interests, no jury +could be expected to find a verdict; and so the government refused to +prosecute the case any further. The prisoner was set at large. + +At the conclusion of the trial, on Aug. 10th, 1867, Surratt was +remanded to prison, and on May 12th, 1868, he asked to be released on +bail, but was refused. On June 22d, 1868, he was released from custody. +On the 22d of September, 1868, a _nolle prosequi_ was entered. + +Another indictment was found against him for engaging in rebellion. +Upon this he was ordered to be admitted to bail in a bond of $20,000. +He first pleaded not guilty, and then asked to withdraw this plea, and +to file a special plea, which was granted. The government demurred to +the plea on Sept. 22d, 1869. The demurrer was overruled, and he was +finally discharged. + + + + +CHAPTER II. + +A CRITICISM OF THE DEFENSE. + + +It now remains for the writer to review the course of the defense in +this trial, and to point out its policy, its spirit, its perversion of +facts, and disregard of evidence in carrying out its purpose to appeal, +first, to the prejudice of the jury, and then to pervert public opinion. + +The prisoner was defended by counsel of known and acknowledged +ability--men of reputation for their knowledge of law, and ability as +advocates at the bar. But despite all this, their defense of Surratt +was as unique in its character as was the case itself. Made by men +learned in the law, it ignored the requirements of law, and so was +managed by them more in the light of its political relations, than that +of its legal requirements. In proof of this assertion I shall quote +freely from the arguments of counsel, and I think I shall be able to +show that I am fully justified in expressing this opinion. I shall +first refer to the remarkable number of exceptions taken by the counsel +for the defense to the rulings of the Court on questions of evidence, +and the use made of them. I will quote first from the argument of Mr. +Merrick. + +"In a prosecution such as this, conducted against one of its citizens +by a government, what should be the course of that government, and what +is due to the jury and to the prisoner? Whatever there is that can +throw light upon the alleged crime should be let into the jury box. +All evidence that could go before the human mind calculated to impress +it with conviction, or modify its opinions, should be allowed to come +before you. What has been the case with regard to this trial? Wherever +any technical rule of law could by any constraint whatever exclude a +piece of testimony calculated to enlighten your judgment, it has been +invoked to exclude that testimony; has been bent from its uniform +application and its generally understood principle for that purpose. +I shall find no fault with his honor on the bench in his rulings, for +this is not my place to express an opinion about a decision of the +Court. + +A member of the bar should be loyal to the tribunal before which he +practices, to the full extent of gentlemanly and professional courtesy, +and in the court-room bow with pleasant acquiescence in whatever +the judge may say. With that acquiescence I bow, and yet there is +nothing--and I must say this, and say it in justice to myself--there is +nothing that has fallen from his honor in the adjudication upon these +questions of testimony that has changed my opinion that the testimony +should be allowed to go to the jury. _One hundred and fifty exceptions +taken by the defendant's counsel encumber this record._ It is certainly +strange that there should have been so wide a difference, and I regret +it. Without complaining, as I said, of the decisions of the Court, it +can only be accounted for from the fact that the attorneys representing +the government in this case have strained every principle of law, and +invoked in their behalf every discretionary power of the court, as +against the prisoner." + +Notwithstanding his semblance of disclaimer, Mr. Merrick here makes an +appeal to the jury, on the implied charge of partiality on the part of +this Court. In giving his charge to the jury Judge Fisher very properly +takes notice of this charge, and effectually rebukes the arrogance of +the counsel in the following language: "Much stress has been laid by +the counsel for the defense upon the fact, which they assert, that +during the progress of this trial more than one hundred and fifty +exceptions have been taken to the rulings of the court concerning the +admissibility of evidence. If they have found themselves under the +necessity of calculating the number of these exceptions, and parading +them before you, with a view of having you render a verdict according +to irrelevant evidence not before you, rather than according to the +legal evidence which you have heard, I have no disposition to criticise +their taste, but leave them to present their case in their own way. At +the same time I feel it my duty to remark to you that if counsel will +be so bold as to present propositions to the Court which every tyro in +the profession ought to know are untenable, it does not necessarily +follow that the judge must always be so weak as to sustain them. It has +heretofore been supposed that exceptions to the rulings of a judge at +_nisi prius_ were intended to be passed in review before the appellate +tribunal. I have never before known them to be neatly calculated and +presented to the jury by way of argument." + +A jury is sworn to decide according to the law and evidence in the +case. But how are jurors to decide according to the law, not being +acquainted with law? It is manifest they cannot take their instructions +on the law from the counsel employed in the case, as they will +naturally differ widely in their constructions of law. It is made, +therefore, the duty of the court, an impartial tribunal, skilled in +law, to instruct the jury on all the points of law involved in the +case. In this remarkable case the counsel for the defense, feeling that +the court could not sustain the interpretations of the law on several +important points which they had endeavored to impress on the jury in +their arguments, took the remarkable position that the jury was to be +its own judge of questions of law. Mr. Merrick, in the course of his +argument, took this position, and argued it at some length, as follows: +"The jury is specially charged, it is true, with the fact; but they are +also charged with the law. You are to instruct them by your learning, +your wisdom, and by your authority. You are to advise them; but they +must know and they must believe. My learned brother on the other side +(Mr. Carrington) seemed to feel that it was necessary to press you, +gentlemen, very hard upon your obligation to follow the instructions +of the Court. I have never heard him say that before. Other cases have +been tried before this, but I have never heard him talk so earnestly to +the jury about being obliged to follow the instructions of the Court. +Why is he so solicitous in this case? Does he think you won't dare to +do right? He told you, gentlemen of the jury, that you were sworn to +try this case according to the law and the fact, and that you must take +the law from the court; and if you departed from the law so given you, +you would be perjured. I tell you it is no such thing. If you find a +verdict of guilty, and do not believe the party to be guilty in every +particular, in your judgment and in your hearts, then you are perjured +men, I care not what the Court's instruction is. + +"Has my learned friend read the oath? I don't think he has. Mr. Clerk, +will you be kind enough to read it." (The clerk then read the oath.) + +Mr. Merrick resuming, said: "Where is the law? Why did you tell the +jury what you did? The language is, 'And a true verdict give according +to the evidence.' My learned brother has had that oath ringing in +his ears for six years. Why didn't he tell you what it was? You are, +gentlemen, to find a verdict according to the evidence. What sort of +verdict are you to find? Guilty, or not guilty. That is all you can +say. You cannot say 'Guilty,' under the Court's instruction, or 'Not +guilty,' under the Court's instruction. If you say 'Guilty,' you say +'Guilty as indicted,' upon your conscience resting the weight of the +guilt. If your verdict should be 'Guilty,' it will be followed by +blood, for you see there is no mercy anywhere in those that represent +the government. If your verdict is guilty, then, indeed, you look upon +a dying man. Upon your consciences will rest the responsibility of that +verdict. + +"And let me say to you, gentlemen of the jury, that on that awful day +when you shall stand before the last tribunal to be judged, and the +All-Seeing Eye shall look into your hearts and ask you why you found +this verdict of guilty, think you He will harken if you say, 'The +judge's instructions made me do it.' He will say to you, 'Were you +not free agents, with minds and intellects, sworn as a jury in a free +country? Were you not told by the counsel for the prisoner at the bar +that it was your duty to find this verdict according to your judgments, +your consciences, and didn't you disregard him?' + +"If Judge Fisher's instructions made you find it, bring Judge Fisher. +Where is the Judge? Think you he will step forward and say, 'I will +take the burden.' No, gentlemen. Let me say to you now, that by the +laws of the land, and by the laws of God, the responsibility is on +the judge to instruct you rightly, to guide you correctly, to give +you wise and judicious counsel, not as mandatory and binding on your +conscience, but as advisory to your judgment, to enlighten the pathway +you are to tread in your investigations. We shall ask no instructions, +and desire none. The law of murder is too plain to need any, and you, +gentlemen, are too intelligent not to understand it. Indeed, if we +desire some explanation, _we would prefer to give it to you in the +way of argument, rather than trust it to the distinguished judge who +presides_. We would trust it to argument, because, with regard to these +plain questions, all men can comprehend what the law is. _We would +prefer trusting it to the weight of our own character with the jury as +men and lawyers._" After this ingenious appeal to the jury, the learned +advocate then proceeded to recount and expound the propositions of law +on which the District Attorney had invoked the instructions of the +Court. + +Judge Fisher in charging the jury made the following reference to this +remarkable argument by Mr. Merrick: "You have been told, gentlemen, by +the counsel for the defense, in a manner not very respectful, certainly +by no means complimentary to the Court, that you are the judges of the +law as well as the facts in criminal cases, and that you have the right +to disregard the instructions of the Court in matters of law; and they +tell you that their expositions of the law, and the weight of character +they possess, may be more safely relied upon than the instructions +which may be given you by the Court. The weight of character of a +prisoner's counsel would be a variable, and not unfrequently a very +unsafe criterion by which the jury should judge as to the law of his +case. Perhaps they would have you regard the court as sitting on the +bench merely to discharge the duty of preserving order and decorum in +the court room, which probably the crier of the court or baliff might +be disposed to regard as an usurpation of his prerogative. If the jury +are entirely to disregard the judge's instructions as to the law of a +case, I confess I can see but little left than that for him to perform. + +"It is true, gentlemen, that you have the power, and in cases where +your consciences are satisfied that the instructions of the Court are +dictated, not by an honest desire to enlighten the jury as to the true +state of the law, but by corrupt and wicked motives, you have the right +to disregard the instructions purposely intended to mislead you. But +to claim that the jury are better judges of what the law may be than +the Court, is about as reasonable as to assert that a plain farmer or +merchant may be taken fresh from his plough or his counter, and be more +capable of navigating and manoeuvering a steam frigate, or to lead your +armies to certain victories, than your admiral or commander-in-chief. +In my opinion, you have just the same right to disregard the evidence +of the witnesses who stood before you unimpeached in any matter +respecting the facts involved in the cause, as you have to disregard +what the Court may say to you, under an official oath, as to the law +that may apply to the facts. A jury have the _power_, if they choose +to exercise it, after having assumed the obligations of an oath, to +say that they will neither believe the judge nor the witnesses, but +decide upon the law and facts according to their own caprice, or the +confidence which they may repose in the character of counsel on either +side, but such is not the purpose for which juries were instituted, +and they have no right so to act. When the witnesses in the cause +have testified before you as to the facts, it is then the office of +the judge, under his official oath, to testify to you in the spirit +of truth, according to the best of his knowledge and ability, as to +what is the law which may be applicable to those facts; and an honest +jury will disregard neither the testimony of the witnesses nor the +instructions of the judge, unless they are satisfied that corrupt +motives have actuated them. They will leave the party where the +law leaves him, to his legitimate redress,--a writ of error to the +appellate court." + +Referring to the course of counsel in this illegitimate appeal to the +jury in their argument on this point, and to their appeal, based on +the number of their exceptions to the rulings of the Court, the judge +made this further remark in vindicating the position and dignity of +the Court: "In reference to these matters I may observe that, perhaps, +I owed it to the dignity of the bench to have interrupted counsel in +the conduct of the case in this particular, but in a cause involving +the life of the prisoner upon the one hand and the vindication of the +outraged justice of a nation in mourning upon the other, I deemed it my +duty to cast not an atom in the one scale or in the other which might +by any possibility tend to prejudice either side of the issue." + + + + +CHAPTER III. + + TREATMENT OF WITNESSES AND EVIDENCE BY THE COUNSEL FOR THE + DEFENSE AND THEIR ANIMUS TOWARD THE GOVERNMENT AND APPEALS TO + THE POLITICAL PREJUDICES OF JURORS. + + +The conduct of this trial on the part of the defense toward the +witnesses for the prosecution was most remarkable. The law prescribes +the methods by which testimony is to be discredited, and the eminent +lawyers who defended the prisoner were of course well acquainted with +the legal methods of impeaching testimony. That they did not confine +themselves to these was not only unprofessional, but was calculated to +create a suspicion that they had an intuitive perception of the fact +that the methods known to the law would not avail them in this case. +Hence from the first they attempted to influence the jury by treating +the government witnesses with supercillious contempt, and even scorn. + +They did not, however, stop here, but whenever they could find or make +an occasion they would throw out insinuations against the witnesses _en +masse_ by side remarks intended for the ears of the jury. + +They spoke of the witnesses who were kept together in a room, to be +called as they were needed, as being in the "penitentiary," and added +to this that "they would soon be in another penitentiary." + +On the examination of Dr. McMillen, the surgeon of the ocean steamer +"Peruvian," in whose charge Father La Pierre had placed Surratt under +the name of McCarthy, and to whom Surratt had made confessions during +his voyage across the Atlantic that were conclusive of his guilt, the +counsel for Surratt made themselves so offensive that the witness was +provoked to a retort in self-defense. + +This witness was intolerable to them because of the directness and +force of his testimony. In self-defense the Doctor was provoked into +making the following remark: He said he would tell the counsel (Mr. +Merrick), and if he was not deaf, he could hear, and repeated his +answer, adding that Mr. Merrick had insulted witness the other day, and +that it was the act of a coward and a sneak. The Court here cautioned +the witness that such language was not becoming, but also remarked +"that it was not becoming in counsel to try to worry witness into bad +temper." + +Witness stated "that Mr. Merrick had remarked the other day that all +the witnesses in the adjoining room ought to go to the penitentiary, or +something to that effect; that he was just as good as Merrick." + +On the following day, at the opening of the court, Mr. Bradley said: +"If your honor please, before we proceed with the trial of this case, +I beg leave to call the attention of the Court to an incident which +occurred just before the adjournment yesterday, and to ask that the +notes of the reporter may be read. Your honor was very much occupied at +the time, and I desire that the record may be read in order that you +may see what passed, and what led to the attack made by the witness +upon the stand upon the counsel with whom I am associated, your honor, +without having heard what passed at that time, if not in precise words +yet in substance, censured the counsel to whom these observations were +addressed. I think, in looking at it, your honor will see that there +was no provocation given; and that if there was, it is due to the +dignity of this court, and to the protection of the members of the bar, +to which they are entitled at the hands of the Court, that some notice +should be taken of what then passed." After the reading of so much of +the report as related to the matter, the Court spoke as follows: "I did +not hear what was said by the witness in regard to the gunboats, for +the reason that I was at the time occupied in preparing some passes +for a friend. When my attention was called to the remark made use of +by the witness towards the counsel, I was under the impression that he +had been provoked to it by something that had been said by the counsel. +I cannot, however, perceive in the record which has been read anything +which ought to have called forth, or which justifies, the expression of +the witness. I will say now to the witness, that although Mr. Merrick +did say a few days ago, in regard to the witnesses who were in the +adjoining room (which Mr. Bradley had called a penitentiary) that they +(the witnesses) would soon be in another penitentiary, or words to that +effect, it is not the privilege of a witness to take exception in the +way he did to any remarks made in the court room. He may appeal to the +Court to protect him if he is aggrieved." [Turning to witness] "You +must not, hereafter, in your examination, make use of any expressions +to counsel which are at all insulting in their character, however much +you may feel yourself aggrieved by remarks which they may have made in +reference to witnesses generally, or in reference to yourself before +your examination. + +"In this connection it may not be improper to observe that I have +never, in all my judicial experience, seen a case in which there has +been so much trouble with regard to the examination of witnesses and so +much bitterness of feeling displayed. + +"It may be all right, but I confess I see no reason why it should be +so. I cannot, of course, enter into the feelings of counsel, and it +is possible they may feel themselves aggrieved, and therefore regard +themselves as justified in exhibiting this spirit. I will say, further, +that I have never seen witnesses cross-examined with so much asperity +as I have in the case now pending. It does not appear to me, therefore, +as at all strange that witnesses should be worried into such remarks +as this witness has uttered, especially when intimations are publicly +thrown out by counsel as to their fitness for the penitentiary, and +that, too, when some of the most respectable persons in the land, such, +for instance, as General Grant and Assistant Secretary Seward, are +among the number. And not even was the effect of the remark allowed +to stop with the intimation, but when attention was called to it +by the District Attorney, in the hope, I presume, that it would be +recalled, it was repeated, and with the additional observation that +the propriety of the remark could be shown. When such things occur it +is not at all surprising that witnesses should come here prepared to +avenge themselves by making insulting replies to the counsel. I deeply +deplore it, and will endeavor, by most carefully observing all that +transpires, to prevent a similar recurrence on the part of either +counsel or witnesses; but however watchful the Court may be, such +things will occasionally break forth at times and under circumstances +when, from not expecting it, it is impossible for the Court to check +them." [Again addressing himself to the witness.] "Dr. McMillen, you +are highly reprehensible for having made such remarks as that to which +exception has been taken. It was altogether out of place. If you felt +yourself aggrieved by any remark, you should have called on the Court +for protection. You will now proceed to give your evidence, and in a +manner respectful to the counsel. If the counsel on either side shall +treat you with what you conceive to be disrespect, you will appeal to +the Court, and the Court will intervene for your protection. I would, +however, suggest to gentlemen on both sides that in the examination of +witnesses, if they will consult Quintilion and Allison in regard to +their duty in this respect (and no doubt they have read the remarks +of both these authors on the subject), they will find that those +writers say nothing is to by gained by a bitterness of manner toward +witnesses either on examination in chief or cross-examination, but +that everything may possibly be gained by kindness and conciliatory +manners; and I think it would be a decided improvement in this case if +their suggestions were accepted. In the course of the five years that I +was engaged in prosecuting criminal cases, I do not recollect ever to +have had an unkind word with a witness on the one side or the other, +and never in a civil case except on one occasion, when a witness of +my own turned against me. Then I was led away by a natural quickness +of temper. I advise that we should all, to the best of our ability, +endeavor to control our tempers in conducting this case; and then there +will be no fear of a repetition of the unpleasant occurrences that have +happened during its progress." + +To this Mr. Merrick replied: "I feel it incumbent upon me to say, +after what has fallen from the Court, especially as your honor seems +to have the impression that I intended my remarks to apply to all the +witnesses, including Secretary Seward and General Grant, that while +your honor misunderstood me in this regard, I do not believe I was +misunderstood by some others outside, in supposing I intended to +embrace all the witnesses in that remark. I will here say that I have +the greatest respect for General Grant and Mr. Seward, and I apprehend +that among the witnesses in the case it is perfectly well understood +to whom I referred and to whom I did not refer. I apprehend that no +sane man can suppose that I meant any such reference to General Grant, +Mr. Seward, or Mrs. Seward, and that class of witnesses. I will only +say, in conclusion, that I think, without any further explanation, or +more direct pointing of the remark at present, it is perfectly well +understood among the witnesses to whom the remark referred." + +To this the Court replied: "I do not know whether it is understood +or not. I cannot understand it, because I am bound not to know the +witnesses, either as regards their own private character, or the +character of their testimony, and I enter into the trial of this case +knowing nothing, as it were, about either, scarcely ever having glanced +at the testimony, and of course, therefore, I cannot enter into the +feelings of counsel on the subject. I do not know to what witnesses +these remarks may be directed, but this I do know, that there are +certain legal methods pointed out in the text books of the law by +which we are to be guided in undertaking to discredit the testimony of +witnesses. One method is the discrediting of the witness by himself; +by his own contradictions, and by his mode and manner of testifying. +Another is by proving the witness to be utterly devoid of reputation +for truth and veracity, and not to be believed on his oath. Another is +by contradicting him by the conflicting testimony of other witnesses. +These are the legal modes that are pointed out in the law books, and +any side remarks that are made by way of prejudicing a jury, any acting +in the case, the casting of sinister looks at the jury, are departures +from the rules laid down. + +"The examination of a witness ought to be conducted by the witness +standing up and the counsel standing up, and looking each other in the +face, without the counsel directing his remarks to the jury by turning +towards them instead of turning towards the witness. That is the proper +way to conduct either an examination in chief or a cross-examination." + +The fact that the Court deemed it necessary to deliver such a lecture +as this to counsel, who were men of age and experience in their +profession, and who from their reading ought to have been as well +informed as the Court on the proper treatment of a witness and the +legal methods of discrediting testimony, indicates that he had found +in their conduct such flagrant departures from the requirements of +law and professional conduct a necessity for such criticism and such +admonitions. The opinion of the Court as thus expressed fully justifies +me in the charges I have made against the conduct of the defense and +their unprofessional efforts to discredit testimony. I am still further +justified in it by the remark of Mr. Merrick that they (the counsel +for the defense) "had laid at the feet of the attorneys a mass of the +most corrupt battalion that was ever summoned to support a cause in a +criminal court." + +Here Mr. Merrick attempts to set aside all of the testimony that had +been offered by the government proving the guilt of the prisoner, by +denouncing it as corrupt throughout, and unworthy of the slightest +consideration. This would certainly be as easy a method as it would +be novel to throw out testimony _en masse_ upon the mere _ipse dixit_ +of counsel, and in consequence of the legal standing and weight of +character claimed by them with such manifest self complacency, but when +we consider the fact that upon a candid and careful scrutiny of all the +testimony in the case, it could be set aside in no other way, we could +not perhaps reasonably expect them to refrain from trying to get the +benefit of all the method that was left them. + +The most important witnesses introduced by the government and those +who most unequivocally proved the existence of a conspiracy and the +connection of the prisoner with it, as also his participancy in its +accomplishment, and also the fact that his mother belonged to it and +performed a part in preparing for its accomplishment, had stood every +test that ingenuity could devise to discredit their testimony. Some +of them had been kept on the stand under cross examination for nearly +two days, and could not be made to discredit their own testimony, +either by contradictions or mode of answering. Neither had they been +discredited by proving that they were utterly devoid of character for +truth and veracity, and not to be believed on oath. The attempts at +their contradiction by the conflicting testimony of other witnessess +had all proven miserable failures, and so the counsel for the defense +attempted to have their client declared innocent by scouting all of +the evidence in the case and offering their own convictions of his +entire innocence, and referring the jury to their weight of character +and legal standing to enforce their opinions on the jury as grounds +for a favorable verdict for their client. Never did able lawyers deal +more unfairly with witnesses nor with evidence, nor more wantonly set +at naught the established rules of evidence, not only in the respects +referred to, but also in the efforts that they made to introduce +testimony which they must have known to be inadmissible under the +rules of evidence, as already shown in the number of exceptions which +they not only took to the rulings of the court, but kept count of +and paraded before the jury. Their animus toward the government was +also shown in this matter of testimony, as also in other ways to +be hereafter noticed. They charged the government with presenting +testimony on this trial that it knew to be false, and withholding +testimony from the military commission that would have proven the +innocence of Mrs. Surratt. To sustain the first charge, they asserted +in regard to the handkerchief found by Blinn at the Burlington depot, +that it had been dropped by a government detective, and not lost by +Surratt. Blinn, however, was positive in his testimony that he found +the handkerchief on the morning of the 18th, but the handkerchief which +Hallohan, the detective, claimed to have lost, was lost at Burlington +on the morning of the 20th of April. He did not discover its loss, +however, until he got to Essex Junction, and did not know where he had +lost it. The handkerchief found by Blinn on the morning of the 18th, +and put in evidence by the government, could not therefore have been +the handkerchief that Hallohan claimed to have lost. There was also too +heavy a cloud of uncertainty hanging over his (Hallohan's) testimony +after his cross-examination, to have warranted the counsel in making so +serious a charge against the government as that it knew that Hallohan, +and not Surratt, lost the handkerchief. + +In further proof of the charge that they disregarded and set at +naught the rules of evidence, they tried to get in a statement by +John Matthews of the contents of an article put into his hands by +Booth on the afternoon of the 14th of April, with a request that if +he (Booth) did not see him before 10 o'clock on the following morning +he should hand it to the _National Intelligencer_ for publication, +and which Matthews, after the assassination, had burned, thinking it +would put him in danger to have such a thing found in his possession. +They proposed to prove by this witness that neither the prisoner nor +his mother were in the conspiracy. Of course they knew that they could +not prove the contents of a paper that would have been inadmissible +even if it had been presented. But if they had had the paper in +their possession they could not have proven anything by it, as it +was represented to be a paper prepared by Booth to justify himself +in the crime he had in contemplation, and would have been no more +admissible as evidence than the diary which Booth kept during his +flight, every entry in it having been made in view of his probable +failure to make his escape, and with the intention of palliating his +crime. It was of no more value as evidence than was his assertion of +the entire innocence of his companion, Herold, just a few minutes +before he was shot. Yet they censured the government for not putting +this diary in evidence before the Commission, asserting that its reason +for withholding it was that it would have proven the innocence of +Mrs. Surratt, thus by implication asserting that the government was +thirsting for her blood, and was determined that she must be convicted +right or wrong. + +This position was boldly taken by them in their arguments, as we shall +hereafter see, in the face not only of the evidence on which she +was declared guilty by the Commission, but also in the face of that +presented on this trial, which much more clearly and fully established +her guilt. I have thus been careful to show from the record that I am +justified in the strictures I am making on the course of the defense. +I would be sorry to do any injustice to these men if they were here to +answer for themselves, much more so now that the two senior members, +Mr. Bradley and Mr. Merrick, are numbered with the dead. My charitable +conclusion in their behalf is that their political opposition to +the government so prejudiced their minds that they could not bring +themselves into a judicial frame for the trial of this case. Their +religious sympathies with Mrs. Surratt, and their ready acceptance +of the assertion of Father Walter that she was "as innocent as the +newborn babe," so influenced their minds that they would reject as +false any testimony whatever that went to establish her guilt. Their +sympathies then would naturally lead them to conduct the defense of her +son in the same spirit of determination to hold him innocent in spite +of all adverse testimony. The prisoner found his counsel in a state of +mind to readily accept the ingenuous fabrication which he had had two +years to get into form, as also no doubt the able assistance of the +Reverend Fathers who so sedulously watched for his return to Canada +after the murder of the President, and who at once took him under their +protection on his return to Montreal, and kept him secreted for five +months, until they could get him landed in the Pope's dominions; and +then when he was brought back and put upon his trial, stood by him from +day to day with unfaltering fidelity, until he was set at liberty. + +The story which Surratt gives in his Rockville, Md., lecture, which +bears throughout the marks of the "fine Italian hand" of the Jesuit, +and which is contradicted in all of its most important points by +the whole run of the testimony in the two trials, had no doubt +been accepted by his counsel as true, and hence they would hear no +testimony that conflicted with it; but were ready to accept any +evidence whatever, without regard to the character of the witnesses, +that corroborated it. This, in the opinion of the author, is the +most charitable construction that can be put upon their conduct in +the management of their case. Their eyes were blinded by their all +controlling prejudices, and bitter opposition to the course of the +government in sending Surratt's co-conspirators before a military +commission for trial. We shall now proceed to give the evidence of +their feelings toward the government in this matter. They could +apparently find no words bitter enough to express their abhorrence of +the trial by a commission. + +As John H. Surratt and his mother were bound up in the same bundle by +all the testimony in the case, and his mother had been found guilty +upon this testimony by the court before which she was tried, his +counsel seemed to feel the necessity of getting rid of the effect of +this fact, in its bearing on their case. That I may not be accused of +doing them injustice in presenting their mode of doing this, I will let +them speak for themselves. + +In the examination of jurors on their _voire dire_, Mr. Pierrepont +asked the question: "Have you formed any opinion in regard to the guilt +or innocence of the other conspirators?" The question was objected +to by the counsel for the defense, and Mr. Merrick, to sustain his +objection, said, among other things: "I presume there is scarcely +a gentleman in the United States who has not formed and expressed +the opinion that Booth shot Lincoln. I apprehend there are very few +who have not formed and expressed an opinion that the mother of the +prisoner at the bar suffered death without competent testimony to +convict her, and so we might go through in an inquiry in relation to +all the others." In replying, Mr. Pierrepont said: "The reason urged +by my learned friend against it is, that he believes, I do not know +but that he asserts, that there are very few in the United States who +do not believe that Mrs. Surratt was illegally executed. Therefore we +could not get a jury competent to try the prisoner at the bar if this +question is allowed to be put." + +_Mr. Merrick_ [interrupting]. "My brother will allow me to say that he +did not state my entire proposition. I said there were few intelligent +persons in the United States who had not formed an opinion upon the +question of Booth's participation in the killing of Lincoln; and there +were also, I presumed, but few persons who had not formed an opinion +that Mrs. Surratt had been executed upon insufficient evidence." + +_Mr. Pierrepont._ "Precisely; that is the very statement, except that +my friend has made it a little stronger than I did. + +"I did not intend to overstate it, as there is nothing gained by +overstatement, but it seems I did not come up to the mark."... + +In his opening for the defense, Mr. Joseph H. Bradley, Jr., said: "We +have at last arrived at that stage of this case when an opportunity is +afforded the prisoner for saying something by way of defense, not only +of his own character, his own reputation, his life and his honor, but +also as it shall rise incidentally in this discussion of this evidence +before you, something in the way of vindicating the pure fame of his +departed mother." Again. "As to Mrs. Surratt we hope to satisfy you +that a grave error has been made in her case." Again Mr. Merrick, in +his argument on the motion to strike out certain testimony, said: "The +counsel had said, if it was anything favorable, the defense would +insist on it; if anything unfavorable, they would not desire it. All he +had to say in reply was, that he would insist on the free confession of +all who had testified in the case, if he could get it. He would like to +have had the privilege of putting in whatever this poor boy's butchered +mother said, but had not. When he offered what she said, counsel on the +other side said, 'No, you cannot prove that. We can prove what she said +that will benefit the state, but you shall not throw the mantle of a +mother's declarations over the child standing in the prisoner's dock.' +Had we been allowed, we would have proved her declarations--proved them +when tottering from the dungeon to the scaffold, with the world behind +her, and nothing in the front but that God before whom she was shortly +to appear, and before whom she solemnly asseverated that she was +innocent of the crime for which she was being killed." + +To all these charges and assumptions the District Attorney, in his +argument upon the evidence, replied as follows: "Well, I do most kindly +but most respectfully and emphatically repudiate the unjust imputation +that Mary E. Surratt has been murdered, as was alleged by one of the +counsel, and butchered as alleged by another. Where is the evidence to +justify it? If they have a right to make this accusation, have we not +a right to reply to it? For what purpose was it introduced before this +jury? Is it to appeal to your prejudices? I make no such accusation +against the gentlemen; they charge it home upon us when they say a +murdered and a butchered woman. I deny it, and I undertake to prove to +the contrary." + +Mr. Bradley, interrupting, said "he supposed this threw the whole +subject open for discussion." The District Attorney rejoined: "It +had been introduced by the learned gentlemen on the other side." Mr. +Bradley replied "that he was not aware what evidence there was on which +this question could be discussed. But if it was understood that the +whole subject was open, and that the counsel for the prisoner could not +be interrupted in their discussion of it, he was satisfied." + +_The District Attorney._ "Then why make allusion to it in the first +instance? Who cast the first stone in the presence of this jury? + +"I regret that it should have been necessary for an American woman +to be executed by the judgment of an American tribunal. That verdict +has been rendered by an American tribunal, and the consequence of it +was the execution of an American woman. I know the character of the +American people. I know that imagination revolts at the execution of +one of the tender sex. But when the daughter of Herodias murdered +John the Baptist, she deserved death. When Lucretia Borgia darkened +the history of her country by her horrid crimes, she deserved death. +And when Mary E. Surratt murdered Abraham Lincoln, the great moral +hero of the age in which he lived, the patriot and philanthropist of +the nineteenth century, she deserved death. There is no man who has a +heart more capable of love for woman than myself. But when she unsexes +herself, when she conceives, when she encourages, when she urges on, +and is instrumental in committing the crime of murder, she places +herself beyond the pale of protection. The best wife who ever lived, +according to Milton, our great mother Eve, is thus represented as +speaking to her husband:-- + + "'What thou biddest, + Unargued I obey; so God ordains: + God is thy law, thou mine.' + +"I believe in submission on the part of women; submission to her God, +to the laws of her country and to her husband. But when a woman opens +her house to murderers and conspirators, infuses the poison of her +own malice into their hearts, and urges them to the crime of murder +and treason, I say boldly, as an American officer, public safety, +public duty, requires that an example be made of her conduct. Murder! +gentlemen of the jury. Who composed that military commission? They are +no better men than you are, but you will not be offended with me if I +say they are as good men as you are, or I, or any of us." Naming over +the officers who constituted the tribunal by which Mrs. Surratt was +tried, he continued: "I say, gentlemen of the jury, that they are good +men, holding commissions under the government of the United States, +and they are presumed to be honorable men. The law declares that every +private citizen, and every public officer who is a servant of the +American people, is presumed to be honorable until the contrary is +proved. + +"Your officers, your men, your representatives in the American army, in +an accusation which will travel upon the telegraph wires perhaps to the +four quarters of the world have been denounced, if not expressly, by +implication, as murderers and butchers who took the life of an innocent +woman. If so, when you come to try them, and you believe it, say it, +but it is not the question submitted to you now. She may be innocent +and the prisoner at the bar be guilty; the subject was introduced +collaterally by the learned counsel, for what purpose I know not, +except for effect. Before you brand these gentlemen with the character +of murderers, see that you have relevant grounds to act upon. Take +care, or you may be placed in the same situation; I have not charged +it, and I do not think my friends would, upon reflection, charge men +who are placed in such a solemn obligation with such a dereliction of +duty. It has been said that this has been pronounced by the Supreme +Court of the United States an illegal tribunal. What has that to do +with the action of these officers? What has that to do with your +action? What pertinency can it have to the issue now submitted to you +for your decision? But, gentlemen of the jury, let us first consider +the character of this crime, and then I will consider briefly the +connection of Mrs. Surratt with it. I do not desire to say much about +her; she has gone to her grave, and her spirit has passed before her +Eternal Judge." + +After recounting the character of the crime, the District Attorney +thus refers to Mrs. Surratt's connection with it: "Now, gentlemen of +the jury, let us view the connection of Mrs. Mary E. Surratt with this +assassination. I feel the delicacy of the ground upon which I stand. I +know the situation. I know that you dislike to consider this question, +which has been forced upon you. I do not want to do it. My duty is +to prosecute the prisoner, but one of the counsel has said she was +murdered, and another that she was butchered, and it therefore becomes +my duty to trace her connection with this crime, and then leave it to +you to say whether she was guilty (though not relevant to this case), +of the crime for which she suffered. First, I call your attention to a +fact to which we have already adverted; that her house, 541, was the +rendezvous for these conspirators. Now, gentlemen, will you pause for a +moment, and let me ask you how you can reconcile it with innocence? You +remember the law, that it is not how much a party did, but whether she +had anything to do with it. Can you, I say, reconcile it with innocence +that this woman's house should have been the rendezvous of John Wilkes +Booth, Lewis Payne, Atzerodt, Herold, and John H. Surratt? Would you +not know by intuition? Would you not know by their conversation? Would +not your judgment and your hearts tell you who they were and what they +contemplated? + +That is the great central truth, which I defy the learned counsel for +the defense successfully to assail. Secondly, who furnished the arms +with which the bloody deed was done?... The woman who puts an arm into +the hand of her lover, her son, her brother, or her husband, who urges +him on to the deed, by the law of God and of man is equally guilty +with the one who with his own hand perpetrates the crime. According to +the testimony of John M. Lloyd this is shown. Do you believe him or +disbelieve him? My friend, Mr. Bradley, who opened this case said he +was a common drunkard; but mark you, he was an attendant and friend of +Mrs. Surratt." + +_Mr. Bradley._ "Who says so?" + +_The District Attorney._ "I will prove it. When I was examining that +witness, and proposed to ask him certain questions in reference to Mrs. +Mary E. Surratt, he said, 'Mr. Carrington,' for he knew me personally, +'I don't wish to speak about Mrs. Surratt, for she is not on trial.' +I said 'Go on, Mr. Lloyd.' He declined. I applied to the Court, and +the Court said that it was his duty to answer. He saw her continually. +He lived in her house; he drank her liquor. Why, this evidence shows +that John H. Surratt, Herold, and John M. Lloyd played cards and drank +together.... But says the friend and companion of the prisoner at the +bar,--the confiding and confidential agent of his mother, unwilling +to testify against her when put on the solemn sanction of an oath, +but when required to do so he speaks out,--he says certain arms were +furnished him by the prisoner at the bar; that he concealed them, +the prisoner showing him where they could be safely concealed, he +protesting at the time against it, protesting that it might get him +into some personal difficulty. The mother knew of the transaction, for +on the 11th of April we have Lloyd's own testimony; she asked him where +those shooting-irons were, and said they might soon be needed, or words +to that effect. But I am going too fast, for I do not desire to speak +to confuse you. I say, first, that her house is the rendezvous; and +that, secondly, she furnishes arms, or knows of their being furnished. +On the night of the 14th of April, Booth and Herold returned, and +are leaving the city of Washington in flight for their lives. At +Surrattsville they called for whiskey from the agent and friend of +the prisoner and his mother. She gives them a home, gives them arms, +gives them whiskey, not to nerve them but to refresh them after the +commission of their horrid crime. + +"But Booth, in making his escape, needs something more than whiskey and +arms. + +"It is necessary that he should secrete himself as he traveled through +the country, and that he should see persons approaching him from an +immense distance, he needs a field-glass, and has it delivered to him +by his friend and agent, Mrs. Surratt." With the defense no witness +told the truth whose testimony went to convict their client, whilst +the stories of the most infamous men, self-confessed scoundrels and +accomplices after the fact, if not before, such as Father Boucher, and +Reverend Cameron, must be taken as gospel truth.[30] In the face of +all this testimony the counsel for the defense again bring their false +accusations against the government. Mr. Merrick in the course of his +argument, said: "Does the Attorney General feel that public justice +demands that he should employ assistant counsel in this case, or is +there somebody else behind?"... "Are there any other officers of the +federal government that have purposes to accomplish in this case? Says +the learned attorney on the other side (Mr. Pierrepont) in a speech +delivered I think before you were impaneled:-- + +"'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 even being reached +for the purpose of seeing whether he would not exercise clemency; +whereas the truth, and the truth of 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. This and a thousand others of these false +stories will be all set at rest forever in the progress of this trail; +and the gentlemen may feel assured that not only are we ready, but +that we are desirous of proceeding at once with the case.' Now if this +declaration of my learned brother on the other side is correct, this +trial was not entered upon for the purpose alone of inquiring into the +guilt or innocence of the prisoner at the bar. It was not entered upon +because public justice demanded his arraignment, before you, gentlemen, +but in order that a thousand false stories about men high in office +might be settled at his expense. + +"Then, although my learned brother is here under appointment by the +Attorney General of the United States, yet it is an appointment which +probably had its origin in the stimulus of some private feeling lying +behind. He comes here, not to try this case alone, but he comes here +to set at rest certain false stories. Has he done it?"... "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? We were not going +to quarrel about it; we would like to know all we can about the dark +secrets of those chambers whose doors are closed, but from which light +enough creeps to make us anxious to look within. We only know enough to +make us curious; but that is enough to make us _feel_. You were going +to show, too, that nobody prevented access to the President on the part +of those who waited to get a pardon. Why didn't you do it? Gentlemen +of the jury, I should have been glad to have heard that proof. They +have brought these charges into the case and I must meet them as part +of the case. I should have been glad to have heard that proof. Who of +you who was in the city of Washington, will ever forget that fatal day +when the tolling of the bells reminded you of the sad fact that the +hour had come when those people were to be hung? Your honor (referring +to Justice Wylie, who was at the time sitting beside Judge Fisher +on the bench), in your praise be it said, raised your judicial hand +to prevent that murder, but it was too weak. The storm beat against +your arm, and it fell powerless in the tempest. You remember that +day, gentlemen. Twenty-four hours for preparation. The echoes of the +announcement of impending death, scarcely dying away before the tramp +of the approaching guard was heard leading to the gallows. Priest, +friend, philanthropist, and clergyman went to the Executive Mansion +to get access to the President, to implore for that poor woman three +days respite to prepare her soul to meet her God, but got no access. +The heart-broken child--the poor daughter--went there crazed, and, +stretched upon the steps that lead to the Executive chamber, she raised +her hands in agony and prayed to every one that came, 'O God! let me +have access, that I may ask for but one day for my poor mother--just +one day.' Did she get there? No. And yet, says the counsel, there was +no one to prevent access being had. Why don't you prove it? O, God! if +such a thing could have been proved, how would I not have rejoiced in +that fact; for when reflecting upon that sad, unfortunate, wretched +hour in the history of my country--an hour when I feel she was so much +degraded, I could weep until the paper be worn away with the continual +dropping of my tears. Who stood between her and the seat of mercy? Has +conscience lashed the chief of the Bureau of Military Justice? [Gen. +Joseph Holt.] Does memory haunt the Secretary of War? Or is it true +that one who stood between her and Executive clemency now sleeps in the +dark waters of the Hudson, while another died by his own violent hand +in Kansas? + +"The learned gentleman is right. He did come here to put these things +at rest, or to endeavor to put them at rest; but he could not do it. +What else is there in this case to show a feeling behind, besides +public justice impelling to conviction? Gentlemen of the jury, as +the counsel has stated in his speech, public rumors had gone abroad, +and certain grave charges had been made. You know that political +accusations had been brought against Judge Holt, Mr. Bingham, and +the Secretary of War, in the House of Representatives, and that it +had become a political matter." (Mr. Merrick here referred to an +effort that had been made by rebel sympathizers in Congress to make +political capital out of this transaction.) "There were parts of those +accusations that the learned counsel was going to put at rest. Where is +the proof? The proof is in this; follow me for a moment. + +"I said I would show there was a conspiracy on conspiracy. What has the +chief of the Bureau of Military Justice got to do with this case? Does +not your honor hold an independent court? Is not the judicial tribunal +of the land separate from the executive? Is it not a fundamental +principle of American constitutional law that the executive and +judicial departments shall be distinct and separate? The Bureau of +Military Justice is a part of the executive department. What has he to +do with this case? Nothing, says the counsel. Is he counsel? we ask. +No, say they. Why, then, is he manipulating their witnesses in this +case? Smoot, one of their witnesses, tells you that he is called up +before Judge Holt, with ten others, examined, and his examination was +taken down in writing. The day after giving his testimony he comes back +and says that it was not Judge Holt that examined him, but was somebody +else. + +"I pressed him, pressed him hard, as to the place and time. He then +recollected it was in the Winder Building, opposite the War Department; +and when I pressed him still further, he had to say that the office he +was in had written over the door 'Judge Advocate General's office.' +Again I ask what had the Judge Advocate General to do with this case? +Not only was Smoot there, but Norton was there, and God only knows how +many more. It is apparent, then, that he has taken a deep interest +in this case. Why is he taking such an interest? It is certainly +indiscreet. He has lost his prudence and he has lost his discretion; +he has lost his judgment thus to expose himself and his office in a +criminal prosecution. + +"Mr. District Attorney, gird on your loins and answer me. Whose +discretion is broken down? Whose prudence is betrayed? Is there anybody +else's heart at which the vulture gnaws? Is there any high and great +man who is forgetting the dignity of his office and the duties of a +moral creature so far as to descend to the preparation of witnesses +with which he has nothing to do to satiate his hunger with the blood of +an innocent being?... But I am now speaking of the Bureau of Military +Justice. He you know has furnished the evidence in this case." + +Mr. Merrick then went on to charge the government with preparing and +presenting evidence against Surratt that it knew to be false, and then +proceeded as follows: "No matter whether they knew the truth in this +case or not, prudence has been betrayed; discretion has been broken +down; courage has been conquered. Following on Judge Pierrepont's +declaration, which I have read to you, and these circumstances, comes +Mr. Carrington, breaking the cerements of the tomb, and demanding your +verdict against Mrs. Surratt. In God's name isn't it enough to try the +living? Will you play the gnome, and bring her from the cold, cold +earth and hang her corpse? Bring her in; but there is no occasion for +doing so; she is here already. We have felt our blood run cold as the +rustling of the garments from the grave swept by us. Her spirit moves +about, and the Judge Advocate General and all these men may understand +that it is the eternal law of God, though, so far as men are concerned, +fresh and innocent blood may apparently vindicate innocent blood +previously shed, yet the spirit will still walk beside them. + +"He may shudder before her, because she is with him by day and by +night; and he may say-- + + "'Avaunt and quit my sight! Let the earth hide thee; + Thy bones are marrowless; thy blood is cold.' + +But the cold blood and marrowless bones are still beside him, and her +whisperings are presaging that great judgment day when all men shall +stand equal before the throne of God, and when Mrs. Surratt is called +to testify against Joseph Holt, what will he in vindication say?... + +"Mr. Carrington, your honor, has gone outside of this record, and I +must follow him to some extent, at least. He has gone outside of it in +speaking of the military commission, defending the major generals and +others. I am glad I recurred to it, for it reminds me of a statement of +his that I desire to correct. He says we accused those honorable men +of murder. No, sir; I refrain from any expression of opinion on that +subject. It is true the most exalted judicial tribunal in the world, +vindicating the liberty of American citizens and their constitutional +rights against military authority, and maintaining the supremacy of +the courts over military law, have pronounced that, and all other +commissions similarly constituted, to be illegal; but what I denounce +here is not the men who in judgment sat there, but the men conducting +the trial, and who with this diary of Booth in their hands could have +proved Mrs. Surratt's innocence by showing this conspiracy to have +been organized on the 14th day of April, but who, though producing +the toothpick and the penknife found on Booth, yet never so much as +disclosed the fact that such a diary existed. + +"They never made it known to those men or to the country. Do they not +deserve to be denounced? Now that it has become known to the country, +they come in before this jury to get them, with the diary in evidence +before them, to find the same verdict that the military commission +found. + +"I put a question to a witness on that stand (referring to Father +Walter) and asked him, 'Did you administer the consolations of religion +to Mrs. Surratt?' 'I did. I gave her communion on Friday, and prepared +her for death.' I asked him, 'Did she tell you as she was marching +to the scaffold that she was an innocent woman?' I told him not to +answer the question before I directed him to. He nodded his head, but +he did not answer the question, because he had no right to, as the +other side objected. If you are going to try that woman, and she being +dead is unable to be here to defend herself, can you not at least +have charity enough to let her last words come in in her defence? Will +you try one who is not only absent from the court, but is dead? While +trying one that is dead, will you deny to her the poor privilege of +having the last word she uttered on earth spoken in her vindication? +Were you afraid of it? Did you feel that the words would sink deep into +the hearts of everybody that was here in this room, and in the United +States, and cause to well up from that heart a fountain of mercy, rich +and pure as the fountain that sprang from the rock at the bidding of +the sacred rod? Shame on you! Prepared for the world to come, and +marching to the scaffold, with her God before her and the world behind +her, and a load of sin laid at the feet of Almighty God, and no hope +but in that eternal mercy upon which we must all rely, I ask whether +she cannot at such an hour speak for herself? No! you answer. Why not? +is it likely she would lie? No, gentlemen, they will not say that. +Then why is it? They did not want to hear it. Oh, they must indeed be +hardened of heart, reckless of guilt, and indifferent to justice. But +although they had no desire to hear it, they do hear it, and you hear +it, for as that voice spoke then, it speaks now, and will continue to +speak until justice is meted out. It whispers and is heard. It descends +upon the head of that boy, and breathes on each of your hearts. Yes, +gentlemen, that woman in the nameless grave in yonder arsenal yard, the +cerements of which have been broken by the government, comes here to +vindicate her child. 'A nameless grave' did I say? Yes, alas! too true. +Aye, sir, it would seem as if the ordinary feelings of humanity and +common respect for the dead, to say nothing of regard for the honor of +our country and sympathy for the sufferings of a distracted and loving +daughter, would suggest to those pressing the prosecution (and who have +charge of the matter) to allow this poor girl the privilege of paying +a simple tribute to a mother's love by having her remains removed from +a felon's grave. Yes! there that mother lies in a nameless grave, on +which no flower is allowed to be strewn by that heart-broken daughter, +who for the past two years has been earnestly pleading that she might +have the privilege of placing those last sad, and to her, sacred +relics, where filial love might weep the tear, and a filial hand plant +a flower on the tomb." + +Mr. Merrick then went on to meet the argument that Surratt had +confessed his guilt by flight by declaring that the mad passions of the +hour, and tyrannical usurpations of the government in its method of +dealing with those charged with this crime, by sending them before a +military commission instead of a civil court for trial, justified him +in his flight. + +He then went on to vindicate the Catholic Church, which he claimed had +been assailed in this matter. The only reference to the Catholic Church +in connection with this trial had been made in the public press. The +prosecution had carefully abstained from any assault on that church, +and had tried to exclude religious prejudices from the minds of the +jurors. + +Mr. Merrick, however, seized the occasion to pass an eulogium on +that church, in which he showed as much disregard for the facts of +history as he did for the proven facts in this case. Perhaps he felt +this vindication to be called for from the fact that most of the +conspirators were Catholics in religion, and the further fact that +the friends who waited and watched for the return of his client to +Montreal after the assassination, and who, on his return, spirited +him away and kept him secreted for five months and then helped him +off to Italy, where he was found in the ranks of the Pope's army, and +who voluntarily came before the court on his trial to testify, and to +procure testimony in his behalf, were priests of that church. In his +eulogium on that church he forgot to mention the fact that the Pope +at an early period of the war acknowledged the Southern Confederacy +and wrote a sympathizing letter to Jefferson Davis, in which he called +him his dear son and denounced President Lincoln as a tyrant. He could +scarcely have forgotten that the Pope of Rome had sought to take +advantage of the arduous struggle in which our government was engaged +for the preservation of its life, to establish a Catholic Empire in +Mexico, and had sent Maximillian, a Catholic prince, to reign over +that, at that time, unhappy people, under the protection of the arms +of France, lent to the furtherance of his unholy purpose by the last +loyal son of the church that ever occupied a throne in Europe. Perhaps +he did not realize that it was God who frustrated that last grasp of +the drowning man at a straw that eluded his grasp, by preparing for +his holiness, the Pope, and for Louis Napoleon just at that moment the +Franco-Prussian war, which resulted in the final loss of his temporal +power to the Pope and with it his grip on the world, and of his empire +and crown to the last servile supporter of his temporal pretensions. To +claim for that church, as Mr. Merrick did, friendship to civil liberty, +respect for the rights of conscience and of private judgment, and love +for our republican institutions, is to ignore, or set at naught, all +the dogmas of that church on the above questions and all the claims of +the Papacy. Mr. Merrick manifestly thought that the attitude of the +Catholic clergy toward the assassination of the President could be +hidden from public view by his fulsome eulogy. + +The appeals made by the eminent counsel for the prisoner to the +political and religious prejudices of jurors was ably seconded all +through the trial by the Jesuit priesthood of Washington City and +the vicinity. It will be recalled by scores of people who attended +the trial that not a day passed but that some of these were in the +court-room as the most interested of spectators. That they were not +idle spectators may be inferred from the fact that whenever it seemed +necessary to the prisoner's counsel to find witnesses to contradict +any testimony that was particularly damaging to their cause they +were always promptly found, and were almost uniformly Catholics in +religion, as shown by their own testimony on their cross-examination. +It was a remarkable fact, also, that these witnesses were scarcely +ever able to come from under the fire of Judge Pierrepont's searching +cross-examinations uncrippled, and also that when they took the risk +of bringing two witnesses in rebuttal of the same testimony their +witnesses uniformly killed each other off before they got through the +ordeal that tests the truthfulness of witnesses--the cross-examination. +Other outside influences were brought to bear on jurors, such as these: +Father John B. Menu, from St. Charles College, spent a day in the +court-room, sitting beside the prisoner all day, thus saying to the +jury, "You see which side I am on." A great many of the students from +the same college also visited the trial, it being vacation, and they +uniformly took great pains to show their sympathy with the prisoner by +shaking hands with him. The press also was prostituted almost daily by +publishing cunningly devised paragraphs impugning the motives of the +government in the prosecution and management of the case. Thus were +the prejudices of jurors appealed to and efforts also made to pervert +public opinion. + +I have quoted thus at length from Mr. Merrick's argument to show, +first the animus of the defense toward the government, and especially +toward the Judge Advocate General, Joseph Holt, and the Secretary of +War at time of the assassination, Edwin M. Stanton. These two officers +of the government need no vindication at my hands before the loyal +people of this country, as they were never denounced by any but rebels, +whose especial venom against them would be the strongest presumptive +evidence of their virtue and efficiency. A purer man, a truer patriot, +a braver, more intelligent and able officer than Gen. Joseph Holt +never will grace the pages of American history. He was only hated and +denounced by rebels because of his faithfulness to duty and efficiency +in its performance. Of Edwin M. Stanton, also, it is needless for me +to say a word. His place is fixed in history, and his record cannot be +blurred by the false and vile charges or insinuations of his enemies, +for his enemies were only found amongst the enemies of his country, +and precisely for the same reason that they were enemies of the Judge +Advocate General. The charges here so boldly made that they stood +between Mrs. Surratt and an appeal to the Executive for clemency, was +shown to be false by Judge Pierrepont, who produced the official record +of the trial of the conspirators, together with a paper signed by some +members of the court recommending commutation of the sentence of Mrs. +Surratt to imprisonment for life on account of her age and sex, and +showed that this whole record had been laid before the President and a +full cabinet, and that after mature discussion and consideration it had +received their unanimous approval, with the exception of the request +for the commutation of Mrs. Surratt's sentence which, though not a part +of the record, was presented with it; and that the President's order +for the execution of the sentence of the court had been written on the +back of this very record. + +These papers containing this whole record were handed to Mr. Merrick, +who tossed them from him indignantly, afterwards assigning as his +reason for doing so that he had learned to distrust everything that +came from the Bureau of Military Justice. His real reason was that he +did not desire to be estopped from reiterating the falsehoods he had so +boldly proclaimed. + +His denunciation of the Judge Advocate General for assisting the +prosecution by furnishing them with witnesses, to prove facts found on +his records, if he did indeed thus assist, is unmerited; as it is not +only the duty of every private citizen, but of every public officer as +well, to assist, if it be in his power to do so, in securing the ends +of justice where crimes have been committed, and the safety, peace, and +welfare of society put in jeopardy. His deliberate false assumption +that the prosecution had put Mrs. Surratt on trial is worthy of note, +as he himself dragged her case in even before a jury was impaneled; and +his colleague, Mr. Jos. H. Bradley, Jr., in his opening speech, had +also brought it up in such a way that the District Attorney was forced +to notice it. It was evidently a premeditated scheme of the defense, +and was done for the purpose of appealing to the prejudices of jurors, +and of making political capital. + +Mr. Merrick's portrayal of the scenes incident to the execution of +Mrs. Surratt was a fine piece of eloquent and pathetic declamation. We +cannot but deplore, however, that the fine sensibilities of the counsel +had not found occasion for their display in the case of the widow and +orphan child of the martyred President, rather than in the person of +one proven guilty of complicity in his assassination, and of being so +actively engaged in that tragedy that she had traveled twenty miles +on that fatal Friday afternoon to carry, at Booth's request, a field +glass which he had delivered to her for the purpose, to Surrattsville, +to be deposited and delivered by Lloyd, at her request, along with the +carbines and the whiskey, to the assassins on that night, when fleeing +from the seat of their crime, and from offended justice. It is to be +deplored that he had no tears for the crazed widow and orphan child of +the murdered President, when he could find such a generous fountain for +his murderers. Such, however, is the deplorable effect of political and +religious prejudice on frail human nature, that it perverts our moral +sensibilities and warps our judgment. Mr. Merrick could see nothing +but innocence in the prisoner and his mother, although the proof of +their guilt was piled mountain high. It will have been noticed that +he unequivocally asserts that the Supreme Court of the United States +had decided that the commission that tried the assassins was an illegal +tribunal. We shall have occasion hereafter to show that this is untrue. + +If the counsel for the defense was not aware of this fact, it was +because they had failed to grasp the meaning of the decision to which +they referred, and on which they relied. + +It was neither fair nor honest in them, after dragging into the +trial the question of Mrs. Surratt's guilt or innocence, and that +for the purpose we have above indicated, to endeavor, in the face +of the facts, to shift the burden of the responsibility for this on +to the prosecution. It was equally dishonest to insinuate that the +prosecution of John H. Surratt was not entered upon alone for the +purpose of ascertaining his guilt or innocence, but in order that the +false stories that had been published in regard to the course of the +government in executing Mrs. Surratt might be set at rest. The most +eloquent counsel for the defence, ably assisted by his colleagues, +endeavored to put the government, and not the prisoner, on trial +before the jury, and before the country. They uniformly and boldly +asserted his innocence, whilst they arraigned the government for having +murdered, according to one, and butchered according to another, an +innocent woman; and also of being in this trial engaged in an endeavor +to cover up the guilt of shedding her innocent blood, by shedding +the blood of her innocent son. To cap the climax of their audacity +Mr. Bradley, after reiterating the charges made by Mr. Merrick and +Joseph H. Bradley, Jr., asked the jury, in making up their verdict, to +make a written statement at the same time of their belief that Mrs. +Surratt had been unjustly condemned, and found guilty upon insufficient +evidence. + +They charged the government with dishonesty in withholding Booth's +diary from the commission; claiming that it would have proven Mrs. +Surratt's innocence. They could not have failed to know, as able +lawyers, that this diary was of no account whatever as evidence. It was +no more admissible than was Atzerodt's confession, as every entry that +was made in it was made with the almost certainty of his capture in +view, and for the purpose of concealing the greatness of the conspiracy +and its personnel. It was of no more value than was his declaration in +favor of his fellow-conspirator, Herold, that he was an innocent man, +made a few moments before he was shot. + +In his argument on the defense of an _alibi_ set up by the prisoner, +Mr. Merrick makes great account of the evidence of the detectives who +visited and searched Mrs. Surratt's house at two o'clock on the morning +of the 15th of April, that Mrs. Surratt declared that John was not +there, and that she had not seen him for two weeks. + +She claimed that he was in Montreal, and that she had received a letter +from him on the day previous. They well knew that her declarations had +no value as testimony, and that there was evidence flatly contradicting +her statements. + +That she had received the letter as claimed, was true; but that that +letter had been written for the very purpose of being used in the +defence of an _alibi_ is evident from its contents, when considered in +connection with the evidence in the case. It will be remembered that +Wiechmann, who was a boarder in the house, answered the door-bell, +when the detectives rang it for the purpose of demanding admittance, +that they might search the house. He rapped at Mrs. Surratt's door and +informed her as to who was at the door and what they had come for. Her +answer was, "For God's sake, let them come in; I have been expecting +them."[31] When they inquired for her son she said, "He is not here; +I have not seen him for two weeks." This was a sufficient answer, but +her guilty conscience would not let her stop here, she had to add, +"There are a great many mothers who do not know where their sons are." +Let us ask ourselves at this point, how many mothers in Washington +City at that hour of that eventful night were lying awake expecting +their houses to be searched by detectives? Our inner consciousness will +unerringly dictate the answer, "Not one who was innocent of crime." It +is only necessary to say, further, in regard to this defense set up, +of an _alibi_, that although there is no more common defense resorted +to by criminals, because there is none more easy of establishment, +there was never perhaps in all the history of jurisprudence a weaker +and more unsuccessful effort made to establish it than in this defense. +The effort made by the prisoner to establish an _alibi_ showed plainly +that he had endeavored to prepare for it, in anticipation for his +defense, and that, in this preparation he had had able help. There is +good reason to conclude that he and a half dozen other of his friends +in Canada had found an opportunity to visit Canandaigua in disguise, +for the purpose of doctoring up a hotel register to be used in +evidence. The effort after all, proved a miserable failure. + +That he went from Montreal to Elmira, N.Y., leaving the former place +at two o'clock on the morning of the 12th of April, was admitted. +There was evidence that he was in Elmira on the morning of the 13th, +and two or three credible witnesses were found who swore that they saw +him there either on the 13th or 14th. They were willing to conclude +that it might have been on the 14th; but would not positively swear +that it was. On the other hand the government produced two witnesses +who identified him as a man whom they saw on the road making his way +towards Baltimore, on the 13th, one of whom ferried him over the +Susquehanna river, and stopped mid-stream to collect his fare, and +so talked with him and had a good look at him. It was then proven by +nearly a dozen witnesses that they saw him in Washington City on the +14th. So that the great preponderance of evidence was against the +_alibi_; and so it legally failed. The defense was lame and weak at +every point in the light of the evidence, which all tended to show the +prisoner's guilt. It was only strong in the bold efforts of his counsel +to scout all the testimony against him, and to have the jury accept +their assertions of his innocence, backed by their weight of character +as lawyers, in lieu of evidence, to establish his innocence, and in +contumning and rejecting that which established his guilt. + +They also made great complaint that they were not allowed to prove by +John Matthews, the contents of the paper which he alleged was put into +his hand by Booth, a few hours before the commission of his crime, +with the request that he would, on the following day, upon certain +contingencies, give it to the editor of the _National Intelligencer_ +for publication, and which Matthews claimed to have destroyed. Of +course they knew that nothing could be proven by this paper, much less +by evidence as to its contents, yet, when it was not admitted by the +court, they reserved an exception, and then in argument claimed that +had they been allowed the benefit of this, they could have shown that +the purpose of assassination was not formed until that day, and that +neither the prisoner nor his mother was in it. + +Matthews afterwards published what he said he desired to testify +to, but was not permitted to do so by the Court. The statement that +he claimed to be of Booth in this paper, gave the lie to Atzerodt's +confession. These able lawyers knew full well that culprits, +anticipating arrest and trial, could not be permitted to manufacture +evidence in their own favor in advance. Yet they did not scruple +to use, in an indirect way, in argument before the jury, this very +testimony that had been excluded. Booth's diary, Booth's statement +for publication, Atzerodt's confession, and the lecture of John H. +Surratt, in which he makes his confession and statement of the affair, +are all of a piece, and alike unworthy of credit, because they are all +contradicted by sufficient and reliable testimony in every important +particular. The eloquence of counsel in regard to the grave of Mrs. +Surratt, who was buried in the grounds of the old arsenal, being a +nameless grave, is wasted eloquence in the mind of every loyal man and +woman in the country, as the heniousness of the crime of which she was +convicted, made it fitting that she should sleep in a nameless grave, +and that the spot of her resting-place be unknown, as an admonition to +all traitors to their country, and its free institutions of government, +and whose disloyalty fits them for the highest crimes that man can +commit, of the infamy that awaits them in the just verdict of an +outraged people. Mrs. Surratt's remains were given up to her daughter +two years later, in 1869. + +We will now give a few of the opening paragraphs of Judge Pierrepont's +argument for the prosecution, in which he disposes of the outside and +irrelevant matter that had been lugged into the defense, and out of +which they had endeavored to make so much capital. + +"May it please your honor, and gentlemen of the jury, I have not, in +the progress of this long and tedious cause, had the opportunity as +yet of addressing to you one word. My time has now arrived, 'Yea, all +that a man hath will he give for his life.' When the book of Job was +written, this was true, and it is just as true to-day. A man, in order +to save his life, will give his property, will give his liberty, will +sacrifice his good name, and will desert his father, his brother, his +mother and his sister. He will lift up his hand before Almighty God and +swear that he is innocent of the crime with which he is charged. He +will bring perjury upon his soul, giving all that he hath in the world, +and be ready to take the chances and jump the life to come; and so +far as counsel place themselves in the situation of their client, and +just to the degree that they absorb his feelings, his terror, and his +purposes, just so far will counsel do the same. + +"I am well aware, gentlemen, of the difficulties under which I labor +in addressing you. The other counsel have all told you that they know +you and that you know them. They know you in social life, and they know +you in political affairs. They know your sympathies, your habits, your +modes of thought, your prejudices even. They know how to address you, +and how to awaken your sympathies, whilst I come before you a total +stranger. There is not a face in those seats that I have ever beheld +until this trial commenced, and yet I have a kind of feeling pervading +me that we are not strangers. + +"I feel as though we had a common origin, a common country, and a +common religion, and that, on many grounds, we must have a common +sympathy. I feel as though, if hereafter I should meet you in my native +city, or in a foreign land, I should meet you, not as strangers, but +as friends. It was not a pleasant thing for me to come into this case. +I was called into it at a time ill-suited in every respect. I had just +taken my seat in the convention called for the purpose of forming a +new constitution for my State, and I was a member of the judiciary +committee. The convention is now sitting, and I am now absent where I +ought to be present. I feel, however, that I had no right to shirk this +duty. + +"The counsel asked whether I represented the Attorney General in this +case. They had, perhaps, the right to ask, and so asking I give you +the answer. There surely is no mystery about the matter. The District +Attorney, feeling the magnitude of this case, felt that he ought to +apply to the Attorney General for assistance in the prosecution of it, +and he accordingly made the application. I have known the Attorney +General for more than twenty years. Our relations have been most +friendly, both in a social and professional point of view. The Attorney +General conferred with the Secretary of State, who is, as you know, +from my own State, and they determined to ask me to assist in the +prosecution of this cause. On receiving a letter from the Secretary of +State, I came to Washington, when I met him and the Attorney General. +This is the way I happened to be here engaged in this case; and I may +say that I am assured that there was no member of the cabinet but those +two who ever heard or knew of my retainer until after my arrival here. +I have simply tried to perform my duty as I best could, but I have, no +doubt, failed to a great extent. A trial, protracted as this has been, +and in such oppressive weather, is indeed a trial. It is a trial to +the court, it is a trial to you, it is a trial to the counsel, it is a +trial to health, it is a trial to patience, and it is a trial to temper. + +"When the President of the United States was assassinated, I was one +of a committee sent on by the citizens of New York to attend his +funeral. When standing, as I did stand, in the east room by the side +of that coffin, if some citizen sympathizing with the enemies of my +country had, because my tears were falling in sorrow over the murder +of the President, there insulted me, and I had at that time repelled +the insult with insult, I think my fellow-citizens would have said to +me that my act was deserving of condemnation; that I had no right, in +that solemn hour, to let my petty passions or my personal resentments +disturb the sanctity of the scene. To my mind the sanctity of this +trial is far above that funeral occasion, solemn and holy as it was, +and I should forever deem myself disgraced if I should ever allow any +passion pf mine or personal resentment of any kind to bring me here +into any petty quarrel over the murder of the President of the United +States. I have tried to refrain from anything like that, and God +helping me, I shall so endeavor to the end. + +"To me, gentlemen, this prisoner at the bar is a pure abstraction. +I have no feeling toward him whatever. I never saw him until I saw +him in this room, and then it was under circumstances calculated to +awaken only my sympathy. I never knew one of his kindred, and never +expect to know one of them. To me he is a stranger. Toward him I have +no hostility, and I shall not utter any word of vituperation against +him. I came to try one of the assassins of the President of the United +States, as indicted before you. I laid personal considerations aside, +and I hope I shall succeed in keeping them from this cause, so far as +I am concerned. I believe, gentlemen, that what you wish to know in +this case is the truth. I believe it is your honest desire to find +out whether the accused was engaged in this plot to overthrow this +government and assassinate the President of the United States. My +duty is to try to aid you in coming to a just conclusion. When this +evidence is reviewed, and when it is honestly and fairly presented, +when passions are laid aside, and when other people who have nothing to +do with the trial are kept out of the case, you will discover that in +the whole history of jurisprudence no murder was ever proved with the +demonstration with which this has been proven before you. The facts, +the proofs, the circumstances all tend to one point, and all prove the +case, not only beyond a reasonable, but beyond any doubt. + +"This has been, as I have already stated, a very protracted case. The +evidence is scattered. It has come in link by link, and as we could +not have witnesses here in their order when you might have seen it in +its logical bearings, we were obliged to take it as it came; and now +it becomes my duty to put it together and show you what it is. I shall +not attempt, gentlemen, to convince you by bold assertions of my own. +I fancy I could make them as loudly and as confidently as the counsel +on the other side, but I am not here for that purpose. The counsel +are not witnesses in the cause. We have come here for the purpose of +ascertaining whether under the law and on the evidence presented, this +man arraigned before you is guilty as charged. I do not think it proper +that I should tell you what I think about everything that may arise in +the case, or that I should tell you that I know that this thing is so, +and that the other is another way. My business is to prove to you from +this evidence that the prisoner is guilty. If I do that I shall ask +your verdict. If I do not do that, I shall neither expect nor hope for +it." + +"I listened, gentlemen, to the two counsel who have addressed you for +several days, without one word of interruption. I listened to them +respectfully and attentively. I knew their earnestness, and I know the +poetry that was brought into the case, and the feeling and the passion +that was attempted to be excited in your breasts, by bringing before +you the ghost trailing her calico dress and making it rustle against +these chairs. I have none of these powers which the gentlemen seem to +possess, nor shall I attempt to invoke them. I have come to you for the +purpose of proving that this party accused here was engaged in this +conspiracy to overthrow this government, which conspiracy resulted in +the death of Abraham Lincoln, by a shot from a pistol in the hands of +John Wilkes Booth. That is all there is to be proven in this case. + +"I have not come here for the purpose of proving that Mrs. Surratt +was guilty or that she was innocent, and I do not understand why that +subject was lugged into this case in the mode that it has been; nor +do I understand why the counsel denounced the military commission who +tried her, and thus indirectly censured, in the severest manner, the +President of the United States. The counsel certainly knew when they +were talking about that tribunal, and when they were thus denouncing +it, that President Johnson, President of the United States, ordered +it with his own hand; that President Johnson, President of the United +States, signed the warrant that directed the execution; that President +Johnson, President of the United States, 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. + +"My friends on the other side have undertaken to arraign the +government of the United States against the prisoner. They have talked +very loudly and eloquently about this great government of twenty-five +or thirty millions of people being engaged in trying to bring to +conviction one poor young man, and have treated it as though it was +a hostile act, as though two parties were litigants before you, the +one trying to beat the other. Is it possible that it has come to +this, that, in the city of Washington, where the President has been +murdered, that when under the form of law, and before a court and +jury of twelve men, an investigation is made to ascertain whether the +prisoner is guilty of this great crime, that the government are to +be charged as seeking his blood, and its officers as lapping their +tongues in the blood of the innocent? I quote the language exactly. +It is a shocking thing to hear. What is the purpose of a government? +What is the business of a government? According to the gentleman's +notion, when a murder is committed the government should not do +anything towards ascertaining who perpetrated that murder; and if the +government did undertake to investigate the matter and endeavor to find +out whether the man charged with the crime is guilty or not guilty the +government and all connected with it must be expected to be assailed +as 'blood hounds of the law,' and as seeking 'to lap their tongues in +the blood of the innocent.' Is that the business of government, and +is it the business of counsel under any circumstances thus to charge +the government? What is government for? It is instituted for your +protection, for my protection, for the protection of us all. What could +we do without it? Tell me, my learned and eloquent counsel on the other +side, what would you do without a government? What would you do in this +city? Suppose, for instance, a set of young men, who choose to lead an +idle life, say to themselves that it is not right that some rich man +living here should be enjoying his hoarded wealth, and they break into +his house at night and steal therefrom. My learned friend would say, +when you came to prosecute them for that robbery, 'What! would you have +this great and generous government of twenty-five or thirty millions +of people pursue these poor young men, who merely tried to break into +the house of one of your citizens and steal his money? Should not this +government be generous and let them go? Oh, yes! Let them off. Well, +they are let off, and a few days afterward they break into the house +of my friend, Mr. Merrick, for the purpose of stealing his money, when +he, a brave man, undertakes to resist them, and in doing so they strike +him down in death. Oh, generous government! with twenty-five or thirty +millions of people, let the young men off. Why should a great and +generous government with all its powers be pursuing the young men who +thus murdered Mr. Merrick while attempting to prevent a robbery at his +house? + +"Why should the officers of the government be 'lapping their tongues +in the blood of the innocent?' Suppose this view as to the duty of a +government were universally entertained, what would be the result? How +long would your government last? How long would you hold a dollar of +property? How long would the safety of your daughters be secure? How +long would the life of your sons, who stand in resistance to lust and +rapine, be safe? I have never heard such shocking sentiments uttered +in relation to the duty of government from any human lips, or from +any writer on the face of the earth. We have been told here that our +government has nothing of divinity that hedges it about; that it is +only the government of man's making. The Bible tells us that all +government is of God; that the powers that be are ordained of God; and +I can tell you, gentlemen, if such are the sentiments of this country +that there is no divinity and no power of God that hedges about this +government, its days are numbered, its condemnation is already written, +and it will lie in the dust before many years have rolled by. No +government that is not of God will last. It will soon come to naught. +No other government ever did long exist. No other government can exist. +Every government which is a government of the people is of God, and +the powers that be are ordained of God. When you come together to the +polls, and you elect as the ruler of this great nation a President, he +is made so by the sanction of your votes, and in that act the voice of +the people becomes the voice of God. I repeat, a government which is +thus instituted is ordained of God, and it is as much hedged about as +that of any king that ever reigned on England's throne. Is it possible +that our countrymen will say that the government which we thus have +made, which our fathers established, and which we are thus cherishing, +has nothing of divinity hedging it about? + +"Does it rest alone on human whim, without having anything sacred about +it, and without any protection of the Almighty over it? If so, let +me again repeat, its days are numbered; it will soon pass away. Once +there was an empire in Rome. It was an empire which was in its day the +greatest which the human mind had ever reared; but it did not believe, +or rather ceased to believe, that there was a God who ruled; that +government was of God; and they ceased to punish great crimes, such as +treason, rapine, and murder, and it happened a very short time after +they ceased to inflict punishment for such crimes--ceased to exercise +the powers which belong to government--that the Roman empire tumbled +into ruins. + +"It was trampled down by the barbarians, and now not a son of the +Cæsars lives on the face of the earth, and not a descendant of a Roman +matron exists anywhere in this wide universe. The empire perished, and +crumbled into dust; nothing but its ashes remain. And thus will it +ever be whenever a people cease to obey God, and cease to think that +government is of God. Let us see what the Bible says on this subject; +what views were entertained in the Old Testament, and what in the New." +Mr. Pierrepont then read from 1st Samuel, chapter xv, as follows:-- + +"'Samuel also said unto Saul, the Lord sent me to anoint thee to be +king over his people, over Israel; now therefore hearken thou unto the +voice of the words of the Lord. + +"'Thus saith the Lord of hosts, I remember that which Amalek did to +Israel, how he laid wait for him in the way, when he came up from Egypt. + +"'Now go and smite Amalek, and utterly destroy all that they have, and +spare them not; but slay both man and woman, infant and suckling, ox +and sheep, camel and ass. + +"'And Saul gathered the people together, and numbered them in Telaim, +two hundred thousand foot-men, and ten thousand men of Judah. + +"'And Saul came to a city of Amalek, and laid wait in the valley. + +"'And Saul said unto the Kenites, go, depart, get you down from among +the Amalekites, lest I destroy you with them; for ye showed kindness +to all the children of Israel, when they came up out of Egypt. So the +Kenites departed from among the Amalekites. + +"'And Saul smote the Amalekites, from Havilah _until_ thou comest to +Shur, that is over against Egypt. + +"'And he took Agag, the king of the Amalekites, alive, and utterly +destroyed all the people with the edge of the sword. + +"'But Saul and the people spared Agag, and the best of the sheep, and +of the oxen, and of the fatlings, and of the lambs, and all _that was_ +good, and would not utterly destroy them; but every thing _that was_ +vile and refuse, that they destroyed utterly. + +"'Then came the word of the Lord unto Samuel, saying, It repenteth +me that I have set up Saul _to be_ king; for he is turned back from +following me, and hath not performed my commandments. And it grieved +Samuel, and he cried unto the Lord all night. + +"'And when Samuel rose early to meet Saul in the morning, it was told +Samuel, saying, Saul came to Carmel, and behold, he set him up a place, +and is gone about, and passed on, and gone down to Gilgal. + +"'And Samuel came to Saul, and Saul said unto him, blessed be thou of +the Lord; I have performed the commandment of the Lord. + +"'And Samuel said, what meaneth then this bleating of sheep in mine +ears, and the lowing of the oxen which I hear? + +"'And Saul said, they have brought them from the Amalekites; for the +people spared the best of the sheep, and of the oxen, to sacrifice unto +the Lord thy God, and the rest we have utterly destroyed. + +"'Then Samuel said unto Saul, stay, and I will tell thee what the Lord +hath said to me this night. And he said unto him say on. + +"'And Samuel said, when thou _wast_ little in thine own sight, _wast_ +thou not _made_ the head of the tribes of Israel, and the Lord anointed +thee king over Israel? + +"'And the Lord sent thee on a journey, and said, go and utterly +destroy the sinners of the Amalekites, and fight against them until +they be consumed. + +"'Wherefore then didst thou not obey the voice of the Lord, but didst +fly upon the spoil, and didst evil in the sight of the Lord. + +"'And Saul said unto Samuel, yea, I have obeyed the voice of the Lord, +and have gone the way which the Lord sent me, and have brought Agag, +the king of Amalek, and have utterly destroyed the Amalekites. + +"'But the people took of the spoil, sheep and oxen, the chief of the +things, which should have been utterly destroyed to sacrifice to the +Lord thy God in Gilgal. + +"'And Samuel said, hath the Lord as great delight in burnt offerings +and sacrifices as in obeying the voice of the Lord? Behold to obey is +better than sacrifice, and to hearken than the fat of rams. + +"'For rebellion _is as_ the sin of witchcraft, and stubbornness is as +iniquity and idolatry; because thou hast rejected the word of the Lord, +he hath also rejected thee from being king. + +"'And Saul said unto Samuel, I have sinned, for I have transgressed the +commandment of the Lord, and thy words; because I feared the people, +and obeyed their voice. + +"'Now, therefore, I prayed thee, pardon my sin, and turn again with me +that I may worship the Lord. + +"'And Samuel said unto Saul, I will not return with thee; for thou hast +rejected the word of the Lord, and the Lord hath rejected thee from +being king over Israel. + +"'And as Samuel turned about to go away, he laid hold upon the skirt of +his mantle, and it rent. + +"'And Samuel said unto him, the Lord hath rent the kingdom of Israel +from thee this day, and hath given it to a neighbor of thine, _that is_ +better than thou. + +"'And also the strength of Israel will not lie nor repent; for he is +not a man that he should repent. + +"'Then he said, I have sinned; _yet_ honor me now, I pray thee, before +the elders of my people, and before Israel, and turn again with me, +that I may worship the Lord thy God. + +"'So Samuel turned again after Saul, and Saul worshiped the Lord. + +"'Then said Samuel, bring ye hither to me Agag, the king of the +Amalekites. And Agag came unto him delicately. And Agag said, surely +the bitterness of death is past. + +"'And Samuel said, as thy sword has made women childless, so shall thy +mother be childless among women. And Samuel hewed Agag in pieces before +the Lord in Gilgal. + +"'Then Samuel went to Ramah; and Saul went up to his house to Gibeah of +Saul. + +"'And Samuel came no more to see Saul until the day of his death; +nevertheless, Samuel mourned for Saul; and the Lord repented that he +had made Saul king over Israel.'" + +Mr. Pierrepont then read from the eighteenth chapter of St. Matthew as +follows:-- + +"'Woe unto the world because of offences, for it must needs be that +offences come; but woe unto that man by whom the offence cometh.... It +were better for him that a millstone were hanged about his neck, and +that he were drowned in the depth of the sea.' + +"Such was the order in the times of this Book. All government is of +God. The powers that be are ordained of God. Now, from whom come those +words? Not from the Old Testament, but they come from the meek and +lowly Jesus, the Saviour of the world, who died for you, for me, for +all. It is true as the counsel have said, that God is a God of mercy; +but he says: 'Though I am a God of mercy, I will by no means clear the +guilty.' Now the counsel who has addressed you, you will remember, said +in his speech, with great earnestness: 'We have had blood enough; let +us have peace.' The question before you, gentlemen, is not about blood. +The question is not about peace. The question before you is whether +you have not had murder enough, and assassination enough, and crime +enough, to enable us to have at least once before a civil tribunal +in this land a trial and a verdict. Not a single one of all those +engaged in the conspiracy has been tried before a civil tribunal; and +the question now is, have you not had enough of this murder, enough +of this assassination, to have at least one jury of the country say +so, and to say that we will stop it? You and I have nothing to do with +the consequences. All we have to do is to do our duty, and ascertain +whether the man is guilty. You do not punish the man; I do not punish +the man. I have not a feeling toward him of punishment, and you have +no such feeling. The duty does not lie with you, nor with me; we have +nothing to do with that. The question for us is to see whether this +man is guilty of this violation of the law of the land as charged; and +if so, to so declare; and then, if for any cause, the Executive sees +fit to show leniency, he will show it. If he does not, he will not. +It is not for you or for me to have to say what the leniency should +be. It is not for you or for me to have anything to say upon that +question. Our business is, I repeat, to ascertain whether he is guilty +of this violation of the law, and if he is guilty, so to say, and then +afterward to say whatever we thought fit to be said with regard to any +leniency. Our duty is, and the duty of the court is, to find out that +one fact, and to have you pronounce your verdict, under your oath, +according to the facts as you find them. + +"There are one or two other things that I must notice before I come +to the main question. One of these is in regard to the attacks which +were made by counsel yesterday upon the learned District Attorney and +myself. Have you seen anything in the conduct of the District Attorney +in this case that was improper? Have you seen anything but an earnest +desire to discharge his duty? If I understood the counsel aright +yesterday, he said that if he should stand in the place and should have +done as the District Attorney had, he would expect the women, as they +passed him, to gather their skirts and pull them aside, lest they be +contaminated by the touch. I did not at that time know why there was so +much bitterness of feeling thus expressed, but I have been shown since +last night this record called the 'Rebellion Record,' and I find in it +that on the 5th of January, 1861, Edward C. Carrington, now District +Attorney, issued to the public a stirring letter calling out the +militia of this District for the purpose of aiding in the protection of +the government of the United States; calling upon them to rally; and +they did rally at his call. The fact of this native born citizen of +Virginia, one of your own number and living in your midst, having thus +early and practically taken the side in favor of the government, when +even his own State had deserted him, of course would be likely to call +down the greatest bitterness and hatred against this loyal and noble +citizen on the part of a certain class. We have been told, gentlemen, +by the counsel upon the other side, that the Judge Advocate General had +done a great many wrong things in his life. We have been told that the +military commission which Mr. Johnson had established, and he alone, +had done wrong things in their prosecution; and we have been told, +likewise, that the Supreme Court of the United States had decided that +this commission was illegal. Now you would hardly expect an eminent +lawyer to make such a statement unless he believed it. But he is wholly +mistaken. No court in the United States has declared this commission to +have been illegal. There is no such decision on record--not any. + +"Some of these very persons are now in confinement, and if the Supreme +Court of the United States had declared the commission that tried them +illegal, why should they now, in a time of profound peace, be kept +in prison? If such were the case would not an application have been +immediately made by my learned brother for a writ of _habeas corpus_ to +release them? But nothing of the kind is done. And why? Because no such +decision has ever been pronounced. No court has, and in my judgment no +court will, pronounce this commission, thus formed by the President of +the United States, to have been illegal." + +As this is a question of the gravest importance we all ought to know +whether, as claimed twice in the arguments of defendant's counsel, +the military commission which tried the conspirators and assassins +has been decided by the Supreme Court of the United States to have +been an illegal tribunal. Judge Pierrepont, as we have seen, asserts +boldly that in his judgment no such decision had ever been given by +that tribunal, or ever would be. That the counsel for the defense did +not really so understand it he clearly shows by the fact that they had +never asked for a writ of _habeas corpus_ in behalf of those who were +working out the sentence of the commission. To his opinion I will now +add that of Judge Fisher as given in his charge to the jury. It is as +follows:-- + +"You have been told, gentlemen, in the argument of this case, that +those who were tried before that military commission, and hung upon +its findings, were themselves the victims of a base and disgraceful +conspiracy to murder. Brave, gallant, and honest soldiers of their +country have been held up before you as inhuman butchers of innocent +men. It has been said in support of this denunciation, that the Supreme +Court of the United States have, in the case of Milligan, declared that +the military court which tried Herold and others for the murder of +Abraham Lincoln was an illegal tribunal, organized without law, without +right, and without warrant in the Constitution--a mere convocation of +military men, having no right to try the cause committed to them by +President Johnson; and it has been said that it was convoked not to try +but to condemn. + +"In my humble judgment the Supreme Court has made no such decision. If +so, why have not the prisoners now confined upon the Dry Tortugas for +complicity in the greatest crime of the age been released from their +confinement? They have sympathizing friends enough to have applied +any such decision in the direction of their deliverance, and they +would not have remained there a week after the decision had been made +to the effect that they were unlawfully restrained of their liberty. +If I understand the decision in Milligan's case aright, it went upon +the ground that the commission which tried Milligan was not organized +in obedience to the act of Congress providing for the punishment of +such crimes as he was charged with committing, and the opinion of the +majority of the court went upon the additional ground that no hostile +foot had ever pressed the soil of Indiana at the time when he was +arraigned before a military tribunal there, and that, therefore, that +tribunal which condemned him for acts of treason committed in that +State had no authority to try him, notwithstanding the whole nation +was involved in the most terrible struggle for its life. The majority +opinion being thus predicated upon a misapprehension of historic truth, +we could not, perhaps, have looked for a more rightful deduction. + +"Unprepared, however, as all loyal hearts were for such an +announcement, the American people would be even yet more astounded +to have it declared by any court in this country that the +commander-in-chief of the army and navy, the President of the United +States, has not the power in time of war to institute a military +commission for the purpose of trying a gang of spies and traitors +who have found their way within the intrenched encampments of the +nation's capital to take the life of the chief of the army and navy, to +assassinate all the heads of the executive departments, in the interest +of the pretended government with which the federal government was +engaged in war. They who maintain such a doctrine profess to defend it +upon the ground that no such power is delegated by the constitution, as +_they_ did who could find no warrant there to coerce seceding States +into submission to the federal authority; but the day has passed +by when honest statesmen will longer, if they ever did, regard the +sovereignty of the federal Union as possessing no powers save those +expressly enumerated in the Constitution. + +"The government of the United States was doubtless created by the +adoption of the Constitution. But when it had once been spoken into +being it stood upon the same level with other nations, and was clothed +with all the powers incident to an independent sovereignty under the +laws of nature and of nations, and among these was the power, in time +of war or great public emergency, to arrest and inflict upon spies and +traitors the most summary punishment, whenever and wherever the strong +hand of military justice can be laid upon them. It is a power incident +to the right and duty of self preservation, and ought to be exercised, +just as the individual owes it to himself to strike down the assassin +who is feeling for his heartstrings, without waiting to lose his own +life, in order that the courts of justice may, at their leisure, +proceed to try the felon according to the formularies of the law and +the Constitution. The right of self-defense needs not to be inscribed +upon parchment, either for individuals or for sovereign states. The +Almighty impressed this right and duty upon the hearts and minds of +men long before he wrote the decalogue upon the tables of stone. To +say that this government has not the power in time of war to exercise +this great duty of self-preservation, for want of warrant in the +Constitution, is to condemn the action of the government in acquiring +from France and Spain and Mexico and Russia territory lying far beyond +the limits of the original thirteen States, because such power of +acquisition and growth is not provided for by the Constitution. Both +these powers are but the incidents of sovereignty, requiring no +warrant in written governmental charter; they are derived from the +common law of nations, and are co-existent with sovereignty. + +"But with this military commission, gentlemen, you have no concern +at this time; whether it was a legal or illegal tribunal, is not the +matter on which you are now called to decide. The oath that you have +taken requires that you shall 'well and truly try, and true deliverance +make between the United States of America and John H. Surratt, the +prisoner at the bar, whom you have in charge, and a true verdict +give according to your evidence.' The prisoner stands before you +indicted for the murder of Abraham Lincoln on the 14th day of April, +1865, in this city. About the time and place and manner of the death +of your late President no controversy has been made in the case. If +there had been your recollection of a nation in tears, and of a whole +civilized world in mourning would have revived your memory of the sad +and terrible fact. The only question, therefore, for you to determine +is, whether the prisoner at the bar participated with John Wilkes +Booth and the others named in the indictment, or either or any of +them, in the diabolical crime. If, from all the evidence in the case, +your minds shall be convinced beyond a reasonable doubt growing out +of that evidence that the prisoner did co-operate with them; if that +shall have produced a moral conviction in your minds that the prisoner +did participate in the conspiracy to murder, or in a plot to do some +unlawful act which resulted in this foul murder, no consideration as to +the legality or illegality of the tribunal which tried the prisoner's +mother; no feelings of sympathy for other members of the family; no +consideration of his youth, or that other lives have already been +forfeited for the crime, should for a single moment, tempt you to step +aside from the plain pathway of duty." + +The last paragraph quoted is directed to some of the many artful +appeals made to the political prejudices or to the feelings of the +jury to swerve them from the duty devolved upon them by their oath. +The former paragraphs may well be said to set at rest forever the +question of the right of a government to defend its life when the +occasion requires it by sending offenders against its life before a +military commission for trial. This question may be taken as settled, +as is the question of the right of the federal government to coerce +into submission a refractory State. The opportunity thus sought by the +prisoner's counsel to foist upon the public mind the assertion that the +Supreme Court of the United States had made a decision denying to the +government this right, thus gave occasion not only for denying that +such opinion had ever been delivered, but also for showing that it +never could be. + +It will be remembered that for reasons heretofore given the crime +charged in the indictment was simply that of murder--the murder of +Abraham Lincoln. + +The fact of his being, at the time of his murder, the President of +the United States was not mentioned. The treasonable purpose of that +murder was also omitted no reference being made to the political +reasons that moved the conspirators to the commission of the crime. The +counsel for the defense contended most earnestly that because of these +omissions the fact of the official position of Abraham Lincoln and of +the political motives that inspired the crime could not be taken into +consideration in the trial of the prisoner. They argued that it must be +regarded in law simply as the murder of a man, and as a crime no more +henious in character than the murder of the humblest citizen. Had the +crime of treason been alleged in the indictment the defense would have +been entitled to have a list of the witnesses by whom the government +expected to prove the crime in advance of the trial; and it would have +taken two witnesses to have established an overt act. The defense +contended that because they were not entitled to these advantages under +this indictment the prosecution could derive no advantages from the +consideration of these facts; and that the case must be treated simply +as a case of murder. The spirit of their argument would rather indicate +that they really regarded it in the same light that Miss Anna Surratt +did, as "nothing more than the death of the meanest nigger in the Union +army."[32] The following is Mr. Pierrepont's reply to their argument on +this point:-- + +"Our learned friends on the other side have told us, in the progress +of their argument, that they could not subscribe in the least degree +to the doctrine that it was a higher crime to conspire against the +government of the United States, and through that conspiracy commit a +murder upon the Chief Magistrate, than it was to murder the humblest +vagabond in the streets, or words to that effect. Now that is not the +doctrine of a statesman; it is not the doctrine of the Bible; it is not +the doctrine of the law. It is a far more heinous crime to conspire +against the government of the United States and to murder its President +for the purpose of bringing anarchy and confusion on the land, than to +murder a single individual. It is because its consequences are so much +more terrible. It is because it is involving the lives of hundreds and +of thousands. It is because it is involving considerations affecting +the stability, the protection, the life, and the liberty, it may be, of +a nation. The law of England, which I have cited, but which it would +seem, my friends have not read, lays it down, and without a statute, +but as the common law, that it is a crime of such heniousness as to +admit of no accessories. + +"They, however, undertake to say that the crime of the murder of the +President of the United States in time of war or great civil commotion, +is not as henious a crime as it would be in England to murder the Chief +of their country; and that there is no divinity about our government. +What is its origin? All government is either of God or the devil, and +they will have to take their choice. I say that the government is of +God, and that no other government will stand. What says the civilized +world upon this subject? I wrote a note to the Secretary of State two +days ago, asking him to send me the letters that were transmitted from +the different governments of the civilized world upon the subject of +this murder, and what do you think he sent me? He sent me the note I +hold in my hand and with it this large printed volume. It takes every +line and word of that book, a book of 717 pages, closely printed, to +contain the letters of condolence that were written to this government +from the foreign governments of the world. Entire Christendom wrote, +entire Christendom looked upon it as one of the most horrible of +crimes--one that required every nation, even to the Turk, to write +for the purpose of expressing their abhorrence of the crime. And, +gentlemen, I hold in my hand the original paper sent by some 13,000 +rebel prisoners, and our prisoners, at Point Lookout. Here is the paper +in which these rebel prisoners, met together, passed their resolutions +of condemnation, and their curse upon this crime. I would try this +case before any twelve of those rebel prisoners, and feel certain of +a verdict, and yet the gentlemen tell us this murder is like that of +the commonest vagabond that ever walked the streets, and the crime no +higher. Not so thought the rebels; not so thought any honorable man in +arms against us; not so thinks any right-minded man upon the face of +the earth." + +The judge in giving his charge to the jury, addressing himself to this +point, spoke as follows:-- + +"Historians and text writers on the law may treat of the heinousness +of the crime of imagining the death of a weak or a wicked king or of +a wise or benignant monarch, but you know, gentlemen, as well as you +know that you exist, that to murder the duly elected President of the +most powerful people on earth, is not less atrocious in its character +than to compass the death of a king, or an emperor, albeit he may +have sprang from the loins of the people, who have made him their +representative head, and may have no royal blood coursing through his +veins. You may be told that it is a crime surpassingly heinous to take +or compass the life of him who has occupied a throne simply because he +may be the king of an enslaved people, but that to take the life of +the President of a free republic is an offense of no greater magnitude +than to murder the 'veriest vagabond that walks your streets'; but an +American jury will only believe this doctrine when the people have +become so demoralized and corrupt, so devoid of the love of liberty and +patriotic feeling, as to prefer to have a king and ruler foisted upon +them by the accident of birth or fortunate adventure, rather than have +the making of their own selection of him who is to execute their laws, +and, for the time being, to stand as the representative head of their +collective sovereignty. + +"It is a mistake to suppose that a free people in any country will ever +consider it a more henious crime to kill a king, or even to desire +his death, than it is to assassinate a President. It is of no avail +to tell you that to surround the life of a President of a republic +with safeguards as sacred and powerful as those which, in monarchies, +are thrown about a king, as you have been told in the argument, is a +modern idea, 'entertained only by those whose eyes have been dazzled by +visions of stars and garters, and who are desirous of changing our free +institutions for a monarchical form of government.' + +"On the contrary, they can only be opposed to guarding with sacred +vigilance the life of the President of a free people who are themselves +prepared to submit to the rule of a despot. Why should the people +be less proud or less regardful of the life of a ruler selected by +themselves, from among themselves, than they would be of the life of +him who claimed to rule over them of his own right? When this question +can be sensibly answered, I shall be willing to admit that the life +of a President is less worth preserving than that of a king, and that +to destroy the life of a President is a crime of less atrocity than +to merely desire the death of a prince; but not till then; nor do I +believe you will." + +The practical legal bearing of this question on the trial was as +to whether the prisoner, being proven to have been a member of the +conspiracy which resulted in the death of President Lincoln by the +hands of a fellow-conspirator, should be held as a principal in the +crime, or only an accessory before the fact. In other words whether +the court and jury could take cognizance of the official position of +Abraham Lincoln without its being alleged in the indictment. If he +could be regarded as a principal and not as an accessory he could be +held equally guilty with Booth although he might not have been present +and assisting in the assassination. + +Practically, however, this was not a matter of any consequence in +this trial, because it was proven beyond a doubt that the prisoner +was actually present, acting a conspicuous part in the execution of +the plot. It was also proven by the testimony of one witness whose +testimony was in no way impeached that it was he, and not Spangler, +who prepared and fitted the bar to the door to prevent Booth being +followed into the box at the theatre. The summing up of the evidence by +Judge Pierrepont in his concluding speech is one of the most admirable +and masterly efforts that can be anywhere found. In the first place +it is a model of judicial fairness and honesty. To him the prisoner +was evidently a pure abstraction toward whom he had no feelings. His +only effort was to weigh impartially the evidence in the case, and to +give to it a fair and common sense interpretation. He brushed away all +side issues and every effort of the prisoner's counsel to bring the +trial under the influence of political and of religious prejudices, +and held them strictly to the question of the guilt or innocence of +the prisoner, as shown by the evidence. Again it was a model effort in +its logical ability in bringing the evidence before the jury. He had +so completely analyzed the testimony that he was able to present it in +its logical connection as to time, purpose, and circumstances; tracing +the plot through the evidence before him, from its incipiency to its +completion, step by step, showing the bearing and relation that one +thing sustained to another in a most conclusive and unanswerable way. + +He had systematically and logically arranged the testimony, which had +necessarily been presented in a most desultory and unsatisfactory way, +from the fact that the evidence had to be taken just as witnesses were +found to be present. By great care and labor the judge had arranged the +evidence just in the order in which he would have chosen to introduce +it had the witnesses all been at his command at the moment he would +have chosen to use them. Having thus arranged the testimony, he simply +read it to the jury, stopping when necessary to comment on it and +interpret it. His fair, natural, common sense interpretation of the +facts proven could not fail to bring conviction to every intelligent, +and candid mind. That the proof before him had brought to the mind of +this eminent and experienced advocate and jurist the most complete +conviction of the prisoner's guilt, is shown throughout his argument. +He did not, however, leave the matter of his own convictions to be the +subject merely of inference, but left himself on record on this point +as follows:-- + +"In this case I feel justified in saying, that the prisoner is proved +to be guilty, and in as overwhelming a manner as any man was ever +proven guilty in the history of jurisprudence. I appeal to any judge, +any lawyer, any man who has had experience, if there was ever a case +where the guilt of the party, was more clearly demonstrated. He is +proven guilty not only beyond a reasonable doubt, but beyond the +possibility of any doubt. There is not a man of you who can doubt it. +It has been a strange case. It was a strange providence that brought +the man back here to be tried. And now that he is here, you, the twelve +men who in the providence of God have been selected to try the case, +are to say whether what he has done is right or not right; whether he +is guilty or not guilty. + +"That is for you to say, not for me. I know he is proved guilty. About +that there can be no doubt. I do not believe that any of you have any +doubt whatever on that subject." + +That the purpose of this conspiracy was to assassinate the heads of +the government from its very first inception, is made clear by the +whole run of the evidence brought out on the two trials. Atzerodt, +in his confession, which he had gotten up to be used in his defence, +claims that he was a member of a conspiracy to kidnap the President, +and carry him to Richmond. John H. Surratt, in his Rockville lecture, +claims the same thing. They both claim that when Booth laid aside this +plan as impracticable, and proposed to change it to a conspiracy to +assassinate, that they withdrew, and would have nothing further to do +with it. It is evident that the statements of both are false, both +as regards the original purpose of the conspiracy, and also their +abandonment of it. Surratt in his confessions to McMillen stated that +he received a letter from Booth in Montreal on the 10th of April. This +letter was written from New York, and summoned him to Washington at +once, as it had become necessary for them to change their plans and to +act quickly. + +He left Montreal in obedience to this summons on the 12th of April, and +was in Elmira on the morning of the 13th. In his defense of an _alibi_, +he tried to prove that he remained at Elmira until after the 15th, and +then returned to Montreal, where he arrived on the 18th. + +His counsel argued that the plan up to that time had been to capture, +and that it was then for the first time that Booth had determined +to assassinate; that this was the change of plan referred to in his +letter, and that, as Surratt, according to their plea, never saw him +after this change of plan had been determined upon, he knew nothing +about it, and was never a member of a conspiracy to assassinate. He +admitted that he left Montreal in response to Booth's letter, but +claimed that he did not go any further than Elmira, in his defense. + +This, also, is his story in his Rockville lecture, in which he admits +that he was a member of the conspiracy to capture the President, but +asserts that he was never a member of the conspiracy to assassinate +him. Why did he obey Booth's summons which required him to come at +once to Washington? Why did he come by way of Elmira? He says in his +lecture that he went to Elmira in the interest of a plan to liberate +the rebel prisoners that were held at that place. He had just been to +Richmond, carrying dispatches from Davis and Benjamin to their agents +in Canada. Active measures were at once resorted to to accomplish +the assassinations that had been planned without delay, and had the +scheme been fully realized it was no doubt a part of this plan to +bring into active service at once all the secret treasonable military +organizations throughout the North, liberate all the rebel prisoners +held in Northern prisons, and inaugurate a new rebellion in the North, +in aid of the existing rebellion in the South. Surratt admits that he +went to Elmira on this business. He went there no doubt to arrange +with other conspirators there for carrying out this purpose when +notified of the success of the assassination plot. No doubt similar +arrangements had been made at Chicago to liberate the prisoners at +Camp Douglass; and perhaps at other places. The partial failure of the +assassination plot, and the signal triumph of our arms, admonished +these Northern traitors that they had better not enter the arena of +actual war, and frustrated all the plans of Jefferson Davis and his +Canada Cabinet. Surratt's admissions are right in the line of our +theory, and tend to prove its correctness; but his claim that he was +only a member of a conspiracy to capture is manifestly untrue. Let us +hear the conclusion of that eminent jurist, Judge Pierrepont, founded +on a careful consideration of all the evidence on this point. "Now you +see gentlemen, what is meant by a change of plan. In the spring of +1864 the plan was to murder Mr. Lincoln. They laid various plans for +its accomplishment. They thought to do it as he went to the Soldiers' +Home, by the telescopic rifle, and they did not intend, in the event of +concluding to carry out that plan, to let his wife or his child stand +in their way. They then thought to do it by having Payne call upon Mr. +Lincoln, get into conversation with him, listen to his stories, seem to +be interested in them, and then, at that moment, to strike the knife +home, deep into his heart. They at another time thought to poison him, +and for this purpose tried the cup; but it seemed that that failed them +once, and, as Booth said, might fail them again. They finally concluded +they would try to kill him in the theatre, instead of on his way to +the Soldiers' Home, and have Payne kill Secretary Seward at his house. +That plan they carried out. But, gentlemen, notwithstanding this change +of plan, never was there for more than a year any other purpose than +to murder. They had long since abandoned the idea of kidnapping, for +that required too much machinery, too many men, and subjected them to +too much danger; and the changes in plan that had taken place recently +were simply as to the mode of killing, and the men who should strike +the fatal blow." Here we have the mature opinion of an eminent jurist, +founded on a thorough and careful examination of all the evidence, and +we feel confident that no candid, intelligent man who studies all the +evidence with care can come to any other. + +Having had occasion to follow the history of this sad affair from its +incipiency to its conclusion, as revealed by the evidence produced +before the commission, and that brought out on the civil trial, my +purpose in writing this book has been fulfilled. It was, first, to +correct many grave errors in public opinion that have grown out of +a wilful and ingenious suppression of the truth and an unblushing +publication of falsehoods, in order to cover up from view the fact that +the assassination of President Lincoln was the result of a deep-laid +political scheme to subvert the government of the United States in aid +of the rebellion; that it was not merely the rash act of Booth and his +co-conspirators, to whom the work was intrusted; but that behind these +stood Jefferson Davis and his Canada cabinet; that it was the work of a +great conspiracy. + +The second object of the author was to vindicate the government in its +method of dealing with the assassins, and to show that the decisions +of the commission were founded on adequate testimony. And, lastly, to +so gather up and present the truth, as shown by the evidence, that his +work might be of some service to the future historian. He feels that +he has kept faithful to his purpose to present nothing but the truth. +He feels that by this he has not only vindicated the government, but +that also in doing this he has vindicated the commission. He has shown +that a military commission was the only tribunal before which the +conspirators and assassins could properly be tried; that the right of +the government to try offenses of this character is a power inherent +in sovereignty as is the right of personal self-defence a right that +inheres to the individual; that the laws of war recognize this right +and justify its exercise. The wisdom of the government in dealing thus +summarily with these offenders was seen in its effect on the Canada +conspirators, who at first were swearing that "they were not done yet," +but who were driven to their holes by the prompt and wise action of +the government in dealing thus summarily with their hired assassins as +fast as they were caught. The government thus compelled its enemies to +respect its authority. + +And, finally, the result of the trial of one of the conspirators before +a civil court, more than anything else, vindicates its wisdom in +sending these prisoners before a military tribunal for trial. + + +_Side Lights on the Conspiracy._ + +John Matthews gives us the substance of a paper put into his hands +by Booth on the afternoon of the assassination, which closed as +follows: "Men who love their country better than their lives--Booth, +Payne, Atzerodt, and Herold."[33] It will be observed that Booth here +identifies Atzerodt with the conspiracy and the evidence shows that he +relied on Atzerodt at that time to perform the part he assigned to him: +to assassinate Vice-President Johnson. He had transferred Atzerodt from +the Pennsylvania House, where he had been boarding, to the Kirkwood +House on the morning of that day, having engaged his room but for one +day, and paying for it in advance. This change was made because the +Vice-President was stopping at the Kirkwood. + +That Booth had visited Atzerodt at his room during the day was shown +by the fact that his coat, containing his bank book and handkerchiefs +marked in his name, was found in Atzerodt's room where he had hung it +up and then forgotten to take it again when he left. That the purpose +was a murderous purpose was shown by the fact that a pistol, loaded +and capped, together with a large dagger, were found hid away in the +bed. Booth had been there schooling Atzerodt in his part, and had +had such assurances from Atzerodt that he felt safe in coupling his +name with his own and those of Payne and Herold in the paper referred +to. Matthews stated that whilst he was in conversation with Booth, +General Grant passed rapidly down the Avenue in an open carriage, +having his baggage along with him; that he called Booth's attention to +this fact, when Booth left him abruptly and galloped down the avenue +after General Grant. Why did he do this? What did this mean? When +Atzerodt had made his way into the country, and was eating his dinner +on Sabbath, the 16th, at the house of Hezekiah Metz, he was asked if +it was true, as had been reported, that General Grant had been killed, +answered, "If the man who was to follow him had done so, it was likely +to be true." This explains Booth's purpose in galloping after General +Grant when he saw that he was about to leave the city. He hurried to +inform O'Laughlin of the fact and to have him follow the General and +assassinate him on the road or at the end of his journey, and had +told Atzerodt of this arrangement. We can in this way account for the +fact that Atzerodt knew that a man had had orders to follow him. The +fact that Booth, in the paper referred to, coupled Atzerodt's name +with his own and those of Payne and Herold as "men who loved their +country better than their lives" shows that he fully expected Atzerodt +to perform the part he had assigned him in the tragedy. O'Laughlin +was no doubt the man who had orders to follow the General, but upon +reflection, wisely declined to do so. + +Dr. Mudd voluntarily confessed to Captain Dutton, who had charge of +the convicts who were sent to the Dry Tortugas, whilst on their voyage +thither, that he knew Booth when he came to his house on the morning +of the 15th of April; and said that he denied it because he was afraid +of endangering his own life, and the lives of his family. He also +admitted that he went to Washington by appointment to introduce Booth +to Surratt, and that Wiechmann's testimony on this point was true. Why, +if innocent, should he have been afraid to let it be known that Booth +and Herold called at his house on that morning, and what he had done +for them? This fear could only have come from a consciousness of guilt, +and shows that he not only knew what they had done, but, also, that he +was implicated in their guilt by his previous knowledge of what they +were going to do. John H. Surratt, after he had been set at liberty, +delivered a lecture at Rockville, Maryland, in which he denied that +he ever knew of the plot to assassinate, but admitted that he was a +member of a conspiracy to capture President Lincoln and carry him a +prisoner to Richmond. He asserts that this was Booth's purpose whilst +he was co-operating with him, and that they had spent a great deal +of money ($10,000) in preparations to effect their object. He claims +that neither the Richmond government, nor its agents in Canada, knew +anything about their scheme, and that they alone were responsible for +it. Where then did they get their $10,000 to spend on it? They were +both without means of their own, and without employment. The Rockville +lecture is simply a plausible tissue of falsehoods, well put together, +but altogether inconsistent with the whole tenure of the evidence in +the case. It is contradicted at almost every point by the testimony +we have had under review. Yet its admissions are important, as they +establish the theory of the conspiracy which we have maintained. He +admits that he was engaged in the secret service of the Confederate +government almost constantly from the time he left college in the +summer of 1861, and that he enjoyed that service greatly, and was very +active in it. He claims that he was entrusted with dispatches for the +agents of that government in Canada, and that he passed from the one +place to the other frequently. He admits that he reached Montreal on +the 6th of April with dispatches from Davis and Benjamin to Thompson. +Of course he does not say that he also carried Bills of Exchange on +Liverpool at the same time for $70,000, or that he carried funds at +any time; but we have had the proof of this fact. He admits that he +went from Montreal on the 12th of April, to Elmira, New York, and +claims that he remained there until after the assassination. + +This we have seen was proven to be a falsehood, yet his purpose in +going to Elmira, as claimed by himself, confirms our theory that the +plan of the conspirators was in connection with the assassinations +which they had planned to get up a Northern rebellion in aid of that +of the South, through the agency of the secret disloyal organizations +with whom they were in correspondence throughout the Northwestern +and Middle States, and to liberate all the rebel prisoners held in +Northern prisons to augment their forces, and in the state of anarchy +and confusion, consequent upon the deprivation of the government of +a civil head, and the army of a lawful commander, they thus intended +inaugurating a reign of terror throughout the North that would make a +further prosecution of the war impossible, and by this means establish +the Southern Confederacy. Surratt says in his lecture that he went +to Elmira for the purpose of preparing for the release of the more +than five thousand rebel prisoners that were held at that place. The +author, after a very careful scrutiny of all the evidence relating +to the question of Surratt's presence in Washington on the night of +the assassination, and of his participation in it, has not hesitated +to express the opinion that this was proven. By all legal rules the +plea of an _alibi_ failed as the vast preponderance of evidence went +to prove his presence as charged. But even if we admit that he was at +Elmira, as claimed, on the night of the assassination, and that he +remained there until the 16th of April, he is not by this admission +disconnected with the conspiracy, but was by his own admission acting +there in the interest of its purposes by setting at large the five +thousand rebel prisoners held there by the government. The effort to +aid the rebellion by this step was contingent upon the accomplishment +of all of the assassinations that had been planned. The failure to do +this rendered his mission there useless. If he was there, he was there +in the interest of the conspiracy. That he had all of its guilt upon +his conscience is shown by the facts of his flight and concealment. + +Thompson and his gang claimed, in the fall of 1864, it will be +remembered, that they had eight hundred men hid away in Chicago for +the purpose of liberating the rebel prisoners held in Camp Douglass. +They were only waiting for a safe opportunity, for which they were +planning to secure an opportune moment. Why did Vallandigham break his +parole in the summer of 1864 and return to Ohio to become a candidate +for the governorship of that state? It was no doubt in the interest +of this new rebellion that had been planned, and that he might be in +a position to carry out the details of these nefarious schemes. It +will be remembered that he had been elected Supreme Commander of the +order of American Knights at their annual meeting in February, 1863. +During Vallandigham's enforced absence, Robert Holloway acted as +Lieutenant-General, or Deputy Supreme Commander, and Doctor Massey of +Ohio was Secretary of State. The organization was a military one, of +which Vallandigham was recognized as General, and had a complete army +organization, and was, in 1864, arming, drilling, and preparing for a +Northern rebellion, and the accomplishment of the assassinations that +were planned and arranged for was no doubt to have been the signal for +a general uprising. It may be asked, why, if this theory be correct, +was not this purpose carried out? We answer simply because that God +who planted, and has hitherto watched over our nation, frustrated the +scheme. He so ordered the events of his providence that the carrying +out of this wicked scheme became manifestly impossible. The plan +to deprive the government of a civil head and the army of a lawful +commander failed. The collapse of the rebellion was precipitated so +rapidly that it was manifestly useless to attempt to give it aid. The +valor, prowess, skill, and loyalty of our victorious legions was a +menace to copperheadism. This secret army concluded that discretion was +the better part of valor, and sought safely in seclusion, but not quite +in silence. They still continued to hiss. + +To God's over-ruling and protecting care we owe our thanks for the +preservation of our government, and for the peace and prosperity with +which we have been blessed, and it is in Him alone that we can found +our hopes for the future. Let us reverently study and learn the lessons +of our great civil war, that we may learn to avert future judgments by +putting away all our idols, and all the abominations of our national +life, remembering that it is righteousness alone that exalteth a +nation, and gives to it peace and prosperity, and that sin is not only +a reproach to any people, but that national sins, if persisted in, +justified and incorporated into national policy, will inevitably call +down the judgments of a holy, righteous, and just God. + + + + +APPENDIX. + + + + +PREFACE TO APPENDIX. + + +In presenting the great argument of the Hon. John A. Bingham, Assistant +Judge-Advocate, on the trial of the assassins, the author feels that he +does not need to offer an apology to his readers, notwithstanding its +length. + +In addition to what he has already said by way of commending it to +the careful perusal of his readers, he will add by way of preface, +the following extracts from Barnes's 40th Congress, Vol. 1, showing +the light in which that great effort was viewed by competent judges +at the time; and also giving extracts from his great argument before +the United States Senate on the articles of impeachment found against +Andrew Johnson, President of the United States, for high crimes and +misdemeanors, in vindication of the high encomiums bestowed by him on +this distinguished statesman and advocate. + + +EXTRACTS FROM "THE FORTIETH CONGRESS OF THE UNITED STATES." + +BY WILLIAM H. BARNES:--1ST VOL., 40TH CONGRESS. + +Mr. Bingham served as Special Judge Advocate in the great trial of +the conspirators, who were tried for the assassination of Abraham +Lincoln, etc. Immense labor devolved upon him during this difficult and +protracted trial, and for eight weeks his arduous duties allowed him +but brief intervals of rest. He occupied nine hours in the delivery +of the closing arguments, in which he ably elucidated the law and +the testimony in the case, and conclusively proved the guilt of the +conspirators. Mr. Bingham's success in this great trial attracted +general attention, and awakened a wide-spread curiosity to know his +history. Soon after the close of the trial, a correspondent of the +_Philadelphia Press_, having expressed the deep interest he had +felt in arriving at a well founded conclusion as to "the guilt of +the conspirators and the constitutionality of the court," wrote as +follows:-- + + "Grant me space in your columns to give expression to my + most unqualified admiration of the great arguments, on these + two main points, presented to the court by the Special Judge + Advocate, Gen. John A. Bingham. In the entire range of my + reading, I have known of no productions that have so literally + led me captive. For careful analysis, logical argumentation, + profound and most extensive research; for overwhelming + unravelment of complications that would have involved an + ordinary mind only with inextricable bewilderment, and for a + literal rending to tatters of all the metaphysical subtleties + of the array of legal talent engaged on the other side, I know + of no two productions in the English language superior to + these. They are literally as the spear of Ithuriel, dissolving + the hardest substances at their touch; as the thread of + Dædalus, leading out of the labyrinths of error, no matter + how thick and mazy. Not Locke or Bacon were more profound; + not Daniel Webster was clearer and more penetrating; not + Chillingworth was more logical. I feel sure that the author + of these two unrivalled papers must possess a legal mind + unrivalled in America, and must be, too, one of our rising + statesmen. But who is John A. Bingham, who by his industry and + learning displayed on this wonderful trial, has placed the + country under such a heavy debt of obligation? He may be well + known to others moving in a public sphere, like yourself, but + to me, so absorbed in a different line of duty, he has appeared + so suddenly, and yet with such vividness, that I long to know + some, at least, of his antecedents." + +Upon which the editor remarked:-- + + "The question of our esteemed correspondent is natural to + one who has not, probably, watched the individual actors on + the great stage of public affairs with the interest of the + historical and political student. We are not surprised that + the arguments of Mr. Bingham before the military commission + should have filled him with delight. It was worthy of the + great subject confided to that accomplished statesman by + the Government, and of his own fame. When the assassins of + Mr. Lincoln were sent for trial before the military court + by President Johnson, the Government wisely left the whole + management to Judge Holt and his eloquent associate, Mr. + Bingham, and to the latter was committed the stupendous labor + of sifting the mass of evidence, of replying to the corps + of lawyers for the defence, of setting forth the guilt of + the accused and of vindicating the policy and the duty of + the executive in an exigency so novel and so full of tragic + solemnity. The crime was so enormous, and the trial of those + who committed it so important in all its issues, immediate, + contingent and remote, as to awaken an excitement that embraced + all nations. The murder itself was almost forgotten by those + who wished to screen the murderers, and the most wicked + theories were broached and sown broadcast by men, who, under + cloak of reverence for what they called the law, toiled with + herculean energy to weaken the arm of the Government, extended + in time of war to save the servants of the people from being + slaughtered by assassins in public places, and tracked even to + their firesides by the agents and friends of slavery. These + poisons of plausibility, blunting the sharpest horrors of any + age, and sanctifying the most hellish offenses, required an + antidote as swift to cure. Mr. Bingham's two great arguments, + alluded to by our correspondent, have supplied the remedy. + They are monuments of reflection, research, and argumentation; + and they are presented in the language of a scholar and with + the fervor of an orator. In the great volume of proof and + counter-proof, rhetoric, and controversy that forever preserves + the record of this great trial, the efforts of Mr. Bingham will + ever remain to be first studied with an eager and admiring + interest. That they came, after all that has and can be said + against the Government, is rather an inducement to their more + satisfactory and critical consideration. For from that study + the American student and citizen must, more than ever, realize + how irresistible is Truth when in conflict with Falsehood, and + how poor and puerile are all the professional tricks of the + lawyer when opposed to the moral power of the patriot." + +In Congress Mr. Bingham has had a distinguished career, marked by +important services to the country. In the XXXVIIth Congress he was +earnest and successful in advocating many important measures to promote +the vigorous prosecution of the war, which had just begun. Returning +to Congress in 1865, after an absence of two years, he at once took +a prominent position. Upon the formation of the joint committee on +Reconstruction, December 14th, 1865, he was appointed one of the nine +members on the part of the House. He was active in advocating the +great measures of Reconstruction, which were proposed and passed in +the XXXIXth and XLth Congresses. The House of Representatives having +resolved that Andrew Johnson should be impeached for "high crimes and +misdemeanors," Mr. Bingham was appointed on the committee to which was +intrusted the important duty of drawing up the Articles of Impeachment. +This work having been done to the satisfaction of the House, Mr. +Bingham was elected chairman of the managers to conduct the impeachment +of the President before the Senate. + +On him devolved the duty of making the closing argument. His speech on +this occasion ranks among the greatest forensic efforts of any age. He +began the delivery of his argument on Monday, May 4th, and occupied the +attention of the Senate, and a vast auditory on the floor and in the +galleries, during three successive days. At the close of his argument, +the immense audience in the galleries, wrought up to the highest pitch +of enthusiasm, gave vent to such an unanimous and continued outburst +of applause as has never before been heard in the Capitol. Ladies and +gentlemen, who could not have been induced deliberately to trespass +on the decorum of the Senate, by whose courtesy they were admitted to +the galleries, overcome by their feelings, joined in the utterance +of applause, knowing that for so doing the Sergeant-at-arms would be +required to expel them from the galleries. The history of the country +records no similar tribute to the oratorial efforts of the ablest +advocates or statesmen. From so long and so well-sustained an argument, +it is impossible to select particular passages which would give an +adequate idea of the whole. The following historical argument for the +supremacy of the law will always be read with interest, whether as an +extract, or in its original setting:-- + +"Is it not in vain, I ask you, Senators, that the people have thus +vindicated by battle the supremacy of their own Constitution and laws, +if, after all, their President is permitted to suspend their laws and +dispense with the execution thereof at pleasure, and defy the power +of the people to bring him to trial and judgment before the only +tribunal authorized by the Constitution to try him? That is the issue +that is presented before the Senate for decision by these articles +of impeachment. By such acts of usurpation on the part of the ruler +of a people, I need not say to the Senate, the peace of nations is +broken, as it is only by obedience to law that the peace of nations is +maintained, and their existence perpetuated. Law is the voice of God +and the harmony of the world:-- + + "'It doth preserve the stars from wrong, + Through it the eternal heavens are fresh and strong.' + +"All history is but philosophy, teaching by example. God is in history, +and through it teaches to men and nations the profoundest lessons +which they learn. It does not surprise me, Senators, that the learned +counsel for the accused asked the Senate, in the consideration of this +question, to close that volume of instruction, not to look into the +past, and not to listen to its voices. Senators, from that day when the +inscription was written upon the graves of the heroes of Thermopylæ, +'Stranger, go tell the Lacedemonians that we lie here in obedience to +their laws,' to this hour, no profounder lesson than this has come down +to us: that through obedience to law comes the strength of nations and +the safety of men. + +"No more fatal provision ever found its way into the Constitutions +of States than that contended for in this defense which recognizes +the right of a single despot or of the many to discriminate in the +administration of justice between the ruler and the citizen, between +the strong and the weak. It was by this unjust discrimination that +Aristides was banished because he was just. It was by this unjust +discrimination that Socrates, the wonder of the Pagan world, was doomed +to drink the hemlock because of his transcendant virtues. It was in +honorable protest against this unjust discriminati that the great Roman +Senator, father of his country, declared that the force of the law +consists in its being made for the whole community. Senators, it is the +pride and boast of that great people from whom we are descended, as it +is the pride and boast of every American, that the law is the supreme +power of the State, that it is for the protection of each, by the +combined power of all. By the Constitution of England the hereditary +monarch is no more above the law than the humblest subject; and by the +Constitution of the United States, the President is no more above the +law than the poorest and most friendless beggar in your streets. The +usurpations of Charles I. inflicted untold injuries upon the people +of England, and finally cost the usurper his life. The subsequent +usurpations of James II., and I only refer to it because there is +between his official conduct and that of this accused President, the +most remarkable parallel that I have ever read in history, filled the +heart and brain of England with conviction that new securities must be +taken to restrain the prerogatives asserted by the crown, if they would +maintain their ancient Constitution and perpetuate their liberties. It +is well said by Hallam that the usurpations of James swept away the +solemn ordinances of the legislature. Out of those usurpations came +the great revolution of 1688, which resulted in the dethronement and +banishment of James, in the elevation of William and Mary, and in the +immortal Declaration of Rights. + +"I ask the Senate to notice that these charges against James are +substantially the charges presented against this accused President, +and confessed here of record, that he has suspended the laws, and +dispensed with the execution of laws, and in order to do this has +usurped authority as the executive of the nation, declaring himself +entitled under the Constitution to suspend the laws and dispense with +their execution. He has further, like James, attempted to control the +appropriated money of the people contrary to law. And he has further, +like James, although it is not alleged against him in the Articles of +Impeachment, it is confessed in his answer, and attempted to cause the +question of his responsibility to the people to be tried, not in the +King's Bench, but in the Supreme Court, when that question is alone +cognizable in the Senate of the United States. Surely, Senators, if +these usurpations, if these endeavors on the part of James thus to +subvert the liberties of the people of England, cost him his crown +and kingdom, the like offenses committed by Andrew Johnson ought to +cost him his office, and to subject him to that perpetual disability +pronounced by the people through the Constitution upon him for his high +crimes and misdemeanors. + +"I ask you, Senators, how long men would deliberate upon the question +whether a private citizen arraigned at the bar of one of your tribunals +of justice for a criminal violation of the law, should be permitted +to interpose a plea in justification of his criminal act, that his +only purpose was to interpret the Constitution and laws for himself, +that he violated the law in the exercise of his prerogative to test +its validity hereafter at such a day as might suit his own convenience +in the courts of justice. Surely it is as competent for the private +citizen to interpose such justification in answer to crime in one of +your tribunals of justice, as it is for the President to interpose it, +and for the simple reason that the Constitution is no respecter of +persons, and rests neither in the private citizen judicial power. + +"Can it be that by your decree you are at last to make this +discrimination between the ruler of the people and the private citizen, +and to allow him to interpose his assumed right to interpret judicially +your Constitution and laws? Are you to solemnly proclaim by your +decree:-- + + "'Plate sin with gold, + And the strong lance of justice heartless breaks; + Arm it in rags and a pigmy's straw doth pierce it?' + +"I put away the possibility that the Senate of the United States, +equal in dignity to any tribunal in the world, is capable of recording +any such decision even upon the petition and prayer of the accused +and guilty President. Can it be that by reason of his great office +the President is to be protected in his high crimes and misdemeanors, +violative alike of his oath, of the Constitution and of the express +letter of your written law, enacted by the legislative department of +the government? + +"I ask you, Senators, to consider that I speak before you this day in +behalf of the violated law of a free people, who commission me. I ask +you to remember this, that I speak this day under the obligations of +this my oath. I ask you to consider that I am not insensible to the +significance of the words of which mention was made by the learned +counsel from New York; justice, duty, law, oath. I ask you to remember +that the great principles of constitutional liberty for which I speak +this day, have been taught to men and nations by all the trials and +triumphs, by all the agonies and martyrdoms of the past; that they are +the wisdom of the centuries uttered by the elect of the human race. + +"I ask you to consider that we stand this day pleading for the +violated majesty of the law, by the graves of half a million of +martyred hero-patriots who sacrificed themselves for their country, +the Constitution, and the laws, and who by their sublime examples have +taught us that all must obey the law; that none are above the law; +that no man lives for himself alone, but each for all, that some must +die that the State may live; that the citizen is but for to-day, that +the commonwealth is for all time, and that position, however high, +patronage however powerful, cannot be permitted to shelter crime to the +peril of the Republic." + +[Illustration] + + + + +ARGUMENT OF JOHN A. BINGHAM, + +SPECIAL JUDGE ADVOCATE, + +IN REPLY TO THE SEVERAL ARGUMENTS IN DEFENCE OF MARY E. SURRATT AND +OTHERS, CHARGED WITH CONSPIRACY AND THE MURDER OF ABRAHAM LINCOLN, LATE +PRESIDENT OF THE UNITED STATES, ETC. + + +MAY IT PLEASE THE COURT: The conspiracy here charged and specified, +and the acts alleged to have been committed in pursuance thereof, and +with the intent laid, constitute a crime the atrocity of which has +sent a shudder through the civilized world. All that was agreed upon +and attempted by the alleged inciters and instigators of this crime +constitutes a combination of atrocities with scarcely a parallel in the +annals of the human race. Whether the prisoners at your bar are guilty +of the conspiracy and the acts alleged to have been done in pursuance +thereof, as set forth in the charge and specification, is a question +the determination of which rests solely with this honorable court, and +in passing upon which this court are the sole judges of the law and the +fact. + +In presenting my views upon the questions of law raised by the several +counsel for the defence, and also on the testimony adduced for and +against the accused, I desire to be just to them, just to you, just to +my country, and just to my own convictions. The issue joined involves +the highest interests of the accused, and, in my judgment, the highest +interests of the whole people of the United States. + +It is a matter of great moment to all the people of this country that +the prisoners at your bar be lawfully tried and lawfully convicted or +acquitted. A wrongful and illegal conviction or a wrongful and illegal +acquittal upon this dread issue would impair somewhat the security of +every man's life, and shake the stability of the republic. + +The crime charged and specified upon your record is not simply the +crime of murdering a human being, but it is the crime of killing and +murdering on the 14th day of April, A. D. 1865, within the military +department of Washington and the intrenched lines thereof, Abraham +Lincoln, then President of the United States, and Commander-in-Chief of +the army and navy thereof; and then and there assaulting, with intent +to kill and murder, William H. Seward, then Secretary of State of the +United States; and then and there lying in wait to kill and murder +Andrew Johnson, then Vice-President of the United States, and Ulysses +S. Grant, then lieutenant-general and in command of the armies of the +United States, 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, and George N. Sanders +and others, with intent thereby to aid the existing rebellion and +subvert the Constitution and laws of the United States. + +The rebellion, in aid of which this conspiracy was formed and this +great public crime committed, was prosecuted for the vindication of no +right, for the redress of no wrong, but was itself simply a criminal +conspiracy and gigantic assassination. In resisting and crushing +this rebellion the American people take no step backward and cast no +reproach upon their past history. That people now, as ever, proclaim +the self-evident truth that whenever government becomes subversive +of the ends of its creation, it is the right and duty of the people +to alter or abolish it; but during these four years of conflict they +have as clearly proclaimed, as was their right and duty, both by law +and by arms, that the government of their own choice, humanely and +wisely administered, oppressive of none and just to all, shall not be +overthrown by privy conspiracy or armed rebellion. + +What wrong had this government or any of its duly constituted agents +done to any of the guilty actors in this atrocious rebellion? They +themselves being witnesses, the government which they assailed had +done no act, and attempted no act, injurious to them, or in any sense +violative of their rights as citizens and men; and yet for four +years, without cause of complaint or colorable excuse, the inciters +and instigators of the conspiracy charged upon your record have, by +armed rebellion, resisted the lawful authority of the government, +and attempted by force of arms to blot the republic from the map of +nations. 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, if possible, what +they have in vain attempted by wager of battle--the overthrow of the +government of the United States and the subversion of its Constitution +and laws. It is for this secret conspiracy in the interest of the +rebellion, formed at the instigation of the chiefs 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. + +The government, in preferring this charge, does not indict the whole +people of any State or section, but only the alleged parties to this +unnatural and atrocious conspiracy and crime. The President of the +United States, in the discharge of his duty as Commander-in-Chief of +the army, and by virtue of the power vested in him by the Constitution +and laws of the United States, has constituted you a military court, +to hear and determine the issue joined against the accused, and has +constituted you a court for no other purpose whatever. To this charge +and specification the defendants have pleaded, first, that this court +has no jurisdiction in the premises; and, second, not guilty. As the +court has already overruled the plea to the jurisdiction, it would +be passed over in silence by me but for the fact that a grave and +elaborate argument has been made by counsel for the accused not only +to show the 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. Denying the +authority of the President to constitute this commission is an averment +that this tribunal is not a court of justice, has no legal existence, +and therefore no power to hear and determine the issue joined. The +learned counsel for the accused, when they make this averment by way +of argument, owe it to themselves and to their country to show how the +President could otherwise lawfully and efficiently discharge the duty +enjoined upon him by his oath to protect, preserve, and defend the +Constitution of the United States, and to take care that the laws be +faithfully executed. + +An existing rebellion is alleged and not denied. It is charged that +in aid of this existing rebellion a conspiracy was entered into by +the accused, incited and instigated thereto by the chiefs of this +rebellion, to kill and murder the executive officers of the government +and the commander of the armies of the United States, and that this +conspiracy was partly executed by the murder of Abraham Lincoln, +and by a murderous assault upon the Secretary of State; and counsel +reply, by elaborate argument, that although the facts be as charged, +though the conspirators be numerous and at large, able and eager to +complete the horrid work of assassination already begun within your +military encampment, yet the successor of your murdered President +is a usurper if he attempts by military force and martial law, as +Commander-in-Chief, to prevent the consummation of this traitorous +conspiracy in aid of this treasonable rebellion. The civil courts, +say the counsel, are open in the District. I answer, they are closed +throughout half the republic, and were only open in this District +on the day of this confederation and conspiracy, on the day of the +traitorous assassination of your President, and are only open at this +hour by force of the bayonet. Does any man suppose that if the military +forces which garrison the intrenchments of your capital, fifty thousand +strong, were all withdrawn, the rebel bands who this day infest the +mountain passes in your vicinity would allow this court, or any +court, to remain open in this District for the trial of these their +confederates, or would permit your executive officers to discharge the +trust committed to them, for twenty-four hours? + +At the time this conspiracy was entered into, and when this court was +convened and entered upon this trial, the country was in a state of +civil war. An army of insurrectionists have, since this trial begun, +shed the blood of Union soldiers in battle. The conspirator, by whose +hand his co-conspirators, whether present or absent, jointly murdered +the President on the 14th of last April, could not be and was not +arrested upon civil process, but was pursued by the military power of +the government, captured, and slain. Was this an act of usurpation?--a +violation of the right guaranteed to that fleeing assassin by the very +Constitution against which and for the subversion of which he had +conspired and murdered the President? Who in all this land is bold +enough or base enough to assert it? + +I would be glad to know by what law the President, by a military +force, acting only upon his military orders, is justified in pursuing, +arresting, and killing one of these conspirators, and is condemned +for arresting in like manner, and by his order subjecting to trial, +according to the laws of war, any or all of the other parties to +this same damnable conspiracy and crime, by a military tribunal of +justice--a tribunal, I may be pardoned for saying, whose integrity and +impartiality are above suspicion, and pass unchallenged even by the +accused themselves. + +The argument against the jurisdiction of this court rests upon the +assumption that even in time of insurrection and civil war no crimes +are cognizable and punishable by military commission or court-martial, +save crimes committed in the military or naval service of the United +States, or in the militia of the several states when called into the +actual service of the United States. But that is not all the argument: +it affirms that under this plea to the jurisdiction the accused have +the right to demand that this court shall decide that it is not a +judicial tribunal and has no legal existence. + +This is a most extraordinary proposition--that the President, under +the Constitution and laws of the United States, was not only not +authorized, but absolutely forbidden, to constitute this court for the +trial of the accused, and, therefore, the act of the President is void, +and the gentlemen who compose the tribunal without judicial authority +or power, and are not in fact or in law a court. + +That I do not misstate what is claimed and attempted to be established +on behalf of the accused, I ask the attention of the court to the +following as the gentleman's (Mr. Johnson's) propositions:-- + +That Congress has not authorized, and, under the Constitution, cannot +authorize the appointment of this commission. + +That this commission has, "as a court, no legal existence or +authority," because the President, who alone appointed the commission, +has no such power. + +That his act "is a mere nullity--the usurpation of a power not vested +in the Executive, and conferring no authority upon you." + +We have had no common exhibition of law learning in this defence, +prepared by a Senator of the United States; but with all his +experience, and all his learning and acknowledged ability, he has +failed, utterly failed, to show how a tribunal constituted and +sworn, as this has been, to duly try and determine the charge and +specification against the accused, and by its commission not authorized +to hear or determine any other issues whatever, can rightfully +entertain, or can by any possibility pass upon, the proposition +presented by this argument of the gentleman for its consideration. + +The members of this court are officers in the army of the United +States, and by order of the President, as Commander-in-Chief, are +required to discharge this duty, and are authorized in this capacity +to discharge no other duty, to exercise no other judicial power. Of +course, if the commission of the President constitutes this a court for +the trial of this case only, as such court it is competent to decide +all questions of law and fact arising in the trial of the case. But +this court has no power, as a court, to declare the authority by which +it was constituted null and void, and the act of the President a mere +nullity, a usurpation. Has it been shown by the learned gentleman, who +demands that this court shall so decide, that officers of the army may +lawfully and constitutionally question in this manner the orders of +their Commander-in-Chief, disobey, set them aside, and declare them a +nullity and a usurpation? Even if it be conceded that the officers thus +detailed by order of the Commander-in-Chief may question and utterly +disregard his order and set aside his authority, is it possible, in the +nature of things, that any body of men, constituted and qualified as a +tribunal of justice, can sit in judgment upon the proposition that they +are not a court for any purpose, and finally decide judicially, as a +court, that the government which appointed them was without authority? +Why not crown the absurdity of this proposition by asking the several +members of this court to determine that they are not men--living, +intelligent, responsible men? This would be no more irrational than the +question upon which they are asked to pass. How can any sensible man +entertain it? Before he begins to reason upon the proposition he must +take for granted, and therefore decide in advance, the very question in +dispute, to wit, his actual existence. + +So with the question presented in this remarkable argument for the +defence: before this court can enter upon the inquiry of the want of +authority in the President to constitute them a court, they must take +for granted and decide the very point in issue, that the President +had the authority, and that they are in law and in fact a judicial +tribunal; and having assumed this, they are gravely asked, as such +judicial tribunal, to finally and solemnly decide and declare that they +are not in fact or in law a judicial tribunal, but a mere nullity and +nonentity. A most lame and impotent conclusion! + +As the learned counsel seems to have great reverence for judicial +authority, and requires precedent for every opinion, I may be pardoned +for saying that the objection which I urge against the possibility +of any judicial tribunal, after being officially qualified as such, +entertaining, much less judicially deciding, the proposition that it +has no legal existence as a court, and that the appointment was a +usurpation and without authority of law, has been solemnly ruled by the +Supreme Court of the United States. + +That court says: "The acceptance of the judicial office is a +recognition of the _authority_ from which it is derived. If a court +should enter upon the inquiry (whether the _authority_ of the +government which established it existed), and should come to the +conclusion that the government under which it acted had been put +aside, it would cease to be a court and be _incapable_ of pronouncing +a judicial decision upon the question it undertook to try. If it +decides at all as a court, it necessarily affirms the existence and +_authority_ of the government under which it is exercising judicial +power."--(Luther _vs._ Borden, 7 Howard, 40.) + +That is the very question raised by the learned gentleman in his +argument--that there was no _authority_ in the President, by whose act +alone this tribunal was constituted, to vest it with judicial power to +try this issue; and by the order upon your record, as has already been +shown, if you have no power to try this issue for want of authority in +the Commander-in-Chief to constitute you a court, you are no court, and +have no power to try any issue, because his order limits you to this +issue, and this alone. + +It requires no very profound legal attainments to apply the ruling +of the highest judicial tribunal of this country, just cited, to the +point raised, not by the pleadings, but by the argument. This court +exists as a judicial tribunal by authority only of the President of +the United States; the acceptance of the office is an acknowledgment +of the validity of the authority conferring it, and if the President +had no authority to order, direct, and constitute this court to try +the accused, and, as is claimed, did, in so constituting it, perform +an unconstitutional and illegal act, it necessarily results that the +order of the President is void and of no effect; that the order did +not and could not constitute this a tribunal of justice, and therefore +its members are incapable of pronouncing a judicial decision upon the +question presented. + +There is a marked distinction between the question here presented and +that raised by a plea to the jurisdiction of a tribunal whose existence +as a court is neither questioned nor denied. Here it is argued, through +many pages, by a learned Senator, and a distinguished lawyer, that +the order of the President, by whose authority alone this court is +constituted a tribunal of military justice, is unlawful; if unlawful +it is void and of no effect, and has created no court; therefore this +body, not being a court, can have no more power as a court to decide +any question whatever than have its individual members power to decide +that they as men do not in fact exist. + +It is a maxim of the common law--the perfection of human reason--that +what is impossible the law requires of no man. + +How can it be possible that a judicial tribunal can decide the question +that it does not exist, any more than that a rational man can decide +that he does not exist? + +The absurdity of the proposition so elaborately urged upon the +consideration of this court cannot be saved from the ridicule and +contempt of sensible men by the pretence that the court is not asked +judicially to decide that it is not a court, but only that it has no +jurisdiction; for it is a fact not to be denied that the whole argument +for the defence on this point is that the President had not the lawful +authority to issue the order by which alone this court is constituted, +and that the order for its creation is null and void. + +Gentlemen might as well ask the Supreme Court of the United States upon +a plea to the jurisdiction to decide, as a court, that the President +had no lawful authority to nominate the judges thereof severally to +the Senate, and that the Senate had no lawful authority to advise +and consent to their appointment, as to ask this court to decide, +as a court, that the order of the President of the United States, +constituting it a tribunal for the sole purpose of this trial, was not +only without authority of law, but against and in violation of law. If +this court is not a lawful tribunal, it has no existence, and can no +more speak as a court than the dead, much less pronounce the judgment +required at his hands--that it is not a court, and that the President +of the United States, in constituting it such to try the question upon +the charge and specification preferred, has transcended his authority, +and violated his oath of office. + +Before passing from the consideration of the proposition of the learned +senator, that this is not a court, it is fit that I should notice that +another of the counsel for the accused (Mr. Ewing) has also advanced +the same opinion, certainly with more directness and candor, and +without any qualification. His statement is, "You," gentlemen, "are no +court under the Constitution." This remark of the gentleman cannot fail +to excite surprise, when it is remembered that the gentleman, not many +months since, was a general in the service of the country, and as such +in his department in the West proclaimed and enforced martial law by +the constitution of military tribunals for the trial of citizens not +in the land or naval forces, but who were guilty of military offences, +for which he deemed them justly punishable before military courts, +and accordingly he punished them. Is the gentleman quite sure, when +that account comes to be rendered for these alleged unconstitutional +assumptions of power, that he will not have to answer for more of +these alleged violations of the rights of citizens by illegal arrests, +convictions, and executions, than any of the members of this court? In +support of his opinion that this is no court, the gentleman cites the +3d article of the Constitution, which provides "that the judicial power +of the United States shall be vested in one supreme court, and such +inferior courts as Congress may establish," the judges whereof "shall +hold their offices during good behavior." + +It is a sufficient answer to say to the gentleman, that the power +of this government to try and punish military offences by military +tribunals is no part of the "judicial power of the United States," +under the 3d article of the Constitution, but a power conferred by +the 8th section of the 1st article, and so it has been ruled by the +Supreme Court in Dyres _vs._ Hoover, 20 Howard, 78. If this power +is so conferred by the 8th section, a military court authorized by +Congress, and constituted as this has been, to try all persons for +military crimes in time of war, though not exercising "the judicial +power" provided for in the 3d article, is nevertheless a court as +constitutional as the Supreme Court itself. The gentleman admits this +to the extent of the trial by courts-martial of persons in the military +or naval service, and by admitting it he gives up the point. There is +no _express_ grant for any such tribunal, and the power to establish +such a court, therefore, is _implied_ from the provisions of the 8th +section, 1st article, that "Congress shall have power to provide and +maintain a navy," and also "to make rules for the government of the +land and naval forces." From these grants the Supreme Court infer the +power to establish courts-martial, and from the grants in the same 8th +section, as I shall notice hereafter, that "Congress shall have power +to declare war," and "to pass all laws necessary and proper to carry +this and all other powers into effect," it is necessarily implied that +in time of war Congress may authorize military commissions, to try +all crimes committed in aid of the public enemy, as such tribunals +are _necessary_ to give effect to the power to make war and suppress +insurrection. + +Inasmuch as the gentleman (General Ewing), for whom, personally, I +have a high regard as the military commander of a Western department, +made a liberal exercise, under the order of the Commander-in-Chief +of the army, of this power to arrest and try military offenders not +in the land or naval forces of the United States, and inflicted upon +them, as I am informed, the extreme penalty of the law, by virtue of +his military jurisdiction, I wish to know whether he proposes, by +his proclamation of the personal responsibility awaiting all such +usurpations of judicial authority, that he himself shall be subjected +to the same stern judgment which he invokes against others--that, in +short, he shall be drawn and quartered for inflicting the extreme +penalties of the law upon citizens of the United States in violation +of the Constitution and laws of his country? I trust that his error of +judgment in pronouncing this military jurisdiction a usurpation and +violation of the Constitution may not rise up in judgment to condemn +him, and that he may never be subjected to pains and penalties for +having done his duty heretofore in exercising this rightful authority, +and in bringing to judgment those who conspired against the lives and +liberties of the people. + +Here I might leave this question, committing it to the charitable +speeches of men, but for the fact that the learned counsel has been +more careful in his extraordinary argument to denounce the President as +a usurper than to show how the court could possibly decide that it has +no judicial existence, and yet that it has judicial existence. + +A representative of the people and of the rights of the people before +this court, by the appointment of the President, and which appointment +was neither sought by me nor desired, I cannot allow all that has been +here said by way of denunciation of the murdered President and his +successor to pass unnoticed. This has been made the occasion by the +learned counsel, Mr. Johnson, to volunteer, not to defend the accused, +Mary E. Surratt, not to make a judicial argument in her behalf, but to +make a political harangue, a partisan speech against his government and +country, and thereby swell the cry of the armed legions of sedition +and rebellion that but yesterday shook the heavens with their infernal +enginery of treason, and filled the habitations of the people with +death. As the law forbids a senator of the United States to receive +compensation or fee for defending, in cases before civil or military +commissions, the gentleman volunteers to make a speech before this +court, in which he denounces the action of the Executive Department in +proclaiming and executing martial law against rebels in arms, their +aiders and abettors, as a usurpation and a tyranny. I deem it my duty +to reply to this denunciation, not for the purpose of presenting +thereby any question for the decision of this court, for I have shown +that the argument of the gentleman presents no question for its +decision as a court, but to repel, as far as I may be able, the unjust +aspersion attempted to be cast upon the memory of our dead President, +and upon the official conduct of his successor. + +I propose now to answer fully all that the gentleman (Mr. Johnson) has +said of the want of jurisdiction in this court, and of the alleged +usurpation and tyranny of the Executive, that the enlightened public +opinion to which he appeals may decide whether all this denunciation +is just--whether indeed conspiring against the whole people, and +confederation and agreement, in aid of insurrection to murder all the +executive officers of the government, cannot be checked or arrested +by the Executive power. Let the people decide this question; and in +doing so, let them pass upon the action of the senator as well as upon +the action of those whom he so arrogantly arraigns. His plea in behalf +of an expiring and shattered rebellion is a fit subject for public +consideration and for public condemnation. + +Let that people also 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 twenty-five thousand dollars, 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 twenty-five thousand dollars received, and the hope of more, +denounces the court as a usurpation and threatens the members with the +consequences! + +The argument of the gentleman, to which the court has listened +so patiently and so long, is but an attempt to show that it is +unconstitutional for the government of the United States to arrest +upon military order and try before military tribunals and punish +upon conviction, in accordance with the laws of war and the usages +of nations, all criminal offenders acting in aid of the existing +rebellion. It does seem to me that the speech in its tone and temper +is the same as that which the country has heard for the last four +years uttered by the armed rebels themselves and by their apologists, +averring that it was unconstitutional for the government of the United +States to defend by arms its own rightful authority and the supremacy +of its laws. + +It is as clearly the right of the republic to live and to defend its +life until it forfeits that right by crime, as it is the right of the +individual to live so long as God gives him life, unless he forfeits +that right by crime. I make no argument to support this proposition. +Who is there here or elsewhere to cast the reproach upon my country +that for her crimes she must die? 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? I assume, for the +purposes of this argument, that self-defence is as clearly the right of +nations as it is the acknowledged right of men, and that the American +people may do in the defence and maintenance of their own rightful +authority against organized armed rebels, their aiders and abettors, +whatever free and independent nations anywhere upon this globe, in time +of war, may of right do. + +All this is substantially denied by the gentleman in the remarkable +argument which he has here made. There is nothing further from my +purpose than to do injustice to the learned gentleman or to his +elaborate and ingenious argument. To justify what I have already said, +I may be permitted here to remind the court that nothing is said by +the counsel touching the conduct of the accused, Mary E. Surratt, as +shown by the testimony; that he makes confession at the end of his +arraignment of the government and country, that he has not made such +argument, and that he leaves it to be made by her other counsel. He +does take care, however, to arraign the country and the government for +conducting a trial with closed doors and before a secret tribunal, and +compares the proceedings of this court to the Spanish Inquisition, +using the strongest words at his command to intensify the horror which +he supposes his announcement will excite throughout the civilized world. + +Was this dealing fairly by this government? Was there anything in the +conduct of the proceedings here that justified any such remark? Has +this been a secret trial? Has it not been conducted in open day in the +presence of the accused, and in the presence of seven gentlemen learned +in the law, who appeared from day to day as their counsel? Were they +not informed of the accusation against them? Were they deprived of the +right of challenge? Was it not secured to them by law, and were they +not asked to exercise it? Has any part of the evidence been suppressed? +Have not all the proceedings been published to the world? What, then, +was done, or intended to be done, by the government, which justifies +this clamor about a Spanish Inquisition? + +That a people assailed by organized treason over an extent of territory +half as large as the continent of Europe, and assailed in their very +capital by secret assassins banded together and hired to do the work of +murder by the instigation of these conspirators, may not be permitted +to make inquiry, even with closed doors, touching the nature and extent +of the organization, ought not to be asserted by any gentleman who +makes the least pretensions to any knowledge of the law, either common, +civil, or military. Who does not know that at the common law all +inquisition touching crimes and misdemeanors, preparatory to indictment +by the grand inquest of the state, is made with closed doors? + +In this trial no parties accused, nor their counsel, nor the reporters +of this court, were at any time excluded from its deliberations when +any testimony was being taken; nor has there been any testimony taken +in the case with closed doors, save that of a few witnesses, who +testified, not in regard to the accused or either of them, but in +respect to the traitors and conspirators not on trial, who were alleged +to have incited this crime. Who is there to say that the American +people, in time of armed rebellion and civil war, have not the right to +make such an examination as secretly as they may deem necessary, either +in a military or civil court? + +I have said this, not by way of apology for anything the government has +done or attempted to do in the progress of this trial, but to expose +the animus of the argument, and to repel the accusation against my +country sent out to the world by the counsel. From anything that he has +said, I have yet to learn that the American people have not the right +to make their inquiries secretly, touching a general conspiracy in aid +of an existing rebellion, which involves their nationality and the +peace and security of all. + +The gentleman then enters into a learned argument for the purpose of +showing that, by the Constitution, the people of the United States +cannot, in war or in peace, subject any person to trial before a +military tribunal, whatever may be his crime or offence, unless such +person be in the military or naval service of the United States. The +conduct of this argument is as remarkable as its assaults upon the +government are unwarranted, and its insinuations about the revival +of the Inquisition and secret trials are inexcusable. The court will +notice that the argument, from the beginning almost to its conclusion, +insists that no person is liable to be tried by military or martial law +before a military tribunal, save those in the land and naval service +of the United States. I repeat, the conduct of this argument of the +gentleman is remarkable. As an instance, I ask the attention not only +of this court, but of that public whom he has ventured to address in +this tone and temper, to the authority of the distinguished Chancellor +Kent, whose great name the counsel has endeavored to press into his +service in support of his general proposition, that no person save +those in the military or naval service of the United States is liable +to be tried for any crime whatever, either in peace or in war, before a +military tribunal. + +The language of the gentleman, after citing the provision of the +Constitution, "that no person shall be held to answer for a capital or +otherwise infamous crime unless on a presentment or indictment of a +grand jury, except in cases arising in the land or naval forces or in +the militia, when in actual service in time of war or public danger," +is, "that this exception is designed to leave in force, not to enlarge, +the power vested in Congress by the original Constitution to make +rules for the government and regulation of the land and naval forces; +that the land or naval forces are the terms used in both, have the +same meaning, and until lately have been supposed by every commentator +and judge to exclude from military jurisdiction offences committed by +citizens not belonging to such forces." The learned gentleman then +adds: "Kent, in a note to his 1st Commentaries, 341, states, and with +accuracy, that 'military and naval crimes and offences committed while +the party is attached to and under the immediate authority of the army +and navy of the United States and in actual service, are not cognizable +under the common-law jurisdiction of the courts of the United States.'" +I ask this court to bear in mind that this is the only passage which +he quotes from this note of Kent in his argument, and that no man +possessed of common sense, however destitute he may be of the exact and +varied learning in the law to which the gentleman may rightfully lay +claim, can for a moment entertain the opinion that the distinguished +chancellor of New York, in the passage just cited, intimates any such +thing as the counsel asserts, that the Constitution excludes from +military jurisdiction offences committed by citizens not belonging to +the land or naval forces. + +Who can fail to see that Chancellor Kent, by the passage cited, only +decides that military and naval crimes and offences committed by a +party attached to and under the immediate authority of the army and +navy of the United States, and in actual service, are not cognizable +under the common-law jurisdiction of the courts of the United States? +He only says they are not cognizable under its common-law jurisdiction; +but by that he does not say or intimate what is attempted to be said +by the counsel for him, that "all crimes committed by citizens are +by the Constitution excluded from military jurisdiction," and that +the perpetrators of them can under no circumstances be tried before +military tribunals. Yet the counsel ventures to proceed, standing upon +this passage quoted from Kent, to say that, "according to _this_ great +authority, every other class of persons and every other species of +offences are within the jurisdiction of the civil courts, and entitled +to the protection of the proceeding by presentment or indictment and +the public trial in such a court." + +Whatever that great authority may have said elsewhere, it is very +doubtful whether any candid man in America will be able to come to the +very learned and astute conclusion that Chancellor Kent has so stated +in the note or any part of the note which the gentleman has just cited. +If he has said it elsewhere, it is for the gentleman, if he relies upon +Kent for authority, to produce the passage. But was it fair treatment +of this "great authority": was it not taking an unwarrantable privilege +with the distinguished chancellor and his great work, the enduring +monument of his learning and genius, to so mutilate the note referred +to as might leave the gentleman at liberty to make his deductions and +assertions under cover of the great name of the New York chancellor, +to suit the emergency of his case by omitting the following passage, +which occurs in the same note, and absolutely excludes the conclusion +so defiantly put forth by the counsel to support his argument? In that +note Chancellor Kent says:-- + +"_Military_ law is a system of regulations for the government of the +armies in the service of the United States, authorized by the act of +Congress of April 10, 1806, known as the Articles of War, and _naval_ +law is a similar system for the government of the navy, under the act +of Congress of April 23, 1800. But _martial_ law is quite a distinct +thing, and is founded upon paramount necessity and proclaimed by a +_military chief_." + +However unsuccessful, after this exposure, the gentleman appears in +maintaining his monstrous proposition, that the American people are +by their own Constitution forbidden to try the aiders and abettors of +armed traitors and rebellion before military tribunals, and subject +them, according to the laws of war and the usages of nations, to just +punishment for their great crimes, it has been made clear from what I +have already stated that he has been eminently successful in mutilating +this beautiful production of that great mind; which act of mutilation +every one knows is violative alike of the laws of peace and war. Even +in war the divine creations of art and the immortal productions of +genius and learning are spared. + +In the same spirit, and it seems to me with the same unfairness as +that just noted, the learned gentleman has very adroitly pressed into +his service by an extract from the autobiography of the war-worn +veteran and hero, General Scott, the names of the late secretary of +war, Mr. Marcy, and the learned ex-attorney general, Mr. Cushing. This +adroit performance is achieved in this way: after stating the fact +that General Scott in Mexico proclaimed martial law for the trial and +punishment by military tribunals of persons guilty of "assassination, +murder, and poisoning," the gentleman proceeds to quote from the +autobiography, "that this order when handed to the then secretary of +war (Mr. Marcy) for his approval, 'a startle at the title (martial +law order) was the only comment he then or ever made on the subject,' +and that it was 'soon silently returned as too explosive for safe +handling.' 'A little later (he adds) the attorney general (Mr. Cushing) +called and asked for a copy, and the law officer of the government, +whose business it is to speak on all such matters, was stricken with +_legal dumbness_.'" Thereupon the learned gentleman proceeds to say: +"How much more startled and more paralyzed would these great men +have been had they been consulted on such a commission as this! A +commission, not to sit in another country, and to try offences not +provided for in any law of the United States, civil or military, then +in force, but in their own country, and in a part of it where there are +laws providing for their trial and punishment, and civil courts clothed +with ample powers for both, and in the daily and undisturbed exercise +of their jurisdiction." + +I think I may safely say, without stopping to make any special +references, that the official career of the late secretary of war +(Mr. Marcy) gave no indication that he ever doubted or denied the +constitutional power of the American people, acting through their duly +constituted agents, to do any act justified by the laws of war for +the suppression of a rebellion or to repel invasion. Certainly there +is nothing in this extract from the autobiography which justifies any +such conclusion. He was startled we are told. It may have been as much +the admiration he had for the boldness and wisdom of the conqueror +of Mexico as any abhorrence he had for the trial and punishment of +"assassins, poisoners, and murderers," according to the laws and usages +of war. + +But the official utterances of the ex-attorney general, Cushing, with +which the gentleman doubtless was familiar when he prepared this +argument, by no means justify the attempt here made to quote him as +authority against the proclamation and enforcement of martial law in +time of rebellion and civil war. That distinguished man, not second +in legal attainments to any who have held that position, has left an +official opinion of record touching this subject. Referring to what is +said by Sir Mathew Hale, in his "History of the Common Law," concerning +martial law, wherein he limits it, as the gentleman has seemed by the +whole drift of his argument desirous of doing, and says that it is +"not in truth and in reality law, but something indulged rather than +allowed as a law--the necessity of government, order, and discipline +in an army," Mr. Cushing makes this just criticism: "This proposition +is a mere composite blunder, a total misapprehension of the matter. It +confounds _martial law_ and _law military_; it ascribes to the former +the uses of the latter; it erroneously assumes that the government of +a body of troops is a necessity more than of a body of civilians or +citizens. It confounds and confuses all the relations of the subject, +and is an apt illustration of the incompleteness of the notions of the +common-law jurists of England in regard to matters not comprehended +in that limited branch of legal science.... Military law, it is now +perfectly understood in England, is a branch of the law of the land, +applicable only to certain acts of a particular class of persons and +administered by special tribunals; but neither in that nor in any +other respect essentially differing as to foundation in constitutional +reason from admiralty, ecclesiastical, or indeed chancery and common +law.... It is the system of rules for the government of the army and +navy established by successive acts of Parliament.... Martial law, as +exercised in any country by the commander of a foreign army, is an +element of the _jus belli_. + +"It is incidental to the state of solemn war, and appertains to the law +of nations.... Thus, while the armies of the United States occupied +different provinces of the Mexican republic, the respective commanders +were not limited in authority by any local law. They allowed, or rather +required, the magistrates of the country, municipal or judicial, to +continue to administer the laws of the country among their countrymen; +but in subjection always to the military power, which acted summarily +and according to discretion, when the belligerent interests of the +conqueror required it, and which exercised jurisdiction, either +summarily or by means of military commissions for the protection or the +punishment of citizens of the United States in Mexico."--_Opinions of +Attorneys General_, vol. viii., 366-69. + +Mr. Cushing says, "That, it would seem, was one of the forms of martial +law"; but he adds that such an example of martial law administered by a +foreign army in the enemy's country "does not enlighten us in regard to +the question of martial law in one's own country, and as administered +by its military commanders. That is a case which the law of nations +does not reach. Its regulation is of the domestic resort of the organic +laws of the country itself, and regarding which, as it happens, there +is no definite or explicit legislation in the United States, as there +is none in England. + +"Accordingly, in England, as we have seen, Earl Grey assumes that +when martial law exists it has no legal origin, but is a mere fact of +necessity to be legalized afterwards by a bill of indemnity if there be +occasion. I am not prepared to say that, under existing laws, such may +not also be the case in the United States."--_Ibid._, 370. + +After such a statement, wherein ex-Attorney General Cushing very +clearly recognizes the right of this government, as also of England, +to employ martial law as a means of defence in a time of war, whether +domestic or foreign, he will be as much surprised when he reads the +argument of the learned gentleman, wherein he is described as being +struck with _legal dumbness_ at the mere mention of proclaiming martial +law and its enforcement by the commander of our army in Mexico, as the +late secretary of war was startled with even the mention of its title. + +Even some of the reasons given, and certainly the power exercised by +the veteran hero himself, would seem to be in direct conflict with the +propositions of the learned gentleman. + +The lieutenant-general says he "excludes from his order cases already +cognizable by court-martial, and limits it to cases not provided for in +the act of Congress establishing rules and articles for the government +of the armies of the United States." Has not the gentleman who attempts +to press General Scott into his service argued and insisted upon it +that the commander of the army cannot subject the soldiers under his +command to any control or punishment whatever, save that which is +provided for in the articles? + +It will not do, in order to sustain the gentleman's hypothesis, to +say that these provisions of the Constitution, by which he attempts +to fetter the power of the people to punish such offences in time of +war within the territory of the United States, may be disregarded by +an officer of the United States in command of its armies, in the trial +and punishment of its soldiers in a foreign war. The law of the United +States for the government of its own armies follows the flag upon every +sea and in every land. + +The truth is, that the right of the people to proclaim and execute +martial law is a necessary incident of war, and this was the right +exercised, and rightfully exercised, by Lieutenant-General Scott +in Mexico. It was what Earl Grey has justly said was a "fact of +necessity," and I may add, an act as clearly authorized as was the act +of fighting the enemy when they appeared before him. + +In making this exception, the lieutenant-general followed the rule +recognized by the American authorities on military law, in which it +is declared that "many crimes committed even by military officers, +enlisted men, or camp-retainers, cannot be tried under the rules +and articles of war. Military commissions must be resorted to for +such cases, and these commissions should be ordered by the same +authority, be constituted in a similar manner, and their proceedings +be conducted according to the same general rules as general +courts-martial."--_Benet_, 15. + +There remain for me to notice, at present, two other points in this +extraordinary speech: first, that martial law does not warrant a +military commission for the trial of military offences--that is, +offences committed in time of war in the interests of the public enemy +and by concert and agreement with the enemy; and second, that martial +law does not prevail in the United States, and has never been declared +by any competent authority. + +It is not necessary, as the gentleman himself has declined to argue +the first point,--whether martial law authorizes the organization of +military commissions by order of the commander-in-chief to try such +offences,--that I should say more than that the authority just cited by +me shows that such commissions are authorized under martial law, and +are created by the commander for the trial of all such offences when +their punishment by court-martial is not provided for by the express +statute law of the country. + +The second point,--that martial law has not been declared by any +competent authority,--is an arraignment of the late murdered President +of the United States for his proclamation of September 24, 1862, +declaring martial law throughout the United States, and of which, in +Lawrence's edition of Wheaton on International Law, p. 522, it is said, +"Whatever may be the inference to be deduced either from constitutional +or international law, or from the usages of European governments, as +to the legitimate depository of the power of suspending the writ of +_habeas corpus_, the virtual abrogation of the judiciary in cases +affecting individual liberty, and the establishment as _matter of +fact_ in the United States, by the Executive alone, of martial law, +not merely in the insurrectionary districts or in cases of military +occupancy, but throughout the entire Union, and not temporarily, but as +an institution as permanent as the insurrection on which it professes +to be based, and capable on the same principle of being revived in all +cases of foreign as well as civil war, are placed beyond question by +the President's proclamation of September 24, 1862." That proclamation +is as follows:-- + + +"BY THE PRESIDENT OF THE UNITED STATES OF AMERICA. + +"A PROCLAMATION. + + "Whereas it has become necessary to call into service not only + volunteers, but also portions of the militia of the states, + by a draft, in order to suppress the insurrection existing in + the United States, and disloyal persons are not adequately + restrained by the ordinary processes of law from hindering + this measure and from giving aid and comfort in various ways + to the insurrection: Now, therefore, be it ordered that, + during the existing insurrection, and as a necessary means + for suppressing the same, all rebels and insurgents, their + aiders and abettors, within the United States, and all persons + discouraging volunteer enlistments, resisting militia drafts, + or guilty of any disloyal practice affording aid and comfort + to rebels, against the authority of the United States, shall be + subject to martial law and liable to trial and punishment by + courts-martial or military commission. + + "Second. That the writ of _habeas corpus_ is suspended in + respect to all persons arrested, or who are now, or hereafter + during the rebellion shall be, imprisoned in any fort, camp, + arsenal, military prison, or other place of confinement, by any + military authority or by the sentence of any court-martial or + military commission. + + "In witness whereof, I have hereunto set my hand and caused the + seal of the United States to be affixed. + + "Done at the city of Washington, this 24th day of September, + A.D. 1862, and of the independence of the United States the + eighty-seventh. + + "ABRAHAM LINCOLN. + + "By the President: + "WILLIAM H. SEWARD, + "_Secretary of State_." */ + +This proclamation is duly certified from the War Department to be in +full force and not revoked, and is evidence of record in this case; and +but a few days since a proclamation of the President, of which this +court will take notice, declares that the same remains in full force. + +It has been said by another of the counsel for the accused (Mr. Stone) +in his argument, that, admitting its validity, the proclamation +ceases to have effect with the insurrection, and is terminated by +it. It is true the proclamation of martial law only continues during +the insurrection; but inasmuch as the question of the existence +of an insurrection is a political question, the decision of which +belongs exclusively to the political department of the government, +that department alone can declare its existence, and that department +alone can declare its termination, and by the action of the political +department of the government every judicial tribunal in the land is +concluded and bound. That question has been settled for fifty years +in this country by the Supreme Court of the United States: First, in +the case of Brown _vs._ The United States (8 Cranch); also in the +prize cases (2 Black, 641). Nothing more, therefore, need be said upon +this question of an _existing_ insurrection than this: The political +department of the government has heretofore proclaimed an insurrection; +that department has not yet declared the insurrection ended, and the +event on the 14th of April, which robbed the people of their chosen +Executive, and clothed this land in mourning, bore sad but overwhelming +witness to the fact that the rebellion is not ended. The fact of the +insurrection is not an open question to be tried or settled by parol, +either in a military tribunal or in a civil court. + +The declaration of the learned gentleman who opened the defence +(Mr. Johnson), that martial law has never been declared by any +competent authority, as I have already said, arraigns Mr. Lincoln for +a usurpation of power. Does the gentleman mean to say that, until +Congress authorizes it, the President cannot proclaim and enforce +martial law in the suppression of armed and organized rebellion? Or +does he only affirm that this act of the late President is a usurpation? + +The proclamation of martial law in 1862 a usurpation! though it armed +the people in that dark hour of trial with the means of defence +against traitorous and secret enemies in every state and district of +the country; though by its use some of the guilty were brought to +swift and just judgment, and others deterred from crime or driven +to flight; though by this means the innocent and defenceless were +protected; though by this means the city of the gentleman's residence +was saved from the violence and pillage of the mob and the torch of the +incendiary. But, says the gentleman, it was a usurpation, forbidden by +the laws of the land! + +The same was said of the proclamations of blockade issued April 19 +and 27, 1861, which declared a blockade of the ports of the insurgent +states, and that all vessels violating the same were subjects of +capture, and, together with the cargo, to be condemned as prize. +Inasmuch as Congress had not then recognized the fact of civil war, +these proclamations were denounced as void. The Supreme Court decided +otherwise, and affirmed the power of the Executive thus to subject +property on the seas to seizure and condemnation. I read from that +decision:-- + +"The Constitution confers upon the President the whole executive power, +he is bound to take care that the laws be faithfully executed; he is +Commander-in-Chief of the army and navy of the United States, and of +the militia of the several states when called into the actual service +of the United States.... Whether the President, in fulfilling his +duties as Commander-in-Chief in suppressing an insurrection, has met +with such armed hostile resistance and a civil war of such alarming +proportions as will compel him to accord to them the character of +belligerents, is a question to be decided _by him_, and this court must +be governed by the decisions and acts of the political department of +the government to which this power was intrusted. He must determine +what degree of force the crisis demands. + +"The proclamation of blockade is itself official and conclusive +evidence to the court that a state of war existed which demanded +and authorized a recourse to such a measure under the circumstances +peculiar to the case." (2 Black, 670.) + +It has been solemnly ruled by the same tribunal, in an earlier case, +"that the power is confided to the Executive of the Union to determine +when it is necessary to call out the militia of the states to repel +invasion," as follows: "That he is necessarily constituted the judge +of the existence of the exigency in the first instance, and is bound +to act according to his belief of the facts. If he does so act, and +decides to call forth the militia, his orders for this purpose are in +strict conformity with the provisions of the law; and it would seem to +follow as a necessary consequence, that every act done by a subordinate +officer in obedience to such orders, is equally justifiable. The law +contemplates that, under such circumstances, orders shall be given +to carry the power into effect; and it cannot therefore be a correct +inference that any other person has a just right to disobey them. The +law does not provide for any appeal from the judgment of the President, +or for any right in subordinate officers to review his decision, and in +effect defeat it. Whenever a statute gives a discretionary power to any +person, to be exercised by him upon his own opinion of certain facts, +it is a sound rule of construction that the statute constitutes him the +sole and exclusive judge of the existence of these facts." (12 Wheaton, +31.) + +In the light of these decisions, it must be clear to every mind that +the question of the existence of an insurrection, and the necessity of +calling into requisition for its suppression both the militia of the +states and the army and navy of the United States, and of proclaiming +martial law, which is an essential condition of war, whether foreign or +domestic, must rest with the officer of the government who is charged +by the express terms of the Constitution with the performance of this +great duty for the common defence and the execution of the laws of the +Union. + +But it is further insisted by the gentleman in this argument, that +Congress has not authorized the establishment of military commissions, +which are essential to the judicial administration of martial law and +the punishment of crimes committed during the existence of a civil +war, and especially that such commissions are not so authorized to +try persons other than those in the military or naval service of the +United States, or in the militia of the several States, when in the +actual service of the United States. The gentleman's argument assuredly +destroys itself, for he insists that the Congress, as the legislative +department of the government, can pass no law which, either in peace or +war, can constitutionally subject any citizen not in the land or naval +forces to trial for crime before a military tribunal, or otherwise than +by a jury in the civil courts. + +Why does the learned gentleman now tell us that Congress has not +authorized this to be done, after declaring just as stoutly that by +the fifth and sixth amendments to the Constitution no such military +tribunals can be established for the trial of any person not in the +military or naval service of the United States, or in the militia when +in actual service, for the commission of any crime whatever in time of +war or insurrection? It ought to have occurred to the gentleman when +commenting upon the exception in the fifth article of the Constitution, +that there was a reason for it very different from that which he +saw fit to assign, and that reason manifestly upon the face of the +Constitution itself, was, that by the eighth section of the first +article, it is expressly provided that Congress shall have power to +make rules for the government of the land and naval forces, and to +provide for organizing, arming, and disciplining the militia, and for +_governing_ such part of them as may be employed in the service of the +United States, and that, inasmuch as military discipline and order are +as essential in an army in time of peace as in time of war, if the +Constitution would leave this power to Congress in peace, it must make +the exception, so that rules and regulations for the government of the +army and navy should be operative in time of peace as well as in time +of war; because the provisions of the Constitution give the right of +trial by jury IN TIME OF PEACE, in all criminal prosecutions +by indictment, in terms embracing every human being that may be held +to answer for crime in the United States; and therefore if the eighth +section of the first article was to remain in full force IN TIME +OF PEACE, the exception must be made; and, accordingly, the +exception was made. But by the argument we have listened to, this court +is told, and the country is told, that IN TIME OF WAR--a +war which involves in its dread issue the lives and interests of us +all--the guarantees of the Constitution are in full force for the +benefit of those who conspire with the enemy, creep into your camps, +murder in cold blood, in the interest of the invader or insurgent, the +Commander-in-Chief of your army, and secure to him the slow and weak +provisions of the civil law, while the soldier, who may, when overcome +by the demands of exhausted nature which cannot be resisted, have +slept at his post, is subject to be tried upon the spot by a military +tribunal and shot. The argument amounts to this: that as military +courts and military trials of civilians in time of war are a usurpation +and tyranny, and as soldiers are liable to such arrests and trial, +Sergeant Corbett, who shot Booth, should be tried and executed by +sentence of a military court; while Booth's co-conspirators and aiders +should be saved from any such indignity as a military trial! I confess +that I am too dull to comprehend the logic, the reason, or the sense +of such a conclusion! If there is any one _entitled_ to this privilege +of a civil trial at a remote period, and by a jury of the district, +IN TIME OF CIVIL WAR, when the foundations of the republic are +rocking beneath the earthquake tread of armed rebellion, that man is +the defender of the republic. It will never do to say, as has been said +in this argument, that the soldier is not liable to be tried in time of +war by a military tribunal for any other offence than those prescribed +in the rules and articles of war. To my mind, nothing can be clearer +than that citizen and soldier alike, in time of civil or foreign war, +after a proclamation of martial law, are triable by military tribunals +for all offences of which they may be guilty, in the interests of, or +in concert with the enemy. + +These provisions, therefore, of your Constitution for indictment and +trial by jury in civil courts of _all crimes_ are, as I shall hereafter +show, silent and inoperative in time of war when the public safety +requires it. + +The argument to which I have thus been replying, as the court will not +fail to perceive, nor that public to which the argument is addressed, +is a labored attempt to establish the proposition, that, by the +Constitution of the United States, the American people cannot, even +in a civil war the greatest the world has ever seen, employ martial +law and military tribunals as a means of successfully asserting their +authority, preserving their nationality, and securing protection +to the lives and property of all, and especially to the persons of +those to whom they have committed, officially, the great trust of +maintaining the national authority. The gentleman says, with an air +of perfect confidence, that he denies the jurisdiction of military +tribunals for the trial of civilians in time of war, because neither +the Constitution nor laws justify, but on the contrary repudiate them, +and that all the experience of the past is against it. I might content +myself with saying that the practice of all nations is against the +gentleman's conclusion. The struggle for our national independence +was aided and prosecuted by military tribunals and martial law, as +well as by arms. The contest for American nationality began with the +establishment, very soon after the firing of the first gun at Lexington +on the 19th day of April, 1775, of military tribunals and martial law. +On the 30th of June, 1775, the Continental Congress provided that +"whosoever, _belonging to the continental army_, shall be convicted +of holding correspondence with, or giving intelligence to the enemy, +either indirectly or directly, shall suffer such punishment as by +a court-martial shall be ordered." This was found not sufficient, +inasmuch as it did not reach those _civilians_ who, like certain +civilians of our day, claim the protection of the civil law in time of +war against military arrests and military trials for military crimes. +Therefore the same Congress, on the 7th of November, 1775, amended +this provision by striking out the words "belonging to the continental +army," and adopting the article as follows:-- + + "_All persons_ convicted of holding a treacherous + correspondence with, or giving intelligence to the enemy, + shall suffer death or such other punishment as a general + court-martial shall think proper." + +And on the 17th of June, 1776, the Congress added an additional rule-- + + "That all persons not members of, nor owing allegiance to, + any of the United States of America, who should be found + lurking as spies in or about the fortifications or encampments + of the armies of the United States, or any of them, shall + suffer death, according to the law and usage of nations, by + the sentence of a court-martial or such other punishment as a + court-martial shall direct." + +Comprehensive as was this legislation, embracing as it did soldiers, +citizens, and aliens, subjecting all alike to trial for their military +tribunals of justice, according to the law and the usage of nations, it +was found to be insufficient to meet that most dangerous of all crimes +committed in the interests of the enemy by citizens in time of war--the +crime of conspiring together to assassinate or seize and carry away +the soldiers and citizens who were loyal to the cause of the country. +Therefore, on the 27th of February, 1778, the Congress adopted the +following resolution:-- + + "_Resolved_, That whatever inhabitant of these states shall + kill, or seize, or take any loyal citizen or citizens thereof + and convey him, her, or them to any place within the power of + the enemy, or shall ENTER INTO ANY COMBINATION for + such purpose, or attempt to carry the same into execution, or + hath assisted or shall assist therein; or shall, by giving + intelligence, acting as a guide, or in any manner whatever, aid + the enemy in the perpetration thereof, he shall suffer death + by the judgment of a court-martial as a traitor, assassin, or + spy, if the offence be committed within seventy miles of the + headquarters of the grand or other armies of these states where + a general officer commands."--_Journals of Congress_, vol. ii, + pp. 459, 460. + +So stood the law until the adoption of the Constitution of the United +States. Every well-informed man knows that at the time of the passage +of these acts the courts of justice, having cognizance of all crimes +against persons, were open in many of the states, and that by their +several constitutions and charters, which were then the supreme law for +the punishment of crimes committed within their respective territorial +limits, no man was liable to conviction but by the verdict of a +jury. Take, for example, the provisions of the constitution of North +Carolina, adopted on the 10th of November, 1776, and in full force at +the time of the passage of the last resolution by Congress above cited, +which provisions are as follows:-- + + "That no freeman shall be put to answer any criminal charge but + by indictment, presentment or impeachment." + + "That no freeman shall be convicted of any crime but by the + unanimous verdict of a jury of good and lawful men in open + court, as heretofore used." + +This was the law in 1778 in all the states, and the provision for a +trial by jury every one knows meant a jury of twelve men, impanelled +and qualified to try the issue in a civil court. The conclusion is +not to be avoided, that these enactments of the Congress under the +Confederation set aside the trial by jury within the several states, +and expressly provided for the trial by court-martial of "any of +the inhabitants" who, during the revolution, might, contrary to the +provisions of said law, and in aid of the public enemy, give them +intelligence, or kill any loyal citizens of the United States, or enter +into any combination to kill or carry them away. How comes it, if the +argument of the counsel be true, that this enactment was passed by the +Congress of 1778, when the constitutions of the several states at that +day as fully guaranteed trial by jury to every person held to answer +for a crime as does the Constitution of the United States at this hour? +Notwithstanding this fact, I have yet to learn that any loyal man ever +challenged, during all the period of our conflict for independence +and nationality, the validity of that law for the trial, for military +offences, by military tribunals, of all offenders, as the law, not of +peace, but of war, and absolutely essential to the prosecution of war. +I may be pardoned for saying that it is the accepted common law of +nations, that martial law is, at all times and everywhere, essential to +the successful prosecution of war, whether it be a civil or a foreign +war. The validity of these acts of the Continental and Confederate +Congress I know was challenged, but only by men charged with the guilt +of their country's blood. + +Washington, the peerless, the stainless, and the just, with whom God +walked through the night of that great trial, enforced this just and +wise enactment upon all occasions. On the 30th of September, 1780, +Joshua H. Smith, by the order of General Washington, was put upon his +trial before a court-martial, convened in the State of New York, on the +charge of there aiding and assisting Benedict Arnold, in a combination +with the enemy, to _take_, _kill_, and _seize_ such loyal citizens or +soldiers of the United States as were in garrison at West Point. Smith +objected to the jurisdiction, averring that he was a private citizen, +not in the military or naval service, and therefore was only amenable +to the civil authority of the State, whose constitution had guaranteed +the right of trial by jury to all persons held to answer for crime. +("Chandler's Criminal Trials," vol. 2, p. 187.) The constitution of +New York then in force had so provided; but, notwithstanding that, the +court overruled the plea, held him to answer, and tried him. I repeat, +that when Smith was thus tried by court-martial the constitution of +New York as fully guaranteed trial by jury in the civil courts to all +civilians charged and held to answer for crimes within the limits of +that State as does the Constitution of the United States guarantee such +trial within the limits of the District of Columbia. By the second of +the Articles of Confederation each State retained "its sovereignty," +and every power, jurisdiction, and right not _expressly_ delegated to +the United States in Congress assembled. By those articles there was no +express delegation of judicial power; therefore the States retained it +fully. + +If the military courts, constituted by the commander of the army of +the United States under the Confederation, who was appointed only by +a resolution of the Congress, without any _express_ grant of power to +authorize it--his office not being created by the act of the people in +their fundamental law--had jurisdiction in every State to try and put +to death "any inhabitant" thereof who should _kill_ any loyal citizen +or enter into "any combination" for any such purpose therein in time +of war, notwithstanding the provisions of the constitution and laws +of such States, how can any man conceive that under the Constitution +of the United States, which is the supreme law over every State, +anything in the constitution and laws of such State to the contrary +notwithstanding, and the supreme law over every territory of the +republic as well, the Commander-in-Chief of the army of the United +States, who is made such by the Constitution, and by its supreme +authority clothed with the power and charged with the duty of directing +and controlling the whole military power of the United States in time +of rebellion or invasion, has not that authority? + +I need not remind the court that one of the marked differences between +the Articles of Confederation and the Constitution of the United States +was, that under the Confederation the Congress was the sole depository +of all federal power. The Congress of the Confederation, said Madison, +held "the command of the army." (Fed., No. 38.) Has the Constitution, +which was ordained by the people the better "to insure domestic +tranquillity and to provide for the common defence," so fettered the +great power of self-defence against armed insurrection or invasion +that martial law, so essential in war, is forbidden by that great +instrument? I will yield to no man in reverence for or obedience to the +Constitution of my country, esteeming it, as I do, a new evangel to the +nations, embodying the democracy of the New Testament--the absolute +equality of all men before the law, in respect of those rights of human +nature which are the gift of God, and therefore as universal as the +material structure of man. Can it be that this Constitution of ours, so +divine in its spirit of justice, so beneficent in its results, so full +of wisdom and goodness and truth, under which we became one people, a +great and powerful nationality, has in terms or by implication denied +to this people the power to crush armed rebellion by war, and to arrest +and punish, during the existence of such rebellion, according to the +laws of war and the usages of nations, secret conspirators who aid and +abet the public enemy? + +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; the object +of which conspiracy, as the testimony shows, was to aid the tottering +rebellion which struck at the nation's life. It is in evidence that +Davis, Thompson, and others, chiefs in this rebellion, in aid of the +same, 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 habitations of the people and +in the ships in your harbors inflammable materials, and thereby destroy +them by fire; to murder by the slow and consuming torture of famine +your soldiers, captive 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, who, standing +by the holy graves of your unreturning brave, proudly and defiantly +challenge to honorable combat and open battle all public enemies, that +their country may live; and finally, to crown this horrid catalogue +of crime, this sum of all human atrocities, conspired, as charged +upon your record, with the accused and John Wilkes Booth and John H. +Surratt, to kill and murder in your capital the executive officers of +your government and the commander of your armies. When this conspiracy, +entered into by these traitors, is revealed by its attempted execution, +and the foul and brutal murder of your President in the capital, you +are told that it is unconstitutional, in order to arrest the further +execution of the conspiracy, to interpose the military power of this +government for the arrest, without civil process, of any of the parties +thereto, and for their trial by a military tribunal of justice. If any +such rule had obtained during our struggle for independence we never +would have been a nation. If any such rule had been adopted and acted +upon now, during the fierce struggle of the past four years no man can +say that our nationality would have thus long survived. + +The whole people of the United States by their Constitution +have created the office of President of the United States and +Commander-in-Chief of the army and navy, and have vested, by the +terms of that Constitution, in the person of the President and +Commander-in-Chief, the power to enforce the execution of the laws, and +preserve, protect, and defend the Constitution. + +The question may well be asked: If, as Commander-in-Chief, the +President may not, in time of insurrection or war, proclaim and +execute martial law, according to the usages of nations, how he can +successfully perform the duties of his office--execute the laws, +preserve the Constitution, suppress insurrection, and repel invasion? + +Martial law and military tribunals are as essential to the successful +prosecution of war as are men and arms and munitions. The Constitution +of the United States has vested the power to declare war and raise +armies and navies exclusively in the Congress, and the power to +prosecute the war and command the army and navy exclusively in the +President of the United States. As, under the Confederation, the +commander of the army, appointed only by the Congress, was by the +resolution of that Congress empowered to act as he might think +proper for the good and welfare of the service, subject only to +such restraints or orders as the Congress might give, so, under the +Constitution, the President is, by the people who ordained that +Constitution and declared him Commander-in-Chief of the army and navy, +vested with full power to direct and control the army and navy of +the United States, and employ all the forces necessary to preserve, +protect, and defend the Constitution and execute the laws, as enjoined +by his oath and the very letter of the Constitution, subject to no +restriction or direction save such as Congress may from time to time +prescribe. + +That these powers for the common defence, intrusted by the Constitution +exclusively to the Congress and the President, are, in time of civil +war or foreign invasion, to be exercised without limitation or +restraint, to the extent of the public necessity, and without any +intervention of the federal judiciary or of State constitutions or +State laws, are facts in our history not open to question. + +The position is not to be answered by saying you make the American +Congress thereby omnipotent, and clothe the American Executive with the +asserted attribute of hereditary monarchy--the king can do no wrong. +Let the position be fairly stated--that the Congress and President, +in war as in peace, are but the agents of the whole people, and that +this unlimited power for the common defence against armed rebellion or +foreign invasion is but the power of the people intrusted exclusively +to the legislative and executive departments as their agents, for any +and every abuse of which these agents are directly responsible to +the people--and the demagogue cry of an omnipotent Congress, and an +Executive invested with royal prerogatives, vanishes like the baseless +fabric of a vision. If the Congress, corruptly or oppressively, or +wantonly abuse this great trust, the people, by the irresistible +power of the ballot, hurl them from place. If the President so abuse +the trust, the people by their Congress withhold supplies, or by +impeachment transfer the trust to better hands, strip him of the +franchises of citizenship and of office, and declare him forever +disqualified to hold any position of honor, trust, or power, under the +government of his country. + +I can understand very well why men should tremble at the exercise +of this great power by a monarch whose person, by the constitution +of his realm, is inviolable, but I cannot conceive how any American +citizen, who has faith in the capacity of the whole people to govern +themselves, should give himself any concern on the subject. Mr. Hallam, +the distinguished author of the Constitutional History of England, has +said:-- + + "Kings love to display the divinity with which their flatterers + invest them in nothing so much as in the instantaneous + execution of their will, and to stand revealed, as it were, + in the storm and thunderbolt when their power breaks through + the operation of secondary causes and awes a prostate nation + without the intervention of law." + +How just are such words when applied to an irresponsible monarch! +how absurd when applied to a whole people, acting through their duly +appointed agents, whose will, thus declared, is the supreme law, to awe +into submission and peace and obedience, not a prostrate nation, but a +prostrate rebellion! The same great author utters the fact which all +history attests, when he says:-- + + "It has been usual for all governments during actual + rebellion to proclaim martial law for the suspension of civil + jurisdiction; and this anomaly, I must admit," he adds, "is + very far from being less indispensable at such unhappy seasons + where the ordinary mode of trial is by jury than where the + right of decision resides in the court."--_Const. Hist._, vol. + i, ch. 5, p. 326. + +That the power to proclaim martial law and fully or partially suspend +the civil jurisdiction, federal and state, in time of rebellion or +civil war, and punish by military tribunals all offences committed in +aid of the public enemy, is conferred upon Congress and the Executive, +necessarily results from the unlimited grants of power for the common +defence to which I have already briefly referred. I may be pardoned for +saying that this position is not assumed by me for the purposes of this +occasion, but that early in the first year of this great struggle for +our national life I proclaimed it as a representative of the people, +under the obligation of my oath, and, as I then believed and still +believe, upon the authority of the great men who formed and fashioned +the wise and majestic fabric of American government. + +Some of the citations which I deemed it my duty at that time to make, +and some of which I now reproduce, have, I am pleased to say, found a +wider circulation in books that have since been published by others. + +When the Constitution was on trial for its deliverance before the +people of the several States, its ratification was opposed on the +ground that it conferred upon Congress and the Executive unlimited +power for the common defence. To all such objectors--and they were +numerous in every State--that great man, Alexander Hamilton, whose +words will live as long as our language lives, speaking to the +listening people of all the States and urging them not to reject that +matchless instrument which bore the name of Washington, said:-- + + "The authorities essential to the care of the common defence + are these: To raise armies; to build and equip fleets; to + prescribe rules for the government of both; to direct their + operations; to provide for their support. These powers ought + to exist WITHOUT LIMITATION; because it is impossible + to foresee or define the extent and variety of national + exigencies, and the correspondent extent and variety of the + means which may be necessary to satisfy them. + + "The circumstances that endanger the safety of nations are + infinite; and for this reason no constitutional shackles can + wisely be imposed on the power to which the care of it is + committed.... This power ought to be under the direction of the + same councils which are appointed to preside over the common + defence.... It must be admitted, as a necessary consequence, + that there can be no limitation of that authority which is to + provide for the defence and protection of the community in + any manner essential to its efficacy; that is, in any matter + essential to the formation, direction, or support of the + national forces." + + He adds the further remark: "This is one of those truths which, + to a correct and unprejudiced mind, carries its own evidence + along with it; and may be obscured, but cannot be made plainer + by argument or reasoning. It rests upon axioms as simple as + they are universal--the _means_ ought to be proportioned to + the _end_; the persons from whose agency the attainment of any + _end_ is expected ought to possess the means by which it is to + be attained."--_Federalist_, No. 23. + +In the same great contest for the adoption of the Constitution, +Madison, sometimes called the "Father of the Constitution," said:-- + + "Is the power of declaring war necessary? No man will answer + this question in the negative.... Is the power of raising + armies and equipping fleets necessary?... It is involved in + the power of self-defence.... With what color of propriety + could the force necessary for defence be limited by those who + cannot limit the force of offence?... The means of security can + only be regulated by the means and the danger of attack.... It + is in vain to oppose constitutional barriers to the impulse + of self-preservation. It is worse than in vain, because it + plants in the Constitution itself necessary usurpations of + power."--_Federalist_, No. 41. + +With this construction, proclaimed both by the advocates and opponents +of its ratification, the Constitution of the United States was accepted +and adopted, and that construction has been followed and acted upon by +every department of the government to this day. + +It was as well understood then in theory as it has since been +illustrated in practice, that the judicial power, both federal and +State, had no voice and could exercise no authority in the conduct +and prosecution of a war, except in subordination to the political +department of the government. The Constitution contains the significant +provision, "The privilege of the writ of _habeas corpus_ shall not be +suspended, unless when in cases of rebellion or invasion the public +safety may require it." + +What was this but a declaration, that in time of rebellion or invasion +the public safety is the highest law?--that so far as necessary the +civil courts (of which the Commander-in-Chief, under the direction of +Congress, shall be the sole judge) must be silent, and the rights of +each citizen, as secured in time of peace, must yield to the wants, +interests, and necessities of the nation? Yet we have been gravely +told by the gentleman in his argument, that the maxim, _salus populi +suprema est lex_, is but fit for a tyrant's use. Those grand men, whom +God taught to build the fabric of empire, thought otherwise when they +put that maxim into the Constitution of their country. It is very clear +that the Constitution recognizes the great principle which underlies +the structure of society and of all civil government; that no man +lives for himself alone, but each for all; that, if need be, some must +die that the State may live, because at test the individual is but +for to-day, while the commonwealth is for all time. I agree with the +gentleman in the maxim which he borrows from Aristotle, "Let the public +weal be under the protection of the law"; but I claim that in war, as +in peace, by the very terms of the Constitution of the country, the +public safety is under the protection of the law; that the Constitution +itself has provided for the declaration of war for the common defense, +to suppress rebellion, to repel invasion, and, by express terms, has +declared that 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 time of civil war "no person shall be +deprived of life, liberty, and property without due process of law"? +This is a provision of your Constitution than which there is none more +just or sacred in it; it is, however, only the law of peace, not of +war. In peace, that wise provision of the Constitution must be, and +is, enforced by the civil courts; in war it must be, and is, to a +great extent, inoperative and disregarded. The thousands slain by your +armies in battle were deprived of life "without due process of law." +All spies arrested, convicted, and executed by your military tribunals +in time of war are deprived of liberty and life "without due process of +law "; all enemies captured and held as prisoners of war are deprived +of liberty "without due process of law"; all owners whose property is +forcibly seized and appropriated in war are deprived of their property +"without due process of law." The Constitution recognizes the principle +of common law, that every man's house is his castle; that his home, the +shelter of his wife and children, is his most sacred possession; and +has therefore specially provided, "that no soldier shall _in time of +peace_ be quartered in any house without the consent of its owner, nor +in time of war, but in a manner to be prescribed by law [III Amend.]; +thereby declaring that, in time of war, Congress may by law authorize, +as it has done, that without the consent and against the consent of +the owner, the soldier may be quartered in any man's house and upon +any man's hearth. What I have said illustrates the proposition, that +in time of war the civil tribunals of justice are wholly or partially +silent, as the public safety may require; that the limitations and +provisions of the Constitution in favor of life, liberty, and property +are therefore wholly or partially suspended. In this I am sustained by +an authority second to none with intelligent American citizens. Mr. +John Quincy Adams, than whom a purer man or a wiser statesman never +ascended the chair of the chief magistracy in America, said in his +place in the House of Representatives, in 1836, that:-- + + "In the authority given to Congress by the Constitution of the + United States to declare war, all the powers incident to war + are by necessary implication conferred upon the government + of the United States. Now the powers incidental to war are + derived, not from their internal municipal source, but from the + laws and usages of nations. There are, then, in the authority + of Congress and the Executive, two classes of powers altogether + different in their nature and often incompatible with each + other--the war power and the peace power. The peace power is + limited by regulations and restricted by provisions prescribed + within the Constitution itself. The war power is limited only + by the laws and usage of nations. This power is tremendous; it + is strictly constitutional, but it breaks down every barrier so + anxiously erected for the protection of liberty, of property, + and of life." + +If this be so, how can there be trial by jury for military offenses +in time of civil war? If you cannot, and do not, try the armed enemy +before you shoot him, or the captured enemy before you imprison him, +why should you be held to open the civil courts and try the spy, the +conspirator, and the assassin, in the secret service of the public +enemy, by jury, before you convict and punish him? Why not clamor +against holding imprisoned the captured armed rebels, deprived of their +liberty without due process of law? Are they not citizens? Why not +clamor against slaying for their crime of treason, which is cognizable +in the civil courts, by your rifled ordnance and the leaden hail of +your musketry in battle, these public enemies, without trial by jury? +Are they not citizens? Why is the clamor confined exclusively to the +trial by military tribunals of justice of traitorous spies, traitorous +conspirators, and assassins hired to do secretly what the armed rebel +attempts to do openly--murder your nationality by assassinating its +defenders and its executive officers? Nothing can be clearer than that +the rebel captured prisoner, being a citizen of the republic, is as +much entitled to trial by jury before he is committed to prison, as +the spy, or the aider and abetter of the treason by conspiracy and +assassination, being a citizen, is entitled to such trial by jury, +before he is subjected to the just punishment of the law for his +great crime. I think that in time of war the remark of Montesquieu, +touching the civil judiciary is true: that "it is next to nothing." +Hamilton well said, "The Executive holds the sword of the community; +the judiciary has no direction of the strength of society; it has +neither force nor will; it has judgment alone, and is dependent for the +execution of that upon the arm of the Executive." The people of these +States so understood the Constitution and adopted it, and intended +thereby, without limitation or restraint, to empower their Congress +and Executive to authorize by law, and execute by force, whatever the +public safety might require to suppress rebellion or repel invasion. + +Notwithstanding all that has been said by the counsel for the accused +to the contrary, the Constitution has received this construction from +the day of its adoption to this hour. The Supreme Court of the United +States has solemnly decided that the Constitution has conferred upon +the government authority to employ all the means necessary to the +faithful execution of all the powers which that Constitution enjoins +upon the government of the United States, and upon every department and +every officer thereof. Speaking of that provision of the Constitution +which provides that "Congress shall have power to make all laws that +may be necessary and proper to carry into effect all powers granted to +the government of the United States, or to any department or officer +thereof," Chief Justice Marshall, in his great decision in the case of +McCulloch _vs._ State of Maryland, says:-- + + "The powers given to the government imply the ordinary means + of execution, and the government, in all sound reason and fair + interpretation, must have the choice of the means which it + deems the most convenient and appropriate to the execution of + the power.... The powers of the government were given for the + welfare of the nation; they were intended to endure for ages to + come, and to be adapted to the various crises in human affairs. + To prescribe the specific means by which government should, in + all future time, execute its power, and to confine the choice + of means to such narrow limits as should not leave it in the + power of Congress to adopt any which might be appropriate and + conducive to the end, would be most unwise and pernicious."--4 + Wheaton, 420. + +Words fitly spoken! which illustrated at the time of their utterance +the wisdom of the Constitution in providing this general grant of +power to meet every possible exigency which the fortunes of war might +cast upon the country, and the wisdom of which words, in turn, has +been illustrated to-day by the gigantic and triumphant struggle +of the people during the last four years for the supremacy of the +Constitution, and in exact accordance with its provisions. In the light +of these wonderful events, the words of Pinckney, uttered when the +illustrious Chief Justice had concluded this opinion, "The Constitution +of my country is immortal!" seem to have become words of prophecy. Has +not this great tribunal, through the chief of all its judges, by this +luminous and profound reasoning, declared that the government may by +law authorize the Executive to employ, in the prosecution of war, the +ordinary means, and all the means necessary and adapted to the end? And +in the other decision before referred to, in the 8th of Cranch, arising +during the late war with Great Britain, Mr. Justice Story said:-- + + "When the legislative authority, to whom the right to declare + war is confided, has declared war in its most unlimited + manner, the executive authority, to whom the execution of the + war is confided, is bound to carry it into effect. He has a + discretion vested in him as to the manner and extent, but he + cannot lawfully transcend the rules of warfare established + among civilized nations. He cannot lawfully exercise powers or + authorize proceedings which the civilized world repudiates and + disclaims. The sovereignty, as to declaring war and limiting + its effects, rests with the legislature. The sovereignty as to + its execution rests with the President."--Brown _vs._ United + States, 8 Cranch, 153. + +Has the Congress, to whom is committed the sovereignty of the whole +people to declare war, by legislation restricted the President, +or attempted to restrict him, in the prosecution of this war for +the Union, from exercising all the "powers" and adopting all the +"proceedings" usually approved and employed by the civilized world? He +would, in my judgment, be a bold man who asserted that Congress has so +legislated; and the Congress which should by law fetter the executive +arm when raised for the common defense would, in my opinion, be false +to their oath. That Congress may prescribe rules for the government of +the army and navy and the militia when in actual service, by articles +of war, is an express grant of power in the Constitution which Congress +has rightfully exercised, and which the Executive must and does obey. +That Congress may aid the Executive by legislation in the prosecution +of a war, civil or foreign, is admitted. That Congress may restrain +the Executive, and arraign, try, and condemn him for wantonly abusing +the great trust, is expressly declared in the Constitution. That +Congress shall pass all laws NECESSARY to enable the Executive +to execute the laws of the Union, suppress insurrection, and repel +invasion, is one of the express requirements of the Constitution, for +the performance of which the Congress is bound by an oath. + +What was the legislation of Congress when treason fired its first +gun on Sumter? By the act of 1795 it is provided that whenever the +laws of the United States shall be opposed, or the execution thereof +obstructed, in any State, by combinations too powerful to be suppressed +by the ordinary course of judicial proceeding or by the powers vested +in the marshals, it shall be lawful by this act for the President to +call forth the militia of such State, or of any other State or States, +as may be necessary to suppress such combinations and to cause the laws +to be executed (1st Statutes at Large, 424). By the act of 1807 it +is provided that in case of insurrection or obstruction to the laws, +either of the United States or of any individual State or territory, +where it is lawful for the President of the United States to call forth +the militia for the purpose of suppressing such insurrection or of +causing the laws to be duly executed, it shall be lawful for him to +employ for such purpose such part of the land or naval forces of the +United States as shall be judged necessary (2d Statutes at Large, 443). + +Can any one doubt that by these acts the President is clothed with +full power to determine whether armed insurrection exists in any State +or territory of the Union; and if so, to make war upon it with all +the force he may deem necessary or be able to command? By the simple +exercise of this great power it necessarily results that he may, in +the prosecution of the war for the suppression of such insurrection, +suspend as far as may be necessary the civil administration of justice +by substituting in its stead martial law, which is simply the common +law of war. If in such a moment the President may make no arrests +without civil warrant, and may inflict no violence or penalties on +persons (as is claimed here for the accused), without first obtaining +the verdict of juries and the judgment of civil courts, then is this +legislation a mockery, and the Constitution, which not only authorized +but enjoined its enactment, but a glittering generality and a splendid +bauble. Happily, the Supreme Court has settled all controversy on this +question. In speaking of the Rhode Island insurrection, the court say:-- + + "The Constitution of the United States, as far as it has + provided for an emergency of this kind and authorized the + general government to interfere in the domestic concerns of a + State, has treated the subject as political in its nature and + placed the power in the hands of that department." ... "By the + act of 1795 the power of deciding whether the exigency has + arisen upon which the government of the United States is bound + to interfere is given to the President." + +The court add:-- + + "When the President has acted and called out the militia, is + a circuit court of the United States authorized to inquire + whether his decision was right? If it could, then it would + become the duty of the court, provided it came to the + conclusion that the President had decided incorrectly, to + discharge those who were arrested or detained by the troops in + the service of the United States." ... "If the judicial power + extends so far, the guarantee contained in the Constitution + of the United States is a guarantee of anarchy and not of + order." ... "Yet if this right does not reside in the courts + when the conflict is raging, if the judicial power is at that + time bound to follow the decision of the political, it must + be equally bound when the contest is over. It cannot, when + peace is restored, punish as offenses and crimes the acts + which it before recognized and was bound to recognize as + lawful."--Luther _vs._ Borden, 7 Howard, 42, 43. + +If this be law, what becomes of the volunteer advice of the volunteer +counsel, by him given without money and without price, to this court, +of their responsibility--their _personal_ responsibility, for obeying +the orders of the President of the United States in trying persons +accused of the murder of the Chief Magistrate and Commander-in-Chief +of the army and navy of the United States in time of rebellion, and in +pursuance of a conspiracy entered into with the public enemy? I may be +pardoned for asking the attention of the court to a further citation +from this important decision, in which the court say, the employment +of military power to put down an armed insurrection "is essential to +the existence of every government, and is as necessary to the States +of this Union as to any other government; and if the government of the +State deem the armed opposition so formidable as to require the use of +military force and the declaration of MARTIAL LAW, we see no +ground upon which this court can question its authority" (_Ibid_). This +decision in terms declared that under the act of 1795 the President +had power to decide and did decide the question so as to exclude +further inquiry whether the State government which thus employed +force and proclaimed martial law was the government of the State, and +therefore was permitted to act. If a State may do this to put down +armed insurrection, may not the federal government as well? The reason +of the man who doubts it may justly be questioned. I but quote the +language of that tribunal, in another case before cited, when I say the +Constitution confers upon the President the whole executive power. + +We have seen that the proclamation of blockade made by the President +was affirmed by the Supreme Court as a lawful and valid act, although +its direct effect was to dispose of the property of whoever violated +it, whether citizen or stranger. It is difficult to perceive what +course of reasoning can be adopted, in the light of that decision, +which will justify any man in saying that the President had not the +like power to proclaim martial law in time of insurrection against the +United States, and to establish, according to the customs of war among +civilized nations, military tribunals of justice for its enforcement +and for the punishment of all crimes committed in the interests of the +public enemy. + +These acts of the President have, however, all been legalized by the +subsequent legislation of Congress, although the Supreme Court decided, +in relation to the proclamation of blockade, that no such legislation +was necessary. By the act of August 6, 1861, ch. 63, sec. 3, it is +enacted that-- + + "All the acts, proclamations, and orders of the President of + the United States, after the 4th of March, 1861, respecting + the army and navy of the United States, and calling out, or + relating to, the militia or volunteers from the States, are + hereby approved in all respects, legalized, and made valid + to the same extent and with the same effect as if they had + been issued and done under the previous express authority and + direction of the Congress of the United States."--12 Statutes + at Large, 326. + +This act legalized, if any such legalization was necessary, all that +the President had done from the day of his inauguration to that hour, +in the prosecution of the war for the Union. He had suspended the +privilege of the writ of _habeas corpus_, and resisted its execution +when issued by the Chief Justice of the United States; he had called +out and accepted the services of a large body of volunteers for a +period not previously authorized by law; he had declared a blockade +of the Southern ports; he had declared the Southern States in +insurrection; he had ordered the armies to invade them and suppress it; +thus exercising, in accordance with the laws of war, power over the +life, the liberty, and the property of the citizens. Congress ratified +it and affirmed it. + +In like manner and by subsequent legislation did the Congress ratify +and affirm the proclamation of martial law of September 25, 1862. That +proclamation, as the court will have observed, declares that during +the existing insurrection all rebels and insurgents, their aiders +and abettors within the United States, and all persons guilty of any +disloyal practice affording aid and comfort to the rebels against +the authority of the United States, shall be subject to martial law +and liable to trial and punishment by courts-martial or _military +commission_; and second, that the writ of _habeas corpus_ is suspended +in respect to all persons arrested, or who are now, or hereafter during +the rebellion shall be, imprisoned in any fort, etc., by any military +authority, or by the sentence of any court-martial or _military +commission_. + +One would suppose that it needed no argument to satisfy an intelligent +and patriotic citizen of the United States that, by the ruling of the +Supreme Court cited, so much of this proclamation as declares that all +rebels and insurgents, their aiders and abettors, shall be subject to +martial law and be liable to trial and punishment by court-martial or +military commission, needed no ratification by Congress. Every step +that the President took against rebels and insurgents was taken in +pursuance of the rules of war and was an exercise of martial law. Who +says that he should not deprive them, by the authority of this law, +of life and liberty? Are the aiders and abettors of these insurgents +entitled to any higher consideration than the armed insurgents +themselves? It is against these that the President proclaimed martial +law, and against all others who were guilty of any disloyal practice +affording aid and comfort to rebels against the authority of the United +States. Against these he suspended the privilege of the writ of _habeas +corpus_; and these, and only such as these, were by that proclamation +subjected to trial and punishment by court-martial or military +commission. + +That the Proclamation covers the offense charged here, no man will, +or dare, for a moment deny. Was it not a disloyal practice? Was it +not aiding and abetting the insurgents and rebels to enter into a +conspiracy with them to kill and murder, within your capital and your +intrenched camp, the Commander-in-Chief of our army, your Lieutenant +General, and the Vice-President, and the Secretary of State, with +intent thereby to aid the rebellion, and subvert the Constitution and +laws of the United States? But it is said that the President could not +establish a court for their trial, and therefore Congress must ratify +and affirm this Proclamation. I have said before that such an argument +comes with ill grace from the lips of him who declared as solemnly +that neither by the Congress nor by the President could either the +rebel himself or his aider or abettor be lawfully and constitutionally +subjected to trial by any military tribunal, whether court-martial +or military commission. But the Congress did ratify, in the exercise +of the power vested in them, every part of this Proclamation. I have +said, upon the authority of the fathers of the Constitution, and of +its judicial interpreters, that Congress has power by legislation to +aid the Executive in the suppression of rebellion, in executing the +laws of the Union when resisted by armed insurrection, and in repelling +invasion. + +By the act of March 3, 1863, the Congress of the United States, by the +first section thereof, declared that during the present rebellion the +President of the United States, whenever in his judgment the public +safety may require it, is authorized to suspend the writ of _habeas +corpus_ in any case throughout the United States or any part thereof. +By the fourth section of the same act it is declared that any order +of the President, or under his authority, made at any time during the +existence of the present rebellion, shall be a defense in all courts +to any action or prosecution, civil or criminal, pending or to be +commenced, for any search, seizure, arrest, or imprisonment, made, +done, or committed, or acts omitted to be done, under and by virtue +of such order. By the fifth section it is provided that, if any suit +or prosecution, civil or criminal, has been or shall be commenced in +any State court against any officer, civil or military, or against any +other person, for any arrest or imprisonment made, or other trespasses +or wrongs done or committed, or any act omitted to be done at any +time during the present rebellion, by virtue of or under color of any +authority derived from or exercised by or under the President of the +United States, if the defendant shall, upon appearance in such court, +file a petition stating the facts upon affidavit, etc., as aforesaid, +for the removal of the cause for trial to the circuit court of the +United States, it shall be the duty of the State court, upon his giving +security, to proceed no further in the cause or prosecution; thus +declaring that all orders of the President, made at any time during +the existence of the present rebellion, and all acts done in pursuance +thereof, shall be held valid in the courts of justice. Without further +inquiry, these provisions of this statute embrace Order 141, which is +the proclamation of martial law, and necessarily legalize every act +done under it, either before the passage of the act of 1863 or since. +Inasmuch as that Proclamation ordered that all rebels, insurgents, +their aiders and abettors, and persons guilty of any disloyal practice +affording aid and comfort to rebels against the authority of the +United States, at any time during the existing insurrection, should +be subject to martial law, and liable to trial and punishment by a +_military commission_, the sections of the law just cited declaring +lawful all acts done in pursuance of such order, including, of course, +the trial and punishment by military commission of all such offenders, +as directly legalized this order of the President as it is possible +for Congress to legalize or authorize any executive act whatever.--12 +Statutes at Large, 755, 756. + +But after assuming and declaring with great earnestness in his +argument that no person could be tried and convicted for such crimes +by any military tribunal, whether a court-martial or a military +commission, save those in the land or naval service in time of war, +the gentleman makes the extraordinary statement that the creation of a +military commission must be authorized by the legislative department, +and demands, if there be any such legislation, "let the statute be +produced." The statute has been produced. The power so to try, says the +gentleman, must be authorized by Congress, when the demand is made for +such authority. Does not the gentleman thereby give up his argument, +and admit, that if the Congress has so authorized the trial of all +aiders and abettors of rebels or insurgents for whatever they do in aid +of such rebels and insurgents during the insurrection, the statute and +proceedings under it are lawful and valid? I have already shown that +the Congress have so legislated by expressly legalizing Order No. 141, +which directed the trial of all rebels, their aiders and abettors, by +military commission. Did not Congress expressly legalize this order by +declaring that the order shall be a defense in all courts to any action +or prosecution, civil or criminal, for acts done in pursuance of it? +No amount of argument could make this point clearer than the language +of the statute itself. But, says the gentleman, if there be a statute +authorizing trials by military commission, "let it be produced." + +By the act of March 3, 1863, it is provided in section thirty that in +time of war, insurrection, or rebellion, murder and assault with intent +to kill, etc., when committed by persons in the military service, +shall be punishable by the sentence of a court-martial or _military +commission_, and the punishment of such offenses shall never be less +than those inflicted by the laws of the State or district in which +they may have been committed. By the thirty-eighth section of the same +act it is provided that all persons who, in time of war or rebellion +against the United States, shall be found lurking or acting as spies +in or about the camps, etc., of the United States, or elsewhere, shall +be triable by a _military commission_, and shall, upon conviction, +suffer death. Here is a statute which expressly declares that all +persons, whether citizens or strangers, who in time of rebellion shall +be found acting as spies, shall suffer death upon conviction by a +military commission. Why did not the gentleman give us some argument +upon this law? We have seen that it was the existing law of the United +States under the Confederation. Then, and since, men not in the land +or naval forces of the United States have suffered death for this +offense upon conviction by courts-martial. If it was competent for +Congress to authorize their trial by courts-martial, it was equally +competent for Congress to authorize their trial by military commission, +and accordingly they have done so. By the same authority the Congress +may extend the jurisdiction of military commissions over all military +offenses or crimes committed in time of rebellion or war in aid of +the public enemy; and it certainly stands with right reason, that +if it were just to subject to death, by the sentence of a military +commission, all persons who should be guilty merely of lurking as +spies in the interests of the public enemy in time of rebellion, though +they obtained no information, though they inflicted no personal injury, +but were simply overtaken and detected in the endeavor to obtain +intelligence for the enemy, those who enter into conspiracy with the +enemy, not only to lurk as spies in your camp, but to lurk there as +murderers and assassins, and who, in pursuance of that conspiracy, +commit assassination and murder upon the Commander-in-Chief of your +army within your camp and in aid of rebellion, should be subject in +like manner to trial by military commission.--Statutes at Large 12, +736, 737, ch. 8. + +Accordingly, the President having so declared, the Congress, as we +have stated, have affirmed that his order was valid, and that all +persons acting by authority, and consequently as a court pronouncing +such sentence upon the offender as the usage of war requires, are +justified by the law of the land. With all respect, permit me to say +that the learned gentleman has manifested more acumen and ability in +his elaborate argument by what he has omitted to say than by anything +which he has said. By the act of July 2, 1864, cap. 215, it is +provided that the commanding general in the field, or the commander +of the department, as the case may be, shall have power to carry into +execution all sentences against guerilla marauders for robbery, arson, +burglary, etc., and for violation of the laws and customs of war, as +well as sentences against spies, mutineers, deserters, and murderers. + +From the legislation I have cited, it is apparent that military +commissions are expressly recognized by the law-making power; that they +are authorized to try capital offenses against citizens not in the +service of the United States, and to pronounce the sentence of death +upon them; and that the commander of a department, or the commanding +general in the field, may carry such sentence into execution. But, +says the gentleman, grant all this to be so; Congress has not declared +in what manner the court shall be constituted. The answer to that +objection has already been anticipated in the citation from Benèt, +wherein it appeared to be the rule of the law martial that in the +punishment of all military offenses not provided for by the written +law of the land, military commissions are constituted for that purpose +by the authority of the commanding officer or the Commander-in-Chief, +as the case may be, who selects the officers of a court-martial; +that they are similarly constituted, and their proceedings conducted +according to the same general rules. That is a part of the very law +martial which the President proclaimed, and which the Congress has +legalized. The Proclamation has declared that all such offenders shall +be tried by military commissions. The Congress has legalized the same +by the act which I have cited; and by every intendment it must be taken +that, as martial law is by the Proclamation declared to be the rule +by which they shall be tried, the Congress, in affirming the act of +the President, simply declared that they should be tried according to +the customs of martial law; that the commission should be constituted +by the Commander-in-Chief according to the rule of procedure known as +martial law; and that the penalties inflicted should be in accordance +with the laws of war and the usages of nations. Legislation no more +definite than this has been upon your statute-book since the beginning +of the century, and has been held by the Supreme Court of the United +States valid for the punishment of offenders. + +By the thirty-second article of the act of 23d April, 1800, it is +provided that "all crimes committed by persons belonging to the navy +which are not specified in the foregoing articles shall be punished +according to the laws and customs in such cases at sea." Of this +article the Supreme Court of the United States say, that when offences +and crimes are not given in terms or by definition, the want of it may +be supplied by a comprehensive enactment such as the thirty-second +article of the rules for the government of the navy; which means that +courts-martial have jurisdiction of such crimes as are not specified, +but which have been recognized to be crimes and offenses by the usages +in the navies of all nations, and that they shall be punished according +to the laws and customs of the sea.--Dynes _vs._ Hoover, 20 Howard, 82. + +But it is a fact that must not be omitted in the reply which I make to +the gentleman's argument, that an effort was made by himself and others +in the Senate of the United States, on the 3d of March last, to condemn +the arrests, imprisonments, etc., made by order of the President of the +United States in pursuance of his Proclamation, and to reverse, by the +judgment of that body, the law which had been before passed affirming +his action, which effort most signally failed. + +Thus we see that the body which by the Constitution, if the President +had been guilty of the misdemeanors alleged against him in this +argument of the gentleman, would, upon presentation of such charge +in legal form against the President, constitute the high court of +impeachment for his trial and condemnation, has decided the question +in advance, and declared upon the occasion referred to, as they had +before declared by solemn enactment, that this order of the President +declaring martial law and the punishment of all rebels and insurgents, +their aiders and abettors, by military commission, should be enforced +during the insurrection, as the law of the land, and that the offenders +should be tried, as directed, by military commission. It may be said +that this subsequent legislation of Congress, ratifying and affirming +what had been done by the President, can have no validity. Of course +it cannot if neither the Congress nor the Executive can authorize +the proclamation and enforcement of martial law in the suppression +of rebellion for the punishment of all persons committing military +offenses in aid of that rebellion. Assuming, however, as the gentleman +seemed to assume, by asking for the legislation of Congress, that there +is such power in Congress, the Supreme Court of the United States has +solemnly affirmed that such ratification is valid.--2 Black, 671. + +The gentleman's argument is full of citations of English precedent. +There is a late English precedent bearing upon this point--the power of +the legislature, by subsequent enactment, to legalize executive orders, +arrests, and imprisonment of citizens--that I beg leave to commend to +his consideration. I refer to the statute of 11 and 12 Victoria, ch. +35, entitled "An act to empower the lord lieutenant, or other chief +governor or governors of Ireland, to apprehend and detain until the +first day of March, 1849, such persons as he or they shall _suspect_ of +conspiring against her Majesty's person and government," passed July +25, 1848, which statute in terms declares that all and every person and +persons who is, are, or shall be, within that period, within that part +of the United Kingdom of England and Ireland called Ireland at or on +the day the act shall receive her Majesty's royal assent, or after, by +warrant for high treason or treasonable practices, or _suspicion_ of +high treason or treasonable practices, signed by the lord lieutenant, +or other chief governor or governors of Ireland for the time being, +or his or their chief secretary, for such causes as aforesaid, may be +detained in safe custody without bail or main prize, until the first +day of March, 1849; and that no judge or justice shall bail or try any +such person or persons so committed, without order from her Majesty's +privy council, until the said first day of March, 1849, any law or +statute to the contrary notwithstanding. The second section of this +act provides that, in cases where any persons have been, _before_ the +passing of the act, arrested, committed, or detained for such cause by +warrant or warrants signed by the officers aforesaid, or either of +them, it may be lawful for the person or persons to whom such warrants +have been or shall be directed, to detain such person or persons in his +or their custody in any place whatever in Ireland; and that such person +or persons to whom such warrants have been or shall be directed shall +be deemed and taken, to all intents and purposes, lawfully authorized +to take into safe custody and be the lawful jailers and keepers of such +persons so arrested, committed, or detained. + +Here the power of arrest is given by the act of Parliament to the +governor or his secretary; the process of the civil courts was wholly +suspended; bail was denied and the parties imprisoned, and this not +by process of the courts, but by warrant of a chief governor or his +secretary; not for crimes charged to have been committed, but for being +_suspected_ of treasonable practices. Magna Charta, it seems, opposes +no restraint, notwithstanding the parade that is made about it in this +argument, upon the power of the Parliament of England to legalize +arrests and imprisonments made before the passage of the act upon an +executive order, and without colorable authority of statute law, and +to authorize like arrests and imprisonments of so many of six million +of people as such executive officers might _suspect_ of treasonable +practices. + +But, says the gentleman, whatever may be the precedents, English +or American, whatever may be the provisions of the Constitution, +whatever may be the legislation of Congress, whatever may be the +proclamations and orders of the President as Commander-in-Chief, +it is a usurpation and a tyranny in time of rebellion and civil +war to subject any citizen to trial for any crime before military +tribunals, save such citizens as are in the land or naval forces, and +against this usurpation, which he asks this court to rebuke by solemn +decision, he appeals to public opinion. I trust that I set as high +value upon enlightened public opinion as any man. I recognize it as +the reserved power of the people which creates and dissolves armies, +which creates and dissolves legislative assemblies, which enacts and +repeals fundamental laws, the better to provide for personal security +by the due administration of justice. To that public opinion upon this +very question of the usurpation of authority, of unlawful arrests, +and unlawful imprisonments, and unlawful trials, condemnations, and +executions by the late President of the United States, an appeal has +already been taken. On this very issue the President was tried before +the tribunal of the people, that great nation of freemen who cover +this continent, looking out upon Europe from their eastern and upon +Asia from their western homes. That people came to the consideration +of this issue not unmindful of the fact that the first struggle for +the establishment of our nationality could not have been, and was +not, successfully prosecuted without the proclamation and enforcement +of martial law, declaring, as we have seen, that any inhabitant who, +during that war, should kill any loyal citizen, or enter into any +combination for that purpose, should, upon trial and conviction before +a military tribunal, be sentenced as an assassin, traitor, or spy, and +should suffer death, and that in this last struggle for the maintenance +of American nationality the President but followed the example of the +illustrious Father of his Country. Upon that issue the people passed +judgment on the 8th day of last November, and declared that the charge +of usurpation was false. + +From this decision of the people there lies no appeal on this earth. +Who can rightfully challenge the authority of the American people to +decide such questions for themselves? The voice of the people, thus +solemnly proclaimed, by the omnipotence of the ballot in favor of the +righteous order of their murdered President, issued by him for the +common defense, for the preservation of the Constitution, and for the +enforcement of the laws of the Union, ought to be accepted, and will be +accepted, I trust, by all just men, as the voice of God. + +MAY IT PLEASE THE COURT: I have said thus much touching the +right of the people, under their Constitution, in time of civil war and +rebellion, to proclaim through their Executive, with the sanction and +approval of their Congress, martial law, and enforce the same according +to the usage of nations. + +I submit that it has been shown that, by the letter and spirit of +the Constitution, as well as by its contemporaneous construction, +followed and approved by every department of the government, this right +is in the people; that it is inseparable from the condition of war, +whether civil or foreign, and absolutely essential to its vigorous and +successful prosecution; that according to the highest authority upon +constitutional law, the proclamation and enforcement of martial law +are "usual under all governments in time of rebellion"; that our own +highest judicial tribunal has declared this, and solemnly ruled that +the question of the necessity for its exercise rests exclusively with +Congress and the President; and that the decision of the political +departments of the government, that there is an armed rebellion and a +necessity for the employment of military force and martial law in its +suppression concludes the judiciary. + +In submitting what I have said in support of the jurisdiction of +this honorable court, and of its constitutional power to hear and +determine this issue, I have uttered my own convictions; and for their +utterance in defense of my country, and its right to employ all the +means necessary for the common defense against armed rebellion and +secret treasonable conspiracy in aid of such rebellion, I shall neither +ask pardon nor offer apology. I find no words with which more fitly +to conclude all I have to say upon the question of the jurisdiction +and constitutional authority of this court than those employed by the +illustrious Lord Brougham to the House of Peers in the support of +the bill before referred to, which empowered the lord lieutenant of +Ireland, and his deputies, to apprehend and detain, for the period +of seven months or more, all such persons within that island as they +should _suspect_ of conspiracy against her Majesty's person and +government. Said that illustrious man: "A friend of liberty I have +lived, and such will I die; nor care I how soon the latter event may +happen, if I cannot be a friend of liberty without being a friend of +traitors at the same time--a protector of criminals of the deepest +dye--an accomplice of foul rebellion and of its concomitant, civil war, +with all its atrocities and all its fearful consequences."--Hansard's +Debates, 3d series, vol. 100, p. 635. + +MAY IT PLEASE THE COURT: It only remains for me to sum up the +evidence and present my views of the law arising upon the facts in the +case on trial. The questions of fact involved in the issue are:-- + +First, did the accused, or any two of them, confederate and conspire +together as charged? and-- + +Second, did the accused, or any of them, in pursuance of such +conspiracy, and with the intent alleged, commit either or all of the +several acts specified? + +If the conspiracy be established, as laid, it results that whatever +was said or done by either of the parties thereto, in the furtherance +or execution of the common design, is the declaration or act of all +the other parties to the conspiracy; and this, whether the other +parties, at the time such words were uttered or such acts done by their +confederates, were present or absent--here, within the intrenched lines +of your capital, or crouching behind the intrenched lines of Richmond, +or awaiting the results of their murderous plot against their country, +its Constitution and laws, across the border, under the shelter of the +British flag. + +The declared and accepted rule of law in cases of conspiracy is that-- + +"In prosecutions for conspiracy it is an established rule that where +several persons are proved to have combined together for the same +illegal purpose, any act done by one of the party, in pursuance of +the original concerted plan, and in reference to the common object, +is, in the contemplation of law as well as in sound reason, the act +of the whole party; and, therefore, the proof of the act will be +evidence against any of the others who were engaged in the same general +conspiracy, without regard to the question whether the prisoner is +proved to have been concerned in the particular transaction."--Phillips +on Evidence, p. 210. + +The same rule obtains in cases of treason: "If several persons agree +to levy war, some in one place and some in another, and one party do +actually appear in arms, this is a levying of war by all, as well those +who were not in arms as those who were, if it were done in pursuance of +the original concert, for those who made the attempt were emboldened +by the confidence inspired by the general concert, and therefore these +particular acts are in justice imputable to all the rest."--1 East., +Pleas of the Crown, p. 97; Roscoe, 84. + +In _Ex parte Bollman and Swartwout_, 4 Cranch, 126, Marshall, Chief +Justice, rules: "If war be actually levied,--that is, if a body of +men be actually assembled, for the purpose of effecting, by force, a +treasonable purpose,--all those who perform any part, _however minute, +or however remote from the scene of action_, and who are actually +leagued in the general conspiracy, are to be considered as traitors." + +In United States _vs._ Cole _et al_, 5 McLean, 601, Mr. Justice +McLean says: "A conspiracy is rarely, if ever, proved by positive +testimony. When a crime of high magnitude is about to be perpetrated +by a combination of individuals, they do not act openly but covertly +and secretly. The purpose formed is known only to those who enter into +it. Unless one of the original conspirators betray his companions +and give evidence against them, their guilt can be proved only by +circumstantial evidence.... It is said by some writers on evidence that +such circumstances are stronger than positive proof. A witness swearing +positively, it is said, may misapprehend the facts or swear falsely, +but that circumstances cannot lie. + +"The common design is the essence of the charge; and this may be made +to appear when the defendants steadily pursue the same object, whether +acting separately or together, by common or different means, all +leading to the same unlawful result. And where _prima facie_ evidence +has been given of a combination, the acts or confessions of one are +evidence against all.... It is reasonable that where a body of men +assume the attribute of individuality, whether for commercial business +or for the commission of a crime, that the association should be bound +by the acts of one of its members in carrying out the design." + +It is a rule of the law, not to be overlooked in this connection, that +the conspiracy or agreement of the parties, or some of them, to act +in concert to accomplish the unlawful act charged, may be established +either by direct evidence of a meeting or consultation for the illegal +purpose charged, or more usually, from the very nature of the case, by +circumstantial evidence.--2 Starkie, 232. + +Lord Mansfield ruled that it was not necessary to prove the actual +fact of a conspiracy, but that it might be collected from collateral +circumstances.--Parson's Case, 1 W. Blackstone, 392. + +"If," says a great authority on the law of evidence, "on a charge of +conspiracy, it appear that two persons by their acts are pursuing the +same object, and often by the same means, or one performing part of +the act and the other completing it, for the attainment of the same +object, the jury may draw the conclusion there is a conspiracy. If a +conspiracy be formed, and a person join in it afterwards, he is equally +guilty with the original conspirators."--Roscoe, 415. + +"The rule of the admissibility of the acts and declarations of any +one of the conspirators, said or done in furtherance of the common +design, applies in cases as well where only part of the conspirators +are indicted or upon trial as where all are indicted and upon trial. +Thus, upon an indictment for murder, if it appear that others, together +with the prisoner, conspired to commit the crime, the act of one, done +in pursuance of that intention, will be evidence against the rest."--2d +Starkie, 237. + +They are all alike guilty as principals.--Commonwealth _vs._ Knapp, 9 +Pickering, 496; 10 Pickering, 477; 6 Term Reports, 528; 11 East., 584. + +What is the evidence, direct and circumstantial, that the accused, +or either of them, together with John H. Surratt, John Wilkes Booth, +Jefferson Davis, George N. Sanders, Beverly Tucker, Jacob Thompson, +William C. Cleary, Clement C. Clay, George Harper, and George Young, +did combine, confederate, and conspire, in aid of the existing +rebellion, as charged, to kill and murder, within the military +department of Washington, and within the fortified and intrenched +lines thereof, Abraham Lincoln, late, and at the time of the said +combining, confederating, and conspiring, President of the United +States of America and Commander-in-Chief of the army and navy thereof; +Andrew Johnson, Vice-President of the United States; William H. +Seward, Secretary of State of the United States; and Ulysses S. Grant, +Lieutenant General of the armies thereof, and then in command, under +the direction of the President? + +The time, as laid in the charge and specification, when this conspiracy +was entered into, is immaterial, so that it appear by the evidence +that the criminal combination and agreement were formed before the +commission of the acts alleged. That Jefferson Davis, one of the +conspirators named, was the acknowledged chief and leader of the +existing rebellion against the government of the United States, and +that Jacob Thompson, George N. Sanders, Clement C. Clay, Beverly +Tucker, and others named in the specification, were his duly accredited +and authorized agents to act in the interests of said rebellion, are +facts established by the testimony in this case beyond all question. +That Davis, as the leader of said rebellion, gave to those agents, +then in Canada, commissions in blank, bearing the official signature +of his war minister, James A. Seddon, to be by them filled up and +delivered to such agents as they might employ to act in the interests +of the rebellion within the United States, and intended to be a cover +and protection for any crimes they might therein commit in the service +of the rebellion, is also a fact established here, and which no man +can gainsay. Who doubts that Kennedy, whose confession made in view of +immediate death, as proved here, was commissioned by those accredited +agents of Davis to burn the city of New York?--that he was to have +attempted it on the night of the presidential election, and that he +did, in combination with his confederates, set fire to four hotels in +the city of New York on the night of the 25th of November last? Who +doubts that, in like manner, in the interests of the rebellion and by +the authority of Davis, these his agents also commissioned Bennett H. +Young to commit arson, robbery, and the murder of unarmed citizens, +in St. Albans, Vt.? Who doubts, upon the testimony shown, that Davis, +by his agents, deliberately adopted the system of starvation for the +murder of our captive soldiers in his hands; or that, as shown by the +testimony, he sanctioned the burning of hospitals and steamboats, the +property of private persons, and paid therefor from his stolen treasure +the sum of thirty-five thousand dollars in gold? By the evidence +of Joseph Godfrey Hyams it is proved that Thompson, the agent of +Jefferson Davis, paid him money for the service he rendered in the +infamous and fiendish project of importing pestilence into our camps +and cities to destroy the lives of citizens and soldiers alike, and +into the house of the President for the purpose of destroying his life. +It may be said, and doubtless will be said, by the pensioned advocates +of this rebellion, that Hyams, being infamous, is not to be believed. +It is admitted that he is infamous, as it must be conceded that any man +is infamous who either participates in such a crime or attempts in any +wise to extenuate it. But it will be observed that Hyams is supported +by the testimony of Mr. Sanford Conover, who heard Blackburn and the +other rebel agents in Canada speak of this infernal project, and by +the testimony of Mr. Wall, the well-known auctioneer of this city, +whose character is unquestioned, that he received this importation of +pestilence (of course without any knowledge of the purpose), and that +Hyams consigned the goods to him in the name of J. W. Harris, a fact +in itself an acknowledgment of guilt; and that he received afterwards +a letter from Harris, dated Toronto, Canada West, December 1, 1864, +wherein Harris stated that he had not been able to come to the States +since his return to Canada, and asked for an account of the sale. He +identifies the Godfrey Joseph Hyams who testified in court as the J. +W. Harris who imported the pestilence. The very transaction shows +that Hyams's statement is truthful. He gives the names of the parties +connected with this infamy (Clement C. Clay, Dr. Blackburn, Rev. Dr. +Stuart Robinson, J. C. Holcombe--all refugees from the Confederacy +in Canada), and states that he gave Thompson a receipt for the fifty +dollars paid to him, and that he was by occupation a shoemaker; in none +of which facts is there an attempt to discredit him. It is not probable +that a man in his position in life would be able to buy five trunks +of clothing, ship them all the way from Halifax to Washington, and +then order them to be sold at auction, without regard to price, solely +upon his own account. It is a matter of notoriety that a part of his +statement is verified by the results at New Berne, N.C., to which point +he says a portion of the infected goods were shipped, through a sutler; +the result of which was, that nearly two thousand citizens and soldiers +died there about that time with yellow fever. + +That the rebel chief, Jefferson Davis, sanctioned these crimes, +committed and attempted through the instrumentality of his accredited +agents in Canada--Thompson, Clay, Tucker, Sanders, Cleary, etc.,--upon +the persons and property of the people of the North, their is positive +proof on your record. The letter brought from Richmond, and taken from +the archives of his late pretended government there, dated February +11, 1865, and addressed to him by the late rebel senator from Texas, +W. S. Oldham, contains the following significant words: "When Senator +Johnson, of Missouri, and myself waited on you a few days since, in +relation to the project of annoying and harassing the enemy by means +of burning their shipping, towns, etc., etc., there were several +remarks made by you upon the subject which I was not fully prepared to +answer, but which, upon subsequent conference with parties proposing +the enterprise, I find cannot apply as objections to the scheme. +First, the 'combustible materials' consist of several preparations, +and not one alone, and can be used without exposing the party using +them to the least danger of detection whatever.... Second, there is no +necessity for sending persons in the military service into the enemy's +country, but the work may be done by agents.... I have seen enough of +the effects that can be produced to satisfy me that in most cases, +without any danger to the parties engaged, and in others but very +slight, we can, first, burn every vessel that leaves a foreign port +for the United States; second, we can burn every transport that leaves +the harbor of New York, or other Northern port, with supplies for +the armies of the enemy in the South; third, burn every transport and +gunboat on the Mississippi River, as well as devastate the country of +the enemy and fill his people with terror and consternation.... For the +purpose of satisfying your mind upon the subject, I respectfully, but +earnestly, request that you will give an interview with General Harris, +formerly a member of Congress from Missouri, who, I think, is able, +from conclusive proofs, to convince you that what I have suggested is +perfectly feasible and practicable." + +No one can doubt, from the tenure of this letter, that the rebel Davis +only wanted to be satisfied that this system of arson and murder +could be carried on by his agents in the North successfully and +without detection. With him it was not a crime to do these acts, but +only a crime to be detected in them. But Davis, by his indorsement +on this letter, dated the 20th of February, 1865, bears witness +to his own complicity and his own infamy in this proposed work of +destruction and crime for the future, as well as to his complicity +in what had before been attempted without complete success. Kennedy, +with his confederates, had failed to burn the city of New York. "The +combustibles" which Kennedy had employed were, it seems, defective. +This was "a difficulty to be overcome." Neither had he been able to +consummate the dreadful work without subjecting himself _to detection_. +This was another "_difficulty_ to be overcome." Davis, on the 20th of +February, 1865, indorsed upon this letter these words: "Secretary of +State, at his convenience, see General Harris and learn what plan he +has for _overcoming the difficulties heretofore experienced_. _J. D._" + +This indorsement is unquestionably proved to be the handwriting of +Jefferson Davis, and it bears witness on its face that the monstrous +proposition met his approval, and that he desired his rebel Secretary +of State, Benjamin, to see General Harris and learn how to overcome +_the difficulty heretofore experienced_, to wit: the inefficiency +of "the combustible materials" that had been employed, and the +liability of his agents to detection. After this, who will doubt +that he had endeavored, by the hand of incendiaries, to destroy by +fire the property and lives of the people of the North, and thereby +"fill them with terror and consternation"; that he knew his agents +had been unsuccessful; that he knew his agents had been detected in +their villainy and punished for their crime; that he desired through +a more perfect "chemical-preparation," by the science and skill of +Professor McCulloch, to accomplish successfully what had before been +unsuccessfully attempted? + +The intercepted letter of his agent, Clement C. Clay, dated St. +Catherine's, Canada West, November 1, 1864, is an acknowledgment and +confession of what they had attempted, and a suggestion made through +J. P. Benjamin, rebel Secretary of State, of what remained to be done +in order to make the "chemical preparations" efficient. Speaking of +this Bennett H. Young, he says: "You have doubtless learned through +the press of the United States of the raid on St. Albans by about +twenty-five Confederate soldiers, led by Lieut. Bennett H. Young; of +their attempt and failure to burn the town; of their robbery of three +banks there of the aggregate amount of about two hundred thousand +dollars; of their arrest in Canada by United States forces; of their +commitment and the pending preliminary trial." He makes application, in +aid of Young and his associates, for additional documents, showing that +they acted upon the authority of the Confederate States government, +taking care to say, however, that he held such authority at the time, +but that it ought to be more explicit so far as regards the particular +acts complained of. He states that he met Young at Halifax in May, +1864, who developed his plans for retaliation on the enemy; that he, +Clay, recommended him to the rebel Secretary of War; that after this +"Young was sent back by the Secretary of War with a commission as +second lieutenant to execute his plans and purposes, but to report +to Hon. ---- and myself." Young afterwards "proposed passing through +New England, burning some towns and robbing them of whatever he could +convert to the use of the Confederate government. This I approved as +justifiable retaliation. He attempted to burn the town of St. Albans, +Vt., and would have succeeded but for the failure of the _chemical +preparation_ with which he was armed. He then robbed the banks of +funds amounting to over two hundred thousand dollars. That he was not +prompted by selfish or mercenary motives I am as well satisfied as I am +that he is an honest man. He assured me before going that his effort +would be to destroy towns and farm-houses, but not to plunder or rob; +but he said if, after firing a town, he saw he could take _funds_ +from a bank or any house, and thereby might inflict injury upon the +enemy and benefit his own government, he would do so. He added most +emphatically, that _whatever_ he took should be turned over to the +government or _its representatives in foreign lands_. My instructions +to him were to destroy whatever was valuable; not to stop to rob, but +if, after firing a town, he could seize and carry off money or treasury +or bank notes, he might do so upon condition that they were delivered +to the proper authorities of the Confederate States"--that is, to Clay +himself. + +When he wrote this letter it seems that this accredited agent of +Jefferson Davis was as strongly impressed with the _usurpation and +despotism_ of Mr. Lincoln's administration as some of _the advocates_ +of his aiders and abettors seem to be at this day; and he indulges in +the following statement: "All that a large portion of the Northern +people, especially in the northwest, want to resist the _oppressions_ +of the _despotism_ at Washington is a _leader_. They are ripe for +resistance, _and it may come soon after the presidential election_. At +all events, it must come if our armies are not overcome, or destroyed, +or dispersed. No people of the Anglo-Saxon blood can long endure +_the usurpations and tyrannies of Lincoln_." Clay does not sign the +despatch, but indorses the bearer of it as a person who can identify +him and give his name. The bearer of that letter was the witness +Richard Montgomery, who saw Clay write a portion of the letter, and +received it from his hands, and subsequently delivered it to the +Assistant Secretary of War of the United States, Mr. Dana. That the +letter is in Clay's handwriting is clearly proved by those familiar +with it. Mr. Montgomery testifies that he was instructed by Clay to +deliver this letter to Benjamin, the rebel Secretary of State, if he +could get through to Richmond, and to tell him what names to put in the +blanks. + +This letter leaves no doubt, if any before existed in the mind of any +one who had read the letter of Oldham and Davis's indorsement thereon, +that "the chemical preparations" and "combustible materials" had been +tried and had failed, and it had become a matter of great moment and +concern that they should be so prepared as, in the words of Davis, "to +overcome the difficulties heretofore experienced"; that is to say, +complete the work of destruction, and secure the perpetrators against +personal injury or detection in the performance of it. + +It only remains to be seen whether Davis, the procurer of arson and of +the indiscriminate murder of the innocent and unoffending necessarily +resultant therefrom, was capable also of endeavoring to procure, and in +fact did procure, the murder, by direct assassination, of the President +of the United States and others charged with the duty of maintaining +the government of the United States, and of suppressing the rebellion +in which this arch-traitor and conspirator was engaged. + +The official papers of Davis, captured under the guns of our victorious +army in his rebel capital, identified beyond question or shadow of +doubt, and placed upon your record, together with the declaration and +acts of his co-conspirators and agents, proclaim to all the world that +he was capable of attempting to accomplish his treasonable procuration +of the murder of the late President, and other chief officers of the +United States, by the hands of hired assassins. + +In the fall of 1864 Lieutenant W. Alston addresses to "his excellency" +a letter now before the court, which contains the following words:-- + + "I now offer you my services, and if you will favor _me in my + designs_ I will proceed, as soon as my health will permit, to + rid _my_ country of some of her deadliest enemies, by striking + at the very _hearts' blood_ of those who seek to enchain her + in slavery. I consider nothing _dishonorable_ having such a + tendency. All I ask of you is, to favor me by granting me + the necessary papers, etc., to travel on.... _I am perfectly + familiar with the North_, and feel confident that I can + _execute_ anything I undertake. I was in the raid last June in + Kentucky, under General John H. Morgan; ... was taken prisoner; + ... escaped from them by dressing myself in the garb of a + citizen.... I went through to the Canadas, from whence, by the + assistance of _Colonel J. P. Holcomb_, I succeeded in working + my way around and through the blockade.... I should like to + have a _personal_ interview with you in order to perfect the + arrangements before starting." + +Is there any room to doubt that this was a proposition to +_assassinate_, by the hand of this man and his associates, such persons +in the North as he deemed the "deadliest enemies" of the rebellion? +The weakness of the man who for a moment can doubt that such was +the proposition of the writer of this letter is certainly an object +of commiseration. What had Jefferson Davis to say to this proposed +assassination of the "deadliest enemies" in the North of his great +treason? Did the atrocious suggestion kindle in him indignation against +the villain who offered, with his own hand, to strike the blow? Not at +all. On the contrary, he ordered his private secretary, on the 29th of +November, 1864, to endorse upon the letter these words: "Lieutenant W. +Alston; accompanied raid into Kentucky, and was captured, but escaped +into _Canada_, from whence he found his way back. Now offers his +services to rid the country of some of its _deadliest enemies_; asks +for papers, etc. Respectfully referred, by direction of the President, +to the honorable Secretary of War." It is also indorsed, for attention, +"by order. (Signed) J. A. Campbell, Assistant Secretary of War." + +Note the fact in this connection, that Jefferson Davis himself, as +well as his subordinates, had, before the date of this indorsement, +concluded that Abraham Lincoln was "the deadliest enemy" of the +rebellion. You hear it in the rebel camp in Virginia, in 1863, +declared by Booth, then and there present, and assented to by rebel +officers, that "Abraham Lincoln must be killed." You hear it in that +slaughter-pen in Georgia--Andersonville--proclaimed among rebel +officers, who, by the slow torture of starvation, inflicted cruel +and untimely death on ten thousand of your defenders, captives in +their hands--whispering, like demons, their horrid purpose, "Abraham +Lincoln must be killed." And in Canada, the accredited agents of +Jefferson Davis, as early as October, 1864, and afterwards, declared +that "Abraham Lincoln must be killed" if his re-election could not +be prevented. These agents in Canada, on the 13th of October, 1864, +delivered, in cipher, to be transmitted to Richmond by Richard +Montgomery, the witness, whose reputation is unchallenged, the +following communication:-- + + "October 13, 1864. + + "We again urge the immense necessity of our gaining immediate + advantages. Strain every nerve for victory. We now look upon + the re-election of _Lincoln_ in November as almost certain, + and we need to whip his hirelings to prevent it. Besides, with + _Lincoln_ re-elected, and his armies victorious, we need not + hope even for recognition, much less the help mentioned in our + last. Holcomb will explain this. Those figures of the Yankee + armies are correct to a unit. _Our friends shall be immediately + set to work as you direct._" + +To which an official reply, in cipher, was delivered to Montgomery by +an agent of the state department in Richmond, dated October 19, 1864, +as follows:-- + + "Your letter of the 13th instant is at hand. There is yet + time enough to colonize many _voters_ before November. A blow + will shortly be stricken here. It is not quite time. General + Longstreet is to attack Sheridan without delay, and then + move north as far as practicable toward unprotected points. + This will be made instead of movement before mentioned. He + will endeavor to assist the _republicans in collecting their + ballots_. Be watchful and assist him." + +On the very day of the date of this Richmond despatch, Sheridan was +attacked, with what success history will declare. The court will +not fail to notice that the _re-election of Mr. Lincoln_ is to be +prevented, if possible, by any and every means. Nor will they fail to +notice that _Holcombe_ is to "explain this"--the same person who, in +Canada, was the friend and advisor of _Alston_, who proposed to Davis +the assassination of the "deadliest enemies" of the rebellion. + +In the despatch of the 13th of October, which was borne by Montgomery, +and transmitted to Richmond in October last, you will find these +words: "Our friends shall be immediately set to work as you direct." +Mr. Lincoln is the subject of that despatch. Davis is therein notified +that his agents in Canada look upon the re-election of Mr. Lincoln in +November as almost certain. In this connection he is assured by those +agents that the _friends_ of their cause are to be set to work as Davis +_had directed_. The conversations, which are proved by witnesses whose +character stands unimpeached, disclose what "work" the "friends" were +to do under the _direction_ of Davis himself. Who were these "friends," +and what was "the work" which his agents, Thompson, Clay, Tucker, and +Sanders, had been directed to set them at? Let Thompson answer for +himself. In a conversation with Richard Montgomery in the summer of +1864, Thompson said that he "_had his friends_, confederates, all over +the Northern States, who were ready and willing to go any lengths for +the good of the cause of the South, and he could at any time have the +_tyrant Lincoln_ or _any other of his advisers_ that he chose _put out +of his way_; that they would not consider it _a crime_ when done for +the cause of the Confederacy." This conversation was repeated by the +witness in the summer of 1864, to Clement C. Clay, who immediately +stated: "That is so; we are all devoted to our cause and ready to go +any length--to do anything under the sun." + +At and about the time that these declarations of Clay and Thompson were +made, _Alston_, who made the proposition, as we have seen, to Davis +to be furnished with papers _to go north_ and rid the Confederacy of +some of its "deadliest enemies," was in Canada. He was doubtless one of +the "friends" referred to. As appears by the testimony of Montgomery, +Payne, the prisoner at your bar, was about that time in Canada, and +was seen standing by Thompson's door, engaged in a conversation with +Clay, between whom and the witness some words were interchanged, when +Clay stated he (Payne) was one of _their friends_--"we trust him." It +is proved beyond a shadow of doubt that in October last John Wilkes +Booth, the assassin of the President, was also in Canada, and upon +intimate terms with Thompson, Clay, Sanders, and other rebel agents. +Who can doubt, in the light of the events which have since transpired, +that he was one of the "friends" to be "set to work," as Davis had +already directed--not, perhaps, as yet to assassinate the President, +but to do that other work which is suggested in the letter of Oldham, +indorsed by Davis in his own hand, and spread upon your record--the +work of a secret incendiary, which was to "fill the people of the +North with terror and consternation." The other "work" spoken of by +Thompson--putting the _tyrant Lincoln and any of his advisers out of +the way_--was work doubtless to be commenced only after the re-election +of Mr. Lincoln, which they had already declared in their despatch to +their employer, Davis, was with them a foregone conclusion. At all +events, it was not until after the presidential election in November +that Alston proposed to Davis to go north on the work of assassination; +nor was it until after that election that Booth was found in possession +of the letter which is in evidence, and which discloses the purpose +to assassinate the President. Being assured, however, when Booth was +with them in Canada, as they had already declared in their despatch, +that the re-election of Mr. Lincoln was certain, in which event there +would be no hope for the Confederacy, they doubtless entered into the +arrangement with Booth as one of their "friends," that as soon as that +fact was determined he should go to "work," and as soon as might be +"rid the Confederacy of the tyrant Lincoln and of his advisers." + +That these persons named upon your record,--Thompson, Sanders, Clay, +Cleary, and Tucker,--were the agents of Jefferson Davis, is another +fact established in this case beyond a doubt. They made affidavit of +it themselves, of record here, upon the examination of their "friends" +charged with the raid upon St. Albans, before Judge Smith, in Canada. +It is in evidence also by the letter of Clay, before referred to. + +The testimony to which I have thus briefly referred shows, by the +letter of his agents of the 13th of October, that Davis had before +directed those agents to set his _friends to work_. By the letter of +Clay it seems that his direction had been obeyed, and his friends +had been set to work in the burning and robbery and murder at St. +Albans, in the attempt to burn the city of New York, and in the +attempt to introduce pestilence into this capital and into the house +of the President. It having appeared, by the letter of Alston, and +the indorsement thereon, that Davis had in November entertained the +proposition of sending agents, that is to say "friends," to the North +to not only "spread terror and consternation among the people" by +means of his "chemical preparations," but also, in the words of that +letter, to "strike," by the hands of assassins, "at the heart's blood" +of the deadliest enemies in the North to the Confederacy of traitors; +it has also appeared by the testimony of many respectable witnesses, +among others the attorneys who represented the people of the United +States and the State of Vermont, in the preliminary trial of the +raiders in Canada, that Clay, Thompson, Tucker, Sanders, and Cleary +declared themselves the agents of the Confederacy. It also clearly +appears by the correspondence referred to, and the letter of Clay, that +they were holding, and at any time able to command, blank commissions +from Jefferson Davis to authorize _their friends_ to do whatever work +they appointed them to do in the interests of the rebellion, by the +destruction of life and property in the North. + +If a _prima facie_ case justifies, as we have seen by the law of +evidence it does, the introduction of all declarations and acts of any +of the parties to a conspiracy, uttered or done in the prosecution of +the common design, as evidence against all the rest, it results that +whatever was said or done in furtherance of the common design, after +this month of October, 1864, by either of these agents in Canada, is +evidence not only against themselves, but against Davis as well, of his +complicity with them in the conspiracy. + +Mr. Montgomery testifies that he met Jacob Thompson in January at +Montreal, when he said that "a proposition had been made to him to +rid the world of the tyrant Lincoln, Stanton, Grant, and some others; +that he knew the men who had made the proposition were bold, daring +men, able to execute what they undertook; that he himself was in favor +of the proposition, but had determined to defer his answer until he had +consulted his government at Richmond; that he was then only awaiting +their approval." This was about the middle of January, and consequently +more than a month after Alston had made his proposition direct to +Davis, in writing, to go north and rid their Confederacy of some of +its "deadliest enemies." It was at the time of this conversation that. +Payne, the prisoner, was seen by the witness standing at Thompson's +door in conversation with Clay. This witness also shows the intimacy +between Thompson, Clay, Cleary, Tucker, and Sanders. + +A few days after the assassination of the President, Beverly Tucker +said to this witness "that President Lincoln deserved his death long +ago; that it was a pity he didn't have it long ago, and it was too bad +that the boys had not been allowed to act when they wanted to." + +This remark undoubtedly had reference to the propositions made in the +fall to Thompson, and also to Davis, to rid the South of its deadliest +enemies by their assassination. Cleary, who was accredited by Thompson +as his confidential agent, also stated to this witness that Booth was +one of the party to whom Thompson had referred in the conversation in +January, in which he said he knew the men who were ready to rid the +world of the tyrant Lincoln, and of Stanton and Grant. Cleary also +said, speaking of the assassination, "that it was a pity that the whole +work had not been done," and added, "they had better look out--we +are not done yet"; manifestly referring to the statement made by his +employer, Thompson, before in the summer, that not only the tyrant +Lincoln, but Stanton and Grant, and others of his advisers, should be +put out of the way. Cleary also stated to this witness that Booth had +visited Thompson twice in the winter, the last time in December, and +had also been there in the summer. + +Sanford Conover testified that he had been for some time a clerk in +the war department at Richmond; that in Canada he knew Thompson, +Sanders, Cleary, Tucker, Clay, and other rebel agents; that he knew +John H. Surratt and John Wilkes Booth; that he saw Booth there upon +one occasion, and Surratt upon several successive days; that he saw +Surratt (whom he describes) in April last in Thompson's room, and +also in company with Sanders; that about the 6th or 7th of April, +Surratt delivered to Jacob Thompson a despatch brought by him from +Benjamin at Richmond, enclosing one in cipher from Davis. Thompson had +before this proposed to Conover to engage in a plot to assassinate +President Lincoln and his cabinet, and on this occasion he laid his +hand upon these despatches and said, "This makes the thing all right," +referring to the assent of the rebel authorities, and stated that the +rebel authorities had consented to the plot to assassinate Lincoln, +Johnson, the Secretary of War, Secretary of State, Judge Chase, and +General Grant. Thompson remarked further that the assassination of +these parties would leave the government of the United States entirely +without a head; that there was no provision in the Constitution of the +United States by which they could elect another President if these men +were put out of the way. + +In speaking of this assassination of the President and others, Thompson +said that it was only removing them from office, that the killing of a +tyrant was no murder. It seems that he had learned precisely the same +lesson that Alston had learned in November, when he communicated with +Davis, and said, speaking of the President's assassination, "he did not +think anything dishonorable that would serve their cause." Thompson +stated at the same time that he had conferred a commission on Booth, +and that everybody engaged in the enterprise would be commissioned, and +if it succeeded, or failed, and they escaped into Canada, they could +not be reclaimed under the extradition treaty. The fact that Thompson +and other rebel agents held blank commissions, as I have said, has been +proved, and a copy of one of them is of record here. + +This witness also testifies to a conversation with William C. Cleary, +shortly after the surrender of Lee's army, and on the day before the +President's assassination, at the St. Lawrence Hotel, Montreal, when +speaking of the rejoicing in the States over the capture of Richmond, +Cleary said, "they would put the laugh on the other side of their +mouth _in a day or two_." These parties knew that Conover was in the +secret of the assassination, and talked with him about it as freely +as they would speak of the weather. Before the assassination he had a +conversation also with Sanders, who asked him if he knew Booth well, +and expressed some apprehension that Booth would "make a failure of it; +that he was desperate and reckless, and he was afraid the whole thing +would prove a failure." + +Dr. James D. Merritt testifies that George Young, one of the parties +named in the record, declared in his presence, in Canada, last fall, +that Lincoln should never be inaugurated; that they had friends in +Washington who, I suppose, were some of the same friends referred to in +the despatch of October 13, and which Davis had directed them "to set +to work." George N. Sanders also said to him "that Lincoln would keep +himself mighty close if he did serve another term"; while Steele and +other Confederates declared that the tyrant never should serve another +term. He heard the assassination discussed at a meeting of these rebel +agents in Montreal in February last. "Sanders said they had _plenty +of money_ to accomplish the assassination, and named over a number of +persons who were ready and willing to engage in undertaking to remove +the President, Vice-President, the cabinet, and some of the leading +generals. At this meeting he read a letter which he had received from +Davis, which justified him in making any arrangements that he could to +accomplish the object." This letter the witness heard read, and it, in +substance, declared that if the people in Canada and the Southerners +in the States were willing to submit to be governed by such a tyrant +as Lincoln, he didn't wish to recognize them as friends. The letter +was read openly; it was also handed to Colonel Steele, George Young, +Hill, and Scott, to be read. This was about the middle of February +last. At this meeting Sanders named over the persons who were willing +to accomplish the assassination, and among the persons thus named was +Booth, whom the witness had seen in Canada in October; also George +Harper, one of the conspirators named on the record, Caldwell, Randall, +Harrison, and Surratt. + +The witness understood, from the reading of the letter, that if the +President, Vice-President, and cabinet could be disposed of it would +satisfy the people of the North that the Southerners had _friends_ in +the North; that a peace could be obtained on better terms; that the +rebels had endeavored to bring about a war between the United States +and England, and that Mr. Seward, through his energy and sagacity, had +thwarted all their efforts; that was given as a reason for removing +him. On the 5th or 6th of last April this witness met George Harper, +Caldwell, Randall, and others, who are spoken of in this meeting at +Montreal as engaged to assassinate the President and cabinet, when +Harper said they were going to the States to make a row such as had +never been heard of, and added that "if I (the witness) did not hear +of the death of Old Abe, of the Vice-President, and of General Dix in +less than ten days I might put him down as a fool. That was on the 6th +of April. He mentioned that Booth was in Washington at that time. He +said they had plenty of friends in Washington, and that some fifteen or +twenty were going." + +This witness ascertained, on the 8th of April, that Harper and others +had left for the States. The proof is that these parties could come +through to Washington from Montreal or Toronto in thirty-six hours. +They did come, and within the ten days named by Harper the President +was murdered! Some attempts have been made to discredit this witness +(Dr. Merritt), not by the examination of witnesses in court, not by +any apparent want of truth in the testimony, but by the _ex parte_ +statements of these rebel agents in Canada and their hired advocates +in the United States. There is a statement upon the record verified +by an official communication from the War Department, which shows +the truthfulness of this witness, and that is, that before the +assassination, learning that Harper and his associates had started +for the States, informed as he was of their purpose to assassinate +the President, cabinet, and leading generals, Merritt deemed it his +duty to call, and did call, on the 10th of April, upon a justice of +the peace in Canada, named Davidson, and gave him the information that +he might take steps to stop these proceedings. The correspondence on +this subject with Davidson has been brought into court. Dr. Merritt +testifies further that after this meeting in Montreal he had a +conversation with Clement C. Clay, in Toronto, about the letter from +Jefferson Davis which Sanders had exhibited, in which conversation +Clay gave the witness to understand that he knew the nature of the +letter perfectly, and remarked that he thought "the end would justify +the means." The witness also testifies to the presence of Booth with +Sanders in Montreal last fall, and of Surratt in Toronto in February +last. + +The court must be satisfied by the manner of this and other witnesses +to the transactions in Canada, as well as by the fact that they are +wholly uncontradicted in any material matter that they state, that +they speak the truth, and that the several parties named on your +record--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, William H. Seward, and +Ulysses S. Grant. That this agreement was substantially entered into +by Booth and the agents of Davis in Canada as early as October there +cannot be any doubt. The language of Thompson at that time and before +was, that he was in favor of the assassination. His further language +was that he knew the men who were ready to do it; and Booth it was +shown was there at that time, and, as Thompson's secretary says, was +one of the men referred to by Thompson. + +The fact that others, besides the parties named on the record, were, +by the terms of the conspiracy to be assassinated in no wise affects +the case now on trial. If it is true that these parties did conspire +to murder other parties, as well as those named upon the record, the +substance of the charge is proved. + +It is also true that if, in pursuance of that conspiracy, Booth, +confederated with Surratt and the accused, killed and murdered Abraham +Lincoln, the charge and specification is proved literally as stated on +your record, although their conspiracy embraced other persons. In law +the case stands, though it may appear that the conspiracy was to kill +and murder the parties named in the record and others not named in the +record. If the proof is that the accused, with Booth, Surratt, Davis, +etc., conspired to kill and murder one or more of the persons named, +the charge of the conspiracy is proved. + +The declaration of Sanders, as proved, that there was plenty of money +to carry out this assassination, is very strongly corroborated by the +testimony of Mr. Campbell, cashier of the Ontario Bank, who states +that Thompson, during the current year preceding the assassination, had +upon deposit in the Montreal branch of the Ontario Bank six hundred and +forty-nine thousand dollars, beside large sums to his credit in other +banks in the province. + +There is a further corroboration of the testimony of Conover as to the +meeting of Thompson and Surratt in Montreal, and the delivery of the +despatches from Richmond, on the 6th or 7th of April, first, in the +fact which is shown by the testimony of Chester, that in the winter or +spring Booth said he himself or some other party must go to Richmond, +and second, by the letter of Arnold, dated 27th of March last, that +he preferred Booth's first query, that he would first go to Richmond +and see how they would take it, manifestly alluding to the proposed +assassination of the President. It does not follow because Davis had +written a letter in February which, in substance, approved the general +object, that the parties were fully satisfied with it; because it is +clear there was to be some arrangement made about the funds; and it +is also clear that Davis had not before as distinctly approved and +sanctioned this act as his agents either in Canada or here desired. +Booth said to Chester, "We must have money; there is money in this +business, and if you will enter into it I will place three thousand +dollars at the disposal of your family; but I have no money myself, and +must go to Richmond," or one of the parties must go, "to get money to +carry out the enterprise." This was one of the arrangements that was +to be "made right in Canada." The funds at Thompson's disposal, as the +banker testifies, were exclusively raised by drafts of the secretary of +the treasury of the Confederate States upon London, deposited in their +bank to the credit of Thompson. + +Accordingly, about the 27th of March, Surratt did go to Richmond. On +the 3rd of April he returned to Washington, and the same day left for +Canada. Before leaving, he stated to Wiechmann that when in Richmond he +had had a conversation with Davis and with Benjamin. The fact in this +connection is not to be overlooked, that on or about the day Surratt +arrived in Montreal, April 6, Jacob Thompson, as the cashier of the +Ontario bank states, drew of these Confederate funds the sum of one +hundred and eighty thousand dollars in the form of certificates, which, +as the bank officer testifies, "might be used anywhere." + +What more is wanting? 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. If any additional evidence +is wanting to show the complicity of Davis in it, let the paper found +in the possession of his hired assassin, Booth, come to bear witness +against him. That paper contained the secret cipher which Davis used +in his state department at Richmond which he employed in communicating +with his agents in Canada, and which they employed in the letter of +October 13, notifying him that "their friends would be set to work as +_he had directed_." The letter in cipher found in Booth's possession +is translated here by the use of the cipher machine now in court, +which, as the testimony of Mr. Dana shows, he brought from the rooms +of Davis's state department in Richmond. Who gave Booth this secret +cipher? Of what use was it to him if he was not in confederation with +Davis? + +But there is one other item of testimony that ought, among honest +and intelligent people at all conversant with this evidence, to end +all further inquiry as to whether Jefferson Davis was one of the +parties, with Booth, as charged upon this record, in the conspiracy +to assassinate the President and others. That is that on the fifth +day after the assassination, in the city of Charlotte, N. C., a +telegraphic despatch was received by him, at the house of Mr. Bates, +from John C. Breckinridge, his rebel Secretary of War, which despatch +is produced here, identified by the telegraph agent, and placed upon +your record in the words following:-- + + "GREENSBORO', April 19, 1865. + + "_His Excellency President Davis_:-- + + "President Lincoln was assassinated in the theatre in + Washington on the night of the 14th inst. Seward's house was + entered on the same night and he was repeatedly stabbed, and is + probably mortally wounded. + + "JOHN C. BRECKINRIDGE." + +At the time this despatch was handed to him, Davis was addressing a +meeting from the steps of Mr. Bates's house, and after reading the +despatch to the people, he said: "If it were to be done, it were +_better_ it were well done." Shortly afterwards, in the house of the +witness, in the same city, Breckinridge, having come to see Davis, +stated his regret that the occurrence had happened, because he deemed +it unfortunate for the people of the South at that time. Davis replied, +referring to the assassination, "Well, general, I don't know; if it +were to be done at all, it were _better_ that it were well done; and +if the same had been done to Andy Johnson, the beast, and to Secretary +Stanton, the job would then be _complete_." + +Accomplished as this man was in all the arts of a conspirator, he was +not equal to the task--as happily, in the good providence of God, +no mortal man is--of concealing, by any form of words, any great +crime which he may have meditated or perpetrated either against his +government or his fellow-men. It was doubtless furthest from Jefferson +Davis's purpose to make confession, and yet he did make a confession. +His guilt demanded utterance; that demand he could not resist; +therefore his words proclaimed his guilt, in spite of his purpose to +conceal it. He said, "if it were to be done, it were _better_ it were +_well done_." Would any man ignorant of the conspiracy be able to +devise and fashion such a form of speech as that? Had not the President +been, murdered? Had he not reason to believe that the Secretary of +State had been mortally wounded? Yet he was not satisfied, but was +compelled to say, "it were _better_ it were _well done_"--that is to +say, all that had been agreed to be done had not been done. Two days +afterwards, in his conversation with Breckinridge, he not only repeats +the same form of expression, "if it were to be done it were _better_ +it were _well done_," but adds these words: "And if the same had been +done to Andy Johnson, the beast, and to Secretary Stanton, the _job_ +would _then be complete_." He would accept the assassination of the +President, the Vice-President, of the Secretary of State, and the +Secretary of War, as a complete execution of the "job," which he had +given out upon, contract, and which he had "made all right," so far as +the pay was concerned, by the despatches he had sent to Thompson by +Surratt, one of his hired assassins. 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. +His words of intense hate and rage and disappointment are not to be +overlooked--that the assassins had not done their work _well_; that +they had not succeeded in robbing the people altogether of their +constitutional Executive and his advisers; and hence he exclaims, "If +they had killed Andy Johnson, the beast!" Neither can he conceal his +chagrin and disappointment that the war minister of the republic, whose +energy, incorruptible integrity, sleepless vigilance, and executive +ability had organized day by day, month by month, and year by year, +victory for our arms, had escaped the knife of the hired assassins. +The job, says this procurer of assassination, was not well done; it +had been _better_ if it had been well done! Because Abraham Lincoln +had been clear in his great office, and had saved the nation's life +by enforcing the nation's laws, this traitor declares he must be +murdered; because Mr. Seward, as the foreign secretary of the country, +had thwarted the purposes of treason to plunge his country into a war +with England, he must be murdered; because, upon the murder of Mr. +Lincoln, Andrew Johnson would succeed to the presidency, and because +he had been true to the Constitution and government, faithful found +among the faithless of his own State, clinging to the falling pillars +of the republic when others had fled, he must be murdered; and because +the Secretary of War had taken care, by the faithful discharge of his +duties, that the republic should live and not die, he must be murdered. +Inasmuch as these two faithful officers were not also assassinated, +assuming that the Secretary of State was mortally wounded, Davis could +not conceal his disappointment and chagrin that the work was not "well +done," that "the job was not complete!" + +Thus it appears by the testimony that the proposition made to Davis +was to kill and murder the deadliest enemies of the Confederacy--not +to kidnap them, as is now pretended here; that by the declaration +of Sanders, Tucker, Thompson, Clay, Cleary, Harper, and Young, the +conspirators in Canada, the agreement and combination among them was +to kill and murder Abraham Lincoln, William H. Seward, Andrew Johnson, +Ulysses S. Grant, Edwin M. Stanton, and others of his advisors, and +not to kidnap them; it appears from every utterance of John Wilkes +Booth, as well as from the Charles Selby letter, of which mention will +presently be made, that, as early as November, the proposition with him +was to kill and murder, not to kidnap. + +Since the first examination of Conover, who testified, as the court +will remember, to many important facts against these conspirators and +agents of Davis in Canada--among others, the terrible and fiendish plot +disclosed by Thompson, Pallen, and others, that they had ascertained +the volume of water in the reservoir supplying New York City, estimated +the quantity of poison required to render it deadly, and intended thus +to poison a whole city--Conover returned to Canada, by direction of +this court, for the purpose of obtaining certain documentary evidence. +There, about the 9th of June, he met Beverley Tucker, Sanders, and +other conspirators, and conversed with them. Tucker declared that +Secretary Stanton, whom he denounced as "a scoundrel," and Judge Holt, +whom he called "a bloodthirsty villain," "could protect themselves as +long as they remained in office by a guard, but that would not always +be the case, and, by the Eternal, he had a large account to settle with +them." After this, the evidence of Conover here having been published, +these parties called upon him and asked him whether he had been to +Washington and had testified before this court. Conover denied it; +they insisted, and took him to a room where, with drawn pistols, they +compelled him to consent to make an affidavit that he had been falsely +personated here by another, and that he would make that affidavit +before a Mr. Kerr, who would witness it. They then called in Mr. Kerr +to certify to the public that Conover had made such a denial. They also +compelled this witness to furnish for publication an advertisement +offering a reward of five hundred dollars for the arrest of the +"infamous and perjured scoundrel" who had recently personated James W. +Wallace under the name of Sanford Conover, and testified to a tissue +of falsehoods before the military commission at Washington, which +advertisement was published in the papers. + +To these facts Mr. Conover now testifies, and also discloses the fact +that these same men published, in the report of the proceedings before +Judge Smith, an affidavit purporting to be his, but which he never +made. The affidavit which he in fact made, and which was published in +a newspaper at that time, produced here, is set out substantially upon +your record, and agrees with the testimony upon the same point given by +him in this court. + +To suppose that Conover ever made such an affidavit voluntarily as the +one wrung from him as stated is impossible. Would he advertise for his +own arrest and charge himself with falsely personating himself? But the +fact cannot evade observation, that when these guilty conspirators saw +Conover's testimony before this court in the public prints, revealing +to the world the atrocious plots of these felon conspirators, conscious +of the truthfulness of his statements, they cast about at once for some +defense before the public, and devised the foolish and stupid invention +of compelling him to make an affidavit that he was not Sanford Conover, +was not in this court, never gave this testimony, but was a practicing +lawyer in Montreal! This infamous proceeding, coupled with the evidence +before detailed, stamps these ruffian plotters with the guilt of this +conspiracy. + +John Wilkes Booth having entered into this conspiracy in Canada, as +has been shown, as early as October, he is next found in the city +of New York on the 11th day, as I claim, of November, in disguise, +in conversation with another, the conversation disclosing to the +witness, Mrs. Hudspeth, that they had some matter of personal interest +between them; that upon one of them the lot had fallen to go to +Washington--upon the other to go to New Berne. This witness, upon being +shown the photograph of Booth, swears "that the face is the same" as +that of one of those men, who, she says, was a young man of education +and culture, as appeared by his conversation, and who had a scar like a +bite near the jaw-bone. It is a fact proved here by the Surgeon General +that Booth had such a scar on the side of his neck. Mrs. Hudspeth +heard him say he would leave for Washington the day after to-morrow. +His companion appeared angry because it had not fallen on him to go +to Washington. This took place after the presidential election in +November. She cannot fix the precise date, but says she was told that +General Butler left New York on that day. The testimony discloses that +General Butler's army was on the 11th of November leaving New York. +The register of the National Hotel shows that Booth left Washington +on the early morning train, November 11, and that he returned to this +city on the 14th. Chester testifies positively to Booth's presence in +New York early in November. This testimony shows most conclusively +that Booth was in New York on the 11th of November. The early morning +train on which he left Washington would reach New York early in the +afternoon of that day. Chester saw him there early in November, and +Mrs. Hudspeth not only identifies his picture, but describes his +person. The scar upon his neck near his jaw was peculiar and is well +described by the witness as like a bite. On that day Booth had a letter +in his possession which he accidentally dropped in a street car in +the presence of Mrs. Hudspeth, the witness, who delivered it to Major +General Dix the same day, and by whom, as his letter on file before +this court shows, the same was transmitted to the War Department, +November 17, 1864. That letter contains these words:-- + + "DEAR LOUIS:--The time has at last come that we have + all so wished for, and upon you everything depends. As it was + decided, before you left, we were to cast lots, we accordingly + did so, and you are to be the Charlotte Corday of the + nineteenth century. When you remember the fearful, solemn vow + that was taken by us, you will feel there is no drawback. _Abe_ + must _die_, and _now_. You can choose your weapons--_the cup_, + _the knife_, _the bullet_. The cup failed us once, and might + again. Johnson, who will give _this_, has been like an enraged + demon since the meeting, because it has not fallen upon him to + rid the world of the monster.... You know where _to find your + friends_. Your _disguises_ are so perfect and complete that + without _one_ knew your _face_ no police telegraphic despatch + would catch you. The English gentleman, _Harcourt_, must not + act hastily. Remember, he has ten days. _Strike for your home, + strike for your country; bide your time, but strike sure._ Get + introduced; congratulate him; listen to his stories (not many + more will the brute tell to earthly friends); do anything but + fail, and meet us at the appointed place within the fortnight. + You will probably hear from me in Washington. Sanders is doing + us no good in Canada. + + "CHAS. SELBY." + +The learned gentleman (Mr. Cox), in his very able and carefully +considered argument in defense of O'Laughlin and Arnold, attached +importance to this letter, and doubtless very clearly saw its bearing +upon the case, and therefore undertook to show that the witness, Mrs. +Hudspeth, must be mistaken as to the person of Booth. The gentleman +assumes that the letter of General Dix, of the 17th of November +last, transmitting this letter to the War Department, reads that the +party who dropped the letter was heard to say that he would start to +Washington on Friday night next, although the word "next" is not in the +letter, neither is it in the quotation which the gentleman makes, for +he quotes it fairly; yet he concludes that this would be the 18th of +November. + +Now the fact is, the 11th of November last was Friday, and the +register of the National Hotel bears witness that Mrs. Hudspeth is +not mistaken; because her language is, that Booth said he would leave +for Washington day after to-morrow, which would be Sunday, the 13th, +and if in the evening, would bring him to Washington on Monday, the +14th of November, the day on which, the register shows, he did return +to the National Hotel. As to the improbability which the gentleman +raises, on the conversation happening in a street car, crowded with +people, there was nothing that transpired, although the conversation +was earnest, which enabled the witness, or could have enabled any one, +in the absence of this letter or of the subsequent conduct of Booth, +to form the least idea of the subject-matter of their conversation. +The gentleman does not deal altogether fairly in his remarks touching +the letter of General Dix, because, upon a careful examination of the +letter, it will be found that he did not form any such judgment as that +it was a hoax for the _Sunday Mercury_; but he took care to forward it +to the Department, and asked attention to it, when, as appears by the +testimony of the Assistant Secretary of War, Mr. Dana, the letter was +delivered to Mr. Lincoln, who considered it important enough to indorse +it with the word "Assassination," and file it in his office, where it +was found after the commission of this crime, and brought into this +court to bear witness against his assassins. + +Although this letter would imply that the assassination spoken of was +to take place speedily, yet the party was _to bide his time_. Though +he had entered into the preliminary arrangements in Canada, although +conspirators had doubtless agreed to co-operate with him in the +commission of the crime, and lots had been cast for the chief part in +the bloody drama, yet it remained for him, as the leader and principal +of the hired assassins, by whose hand their employers were to strike +the murderous blow, to collect about him and bring to Washington such +persons as would be willing to lend themselves for a price to the +horrid crime, and likely to give the necessary aid and support in its +consummation. The letter declares that Abraham Lincoln must die, and +_now_, meaning as soon as the agents can be employed and the work +done. To that end you will _bide your time_. But, says the gentleman, +it could not have been the same conspiracy charged here to which +this letter refers. Why not? It is charged here that Booth, with the +accused and others, conspired to kill and murder Abraham Lincoln; that +is precisely the conspiracy disclosed in the letter. Granted that the +parties on trial had not then entered into the combination; if they +at any time afterward entered into it they became parties to it, and +the conspiracy was still the same. But, says the gentleman, the words +of the letter imply that the conspiracy was to be executed within +the fortnight. Booth is directed, by the name of Louis, to meet the +writer within the fortnight. It by no means follows that he was to +strike within the fortnight, because he was to meet his co-conspirator +within that time, and any such conclusion is excluded by the words, +"Bide your time." Even if the conspiracy was to be executed within +the fortnight, and was not so executed, and the same party, Booth, +afterwards by concert and agreement with the accused and others, did +execute it by "striking sure" and killing the President, that act, +whenever done, would be but the execution of the same conspiracy. The +letter is conclusive evidence of so much of this conspiracy as relates +to the murder of President Lincoln. As Booth was to do anything but +fail, he immediately thereafter sought out the agents to enable him +to strike sure and execute all that he had agreed with Davis and his +co-confederates in Canada to do--to murder the President, the Secretary +of State, the Vice-President, General Grant, and Secretary Stanton. + +Even Booth's co-conspirator, Payne, now on his trial, by his defense +admits all this, and says Booth had just been to Canada, "was filled +with a mighty scheme, and was lying in wait for agents." Booth asked +the co-operation of the prisoner, Payne, and said: "I will give you as +much money as you want; but first you must swear to stick by me. It is +in the oil business." This you are told by the accused was early in +March last. Thus guilt bears witness against itself. + +We find Booth in New York in November, December, and January, urging +Chester to enter into this combination, assuring him that there was +_money_ in it; that they had "friends on the other side"; that if he +would only participate in it he would never want for money while he +lived, and all that was asked of him was to stand at and open _the +back door of Ford's Theatre_. Booth, in his interviews with Chester, +confesses that _he is without money himself_, and allows Chester to +reimburse him the fifty dollars which he (Booth) had transmitted to him +in a letter for the purpose of paying his expenses to Washington as one +of the parties to this conspiracy. Booth told him, although he himself +was penniless, "_there is money in this_--we have friends on the other +side"; and if you will but engage, I will have three thousand dollars +deposited at once for the use of your family. + +Failing to secure the services of Chester, because his soul recoiled +with abhorrence from the foul work of assassination and murder, he +found more willing instruments in others whom he gathered about him. +Men to commit the assassinations, horses to secure speedy and certain +escape, were to be provided, and to this end Booth, with an energy +worthy of a better cause, applies himself. For this latter purpose he +told Chester he had already expended five thousand dollars. In the +latter part of November, 1864, he visits Charles County, Md., and is +in company with one of the prisoners, Dr. Samuel A. Mudd, with whom +he lodged over night, and through whom he procures of Gardner one of +the several horses which were at his disposal and used by him and his +co-conspirators in Washington on the night of the assassination. + +Some time in January last, it is in testimony that the prisoner Mudd +introduced Booth to John H. Surratt and the witness Wiechmann; that +Booth invited them to the National Hotel; that when there, in the +room to which Booth took them, Mudd went out into the passage, called +Booth out and had a private conversation with him, leaving the witness +and Surratt in the room. Upon their return to the room, Booth went out +with Surratt, and upon their coming in, all three--Booth, Surratt, +and Samuel A. Mudd--went out together and had a conversation in the +passage, leaving the witness alone. Up to the time of this interview it +seems that neither the witness nor Surratt had any knowledge of Booth, +as they were then introduced to him by Dr. Mudd. Whether Surratt had +in fact previously known Booth it is not important to inquire. Mudd +deemed it necessary, perhaps a wise precaution, to introduce Surratt to +Booth; he also deemed it necessary to have a private conversation with +Booth shortly afterwards, and directly upon that to have a conversation +together with Booth and Surratt alone. Had this conversation, no part +of which was heard by the witness, been perfectly innocent, it is not +to be presumed that Dr. Mudd, who was an entire stranger to Wiechmann, +would have deemed it necessary to hold the conversation secretly, nor +to have volunteered to tell the witness, or rather pretend to tell him, +what the conversation was; yet he did say to the witness, upon their +return to the room, by way of apology, I suppose, for the privacy of +the conversation, that Booth had some private business with him and +wished to purchase his farm. This silly device, as is often the case in +attempts at deception, failed in the execution; for it remains to be +shown how the fact that Mudd had private business with Booth, and that +Booth wished to purchase his farm, made it at all necessary, or even +proper, that they should both volunteer to call out Surratt, who, up +to that moment, was a stranger to Booth. What had Surratt to do with +Booth's purchase of Mudd's farm? And if it was necessary to withdraw +and talk by themselves secretly about the sale of the farm, why should +they disclose the fact to the very man from whom they had concealed it? + +Upon the return of these three parties to the room, they seated +themselves at a table, and upon the back of an envelope Booth traced +lines with a pencil, indicating, as the witness states, the direction +of roads. Why was this done? As Booth had been previously in that +section of country, as the prisoner in his defense has taken great +pains to show, it was certainly not necessary to anything connected +with the purchase of Mudd's farm that at that time he should be +indicating the direction of roads to or from it; nor is it made to +appear, by anything in this testimony, how it comes that Surratt, as +the witness testifies, seemed to be as much interested in the marking +out of these roads as Mudd or Booth. It does not appear that Surratt +was in any wise connected with or interested in the sale of Mudd's +farm. From all that has transpired since this meeting at the hotel, it +would seem that this plotting the roads was intended, not so much to +show the road to Mudd's farm, as to point out the shortest and safest +route for flight from the capital, by the houses of all the parties to +this conspiracy, to their "friends on the other side." + +But, says the learned gentleman (Mr. Ewing), in his very able argument +in defense of this prisoner, why should Booth determine that his flight +should be through Charles County? The answer must be obvious, upon a +moment's reflection, to every man, and could not possibly have escaped +the notice of the counsel himself, but for the reason that his zeal for +his client constrained him to overlook it. It was absolutely essential +that this murderer should have his co-conspirators at convenient points +along his route, and it does not appear in evidence that by the route +to his friends, who had then fled from Richmond, which the gentleman +(Mr. Ewing) indicates as the more direct, but of which there is not the +slightest evidence whatever, Booth had co-conspirators at an equal +distance from Washington. The testimony discloses, further, that on +the route selected by him for his flight there is a large population +that would be most likely to favor and aid him in the execution of his +wicked purpose and in making his escape. But it is a sufficient answer +to the gentleman's question that Booth's co-conspirator, Mudd, lived in +Charles County. + +To return to the meeting at the hotel. In the light of other facts +in this case, it must become clear to the court that this secret +meeting between Booth, Surratt, and Mudd was a conference looking to +the execution of this conspiracy. It so impressed the prisoner--it so +impressed his counsel, that they deemed it necessary and absolutely +essential to their defense to attempt to destroy the credibility of the +witness Wiechmann. + +I may say here, in passing, that they have not attempted to impeach +his general reputation for truth by the testimony of a single witness, +nor have they impeached his testimony by calling a single witness to +discredit one material fact to which he has testified in this issue. +Failing to find a breath of suspicion against Wiechmann's character, or +to contradict a single fact to which he testified, the accused had to +fly to the last resort, an _alibi_, and very earnestly did the learned +counsel devote himself to the task. + +It is not material whether this meeting in the hotel took place on the +23d of December or in January. But, says the counsel, it was after +the commencement or close of the Congressional holiday. That is not +material; but the concurrent resolution of Congress shows that the +holiday commenced on the 22d of December, the day before the accused +spent the evening in Washington. The witness is not certain about the +date of this meeting. The material fact is, did this meeting take +place--either on the 23d of December or in January last? Were the +private interviews there held, and was the apology made, as detailed, +by Mudd and Booth, after the secret conference, to the witness? That +the meeting did take place, and that Mudd did explain that these secret +interviews, with Booth first, and with Booth and Surratt directly +afterward, had relation to the sale of his farm, is confessedly +admitted by the endeavor of the prisoner, through his counsel, to show +that negotiations had been going on between Booth and Mudd for the sale +of Mudd's farm. If no such meeting was held, if no such explanation +was made by Mudd to Wiechmann, can any man for a moment believe that a +witness would have been called here to give any testimony about Booth +having negotiated for Mudd's farm? What conceivable connection has it +with this case, except to show that Mudd's explanation to Wiechmann for +his extraordinary conduct was in exact accordance with the fact? Or +was this testimony about the negotiations for Mudd's farm intended to +show so close an intimacy and intercourse with Booth that Mudd could +not fail to recognize him when he came flying for aid to his house from +the work of assassination? It would be injustice to the able counsel to +suppose that. + +I have said that it was wholly immaterial whether this conversation +took place on the 23d of December or in January; it is in evidence that +in both these months Booth was at the National Hotel; that he occupied +a room there; that he arrived there on the 22d and was there on the 23d +of December last, and also on the 12th day of January. The testimony +of the witness is, that Booth said he had just come in. Suppose this +conversation took place in December, on the evening of the 23d, the +time when it is proved by J. T. Mudd, the witness for the accused, that +he, in company with Samuel A. Mudd, spent the night in Washington City. +Is there anything in the testimony of that or any other witness to show +that the accused did not have and could not have had an interview with +Booth on that evening? J. T. Mudd testifies that he separated from the +prisoner, Samuel A. Mudd, at the National Hotel early in the evening of +that day, and did not meet him again until the accused came in for the +night at the Pennsylvania House, where he stopped. Where was Dr. Samuel +A. Mudd during this interval? What does his witness know about him +during that time? How can he say that Dr. Mudd did not go up on Seventh +Street in company with Booth, then at the National; that he did not on +Seventh Street meet Surratt and Wiechmann; that he did not return to +the National Hotel; that he did not have this interview, and afterwards +meet him, the witness, as he testifies, at the Pennsylvania House? Who +knows that the Congressional holiday had not in fact commenced on that +day? What witness has been called to prove that Booth did not on either +of those occasions occupy the room that had formerly been occupied by a +member of Congress, who had temporarily vacated it, leaving his books +there? Wiechmann, I repeat, is not positive as to the date, he is only +positive as to the fact; and he disclosed voluntarily to this court +that the date could probably be fixed by a reference to the register of +the Pennsylvania House; that register cannot, of course, be conclusive +of whether Mudd was there in January or not, for the very good reason +that the proprietor admits that he did not know Samuel A. Mudd, +therefore Mudd might have registered by any other name. Wiechmann does +not pretend to know that Mudd had registered at all. If Mudd was here +in January, as a party to this conspiracy, it is not at all unlikely +that, if he did register at that time in the presence of a man to whom +he was wholly unknown, his kinsman not then being with him, he would +register by a false name. But if the interview took place in December, +the testimony of Wiechmann bears as strongly against the accused as if +it had happened in January. Wiechmann says he does not know what time +was occupied in this interview at the National Hotel; that it probably +lasted twenty minutes; that, after the private interviews between +Mudd and Surratt and Booth, which were not of very long duration, had +terminated, the parties went to the Pennsylvania House, where Dr. Mudd +had rooms, and after sitting together in the common sitting-room of the +hotel, they left Dr. Mudd there about ten o'clock P.M., who +remained during the night. Wiechmann's testimony leaves no doubt that +this meeting on Seventh Street and interview at the National took place +after dark, and terminated before or about ten o'clock P.M. +His own witness, J. T. Mudd, after stating that he separated from +the accused at the National Hotel, says after he had got through a +conversation with a gentleman of his acquaintance, he walked down the +Avenue, went to several clothing stores, and "after a while" walked +round to the Pennsylvania House, and "very soon after" he got there +Dr. Mudd came in, and they went to bed shortly afterwards. What time +he spent in his "walk alone" on the Avenue, looking at clothing; what +period he embraces in the terms "after a while," when he returned to +the Pennsylvania House, and "soon after" which Dr. Mudd got there, +the witness does not disclose. Neither does he intimate, much less +testify, that he saw Dr. Mudd when he first entered the Pennsylvania +House on that night after their separation. How does he know that +Booth and Surratt and Wiechmann did not accompany Samuel A. Mudd to +that house that evening? How does he know that the prisoner and those +persons did not converse together some time in the sitting-room of +the Pennsylvania Hotel? Jeremiah Mudd has not testified that he met +Dr. Mudd in that room, or that he was in it himself. He has, however, +sworn to the fact, which is disproved by no one, that the prisoner was +separated from him long enough that evening to have had the meeting +with Booth, Surratt, and Wiechmann, and the interviews in the National +Hotel, and at the Pennsylvania House, to which Wiechmann has testified? +Who is there to disprove it? Of what importance is it whether it was +on the 23d day of December or in January? How does that affect the +credibility of Wiechmann? He is a man, as I have before said, against +whose reputation for truth and good conduct they have not been able to +bring one witness. If this meeting did by possibility take place that +night, is there anything to render it improbable that Booth and Mudd +and Surratt did have the conversation at the National Hotel to which +Wiechmann testifies? Of what avail, therefore, is the attempt to prove +that Mudd was not here during January, if it was clear that he was here +on the 23d of December, 1864, and had this conversation with Booth? +That this attempt to prove an _alibi_ during January has failed, is +quite as clear as is the proof of the fact that the prisoner was here +on the evening of the 23d of December, and present in the National +Hotel, where Booth stopped. The fact that the prisoner, Samuel A. Mudd, +went with J. T. Mudd on that evening to the National Hotel, and there +separated from him, is proved by his own witness, J. T. Mudd; and that +he did not rejoin him until they retired to bed in the Pennsylvania +House is proved by the same witness and contradicted by nobody. Does +any one suppose there would have been such assiduous care to prove that +the prisoner was with his kinsman all the time on the 23d of December, +in Washington, if they had not known that Booth was then at the +National Hotel, and that a meeting of the prisoner with Booth, Surratt, +and Wiechmann on that day would corroborate and confirm Wiechmann's +testimony in every material statement he made concerning that meeting? + +The accused having signally failed to account for his absence after he +separated from his witness, J. T. Mudd, early in the evening of the +23d of December, at the National Hotel, until they had again met at +the Pennsylvania House, when they retired to rest, he now attempts to +prove an _alibi_ as to the month of January. In this he has failed, +as he failed in the attempt to show that he could not have met Booth, +Surratt, and Wiechmann on the 23d of December. + +For this purpose the accused calls Betty Washington. She had been at +Mudd's house every night since the Monday after Christmas last, except +when here at court, and says that the prisoner, Mudd, has only been +away from home three nights during that time. This witness forgets that +Mudd has not been at home any night or day since this court assembled. +Neither does she account for the three nights in which she swears to +his absence from home. First, she says he went to Gardner's party; +second, he went to Giesboro, then to Washington. She does not know in +what month he was away, the second time, all night. She only knows +where he went from what he and his wife said, which is not evidence; +but she does testify that when he left home and was absent over night +the second time, it was about two or three weeks after she came to his +house, which would, if it were three weeks, make it just about the 15th +of January, 1865; because she swears she came to his house on the first +Monday after Christmas last, which was the 26th day of December; so +that the 15th of January would be three weeks, less one day, from that +time; and it might have been a week earlier according to her testimony, +as, also, it might have been a week earlier, or more, by Wiechmann's +testimony, for he is not positive as to the time. What I have said of +the register of the Pennsylvania House, the headquarters of Mudd and +Atzerodt, I need not here repeat. That record proves nothing, save that +Dr. Mudd was there on the 23d of December, which, as we have seen, is a +fact, along with others, to show that the meeting at the National then +took place. I have also called the attention of the court to the fact +that if Mudd was at that house again in January, and did not register +his name, that fact proves nothing; or, if he did, the register only +proves that he registered falsely; either of which facts might have +happened without the knowledge of the witness called by the accused +from that house, who does not know Samuel A. Mudd personally. + +The testimony of Henry L. Mudd, his brother, in support of this +_alibi_, is, that the prisoner was in Washington on the 23d of March, +and on the 10th of April, four days before the murder! But he does not +account for the absent night in January, about which Betty Washington +testifies. Thomas Davis was called for the same purpose, but stated +that he was himself absent one night in January, after the 9th of that +month, and he could not say whether Mudd was there on that night or +not. He does testify to Mudd's absence over night three times, and +fixes one occasion on the night of the 26th of January. In consequence +of his own absence one night in January, this witness cannot account +for the absence of Mudd on the night referred to by Betty Washington. + +This matter is entitled to no further attention. It can satisfy no +one, and the burden of proof is upon the prisoner to prove that he was +not in Washington in January last. How can such testimony convince any +rational man that Mudd was not here in January, against the evidence +of an unimpeached witness, who swears that Samuel A. Mudd was in +Washington in the month of January? Who that has been examined here as +a witness knows that he was not? + +The Rev. Mr. Evans swears that he saw him in Washington last winter, +and that at the same time he saw Jarboe, the one coming out of, and the +other going into, a house on H Street, which he was informed on inquiry +was the house of Mrs. Surratt. Jarboe is the only witness called to +contradict Mr. Evans, and he leaves it in extreme doubt whether he +does not corroborate him, as he swears that he was here himself last +winter or fall, but cannot state exactly the time. Jarboe's silence on +questions touching his own credibility leaves no room for any one to +say that his testimony could impeach Mr. Evans, whatever he might swear. + +Miss Anna H. Surratt is also called for the purpose of impeaching Mr. +Evans. It is sufficient to say of her testimony on that point that she +swears negatively only--that she does not see either of the persons +named at her mother's house. This testimony neither disproves, nor +does it even tend to disprove, the fact put in issue by Mr. Evans. +No one will pretend, whatever the form of her expression in giving +her testimony, that she could say more than that she did not know the +fact, as it was impossible that she could know who was, or who was +not, at her mother's house, casually, at a period so remote. It is not +my purpose, neither is it needful here, to question in any way the +integrity of this young woman. + +It is further in testimony that Samuel A. Mudd was here on the 3d day +of March last, the day preceding the inauguration, when Booth was +to strike the traitorous blow; and it was, doubtless, only by the +interposition of that God who stands within the shadow and keeps watch +above his own, that the victim of this conspiracy was spared that day +from the assassin's hand that he might complete his work and see the +salvation of his country in the fall of Richmond and the surrender of +its great army. Dr. Mudd was here on that day (the 3d of March) to +abet, to encourage, to nerve his co-conspirator for the commission +of this great crime. He was carried away by the awful purpose which +possessed him, and rushed into the room of Mr. Norton, at the National +Hotel, in search of Booth, exclaiming excitedly: "I'm mistaken; I +thought this was Mr. Booth's room." He is told Mr. Booth is above, on +the next floor. He is followed by Mr. Norton, because of his rude and +excited behavior, and being followed, conscious of his guilty errand, +he turns away, afraid of himself and afraid to be found in concert with +his fellow confederate. Mr. Norton identifies the prisoner, and has no +doubt that Samuel A. Mudd is the man. + +The Rev. Mr. Evans also swears that, after the 1st and before the 4th +day of March last, he is certain that within that time, and on the +2d or 3d of March, he saw Dr. Mudd drive into Washington City. The +endeavor is made by the accused in order to break down this witness, by +proving another _alibi_. The sister of the accused, Miss Fanny Mudd, +is called. She testifies that she saw the prisoner at breakfast in her +father's house, on the 2d of March, about five o'clock in the morning, +and not again until the 3d of March at noon. Mrs. Emily Mudd swears +substantially to the same statement. Betty Washington, called for the +accused, swears that he was at home all day at work with her on the +2d of March, and took breakfast at home. Frank Washington swears that +Mudd was at home all day; that he saw him when he first came out in the +morning about sunrise from his own house, and knows that he was there +all day with them. Which is correct, the testimony of his sisters or +the testimony of his servants? The sisters say that he was at their +father's house for breakfast on the morning of the 2d of March; the +servants say he was at home for breakfast with them on that day. If +this testimony is followed, it proves one _alibi_ too much. It is +impossible, in the nature of things, that the testimony of all these +four witnesses can be true. + +Seeing this weakness in the testimony brought to prove this second +_alibi_, the endeavor is next made to discredit Mr. Norton for +truth; and two witnesses, not more, are called, who testify that his +reputation for truth has suffered by contested litigation between one +of the impeaching witnesses and others. Four witnesses are called, +who testify that Mr. Norton's reputation for truth is very good; that +he is a man of high character for truth, and entitled to be believed +whether he speaks under the obligation of an oath or not. The late +Postmaster General, Hon. Horatio King, not only sustains Mr. Norton +as a man of good reputation for truth, but expressly corroborates his +testimony, by stating that in March last, about the 4th of March, Mr. +Norton told him the same fact to which he swears here: that a man came +into his room under excitement, alarmed his sister, was followed out by +himself, and went down stairs instead of going up; and that Mr. Norton +told him this before the assassination, and about the time of the +inauguration. What motive had Mr. Norton at that time to fabricate this +statement? It detracts nothing from his testimony that he did not at +that time mention the name of this man to his friend, Mr. King; because +it appears from his testimony--and there is none to question the +truthfulness of his statement--that at that time he did not know his +name. Neither does it take from the force of this testimony, that Mr. +Norton did not, in communicating this matter to Mr. King, make mention +of Booth's name; because there was nothing in the transaction, at the +time, he being ignorant of the name of Mudd, and equally ignorant of +the conspiracy between Mudd and Booth, to give the least occasion for +any mention of Booth or of the transaction further than as he detailed +it. With such corroboration, who can doubt the fact that Mudd did enter +the room of Mr. Norton, and was followed by him, on the 3d of March +last? Can he be mistaken in the man? Whoever looks at the prisoner +carefully once will be sure to recognize him again. + +For the present I pass from the consideration of the testimony showing +Dr. Mudd's connection with Booth in this conspiracy, with the remark +that it is in evidence, and I think established, both by the testimony +adduced by the prosecution and that by the prisoner, that since the +commencement of this rebellion, John H. Surratt visited the prisoner's +house; that he concealed Surratt and other rebels and traitors in the +woods near his house, where for several days he furnished them with +food and bedding; that the shelter of the woods by night and by day +was the only shelter that the prisoner dare furnish _these friends_ +of his; that in November, Booth visited him and remained over night; +that he accompanied Booth at that time to Gardner's, from whom he +purchased one of the horses used on the night of the assassination +to aid the escape of one of his confederates; that the prisoner had +secret interviews with Booth and Surratt, as sworn to by the witness +Wiechmann, in the National Hotel, whether on the 23d of December or in +January is a matter of entire indifference; that he rushed into Mr. +Norton's room on the 3d of March in search of Booth; and that he was +here again on the 10th of April, four days before the murder of the +President. Of his conduct after the assassination of the President, +which is confirmatory of all this--his conspiring with Booth and his +sheltering, concealing, and aiding the flight of his co-conspirator, +this felon assassin--I shall speak hereafter, leaving him for the +present with the remark that the attempt to prove his character has +resulted in showing him in sympathy with the rebellion, so cruel that +he shot one of his slaves and declared his purpose to send several of +them to work on the rebel batteries in Richmond. + +What others, besides Samuel A. Mudd and John H. Surratt and Lewis +Payne, did Booth, after his return from Canada, induce to join him +in this conspiracy to murder the President, the Vice-President, the +Secretary of State, and the Lieutenant General, with the intent thereby +to aid the rebellion and overthrow the government and laws of the +United States? + +On the 10th of February the prisoners Arnold and O'Laughlin came to +Washington and took rooms in the house of Mrs. Vantyne; were armed; +were then visited frequently by John Wilkes Booth, and alone; were +occasionally absent when Booth called, who seemed anxious for their +return--would sometimes leave notes for them, and sometimes a request +that when they came in they should be told to come to the stable. +On the 18th of March last, when Booth played in "The Apostate," the +witness, Mrs. Vantyne, received from O'Laughlin complimentary tickets. +These persons remained there until the 20th of March. They were +visited, so far as the witness knows, during their stay at her house +only by Booth, save that on a single occasion an unknown man came to +see them, and remained with them over night. They told the witness +they were in the "oil business." With Mudd, the guilty purpose was +sought to be concealed by declaring that he was in the "land business"; +with O'Laughlin and Arnold it was attempted to be concealed by the +pretence that they were in the "oil business." Booth, it is proved, +had closed up all connection with oil business last September. There +is not a word of testimony to show that the accused, O'Laughlin and +Arnold, ever invested or sought to invest, in any way or to any amount, +in the oil business; their silly words betray them; they forgot when +they uttered that false statement that truth is strong, next to the +Almighty, and that their crime must find them out was the irrevocable +and irresistible law of nature and of nature's God. + +One of their co-conspirators, known as yet only to the guilty parties +to this damnable plot and to the Infinite, who will unmask and avenge +all blood-guiltiness, comes to bear witness, unwittingly, against them. +This unknown conspirator, who dates his letter at South Branch Bridge, +April 6, 1865, mailed and postmarked Cumberland, Md., and addressed +to John Wilkes Booth, by his initials, "J. W. B., National Hotel, +Washington, D.C.," was also in the "oil speculation." In that letter he +says:-- + + "FRIEND WILKES:--I received yours of March 12th, and + reply as soon as practicable. I saw French, Brady, and others + about the oil speculation. The subscription to the stock + amounts to eight thousand dollars, and I add one thousand + myself, which is about all I can stand. Now, when you sink + your well, go _deep enough; don't fail_; everything depends + upon you and your _helpers_. If you cannot get through on + _your trip_ after you strike oil, strike through Thornton gap + and across by Capon, Romney, and down the Branch. I can keep + you _safe_ from all hardships for a year. I am clear of all + surveillance now that infernal Purdy is beat.... + + "I send this by Tom, and if he don't get drunk you will get it + the 9th. At all events, it cannot be _understood_ if lost.... + + "No more, only _Jake_ will be at Green's _with the funds_. + + (Signed) + "LON." + +That this letter is not a fabrication is made apparent by the testimony +of Purdy, whose name occurs in the letter. He testified that he had +been a detective in the government service, and that he had been +falsely accused, as the letter recites, and put under arrest; that +there was a noted rebel, by the name of Green, living at Thornton +gap; that there was a servant, who drank, known as "Tom," in the +neighborhood of South Branch Bridge; that there is an obscure route +through the gap, and as described in the letter; and that a man +commonly called "Lon" lives at South Branch Bridge. If the court are +satisfied--and it is for them to judge--that this letter was written +before the assassination, as it purports to have been, and on the +day of its date, there can be no question with any one who reads it +that the writer was in the conspiracy, and knew that the time of its +execution drew nigh. If a conspirator, every word of its contents is +evidence against every other party to this conspiracy. + +Who can fail to understand this letter? His words, "go deep enough," +"don't fail," "everything depends on you and your helpers," "if you +can't get through on your _trip_ after you _strike oil_, strike through +Thornton gap," etc., and "I can keep you safe from all hardships for +a year," necessarily imply that when he "_strikes oil_" there will +be an occasion for a _flight_; that a _trip_, or route, has already +been determined upon; that he may not be able to go through by that +route; in which event he is to strike for Thornton gap, and across +by Capon and Romney, and down the branch, for the shelter which his +co-conspirator offers him. "I am clear of all surveillance now"--does +any one doubt that the man who wrote those words wished to assure Booth +that he was no longer watched, and that Booth could safely hide with +him from his pursuers? Does any one doubt, from the further expression +in this letter, "Jake will be at Green's with the funds," that this +was a part of the price of blood, or that the eight thousand dollars +subscribed by others, and the one thousand additional, subscribed by +the writer, were also a part of the price to be paid? + +"The oil business," which was the declared business of O'Laughlin +and Arnold, was the declared business of the infamous writer of this +letter; was the declared business of John H. Surratt; was the declared +business of Booth himself, as explained to Chester and Payne; was +"_the business_" referred to in his telegrams to O'Laughlin, and meant +the murder of the President, of his cabinet, and of General Grant. +The first of these telegrams is dated Washington, 13th March, and is +addressed to M. O'Laughlin, No. 57 North Exeter Street, Baltimore, +Md., and is as follows: "Don't you fear to neglect your business; +you had better come on at once. J. Booth." The telegraphic operator, +Hoffman, who sent this despatch from Washington, swears that John +Wilkes Booth delivered it to him in person on the day of its date; +and the handwriting of the original telegram is established beyond +question to be that of Booth. The other telegram is dated Washington, +March 27, addressed, "M. O'Laughlin, Esq., 57 North Exeter Street, +Baltimore, Md.," and is as follows: "Get word to Sam. Come on with or +without him on Wednesday morning. We sell that day sure; don't fail. +J. Wilkes Booth." The original of this telegram is also proved to +be in the handwriting of Booth. The sale referred to in this last +telegram was doubtless the murder of the President and others--the +"oil speculation," in which the writer of the letter from South Branch +Bridge, dated April 6, had taken a thousand dollars, and in which +Booth said there was money, and Sanders said there was money, and +Atzerodt said there was money. The words of this telegram, "get word +to Sam," mean Samuel Arnold, his co-conspirator, who had been with him +during all his stay in Washington, at Mrs. Vantyne's. These parties +to this conspiracy, after they had gone to Baltimore, had additional +correspondence with Booth, which the court must infer had relation to +carrying out the purposes of their confederation and agreement. The +colored witness, Williams, testifies that John Wilkes Booth handed +him a letter for Michael O'Laughlin, and another for Samuel Arnold, +in Baltimore, some time in March last; one of which he delivered to +O'Laughlin at the theatre in Baltimore, and the other to a lady at the +door where Arnold boarded in Baltimore. + +Their agreement and co-operation in the common object having been thus +established, the letter written to Booth by the prisoner Arnold, dated +March 27, 1865, the handwriting of which is proved before the court, +and which was found in Booth's possession after the assassination, +becomes testimony against O'Laughlin, as well as against the writer +Arnold, because it is an act done in furtherance of their combination. +That letter is as follows:-- + + "DEAR JOHN:--Was business so important that you could + not remain in Baltimore till I saw you? I came in as soon as + I could, but found you had gone to Washington. I called also, + to see _Mike_, but learned from his mother he had gone out + with you and had not returned. I concluded, therefore, he had + gone with you. How inconsiderate you have been! When I left + you, you stated that _we would not meet_ in a month or so, and + therefore I made application for employment, an answer to which + I shall receive during the week. I told my parents I had ceased + with you. Can I, then, under existing circumstances, act as + you request? You know full well that the government suspicions + something is going on there, therefore the _undertaking_ + is becoming more complicated. Why not, _for the present_, + desist?--for various reasons, which, if you look into, you can + readily see without my making any mention thereof. You, nor + any one, can censure me for my present course. You have been + its cause, for how can I now come after telling them I had + left you? Suspicion rests upon me now from my whole family, + and even parties in the country. I will be compelled to leave + home any how, and how soon I care not. None, no, not one, + were more in favor of the enterprise than myself, and to-day + would be there had you not done as you have. By this I mean + manner of proceeding. I am, as you well know, in _need_. I am, + you may say, in rags, whereas, to-day, I ought to be _well + clothed_. I do not feel right stalking about with _means_, and + more from appearances a beggar. I feel my dependence. But even + all this would have been, and was, forgotten, for I _was one + with you_. Time more _propitious_ will arrive yet. Do not act + rashly or in haste. I would prefer your first query, 'Go and + see how it will be taken in Richmond,' and _ere long_ I shall + be better prepared _to again be with you_. I dislike writing. + Would sooner verbally make known my views. Yet your now waiting + causes me thus to proceed. Do not in anger peruse this. Weigh + all I have said, and, as a rational man and a _friend_, you + cannot censure or upbraid my conduct. I sincerely trust this, + nor aught else that shall or may occur, will ever be an + obstacle to obliterate our former friendship and attachment. + Write me to Baltimore, as I expect to be in about Wednesday or + Thursday; or, if you can possibly come on, I will Tuesday meet + you at Baltimore at B. + + "Ever I subscribe myself, your friend, + "SAM." + +Here is the confession of the prisoner Arnold, that he was one with +Booth in this conspiracy; the further confession that they are +suspected by the government of their country, and the acknowledgment +that _since they parted_ Booth had communicated, among other things, a +suggestion which leads to the remark in this letter, "I would prefer +your first query, 'Go and see how it will be taken at Richmond,' and +_ere long_ I shall be better prepared _to again be with you_." This +is a declaration that affects Arnold, Booth, and O'Laughlin alike, if +the court are satisfied, and it is difficult to see how they can have +doubt on the subject, that the matter to be referred to Richmond is +the matter of the assassination of the President and others, to effect +which these parties had previously agreed and conspired together. It is +a matter in testimony, by the declaration of John H. Surratt, who is +as clearly proved to have been in this conspiracy and murder as Booth +himself, that about the very date of this letter, the 27th of March, +upon the suggestion of Booth, and with his knowledge and consent, he +went to Richmond, not only to see "how it would be taken there," but to +get funds with which to carry out the enterprise, as Booth had already +declared to Chester in one of his last interviews, when he said that +he or "some one of the party" would be constrained to go to Richmond +for funds to carry out the conspiracy. Surratt returned from Richmond, +bringing with him some part of the money for which he went, and was +then going to Canada, and, as the testimony discloses, bringing with +him the despatches from Jefferson Davis to his chief agents in Canada, +which, as Thompson declared to Conover, made the proposed assassination +"all right." Surratt, after seeing the parties here, left immediately +for Canada and delivered his despatches to Jacob Thompson, the agent +of Jefferson Davis. This was done by Surratt upon the suggestion, or +in exact accordance with the suggestion, of Arnold, made on the 27th +of March in his letter to Booth just read, and yet you are gravely +told that four weeks before the 27th of March Arnold had abandoned the +conspiracy. + +Surratt reached Canada with these despatches, as we have seen, +about the 6th or 7th of April last, when the witness Conover saw +them delivered to Jacob Thompson and heard their contents stated by +Thompson, and the declaration from him that these despatches made +it "all right." That Surratt was at that time in Canada is not only +established by the testimony of Conover, but it is also in evidence +that he told Wiechmann on the 3d of April that he was going to Canada, +and on that day left for Canada, and afterwards, two letters addressed +by Surratt over the _fictitious_ signature of John Harrison, to his +mother and to Miss Ward; dated at Montreal, were received by them +on the 14th of April, as testified by Wiechmann and by Miss Ward, a +witness called for the defense. Thus it appears that the condition +named by Arnold in his letter had been complied with. Booth had "gone +to Richmond," in the person of Surratt, "to see how it would be taken." +The rebel authorities at Richmond had approved it, the agent had +returned; and Arnold was, in his own words, thereby the better prepared +to rejoin Booth in the prosecution of this conspiracy. + +To this end Arnold went to Fortress Monroe. As his letter expressly +declares, Booth said when they parted, "we would not meet in a month +or so, and _therefore_ I made application for employment--an answer +to which I shall receive during the week." He did receive the answer +that week from Fortress Monroe, and went there to await the "more +propitious time," bearing with him the weapon of death which Booth had +provided, and ready to obey his call, as the act had been approved at +Richmond and been made "all right." Acting upon the same fact that the +conspiracy had been approved in Richmond and the _funds_ provided, +O'Laughlin came to Washington to identify General Grant, the person who +was to become the victim of his violence in the final consummation of +this crime--General Grant, whom, as is averred in the specification, it +had become the part of O'Laughlin by his agreement in this conspiracy +to kill and murder. On the evening preceding the assassination--the +13th of April--by the testimony of three reputable witnesses, +against whose truthfulness not one word is uttered here or elsewhere, +O'Laughlin went into the house of the Secretary of War, where General +Grant then was, and placed himself in position in the hall where he +could see him, having declared before he reached that point, to one of +these witnesses, that he wished to see General Grant. The house was +brilliantly illuminated at the time; two, at least, of the witnesses +conversed with the accused and the other stood very near to him, took +special notice of his conduct, called attention to it, and suggested +that he be put out of the house, and he was accordingly put out by one +of the witnesses. These witnesses are confident, and have no doubt, and +so swear upon their oaths, that Michael O'Laughlin is the man who was +present on that occasion. There is no denial on the part of the accused +that he was in Washington during the day and during the night of April +13, and also during the day and during the night of the 14th; and yet, +to get rid of this testimony, recourse is had to that common device--an +_alibi_; a device never, I may say, more frequently resorted to than +in this trial. But what an _alibi_! Nobody is called to prove it, +save some men who, by their own testimony, were engaged in a drunken +debauch through the evening. A reasonable man who reads their evidence +can hardly be expected to allow it to outweigh the united testimony of +three unimpeached and unimpeachable witnesses who were clear in their +statements, who entertain no doubt of the truth of what they say, whose +opportunities to know were full and complete, and who were constrained +to take special notice of the prisoner by means of his extraordinary +conduct. + +These witnesses describe accurately the appearance, stature, and +complexion of the accused, but because they describe his clothing as +dark or black, it is urged that as part of his clothing, although dark, +was not black, the witnesses are mistaken. O'Laughlin and his drunken +companions (one of whom swears that he drank ten times that evening) +were strolling in the streets and in the direction of the house of the +Secretary of War, up the Avenue; but you are asked to believe that +these witnesses could not be mistaken in saying they were not off the +Avenue above Seventh Street, or on K Street. I venture to say that +no man who reads their testimony can determine satisfactorily +all the places that were visited by O'Laughlin and his drunken +associates that evening from seven to eleven o'clock P.M. All +this time, from seven to eleven o'clock P.M., must be accounted +for satisfactorily before the _alibi_ can be established. O'Laughlin +does not account for all the time, for he left O'Laughlin after seven +o'clock, and rejoined him, as he says, "I suppose about eight o'clock." +Grillet did not meet him until _half-past ten_, and then only casually +saw him in passing the hotel. May not Grillet have been mistaken as to +the fact, although he did meet O'Laughlin after eleven o'clock the same +evening, as he swears? + +Purdy swears to seeing him in the bar with Grillet about half-past +ten, but, as we have seen by Grillet's testimony, it must have been +after eleven o'clock. Murphy contradicts _as to time_ both Grillet and +Purdy, for he says it was half-past eleven or twelve o'clock when he +and O'Laughlin returned to Rullman's from Platz's, and Early swears +the accused went from Rullman's to Second Street to a dance about a +quarter-past eleven o'clock, when O'Laughlin took the lead in the +dance and stayed about one hour. I follow these witnesses no further. +They contradict each other, and do not account for O'Laughlin all the +time from seven to eleven o'clock. I repeat that no man can read their +testimony without finding contradictions most material _as to time_, +and coming to the conviction that they utterly fail to account for +O'Laughlin's whereabouts on that evening. To establish an _alibi_ the +witnesses _must know the fact_ and _testify_ to it. Laughlan, Grillet, +Purdy, Murphy, and Early utterly fail to prove it, and only succeed in +showing that they did not know where O'Laughlin was all this time, and +that some of them were grossly mistaken in what they testified, both +as to _time and place_. The testimony of James B. Henderson is equally +unsatisfactory. He is contradicted by other testimony of the accused as +_to place_. He says O'Laughlin went up the Avenue above Seventh Street, +but that he did not go to Ninth Street. The other witnesses swear +he went to Ninth Street. He swears he went to Canterbury about nine +o'clock, after going back from Seventh Street to Rullman's. Laughlan +swears that O'Laughlin was with him at the corner of the Avenue and +Ninth Street at nine o'clock, and went from there to Canterbury, while +Early swears that O'Laughlin went up as far as Eleventh Street and +returned with him and took supper at Welcker's about eight o'clock. If +these witnesses prove an _alibi_, it is really against each other. It +is folly to pretend that they prove facts which make it impossible that +O'Laughlin could have been at the house of Secretary Stanton, as three +witnesses swear he was, on the evening of the 13th of April, looking +for General Grant. + +Has it not, by the testimony thus reviewed, been established _prima +facie_ that in the months of February, March, and April, O'Laughlin had +combined, confederated, and agreed with John Wilkes Booth and Samuel +Arnold to kill and murder Abraham Lincoln, William H. Seward, Andrew +Johnson, and Ulysses S. Grant? It is not established, beyond a shadow +of doubt, that Booth had so conspired with the rebel agents in Canada +as early as October last; that he was in search of agents to do the +work _on pay_, in the interests of the rebellion, and that in this +speculation Arnold and O'Laughlin had joined as early as February; +that then, and after, with Booth and Surratt, they were in the "oil +business," which was the business of assassination by contract as a +speculation? If this conspiracy on the part of O'Laughlin with Arnold +is established even _prima facie_, the declarations and acts of Arnold +and Booth, the other conspirators, in furtherance of the common design, +is evidence against O'Laughlin as well as against Arnold himself or the +other parties. The rule of law is, that the act or declaration of one +conspirator, done in pursuance or furtherance of the common design, is +the act or declaration of all the conspirators.--_1 Wharton, 706._ + +The letter, therefore, of his co-conspirator, Arnold, is evidence +against O'Laughlin, because it is an act in the prosecution of the +common conspiracy, suggesting what should be done in order to make it +effective, and which suggestion, as has been stated, was followed out. +The defense has attempted to avoid the force of this letter by reciting +the statement of Arnold, made to Homer at the time he was arrested, in +which he declared, among other things, that the purpose was to abduct +President Lincoln and take him South; that it was to be done at the +theatre by throwing the President out of the box upon the floor of the +stage, when the accused was to catch him. The very announcement of this +testimony excited derision that such a tragedy meant only to take the +President and carry him gently away! This pigmy to catch the giant as +the assassins hurled him to the floor from an elevation of twelve feet! +The court has viewed the theatre, and must be satisfied that Booth, in +leaping from the President's box, broke his limb. The court cannot fail +to conclude that this statement of Arnold was but another silly device, +like that of the "oil business," which, for the time being, he employed +to hide from the knowledge of his captor the fact that the purpose was +to murder the President. No man can, for a moment, believe that any one +of these conspirators hoped or desired, by such a proceeding as that +stated by this prisoner, to take the President alive in the presence +of thousands assembled in the theatre after he had been thus thrown +upon the floor of the stage, much less to carry him through the city, +through the lines of your army, and deliver him into the hands of the +rebels. No such purpose was expressed or hinted by the conspirators in +Canada, who commissioned Booth to let these assassinations on contract. +I shall waste not a moment more in combatting such an absurdity. + +Arnold does confess that he was a conspirator with Booth in this +purposed, murder; that Booth had a letter of introduction to Dr. Mudd; +that Booth, O'Laughlin, Atzerodt, Surratt, a man with an _alias_ +"Mosby," and another whom he does not know, and himself, were parties +to this conspiracy, and that Booth had furnished them all with arms. He +concludes this remarkable statement to Horner with the declaration that +at that time, to wit, the first week of March, or four weeks before he +went to Fortress Monroe, he left the conspiracy, and that Booth told +him to sell his arms if he chose. This is sufficiently answered by the +fact that, four weeks _afterwards_, he wrote his letter to Booth, which +was found in Booth's possession after the assassination, suggesting to +him what to do in order to make the conspiracy a success, and by the +further fact that at the very moment he uttered these declarations part +of his arms were found upon his person, and the rest not disposed of, +but at his father's house. + +A party to a treasonable and murderous conspiracy against the +government of his country cannot be held to have abandoned it because +he makes such a declaration as this, when he is in the hands of the +officer of the law, arrested for his crime, and especially when his +declaration is in conflict with and expressly contradicted by his +written acts, and unsupported by any conduct of his which becomes a +citizen and a man. + +If he abandoned the conspiracy, why did he not make known the fact to +Abraham Lincoln and his constitutional advisers that these men, armed +with the weapons of assassination, were daily lying in wait for their +lives? To pretend that a man who thus conducts himself for weeks after +the pretended abandonment, volunteering advice for the successful +prosecution of the conspiracy, the evidence of which is in writing, and +about which there can be no mistake, has, in fact, abandoned it, is to +insult the common understanding of men. O'Laughlin having conspired +with Arnold to do this murder, is, therefore, as much concluded by +the letter of Arnold of the 27th of March as is Arnold himself. The +further testimony touching O'Laughlin, that of Streett, establishes +the fact that about the 1st of April he saw him in confidential +conversation with J. Wilkes Booth, in this city, on the Avenue. Another +man, whom the witness does not know, was in conversation. O'Laughlin +called Streett to one side, and told him Booth was busily engaged with +his friend--was _talking privately_ to his friend. This remark of +O'Laughlin is attempted to be accounted for, but the attempt failed; +his counsel taking the pains to ask what induced O'Laughlin to make +the remark, received the fit reply: "I did not see the interior of Mr. +O'Laughlin's mind; I cannot tell." It is the province of this court to +infer why that remark was made and what it signified. + +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. By the testimony of Wiechmann, we find Atzerodt in February at +the house of the prisoner, Mrs. Surratt. He inquired for her or for +John when he came and remained over night. After this and before the +assassination he visited there frequently, and at that house bore the +name of "Port Tobacco," the name by which he was known in Canada among +the conspirators there. The same witness testifies that he met him on +the street, when he said he was going to visit Payne at the Herndon +House, and also accompanied him, along with Herold and John H. Surratt, +to the theatre in March to hear Booth play in "The Apostate." At the +Pennsylvania House, one or two weeks previous to the assassination, +Atzerodt made the statement to Lieutenant Keim, when asking for his +knife which he had left in his room, a knife corresponding in size +with the one exhibited in court, "I want that; if one fails I want the +other," wearing at the same time his revolver at his belt. He also +stated to Greenawalt, of the Pennsylvania House, in March, that he +was nearly broke, but had friends enough to give him as much money as +_would see him through_, adding, "I am going away some of these days, +but will return with as much gold as will keep me all my lifetime." Mr. +Greenawalt also says that Booth had frequent interviews with Atzerodt, +sometimes in the room, and at other times Booth would walk in and +immediately go out, Atzerodt following. + +John M. Lloyd testifies that some six weeks before the assassination, +Herold, Atzerodt, and John H. Surratt came to his house at +Surrattsville, bringing with them two Spencer carbines with ammunition, +also a rope and wrench. Surratt asked the witness to take care of them +and to conceal the carbines. Surratt took him into a room in the house, +it being his mother's house, and showed the witness where to put the +carbines, between the joists on the second floor. The carbines were put +there, according to his directions, and concealed. Marcus P. Norton saw +Atzerodt in conversation with Booth at the National Hotel about the +2d or 3d of March; the conversation was confidential, and the witness +accidentally heard them talking in regard to President Johnson, and +say that "the class of witnesses would be of that character that there +could be little proven by them." This conversation may throw some light +on the fact that Atzerodt was found in possession of Booth's bank book! + +Colonel Nevens testifies that on the 12th of April last he saw Atzerodt +at the Kirkwood House; that Atzerodt there asked him, a stranger, if he +knew where Vice-President Johnson was, and where Mr. Johnson's _room +was_. Colonel Nevens showed him where the room of the Vice-President +was, and told him that the Vice-President was then at dinner. Atzerodt +then looked into the dining-room where Vice-President Johnson was +dining alone. Robert R. Jones, the clerk at the Kirkwood House, states +that on the 14th, the day of the murder, two days after this, Atzerodt +registered his name at the hotel, G. A. Atzerodt, and took No. 126, +retaining the room that day, and carrying away the key. In this room, +after the assassination, were found the knife and revolver with which +he intended to murder the Vice-President. + +The testimony of all these witnesses leaves no doubt that the prisoner, +George A. Atzerodt, entered into this conspiracy with Booth; that he +expected to receive a large compensation for the service that he would +render in its execution; that he had undertaken the assassination of +the Vice-President for a price; that he, with Surratt and Herold, +rendered the important service of depositing the arms and ammunition to +be used by Booth and his confederates as a protection in their flight +after the conspiracy had been executed; and that he was careful to have +his intended victim pointed out to him, and the room he occupied in the +hotel, so that when he came to perform his horrid work he would know +precisely where to go and whom to strike. + +I take no further notice now of the preparation which this prisoner +made for the successful execution of this part of the traitorous and +murderous design. The question is, did he enter into this conspiracy? +His language overheard by Mr. Norton excludes every other conclusion. +Vice-President Johnson's name was mentioned in that secret conversation +with Booth, and the very suggestive expression was made between them +that "little could be proved by the witnesses." His confession in his +defense is conclusive of his guilt. + +That Payne was in this conspiracy is confessed in the defense made by +his counsel, and is also evident, from the facts proved, that when the +conspiracy was being organized in Canada by Thompson, Sanders, Tucker, +Cleary, and Clay, this man Payne stood at the door of Thompson, was +recommended and indorsed by Clay with the words, "We trust him"; that +after coming hither he first reported himself at the house of Mrs. Mary +E. Surratt, inquired for her and for John H. Surratt, remained there +for four days, having conversation with both of them; having provided +himself with means of disguise, was also supplied with pistols and +a knife, such as he afterwards used, and spurs, preparatory to his +flight; was seen with John H. Surratt, practicing with knives such as +those employed in this deed of assassination and now before the court; +was afterwards provided with lodging at the Herndon House, at the +instance of Surratt; was visited there by Atzerodt, and attended Booth +and Surratt to Ford's Theatre, occupying with those parties the box, as +I believe and which we may readily infer, in which the President was +afterwards murdered. + +If further testimony be wanting that he had entered into the +conspiracy, it may be found in the fact sworn to by Wiechmann, whose +testimony no candid man will discredit, that about the 20th of March, +Mrs. Surratt, in great excitement and weeping, said that her son John +had gone away not to return, when, about three hours subsequently, in +the afternoon of the same day, John H. Surratt reappeared, came rushing +in a state of frenzy into the room, in his mother's house, armed, +declaring he would shoot whoever came into the room, and proclaiming +that his prospects were blasted and his hopes gone; that soon Payne +came into the same room, also armed and under great excitement, and was +immediately followed by Booth, with his riding-whip in his hand, who +walked rapidly across the floor from side to side, so much excited that +for some time he did not notice the presence of the witness. Observing +Wiechmann, the parties then withdrew, upon a suggestion from Booth, +to an upper room, and there had a private interview. From all that +transpired on that occasion, it is apparent that when these parties +left the house that day it was with the full purpose of completing some +act essential to the final execution of the work of assassination, +in conformity with their previous confederation and agreement. They +returned foiled--from what cause is unknown--dejected, angry, and +covered with confusion. + +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. You have the frequent interviews between John H. +Surratt and Booth, his intimate relations with Payne, his visits from +Atzerodt and Herold, his deposit of the arms to cover their flight +after the conspiracy should have been executed; his own declared visit +to Richmond to do what Booth himself said to Chester must be done, +to wit, that he or some of the party must go to Richmond in order +to get funds to carry out the conspiracy; that he brought back with +him gold, the price of blood, confessing himself that he was there; +that he immediately went to Canada, delivered despatches in cipher to +Jacob Thompson from Jefferson Davis, which were interpreted and read +by Thompson in the presence of the witness Conover, and in which the +conspiracy was approved, and, in the language of Thompson, the proposed +assassination was "made all right." + +One other fact, if any other fact be needed, and I have done with +the evidence which proves that John H. Surratt entered into this +combination; that is, that it appears by the testimony of the witness, +the cashier of the Ontario Bank, Montreal, that Jacob Thompson, about +the day that these despatches were delivered, and while Surratt was +then present in Canada, drew from that bank of the rebel funds there on +deposit the sum of one hundred and eighty thousand dollars. This being +done, Surratt, finding it safer, doubtless, to go to Canada for the +great bulk of funds which were to be distributed amongst these hired +assassins than to attempt to carry it through our lines direct from +Richmond, immediately returned to Washington and was present in this +city, as is proven by the testimony of Mr. Reid, _on the afternoon of +the 14th of April_, the day of the assassination, booted and spurred, +ready for the flight whenever the fatal blow should have been struck. +If he was not a conspirator and a party to this great crime, how comes +it that from that hour to this no man has seen him in the capital, +nor has he been reported anywhere outside of Canada, having arrived +at Montreal, as the testimony shows, on the 18th of April, four days +after the murder? Nothing but his conscious coward guilt could possibly +induce him to absent himself from his mother, as he does, upon her +trial. Being one of these conspirators, as charged, every act of his in +the prosecution of this crime is evidence against the other parties to +the conspiracy. + +That Mary E. Surratt is as guilty as her son of having thus conspired, +combined, and confederated to do this murder, in aid of this rebellion, +is clear. First, her house was the headquarters of Booth, John H. +Surratt, Atzerodt, Payne, and Herold. She is inquired for by Atzerodt; +she is inquired for by Payne; and she is visited by Booth, and holds +private conversations with him. His picture, together with that of +the chief conspirator, Jefferson Davis, is found in her house. She +sends to Booth for a carriage to take her, on the 11th of April, to +Surrattsville for the purpose of perfecting the arrangement deemed +necessary to the successful execution of the conspiracy, and especially +to facilitate and protect the conspirators in their escape from +justice. On that occasion Booth, having disposed of his carriage, gives +to the agent she employed ten dollars with which to hire a conveyance +for that purpose. And yet the pretence is made that Mrs. Surratt went +on the 11th to Surrattsville exclusively upon her own private and +lawful business. Can any one tell, if that be so, how it comes that +she should apply _to Booth_ for a conveyance, and how it comes that he +of his own accord, having no conveyance to furnish her, should send +her ten dollars with which to procure it? There is not the slightest +indication that Booth was under any obligation to her, or that she had +any claim upon him, either for a conveyance or for the means with which +to procure one, except that he was bound to contribute, being the agent +of the conspirators in Canada and Richmond, whatever money might be +necessary to the consummation of this infernal plot. On that day, the +11th of April, John H. Surratt had not returned from Canada with the +funds furnished by Thompson! + +Upon that journey of the 11th the accused, Mary E. Surratt, met the +witness John M. Lloyd at Uniontown. She called him; he got out of his +carriage and came to her, and she whispered to him in so low a tone +that her attendant could not hear her words, though Lloyd, to whom they +were spoken, did distinctly hear them, and testifies that she told +him he should have those "shooting-irons" ready, meaning the carbines +which her son and Herold and Atzerodt had deposited with him, and +added the reason, "for they would soon be called for." On the day of +the assassination she again sent for Booth, had an interview with him +in her own house, and immediately went again to Surrattsville, and +then, at about six o'clock in the afternoon, she delivered to Lloyd +a field-glass, and told him "to have two bottles of whiskey and the +carbines ready, as they would be called for that night." Having thus +perfected the arrangement she returned to Washington to her own house, +at about half-past eight o'clock in the evening, to await the final +result. How could this woman anticipate on Friday afternoon, at six +o'clock, that these arms would be called for and would be needed that +night unless she was in the conspiracy and knew the blow was to be +struck, and the flight of the assassins attempted and by that route? +Was not the private conversation which Booth held with her in her +parlor on the afternoon of the 14th of April, just before she left on +this business, in relation to the orders she should give to have the +arms ready? + +An endeavor is made to impeach Lloyd. But the court will observe that +no witness has been called who contradicts Lloyd's statement in any +material matter; neither has his general character for truth been +assailed. How, then, is he impeached? Is it claimed that his testimony +shows that he was a party to the conspiracy? Then it is conceded +by those who set up any such pretence that there was a conspiracy. +A conspiracy between whom? There can be no conspiracy without the +co-operation or agreement of two or more persons. Who were the other +parties to it? Was it Mary E. Surratt? Was it John H. Surratt, George +A. Atzerodt, David E. Herold? Those are the only persons, so far as his +own testimony or the testimony of any other witness discloses, with +whom he had any communication whatever on any subject immediately or +remotely touching this conspiracy before the assassination. His receipt +and concealment of the arms are, unexplained, evidence that he was in +the conspiracy. + +The explanation is that he was dependent upon Mary E. Surratt; was her +tenant; and his declaration, given in evidence by the accused herself, +is that "she had ruined him and brought this trouble upon him." But +because he was weak enough, or wicked enough, to become the guilty +depository of these arms, and to deliver them on the order of Mary +E. Surratt to the assassins, it does not follow that he is not to be +believed on oath. It is said that he concealed the facts that the arms +had been left and called for. He so testifies himself, but he gives the +reason that he did it only from apprehension of danger to his life. +If he were in the conspiracy, his general credit being unchallenged, +his testimony being uncontradicted in any material matter, he is to be +believed, and cannot be disbelieved if his testimony is substantially +corroborated by other reliable witnesses. Is he not corroborated +touching the deposit of arms by the fact that the arms are produced +in court, one of which was found upon the person of Booth at the time +he was overtaken and slain, and which is identified as the same which +had been left with Lloyd by Herold, Surratt, and Atzerodt? Is he not +corroborated in the fact of the first interview with Mrs. Surratt by +the joint testimony of Mrs. Offut and Lewis J. Wiechmann, each of whom +testified (and they are contradicted by no one), that on Tuesday, the +11th day of April, at Uniontown, Mrs. Surratt called Mr. Lloyd to come +to her, which he did, and she held a _secret_ conversation with him? Is +he not corroborated as to the last conversation on the 14th of April +by the testimony of Mrs. Offut, who swears that upon the evening of +the 14th of April she saw the prisoner, Mary E. Surratt, at Lloyd's +house, approach and hold conversation with him? Is he not corroborated +in the fact, to which he swears, that Mrs. Surratt delivered to him +at that time the field-glass wrapped in paper, by the sworn statement +of Wiechmann that Mrs. Surratt took with her on that occasion two +packages, both of which were wrapped in paper, and one of which he +describes as a small package about six inches in diameter? The attempt +was made by calling Mrs. Offut to prove that no such package was +delivered, but it failed; she merely states that Mrs. Surratt delivered +a package wrapped in paper to her after her arrival there, and before +Lloyd came in, which was laid down in the room. But whether it was +_the_ package about which Lloyd testifies, or the other package of the +_two_ about which Wiechmann testifies, as having been carried there +that day by Mrs. Surratt, does not appear. Neither does this witness +pretend to say that Mrs. Surratt, after she had delivered it to her, +and the witness had laid it down in the room, did not again take it up, +if it were the same, and put it in the hands of Lloyd. She only knows +that she did not see that done; but she did see Lloyd with a package +like the one she received in the room before Mrs. Surratt left. How it +came into his possession she is not able to state; nor what the package +was that Mrs. Surratt first handed her; nor which of the packages it +was she afterwards saw in the hands of Lloyd. + +But there is one other fact in this case that puts forever at rest the +question of the guilty participation of the prisoner, Mrs. Surratt, +in this conspiracy and murder; and that is that Payne, who had lodged +four days in her house--who during all that time had sat at her table, +and who had often conversed with her--when the guilt of his great +crime was upon him, and he knew not where else he could so safely go +to find a co-conspirator, and he could trust none that was not like +himself, guilty, with even the knowledge of his presence--under cover +of darkness, after wandering for three days and nights, skulking before +the pursuing officers of justice, at the hour of midnight found his +way to the door of Mrs. Surratt, rang the bell, was admitted, and upon +being asked, "Whom do you want to see?" replied, "Mrs. Surratt." He +was then asked by the officer, Morgan, what he came at that time of +night for, to which he replied, "to dig a gutter in the morning; Mrs. +Surratt had sent for him." Afterwards he said "Mrs. Surratt knew he was +a poor man and _came to him_." Being asked where he last worked, he +replied, "sometimes on 'I' street"; and where he boarded, he replied, +"he had no boarding-house, and was a poor man who got his living with +the pick," which he bore upon his shoulder, having stolen it from the +intrenchments of the capital. Upon being pressed again why he came +there at that time of night to go to work, he answered that he simply +called to see what time he should go to work in the morning. Upon +being told by the officer, who fortunately had preceded him to this +house, that he would have to go to the provost marshal's office, he +moved and did not answer, whereupon Mrs. Surratt was asked to step into +the hall and state whether she knew this man. Raising her right hand, +she exclaimed, "Before God, sir, I have not seen that man before; I +have not hired him; I do not know anything about him." The hall was +brilliantly lighted. + +If not one word had been said, the mere act of Payne in flying to +her house for shelter would have borne witness against her, strong +as proofs from Holy Writ. But when she denies, after hearing his +declarations, that she had sent for him, or that she had gone to him +and hired him, and calls her God to witness that she had never seen +him, and knew nothing of him, when, in point of fact, she had seen him +for four successive days in her own house, in the same clothing which +he then wore, who can resist for a moment the conclusion that these +parties were alike guilty? + +The testimony of Spangler's complicity is conclusive and brief. It was +impossible to hope for escape after assassinating the President, and +such others as might attend him in Ford's Theatre, without arrangements +being first made to aid the flight of the assassin and to some extent +prevent immediate pursuit. + +A stable was to be provided close to Ford's Theatre, in which the +horses could be concealed and kept ready for the assassin's use +whenever the murderous blow was struck. Accordingly, Booth secretly, +through Maddox, hired a stable in rear of the theatre and connecting +with it by an alley, as early as the 1st of January last; showing that +at that time he had concluded, notwithstanding all that has been said +to the contrary, to murder the President in Ford's Theatre and provide +the means for immediate and successful flight. Conscious of his guilt, +he paid the rent for this stable through Maddox, month by month, giving +him the money. He employed Spangler, doubtless for the reason that he +could trust him with the secret, as a carpenter to fit up this shed, so +that it would furnish room for two horses, and provide the door with +lock and key. Spangler did this work for him. Then, it was necessary +that a carpenter having access to the theatre should be employed +by the assassin to provide a bar for the outer door of the passage +leading to the President's box, so that when he entered upon his work +of assassination he would be secure from interruption from the rear. +By the evidence, it is shown that Spangler was in the box in which the +President was murdered on the afternoon of the 14th of April, and when +there damned the President and General Grant, and said the President +ought to be cursed, he had got so many good men killed; showing not +only his hostility to the President, but the cause of it--that he had +been faithful to his oath and had resisted that great rebellion in the +interest of which his life was about to be sacrificed by this man and +his co-conspirators. In performing the work which had doubtless been +intrusted to him by Booth, a mortise was cut in the wall. A wooden bar +was prepared, one end of which could be readily inserted in the mortise +and the other pressed against the edge of the door on the inside so as +to prevent its being opened. Spangler had the skill and the opportunity +to do that work and all the additional work which was done. + +It is in evidence that the screws in "the keepers" to the locks on each +of the inner doors of the box occupied by the President were drawn. +The attempt has been made, on behalf of the prisoner, to show that +this was done some time before, accidentally, and with no bad design, +and had not been repaired by reason of inadvertence; but that attempt +has utterly failed, because the testimony adduced for that purpose +relates exclusively to but one of the two inner doors, while the fact +is, that the screws were drawn in _both_, and the additional precaution +taken to cut a small hole through one of these doors through which the +party approaching and while in the private passage would be enabled +to look into the box and examine the exact posture of the President +before entering. It was also deemed essential, in the execution of this +plot, that some one should watch at the outer door, in the rear of the +theatre, by which alone the assassin could hope for escape. It was for +this work Booth sought to employ Chester in January, offering three +thousand dollars down of the money of his employers, and the assurance +that he should never want. What Chester refused to do Spangler +undertook and promised to do. When Booth brought his horse to the +rear door of the theatre, on the evening of the murder, he called for +Spangler, who went to him, when Booth was heard to say to him, "Ned, +you'll help me all you can, won't you?" To which Spangler replied, "Oh, +yes." + +When Booth made his escape, it is testified by Colonel Stewart, who +pursued him across the stage and out through the same door, that as he +approached it some one slammed it shut. Ritterspaugh, who was standing +behind the scenes when Booth fired the pistol and fled, saw Booth run +down the passage toward the back door, and pursued him; but Booth +drew his knife upon him and passed out, slamming the door after him. +Ritterspaugh opened it and went through, leaving it _open_ behind him, +leaving Spangler inside, and in a position from which he readily could +have reached the door. Ritterspaugh also states that very quickly +after he had passed through this door he was followed by a large man, +the first who followed him, and who was, doubtless, Colonel Stewart. +Stewart is very positive that he saw this door slammed; that he himself +was constrained to open it, and had some difficulty in opening it. He +also testifies that as he approached the door a man stood near enough +to have thrown it to with his hand, and this man, the witness believes, +was the prisoner Spangler. Ritterspaugh has sworn that he left the +door open behind him when he went out, and that he was first followed +by the large man, Colonel Stewart. Who slammed that door behind +Ritterspaugh? It was not Ritterspaugh; it could not have been Booth, +for Ritterspaugh swears that Booth was mounting his horse at the time; +and Stewart swears that Booth was upon his horse when he came out. That +it was Spangler who slammed the door after Ritterspaugh may not only +be inferred from Stewart's testimony, but it is made very clear by his +own conduct afterwards upon the return of Ritterspaugh to the stage. +The door being then open, and Ritterspaugh being asked which way Booth +went, had answered. Ritterspaugh says: "Then I came back on the stage, +where I had left Edward Spangler; he hit me on the face with his hand +and said, 'Don't say which way he went.' I asked him what he meant by +slapping me in the mouth? He said, 'For God's sake, shut up.'" + +The testimony of Withers is adroitly handled to throw doubt upon these +facts. It cannot avail, for Withers says he was knocked in the scene by +Booth, and when he "come to" he got a side view of him. A man knocked +down and senseless, on "coming to" might mistake anybody by a side view +for Booth. + +An attempt has been made by the defense to discredit this testimony +of Ritterspaugh, by showing his contradictory statements to Gifford, +Garlan, and Lamb, neither of whom do in fact contradict him, but +substantially sustain him. None but a guilty man would have met the +witness with a blow for stating which way the assassin had gone. A like +confession of guilt was made by Spangler when the witness Miles, the +same evening, and directly after the assassination, came to the back +door, where Spangler was standing with others, and asked Spangler who +it was that held the horse, to which Spangler replied: "Hush; don't +say anything about it." He confessed his guilt again when he denied to +Mary Anderson the fact, proved here beyond all question, that Booth had +called him when he came to that door with his horse, using the emphatic +words, "No, he did not; he did not call me." The rope comes to bear +witness against him, as did the rope which Atzerodt and Herold and John +H. Surratt had carried to Surrattsville and deposed there with the +carbines. + +It is only surprising that the ingenious counsel did not attempt to +explain the deposit of the rope at Surrattsville by the same method +that he adopted in explanation of the deposit of this rope, some sixty +feet long, found in the carpet-sack of Spangler, unaccounted for save +by some evidence which tends to show that he may have carried it away +from the theatre. + +It is not needful to take time in the recapitulation of the evidence, +which shows conclusively that David E. Herold was one of these +conspirators. His continued association with Booth, with Atzerodt, his +visits to Mrs. Surratt's, his attendance at the theatre with Payne, +Surratt, and Atzerodt, his connection with Atzerodt on the evening of +the murder, riding with him on the street in the direction of and near +to the theatre at the hour appointed for the work of assassination, +and his final flight and arrest, show that he, in common with all the +other parties on trial, and all the parties named upon your record not +upon trial, and combined and confederated to kill and murder in the +interests of the rebellion, as charged and specified against them. + +That this conspiracy was entered into by all these parties, both +present and absent, is thus proved by the acts, meetings, declarations, +and correspondence of all the parties, beyond any doubt whatever. True +it is circumstantial evidence, but the court will remember the rule +before recited, that circumstances cannot lie; that they are held +sufficient in every court where justice is judicially administered to +establish the fact of a conspiracy. I shall take no further notice of +the remark made by the learned counsel who opens for the defense, and +which has been followed by several of his associates, that under the +Constitution it requires two witnesses to prove the overt act of high +treason, than to say, this is not a charge of high treason, but of a +treasonable conspiracy, in aid of a rebellion, with intent to kill and +murder the executive officer of the United States, and commander of +its armies, and of the murder of the President in pursuance of that +conspiracy, and with the intent laid, etc. Neither by the Constitution, +nor by the rules of the common law, is any fact connected with this +allegation required to be established by the testimony of more than one +witness. I might say, however, that every substantive averment against +each of the parties named upon this record has been established by the +testimony of more than one witness. + +That the several accused did enter into this conspiracy with John +Wilkes Booth and John H. Surratt to murder the officers of this +government named upon the record, in pursuance of the wishes of their +employers and instigators in Richmond and Canada, and with intent +thereby to aid the existing rebellion and subvert the Constitution and +laws of the United States, as alleged, is no longer an open question. + +The intent as laid was expressly declared by Sanders in the meeting of +the conspirators at Montreal in February last, by Booth in Virginia +and New York, and by Thompson to Conover and Montgomery; but if there +were no testimony directly upon this point, the law would presume the +intent, for the reason that such was the natural and necessary tendency +and manifest design of the act itself. + +The learned gentleman (Mr. Johnson) says the government has survived +the assassination of the President, and thereby would have you infer +that this conspiracy was not entered into and attempted to be executed +with the intent laid. With as much show of reason it might be said that +because the government of the United States has survived this unmatched +rebellion, it therefore results that the rebel conspirators waged war +upon the government with no purpose or intent thereby to subvert it. +By the law we have seen that, without any direct evidence of previous +combination and agreement between these parties, the conspiracy might +be established by evidence of the acts of the prisoners, or of any +others with whom they co-operated, concurring in the execution of the +common design.--_Roscoe, 416._ + +Was there co-operation between the several accused in the execution +of this conspiracy? That there was is as clearly established by the +testimony as is the fact that Abraham Lincoln was killed and murdered +by John Wilkes Booth. The evidence shows that all of the accused, +save Mudd and Arnold, were in Washington on the 14th of April, the +day of the assassination, together with John Wilkes Booth and John +H. Surratt; that on that day Booth had a secret interview with the +prisoner, Mary E. Surratt; that immediately thereafter she went to +Surrattsville to perform her part of the preparation necessary to the +successful execution of the conspiracy, and did make that preparation; +that John H. Surratt had arrived here from Canada, notifying the +parties that the price to be paid for this great crime had been +provided for, at least in part, by the deposit receipts of April 6th +for $180,000, procured by Thompson of the Ontario Bank, Montreal, +Canada; that he was also prepared to keep watch, or strike a blow, and +ready for the contemplated flight; that Atzerodt, on the afternoon of +that day, was seeking to obtain a horse, the better to secure his own +safety by flight, after he should have performed the task which he +had voluntarily undertaken by contract in the conspiracy--the murder +of Andrew Johnson, then Vice-President of the United States; that he +did procure a horse for that purpose at Naylor's, and was seen about +nine o'clock in the evening to ride to the Kirkwood House, where +the Vice-President then was, dismount and enter. At a previous hour +Booth was in the Kirkwood House, and left his card, now in evidence, +doubtless intended to be sent to the room of the Vice-President, and +which was in these words: "Don't wish to disturb you. Are you at home? +J. Wilkes Booth." Atzerodt, when he made application at Brooks's in +the afternoon for the horse, said to Wiechmann, who was there, he was +going to ride in the country, and that "he was going to get a horse and +send for Payne." He did get a horse for Payne, as well as for himself; +for it is proven that on the 12th he was seen in Washington riding the +horse which had been procured by Booth, in company with Mudd, last +November, from Gardner. A similar horse was tied before the door of Mr. +Seward on the night of the murder, was captured after the flight of +Payne, who was seen to ride away, and which horse is now identified as +the Gardner horse. Booth also procured a horse on the same day, took +it to his stable in the rear of the theatre, where he had an interview +with Spangler, and where he concealed it. Herold, too, obtained a horse +in the afternoon, and was seen between nine and ten o'clock riding with +Atzerodt down the Avenue from the Treasury, then up Fourteenth and down +F Street, passing close by Ford's Theatre. + +O'Laughlin had come to Washington the day before, had sought out his +victim (General Grant) at the house of the Secretary of War, that he +might be able with certainty to identify him, and at the very hour when +these preparations were going on was lying in wait at Rullman's on the +Avenue, keeping watch, and declaring, as he did, at about ten o'clock +P.M., when told that the fatal blow had been struck by Booth, +"I don't believe Booth did it." During the day, and the night before, +he had been visiting Booth, and doubtless encouraging him, and at that +very hour was in position, at a convenient distance, to aid and protect +him in his flight, as well as to execute his own part of the conspiracy +by inflicting death upon General Grant, who, happily, was not at the +theatre nor in the city, having left the city that day. Who doubts that +Booth, having ascertained in the course of the day that General Grant +would not be present at the theatre, O'Laughlin, who was to murder +General Grant, instead of entering the box with Booth, was detailed to +lie in wait, and watch and support him. + +His declarations of his reasons for changing his lodgings here and in +Baltimore, after the murder, so ably and so ingeniously presented in +the argument of his learned counsel (Mr. Cox), avail nothing before +the blasting fact that he did change his lodgings, and declared "he +knew nothing of the affair whatever." O'Laughlin, who lurked here, +conspiring daily with Booth and Arnold for six weeks to do this murder, +declares "he knew nothing of the affair." O'Laughlin, who said he was +"in the oil business," which Booth and Surratt and Payne and Arnold +have all declared meant this conspiracy, says he "knew nothing of the +affair." O'Laughlin, to whom Booth sent the despatches of the 13th +and 27th of March--O'Laughlin, who is named in Arnold's letter as one +of the conspirators, and who searched for General Grant on Thursday +night, laid in wait for him on Friday, was defeated by that Providence +"which shapes our ends," and laid in wait to aid Booth and Payne, +declares "he knows nothing of the matter." Such a denial is as false +and inexcusable as Peter's denial of our Lord. + +Mrs. Surratt had arrived at home, from the completion of her part in +the plot, about half past eight o'clock in the evening. A few moments +afterwards she was called to the parlor and there had a private +interview with some one unseen, but whose retreating footsteps were +heard by the witness Wiechmann. This was doubtless the secret and +last visit of John H. Surratt to his mother, who had instigated and +encouraged him to strike this traitorous and murderous blow against his +country. + +While all these preparations were going on, Mudd was awaiting the +execution of the plot, ready to faithfully perform his part in securing +the safe escape of the murderers. Arnold was at his post at Fortress +Monroe, awaiting the meeting referred to in his letter of March 27th, +wherein he says they were not "to meet for a month or so," which month +had more than expired on the day of the murder, for his letter and the +testimony disclose that this month of suspension began to run from +about the first week in March. He stood ready with the arms which Booth +had furnished him to aid the escape of the murderers by _that route_, +and secure their communication with their employers. He had given +the assurance in that letter to Booth, that although the government +"suspicioned them," and the undertaking was "becoming complicated," +yet "a time more propitious would arrive" for the consummation of this +conspiracy in which he "was one" with Booth, and when he would "be +better prepared to again be with him." + +Such were the preparations. The horses were in readiness for the +flight; the ropes were procured, doubtless for the purpose of tying +the horses at whatever point they might be constrained to delay and to +secure their boats to their moorings in making their way across the +Potomac. The five murderous camp knives, the two carbines, the eight +revolvers, the derringer, in court and identified, all were ready for +the work of death. The part that each had played has already been in +part stated in this argument, and needs no repetition. + +Booth proceeded to the theatre about nine o'clock in the evening, +at the same time that Atzerodt and Payne and Herold were riding the +streets, while Surratt, having parted with his mother at the brief +interview in her parlor, from which his retreating steps were heard, +was walking the Avenue, booted and spurred, and doubtless consulting +with O'Laughlin. When Booth reached the rear of the theatre, he called +Spangler to him (whose denial of that fact, when charged with it, +as proven by three witnesses is very significant) and received from +Spangler his pledge to help him all he could, when with Booth he +entered the theatre by the stage-door, doubtless to see that the way +was clear from the box to the rear door of the theatre, and look upon +their victim, whose exact position they could study from the stage. +After this view, Booth passes to the street in front of the theatre, +where, on the pavement with other conspirators yet unknown, among them +one described as a low-browed villain, he awaits the appointed moment. +Booth himself, impatient, enters the vestibule of the theatre from the +front and asks the time. He is referred to the clock, and returns. +Presently, as the hour of ten o'clock approached, one of his guilty +associates called the time; they wait; again, as the moments elapsed, +this conspirator upon watch called the time; again, as the appointed +hour draws nigh, he calls the time; and finally, when the fatal moment +arrives, he repeats in a louder tone, "Ten minutes past ten o'clock!" +Ten minutes past ten o'clock! The hour has come when the red right hand +of these murderous conspirators should strike, and the dreadful deed of +assassination be done. + +Booth, at the appointed moment, entered the theatre, ascended to the +dress-circle, passed to the right, paused a moment, looking down, +doubtless to see if Spangler was at his post, and approached the outer +door of the close passage leading to the box occupied by the President, +pressed it open, passed in, and closed the passage door behind him. +Spangler's bar was in its place, and was readily adjusted by Booth +in the mortise, and pressed against the inner side of the door, so +that he was secure from interruption from without. He passes on to +the next door, immediately behind the President, and there stopping, +looks through the aperture in the door into the President's box, and +deliberately observes the precise position of his victim, seated in +the chair which had been prepared by the conspirators as the altar +for the sacrifice, looking calmly and quietly down upon the glad and +grateful people whom by his fidelity he had saved from the peril which +had threatened the destruction of their government, and all they held +dear this side of the grave, and whom he had come upon invitation to +greet with his presence, with the words still lingering upon his lips +which he had uttered with uncovered head and uplifted hand before God +and his country, when on the 4th of last March he took again the oath +to preserve, protect, and defend the Constitution, declaring that +he entered upon the duties of his great office "with malice toward +none--with charity for all." In a moment more, strengthened by the +knowledge that his co-conspirators were all at their posts, seven at +least of them present in the city, two of them, Mudd and Arnold, at +their appointed places, watching for his coming, this hired assassin +moves stealthily through the door, the fastenings of which had been +removed to facilitate his entrance, fires upon his victim, and the +martyr spirit of Abraham Lincoln ascends to God. + + "Treason has done his worst; nor steel, nor poison, + Malice domestic, foreign levy, nothing + Can touch him further." + +At the same hour, when these accused and their co-conspirators in +Richmond and Canada, by the hand of John Wilkes Booth, inflicted this +mortal wound which deprived the republic of its defender, and filled +this land from ocean to ocean with a strange, great sorrow, Payne, a +very demon in human form, with the words of falsehood upon his lips, +that he was the bearer of a message from the physician of the venerable +Secretary of State, sweeps by his servant, encounters his son, who +protests that the assassin shall not disturb his father, prostrate on +a bed of sickness, and receives for answer the assassin's blow from +the revolver in his hand, repeated again and again, rushes into the +room, is encountered by Major Seward, inflicts wound after wound upon +him with his murderous knife, is encountered by Hansell and Robinson, +each of whom he also wounds, springs upon the defenseless and feeble +Secretary of State, stabs first on one side of his throat, then on the +other, again in the face, and is only prevented from literally hacking +out his life by the persistence and courage of the attendant Robinson. +He turns to flee, and, his giant arm and murderous hand for a moment +paralyzed by the consciousness of guilt, he drops his weapons of death, +one in the house, the other at the door, where they were taken up, and +are here now to bear witness against him. He attempts escape on the +horse which Booth and Mudd had procured of Gardner, with what success +has already been stated. + +Atzerodt, near midnight, returns to the stable of Naylor the horse +which he had procured for this work of murder, having been interrupted +in the execution of the part assigned him at the Kirkwood House by the +timely coming of citizens to the defense of the Vice-President, and +creeps into the Pennsylvania House at two o'clock in the morning with +another of the conspirators, yet unknown. There he remained until about +five o'clock, when he left, found his way to Georgetown, pawned one of +his revolvers, now in court, and fled northward into Maryland. + +He is traced to Montgomery County, to the house of Mr. Metz, on the +Sunday succeeding the murder, where, as is proved by the testimony of +three witnesses, he said that if the man that was to follow General +Grant _had_ followed him, it was likely that Grant was shot. To one of +these witnesses (Mr. Layman) he said he did not think Grant had been +killed; or if he had been killed he was killed by a man who got on the +cars at the same time that Grant did; thus disclosing most clearly +that one of his co-conspirators was assigned the task of killing and +murdering General Grant, and that Atzerodt knew that General Grant +had left the city of Washington, a fact which is not disputed, on the +Friday evening of the murder, by the evening train. Thus this intended +victim of the conspiracy escaped, for that night, the knives and +revolvers of Atzerodt and O'Laughlin and Payne and Herold and Booth and +John H. Surratt and, perchance, Harper and Caldwell, and twenty others, +who were then here lying in wait for his life. + +In the mean time Booth and Herold, taking the route before agreed +upon, make directly after the assassination for the Anacostia bridge. +Booth crosses first, gives his name, passes the guard, and is speedily +followed by Herold. They make their way directly to Surrattsville, +where Herold calls to Lloyd, "Bring out those things," showing that +there had been communication between them and Mrs. Surratt after her +return. Both the carbines being in readiness, according to Mary E. +Surratt's directions, both were brought out. They took but one. Booth +declined to carry the other, saying that his limb was broken. They +then declared that they had murdered the President and the Secretary +of State. They then make their way directly to the house of the +prisoner Mudd, assured of safety and security. They arrived early in +the morning before day, and no man knows at what hour they left. Herold +rode towards Bryantown with Mudd about three o'clock that afternoon, +in the vicinity of which place he parted with him, remaining in the +swamp, and was afterwards seen returning the same afternoon in the +direction of Mudd's house, about which time, a little before sundown, +Mudd returned from Bryantown towards his home. This village at the +time Mudd was in it was thronged with soldiers in pursuit of the +murderers of the President, and although great care has been taken by +the defense to deny that any one said in the presence of Dr. Mudd, +either there or elsewhere on that day, who had committed this crime, +yet it is in evidence by two witnesses, whose truthfulness no man +questions, that upon Mudd's return to his own house that afternoon, +he stated that Booth was the murderer of the President, and Boyle +the murderer of Secretary Seward, but took care to make the further +remark that Booth had brothers, and he did not know which of them had +done the act. When did Dr. Mudd learn that Booth had brothers? And +what is still more pertinent to this inquiry, from whom did he learn +that either John Wilkes Booth or any of his brothers had murdered the +President? It is clear that Booth remained in his house until some +time in the afternoon of Saturday; that Herold left the house alone, +as one of the witnesses states, being seen to pass the window; that +he alone of these two assassins was in the company of Dr. Mudd on his +way to Bryantown. It does not appear when Herold returned to Mudd's +house. It is a confession of Dr. Mudd himself, proven by one of the +witnesses, that Booth left his house on crutches and went in the +direction of the swamp. How long he remained there, and what became +of the horses which Booth and Herold rode to his house and which were +put into his stable, are facts nowhere disclosed by the evidence. +The owners testify that they have never seen the horses since. The +accused give no explanation of the matter, and when Herold and Booth +were captured they had not these horses in their possession. How comes +it that, on Mudd's return from Bryantown, on the evening of Saturday, +in his conversation with Mr. Hardy and Mr. Farrell, the witnesses +before referred to, he gave the name of Booth as the murderer of the +President, and that of Boyle as the murderer of Secretary Seward and +his son, and carefully avoided intimating to either that Booth had come +to his house early that day and had remained there until the afternoon; +that he left him in his house and had furnished him a razor with which +Booth attempted to disguise himself by shaving off his moustache? How +comes it, also, that, upon being asked by those two witnesses whether +the Booth who killed the President was the one who had been there +last fall, he answered that he did not know whether it was that man +or one of his brothers, but he understood he had some brothers, and +added, that if it was the Booth who was there last fall, _he knew that +one_, but concealed the fact that this man had been at his house on +that day and was then at his house, and had attempted in his presence +to disguise his person? He was sorry, very sorry, that the thing had +occurred, but not so sorry as to be willing to give any evidence to +these two neighbors, who were manifestly honest and upright men, that +the murderer had been harbored in his house all day, and was probably +at that moment, as his own subsequent confession shows, lying concealed +in his house or near by, subject to his call. This is the man who +undertakes to show by his own declaration, offered in evidence against +my protest, of what he said afterwards, on Sunday afternoon, the 16th, +to his kinsman, Dr. George D. Mudd, to whom he then stated that the +assassination of the President was a most damnable act--a conclusion +in which most men will agree with him, and to establish which his +testimony was not needed. But it is to be remarked that this accused +did not intimate that the man whom he knew the evening before was the +murderer had found refuge in his house, had disguised his person, and +sought concealment in the swamp upon the crutches which he had provided +for him. Why did he conceal this fact from his kinsman? After the +church services were over, however, in another conversation on their +way home, he did tell Dr. George Mudd that two suspicious persons had +been at his house, who had come there a little before daybreak on +Saturday morning; that one of them had a broken leg, which he bandaged; +that they got something to eat at his house; that they seemed to be +laboring under more excitement than probably would result from the +injury; that they said they came from Bryantown, and inquired the way +to Parson Wilmer's; that while at his house one of them called for a +razor and shaved himself. The witness says, "I do not remember whether +he said that this party shaved off his whiskers or his moustache, but +he altered somewhat, or probably materially, his features." Finally, +the prisoner, Dr. Mudd, told this witness that he, in company with the +younger of the two men, went down the road towards Bryantown in search +of a vehicle to take the wounded man away from his house. How comes it +that he concealed in this conversation the fact proved, that he went +with Herold towards Bryantown and left Herold outside of the town? How +comes it that in this second conversation, on Sunday, insisted upon +here with such pertinacity as evidence for the defense, but which had +never been called for by the prosecution, he concealed from his kinsman +the fact which he had disclosed the day before to Hardy and Farrell, +that it was Booth who assassinated the President, and the fact which +is now disclosed by his other confessions given in evidence for the +prosecution, that it was Booth whom he had sheltered, concealed in +his house, and aided to his hiding place in the swamp? He volunteers +as evidence his further statement, however, to this witness, that +on Sunday evening he requested the witness to state to the military +authorities that two suspicious persons had been at his house, and +see if anything could be made of it. He did not tell the witness what +became of Herold, and where he parted with him on the way to Bryantown. +How comes it that when he was in Bryantown on the Saturday evening +before, when he knew that Booth was then at his house, and that Booth +was the murderer of the President, he did not himself state it to the +military authorities then in that village, as he well knew? It is +difficult to see what kindled his suspicions on Sunday, if none were +in his mind on Saturday, when he was in possession of the fact that +Booth had murdered the President and was then secreting and disguising +himself in the prisoner's own house. + +His conversation with Gardner on the same Sunday at the church is also +introduced here to relieve him from the overwhelming evidences of his +guilt. He communicates nothing to Gardner of the fact that Booth had +been in his house; nothing of the fact that he knew the day before that +Booth had murdered the President; nothing of the fact that Booth had +disguised or attempted to disguise himself; nothing of the fact that he +had gone with Booth's associate, Herold, in search of a vehicle, the +more speedily to expedite their flight; nothing of the fact that Booth +had found concealment in the woods and swamp near his house upon the +crutches which he had furnished him. He contents himself with merely +stating "that we ought to raise immediately a home guard to hunt up all +suspicious persons passing through our section of country and arrest +them, for there were two suspicious persons at my house yesterday +morning." + +It would have looked more like aiding justice and arresting felons if +he had put in execution his project of a home guard on Saturday, and +made it effective by the arrest of the man then in his house who had +lodged with him last fall, with whom he had gone to purchase one of +the very horses employed in this flight after the assassination, whom +he had visited last winter in Washington, and to whom he had pointed +out the very _route_ by which he had escaped by way of his house, +whom he had again visited on the 3d of last March, preparatory to the +commission of this great crime, and who he knew, when he sheltered and +concealed him in the woods on Saturday, was not merely a suspicious +person, but was, in fact, the murderer and assassin of Abraham Lincoln. +While I deem it my duty to say here, as I said before, when these +declarations uttered by the accused on Sunday, the 16th, to Gardner +and George D. Mudd, were attempted to be offered on the part of the +accused, that they are in no sense evidence, and by the law were wholly +inadmissible, yet I state it as my conviction that, being upon the +record upon motion of the accused himself, so far as these declarations +to Gardner and George D. Mudd go, they are additional indications of +the guilt of the accused in this, that they are manifestly suppressions +of the truth and suggestions of falsehood and deception; they are but +the utterances and confessions of guilt. + +To Lieutenant Lovett, Joshua Lloyd, and Simon Gavican, who, in pursuit +of the murderer, visited his house on the 18th of April, the Tuesday +after the murder, he denied positively, upon inquiry, that two men had +passed his house, or had come to his house on the morning after the +assassination. Two of these witnesses swear positively to his having +made the denial, and the other says he hesitated to answer the question +he put to him; all of them agree that he afterwards admitted that two +men had been there, one of whom had a broken limb, which he had set; +and when asked by this witness who that man was, he said he did not +know--that the man was a stranger to him, and that the two had been +there but a short time. Lloyd asked him if he had ever seen any of the +parties--Booth, Herold, and Surratt,--and he said he had never seen +them; while it is positively proved that he was acquainted with John +H. Surratt, who had been in his house; that he knew Booth, and had +introduced Booth to Surratt last winter. Afterwards, on Friday, the +21st, he admitted to Lloyd that he had been introduced to Booth last +fall, and that this man who came to his house on Saturday, the 15th, +remained there from about four o'clock in the morning until about four +in the afternoon; that one of them left his house on horseback, and the +other walking. In the first conversation he denied ever having seen +these men. + +Colonel Wells also testifies that, in his conversation with Dr. Mudd +on Friday the 21st, the prisoner said that he had gone to Bryantown, +or near Bryantown, to see some friends on Saturday, and that as he +came back to his own house he saw the person he afterwards supposed to +be Herold passing to the left of his house toward the barn, but that +he did not see the other person at all after he left him in his own +house about one o'clock. If this statement be true, how did Dr. Mudd +see the same person leave his house on crutches? He further stated to +this witness that he returned to his own house about four o'clock in +the afternoon; that he did not know this wounded man; said he could +not recognize him from the photograph which is of record here, but +admitted that he had met Booth some time in November, when he had some +conversation with him _about lands_ and horses; that Booth had remained +with him that night in November, and on the next day had purchased +a horse. He said he had not again seen Booth from the time of the +introduction in November up to his arrival at his house on the Saturday +morning after the assassination. Is not this a confession that he did +see John Wilkes Booth on that morning at his house and knew it was +Booth? If he did not know him, how came he to make this statement to +the witness: that "he had not seen Booth _after_ November _prior_ to +his arrival there on the Saturday morning"? + +He had said before to the same witness he did not know the wounded man. +He said further to Colonel Wells, that when he went upstairs after +their arrival he noticed that the person he _supposed_ to be Booth had +shaved off his moustache. Is it not inferable from this declaration +that he _then_ supposed him to be Booth? Yet he declared the same +afternoon, and while Booth was in his own house, that Booth was the +murderer of the President. One of the most remarkable statements made +to this witness by the prisoner was that he heard for the first time on +Sunday morning, or late in the evening of Saturday, that the President +had been murdered! From whom did he hear it? The witness (Colonel +Wells) volunteers his "impression" that Dr. Mudd had said he had heard +it after the persons had left his house. If the "impression" of the +witness thus volunteered is to be taken as evidence--and the counsel +for the accused, judging from their manner, seem to think it ought to +be--let this question be answered: how could Dr. Mudd have made that +impression upon anybody truthfully, when it is proved by Farrell and +Hardy that on his return from Bryantown, on Saturday afternoon, he +not only stated that the President, Mr. Seward, and his son had been +assassinated, but that Boyle had assassinated Mr. Seward, and Booth had +assassinated the President? Add to this the fact that he said to this +witness that he left his own house at one o'clock and when he returned +the men were gone, yet it is in evidence, by his own declarations, that +Booth left his house at four o'clock on crutches, and he must have been +there to have seen it or he could not have known the fact. + +Mr. Williams testifies that he was at Mudd's house on Tuesday, the 18th +of April, when he said that strangers had _not_ been that way, and also +declared that he heard, _for the first time_, of the assassination of +the President on Sunday morning at church. Afterwards, on Friday, the +21st, Mr. Williams asked him concerning the men who had been at his +house, one of whom had a broken limb, and he confessed they had been +there. Upon being asked if they were Booth and Herold, he said they +were not--_that he knew Booth_. I think it is fair to conclude that he +did know Booth when we consider the testimony of Wiechmann, of Norton, +of Evans, and all the testimony just referred to, wherein he declares, +himself, that he not only knew him, but that he had lodged with him, +and that he had himself gone with him when he purchased his horse from +Gardner last fall, for the very purpose of aiding the flight of himself +or some of his confederates. + +All these circumstances taken together, which, as we have seen upon +high authority, are stronger as evidences of guilt than even direct +testimony, leave no further room for argument and no rational doubt +that Doctor Samuel A. Mudd was as certainly in this conspiracy as +were Booth and Herold, whom he sheltered and entertained; receiving +them under cover of darkness on the morning after the assassination, +concealing them throughout that day from the hand of offended justice, +and aiding them, by every endeavor, to pursue their way successfully +to their co-conspirator, Arnold, at Fortress Monroe, and in which +direction they fled until overtaken and Booth was slain. + +We next find Herold and his confederate Booth, after their departure +from the house of Mudd, across the Potomac in the neighborhood of +Port Conway, on Monday, the 24th of April, conveyed in a wagon. +There Herold, in order to obtain the aid of Captain Jett, Ruggles, +and Bainbridge, of the confederate army, said to Jett, "We are the +assassinators of the President"; that this was his brother with him, +who, with himself, belonged to A. P. Hill's corps; that his brother had +been wounded at Petersburg; that their names were Boyd. He requested +Jett and his rebel companions to take them out of the lines. After +this Booth joined these parties, was placed on Ruggles's horse, and +crossed the Rappahannock River. They then proceeded to the house of +Garrett, in the neighborhood of Port Royal, and nearly midway between +Washington City and Fortress Monroe, where they were to have joined +Arnold. Before these rebel guides and guards parted with them, Herold +confessed they were traveling under assumed names--that his own name +was Herold, and that the name of the wounded man was John Wilkes Booth, +"who had killed the President." The rebels left Booth at Garrett's, +where Herold revisited him from time to time, until they were captured. +At two o'clock on Wednesday morning, the 26th, a party of United +States officers and soldiers surrounded Garrett's barn where Booth +and Herold lay concealed, and demanded their surrender. Booth cursed +Herold, calling him a coward, and bade him go, when Herold came out +and surrendered himself, was taken into custody, and is now brought +into court. The barn was then set on fire, when Booth sprang to his +feet, amid the flames that were kindling about him, carbine in hand, +and approached the door, seeking, by the flashing light of the fire, +to find some new victim for his murderous hand, when he was shot, as +he deserved to be, by Sergeant Corbett, in order to save his comrades +from wounds or death by the hands of this desperate assassin. Upon his +person was found the following bill of exchange:-- + + "No. 1492. The Ontario Bank, Montreal Branch. Exchange for £61 + 12_s._ 10_d._ Montreal, 27th October, 1864. Sixty days after + sight of this first of exchange, second and third of the same + tenor and date, pay to the order of J. Wilkes Booth £61 12_s._ + 10_d._ sterling, value received, and charge to the account of + this office. H. Stanus, manager. To Messrs. Glynn, Mills & Co., + London." + +Thus fell, by the hands of one of the defenders of the republic, +this hired assassin, who, for a price, murdered Abraham Lincoln, +bearing upon his person, as this bill of exchange testifies, +additional evidence of the fact that he had undertaken, in aid of the +rebellion, this work of assassination by the hands of himself and his +confederates, for such sum as the accredited agents of Jefferson Davis +might pay him or them, out of the funds of the Confederacy, which, as +is in evidence, they had in "any amount" in Canada for the purpose of +rewarding conspirators, spies, poisoners, and assassins, who might +take service under their false commissions, and do the work of the +incendiary and the murderer upon the lawful representatives of the +American people, to whom had been entrusted the care of the republic, +the maintenance of the Constitution, and the execution of the laws. + +The court will remember that it is in the testimony of Merritt and +Montgomery and Conover that Thompson and Sanders and Clay and Cleary +made their boasts that they had money in Canada for this very purpose. +Nor is it to be overlooked or forgotten that the officers of the +Ontario Bank at Montreal testify that during the current year of this +conspiracy and assassination Jacob Thompson had on deposit in that bank +the sum of six hundred and forty-nine thousand dollars, and that these +deposits to the credit of Jacob Thompson accrued from the negotiation +of bills of exchange drawn by the Secretary of the Treasury of the +so-called Confederate States on Frazier, Trenholm, & Co., of Liverpool, +who were known to be the financial agents of the Confederate States. +With an undrawn deposit in this bank of four hundred and fifty-five +dollars, which has remained to his credit since October last, and with +an unpaid bill of exchange drawn by the same bank upon London, in his +possession and found upon his person, Booth ends his guilty career in +this work of conspiracy and blood in April, 1865, as he began it in +October, 1864, in combination with Jefferson Davis, Jacob Thompson, +George N. Sanders, Clement C. Clay, William C. Cleary, Beverly Tucker, +and other co-conspirators, making use of the money of the rebel +confederation to aid in the execution and in the flight, bearing at +the moment of his death upon his person their money, part of the price +which they paid for his great crime, to aid him in its consummation and +secure him afterwards from arrest and the just penalty which by the law +of God and the law of man is denounced against treasonable conspiracy +and murder. + +By all the testimony in the case it is, in my judgment, made as clear +as any transaction can be shown by human testimony, that John Wilkes +Booth and John H. Surratt and the several accused, David E. Herold, +George A. Atzerodt, Lewis Payne, Michael O'Laughlin, Edward Spangler, +Samuel Arnold, Mary E. Surratt, and Samuel A. Mudd, did, with intent +to aid the existing rebellion and to subvert the Constitution and laws +of the United States, in the month of October last and thereafter, +combine, confederate, and conspire with Jefferson Davis, George N. +Sanders, Beverly Tucker, Jacob Thompson, William C. Cleary, Clement +C. Clay, George Harper, George Young, and others unknown, to kill and +murder, within the military department of Washington, and within the +intrenched fortifications and military lines thereof, Abraham Lincoln, +then President of the United States and Commander-in-Chief of the army +and navy thereof; Andrew Johnson, Vice-President of the United States; +William H. Seward, Secretary of State; and Ulysses S. Grant, lieutenant +general in command of the armies of the United States; and that +Jefferson Davis, the chief of this rebellion, was the instigator and +procurer, through his accredited agents in Canada, of this treasonable +conspiracy. + +It is also submitted to the court, that it is clearly established by +the testimony that John Wilkes Booth, in pursuance of this conspiracy, +so entered into by him and the accused, did, on the night of the 14th +of April, 1865, within the military department of Washington, and +the intrenched fortifications and military lines thereof, and with +the intent laid, inflict a mortal wound upon Abraham Lincoln, then +President and Commander-in-Chief of the army and navy of the United +States, whereof he died; that in pursuance of the same conspiracy and +within the said department and intrenched lines, Lewis Payne assaulted, +with intent to kill and murder, William H. Seward, then Secretary of +State of the United States; that George A. Atzerodt, in pursuance of +the same conspiracy, and within the said department, laid in wait, with +intent to kill and murder Andrew Johnson, then Vice-President of the +United States; that Michael O'Laughlin, within said department, and in +pursuance of said conspiracy, laid in wait to kill and murder Ulysses +S. Grant, then in command of the armies of the United States; and that +Mary E. Surratt, David E. Herold, Samuel Arnold, Samuel A. Mudd, and +Edward Spangler did encourage, aid, and abet the commission of said +several acts in the prosecution of said conspiracy. + +If this treasonable conspiracy has not been wholly executed; if the +several executive officers of the United States and the commander of +its armies, to kill and murder whom the said several accused thus +confederated and conspired, have not each and all fallen by the hands +of these conspirators, thereby leaving the people of the United States +without a President or Vice-President; without a Secretary of State, +who alone is clothed with authority by the law to call an election +to fill the vacancy, should any arise, in the offices of President +and Vice-President; and without a lawful commander of the armies of +the republic, it is only because the conspirators were deterred by +the vigilance and fidelity of the executive officers, whose lives +were mercifully protected on that night of murder by the care of the +Infinite Being who has thus far saved the republic and crowned its arms +with victory. + +If this conspiracy was thus entered into by the accused; if John Wilkes +Booth did kill and murder Abraham Lincoln in pursuance thereof; if +Lewis Payne did, in pursuance of said conspiracy, assault with intent +to kill and murder William H. Seward, as stated, and if the several +parties accused did commit the several acts alleged against them in the +prosecution of said conspiracy, then it is the law that all the parties +to that conspiracy, whether present at the time of its execution or +not, whether on trial before this court or not, are alike guilty of the +several acts done by each in the execution of the common design. What +these conspirators did in the execution of this conspiracy by the hand +of one of their co-conspirators they did themselves; his act, done in +the prosecution of the common design, was the act of all the parties to +the treasonable combination, because done in execution and furtherance +of their guilty and treasonable agreement. + +As we have seen, this is the rule, whether all the conspirators are +indicted or not; whether they are all on trial or not. "It is not +material what the nature of the indictment is, provided the offense +involve a conspiracy. Upon indictment for murder, for instance, if it +appear that others, together with the prisoner, conspired to perpetrate +the crime, the act of one done in pursuance of that intention would be +evidence against the rest." (1 Whar. 706.) To the same effect are the +words of Chief Justice Marshall, before cited, that whoever leagued +in a general conspiracy, performed any part, however MINUTE, +or however REMOTE, from the scene of _action_, are guilty as +principals. In this treasonable conspiracy to aid the existing armed +rebellion by murdering the executive officers of the United States and +the commander of its armies, all the parties to it must be held as +principals, and the act of one in the prosecution of the common design +the act of all. + +I leave the decision of this dread issue with the court, to which alone +it belongs. It is for you to say, upon your oaths, whether the accused +are guilty. + +I am not conscious that in this argument I have made any erroneous +statement of the evidence, or drawn any erroneous conclusions; yet I +pray the court, out of tender regard and jealous care for the rights +of the accused, to see that no error of mine, if any there be, shall +work them harm. The past services of the members of this honorable +court give assurance that, without fear, favor, or affection, they will +discharge with fidelity the duty enjoined upon them by their oaths. +Whatever else may befall, I trust in God that in this, as in every +other American court, the rights of the whole people will be respected, +and that the republic in this, its supreme hour of trial, will be true +to itself and just to all--ready to protect the rights of the humblest, +to redress every wrong, to avenge every crime, to vindicate the majesty +of law, and to maintain inviolate the Constitution, whether assailed +secretly or openly, by hosts armed with gold, or armed with steel. + +[Illustration: Joseph Holt Judge Advocate General] + + + + +THE CONTROVERSY BETWEEN PRESIDENT JOHNSON AND JUDGE HOLT. + +_A Paper read by_ GEN. HENRY L. BURNETT, _late U. S. V., at +a Meeting of the Commandery, State of New York, Military Order, Loyal +Legion, April 3, 1889_. + + +Perhaps no incident connected with the trial of the assassins of +President Lincoln created more general interest--was so much discussed +and commented upon by the public press, or aroused deeper feeling of +antagonism and bitterness between two public men, than the charge by +President Johnson that the Judge Advocate General, Judge Holt, had +withheld or suppressed the recommendation to mercy of Mrs. Surratt, +signed by five members of the commission, when he represented to him, +the President, the record for his official action. While this charge +had circulation and was asserted in the press during the time Mr. +Johnson was occupying the presidential office, Mr. Johnson never openly +made the charge until after his term had expired, some time in 1873. + +No graver charge could be made against a public officer than this +against Judge Holt, and, if true, no more cruel and treacherous +betrayal of a public trust was ever committed by a man in high official +position. It would be murderous in intent and effect. This charge +rested, so far as human testimony went, upon the solemn assertion alone +of President Johnson, and, if untrue, was one of the most cruel wrongs +ever perpetrated by one man against another. I propose to give a brief +abstract of the testimony produced by Judge Holt to disprove this +charge, and also a statement of my connection with, and what little +personal knowledge I had of the matter. + +In a communication addressed to the Washington _Chronicle_, dated +August 25, 1873, Judge Holt gives a copy of a letter addressed by him +to the Secretary of War, on the 14th of that month, in which he sets +forth evidence tending to disprove the charge originating with Andrew +Johnson, of his suppression of the petition, signed by five of the +nine members of the commission, recommending, in consideration of her +age and sex, a commutation of the death sentence of Mary E. Surratt +to imprisonment for life in the penitentiary. The petition read as +follows: "To the President: The undersigned, members of the military +commission appointed to try the persons charged with the murder of +Abraham Lincoln, etc., respectfully represent that the commission have +been constrained to find Mary E. Surratt guilty, upon the testimony, +of the assassination of Abraham Lincoln, late President of the United +States, and to pronounce upon her, as required by law, the sentence +of death; but in consideration of her age and sex, the undersigned +pray your Excellency, if it is consistent with your sense of duty, to +commute her sentence to imprisonment for life in the penitentiary." + +In a letter dated February 11, 1873, addressed to Hon. John A. Bingham, +one of the special Judge Advocates during the trial, Judge Holt states: +"In the discharge of my duty when presenting that record to President +Johnson, I drew his attention to that recommendation, and he read it +in my presence, and before approving the proceedings and sentence. He +and I were together alone when this duty on his part and on mine was +performed.... The President and myself having, as already stated, been +alone at the time, I have not been able to obtain any positive proof +on the point, although I have been able to collect circumstantial +evidence enough to satisfy any unbiased mind that the recommendation +was seen and considered by the President, when he examined and approved +the proceeding and sentence of the court. Still, in a matter so deeply +affecting my reputation and official honor, I am naturally desirous +of having the testimony in my possession strengthened as far as +practicable, and hence it is that I trouble you with this note. While I +know that the question of extending to Mrs. Surratt the clemency sought +by the petition was considered by the President at the time mentioned, +I have, in view of its gravity, been always satisfied that it must +have been considered by the Cabinet also; but from the confidential +character of Cabinet deliberations I have thus far been denied access +to this source of information." He then proceeds to inquire whether or +not he (Judge Bingham) had any conversation with Secretary Seward or +Mr. Stanton in reference to this petition, and if so to please give him +as nearly as he (Judge Bingham) could, all that Secretary Seward or Mr. +Stanton had said upon the subject. + +Judge Bingham replied under date of February 17, 1873, and among other +things said:-- + +"Before the President had acted upon the case, I deemed it my duty +to call the attention of Secretary Stanton to the petition for the +commutation of sentence upon Mrs. Surratt, and did call his attention +to it, before the final decision of the President. After the execution, +the statement which you refer to 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 of 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. 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 Cabinet, upon +such consideration, were a unit in denying the prayer of the petition; +Mr. Stanton and Mr. Seward stating that they were present. + + * * * * * + +"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 judgement of the people." + +In replying to this letter, Judge Holt very justly remarks: "It would +have been very fortunate for me indeed could I have had this testimony +in my possession years ago. Mr. Stanton's advice to you was, under all +the circumstances of the case, most extraordinary. + + * * * * * + +"The asking you 'to rely upon the final judgment of the people,' and at +the same time withholding from them the proof on which the judgment--to +be just--must be formed, was a sad, sad mockery." + +The next is a letter from ex-Attorney General Speed, dated March 30, +1873, in which he says: "After the finding of the military commission +that tried the assassins of Mr. Lincoln and before their execution, +I saw the record of the case in the President's office, and attached +to it was a paper, signed by some of the members of the commission, +recommending that the sentence against Mrs. Surratt be commuted to +imprisonment for life; and according to my memory, the recommendation +was made because of her sex. + +"I do not feel at liberty to speak of what was said at Cabinet +meetings. In this I know I differ from other gentlemen, but feel +constrained to follow my own sense of propriety." + +So that it is most clear from this statement of Attorney General +Speed, unless he, without interest or motive, stated a most deliberate +falsehood, that Judge Holt did not "withhold" or "suppress" the +recommendation to mercy, but carried it with the record and "_attached +to it_," as Mr. Speed says, and delivered it in the President's office. +Certainly every intelligent mind will concede that this testimony of +Mr. Speed utterly disposes of the charge of Andrew Johnson that Judge +Holt "suppressed" or "withheld" this recommendation to mercy. If Mr. +Johnson did not see it or read it when in his office, that was his +neglect, his failure to perform a solemn official duty. But on this +question of his having _read_ and _considered_ it, how stands the +evidence? Judge Holt states that he drew his attention to it, and +that Mr. Johnson read it in his presence. Judge Bingham says both +Mr. Stanton and Mr. Seward stated to him that this petition had been +presented to the President and was duly considered by him and his +advisers before the death sentence upon Mrs. Surratt was approved. +Under date of May 27, 1873, James Harlan, a former member of Mr. +Johnson's Cabinet, addressed a letter to Judge Holt, in which he +said: "After the sentence and before the execution of Mrs. Surratt, I +remember distinctly the discussion of the question of the commutation +of the sentence of death pronounced on her by the Court to imprisonment +for life had by members of the Cabinet in presence of President +Johnson. I can not state positively whether this occurred at a regular +or a called meeting, or whether it was at an accidental meeting of +several members, each calling on the President in relation to the +business of his own department. The impression on my mind is, that +the only discussion of the subject by members of the Cabinet, which I +ever heard, occurred in the last-named mode, there being not more than +three or four members present--Mr. Seward, Mr. Stanton, and myself, +and probably Attorney General Speed and others--but I distinctly +remember only the first two. When I entered the room, one of these was +addressing the President in an earnest conversation on the question +whether the sentence ought to be modified on account of the sex of the +condemned. I can recite the precise thought, if not the very words, +used by this eminent statesman, as they were impressed on my mind with +great force at the time, and I have often thought of them since, viz.: +'Surely not, Mr. President, for if the death penalty should be commuted +in so grave a case as the assassination of the head of a great nation, +on account of the sex of the criminal, it would amount to an invitation +to assassins hereafter to employ women as their instruments, under the +belief that if arrested and condemned, they would be punished less +severely than men. An act of executive clemency on such a plea would be +disapproved by the government of every civilized nation on earth.'" + +Judge Harlan adds that he made inquiry at the time, and "was told that +the whole case had been carefully examined by the Attorney General and +the Secretary of War; and that the only question raised was whether +the punishment shall be reduced on account of the sex of the party +condemned. I do not remember that any differences of opinion were +expressed on that point." + +This is indirect but very conclusive evidence that the petition was +attached to the record submitted to the President and examined by the +Attorney General and Secretary of War; and that the subject of the +mitigation of Mrs. Surratt's sentence was considered by the President +and these members of his Cabinet, because in no part of the record +was there the slightest allusion to the question of clemency to Mrs. +Surratt, or to any of the other convicted persons, except in the +petition signed by the five members of the Court. + +The next is a letter from the Rev. J. George Butler, pastor of +St. Paul's Church, Washington. Under date of December 5, 1868, in +describing an interview he had with President Johnson, he says: +"The interview occurred during a social call upon the family of the +President in the evening, a few hours after the execution. + +"I had been summoned by the Government, I then being a hospital +chaplain, to attend upon Atzerodt, and was present at the execution. + +"Concerning Mrs. Surratt, the remarks of the President, by reason of +their point and force, impressed themselves upon my memory. He said, +in substance, that very strong appeals had been made for the exercise +of executive clemency; that he had been importuned; that telegrams +and threats had been used; but he could not be moved, for, in his own +significant language, Mrs. Surratt '_kept the nest that hatched the +eggs_.' + +"The President further stated that no plea had been urged in her +behalf, save the fact that she was a _woman_, and his interposition +upon that ground would license female crime." + +This harmonizes entirely with the "thought" which Secretary Harlan +heard uttered with so much force by a member of the Cabinet in Mr. +Johnson's presence--either Mr. Stanton or Mr. Seward--and from his +language, "this eminent statesman," I take it to have been Mr. Seward. + +The Rev. Mr. Butler adds: "I feel it due to a Christian soldier and +personal friend (General Eakin) to make this statement, showing clearly +that at the time of the execution the President's judgment wholly +accorded with the judgment of the military commission; and that no +appeals could then change his purpose to make 'treason odious.'" + +General R. D. Mussey, under date of August 19, 1873, writes to Judge +Holt:-- + +"In a few days after the assassination I was detailed for duty with Mr. +Johnson and acted as one of his secretaries, and was an inmate of his +household until some time in the fall of 1865. + +"About the time the military court that tried Mrs. Surratt concluded +its labors, I was, if I remember aright, for some days the only person +acting as private secretary at the White House, my associate being +absent on a visit. + +"On the Wednesday previous to the execution (which was on Friday, July +7, 1865), as I was sitting at my desk in the morning, Mr. Johnson +told me that he was going to look over the findings of the Court with +Judge Holt, and should be busy and could see no one. I replied, 'Very +well, sir, I will see that you not interrupted,' or something to that +effect, and continued my work. I think it was two or three hours after +that that Mr. Johnson came out of the room where he had been with +you, and said that the papers had been looked over and a decision +reached. I asked what it was. He told me, approval of the findings and +sentence of the Court; and he then gave me the sentences as near as +he remembered them, and said that he had ordered the sentence where +it was death to be carried into execution on the Friday following. I +remember looking up from my desk with some surprise at the brevity of +this interval, and asking him whether the time wasn't rather short. +He admitted that it was, but said that they had had ever since the +trial began for 'preparation'; and either then or later on in the day +spoke of his design in making the time short, so that there might be +less opportunity for criticism, remonstrance, etc. I do not pretend to +use his precise language as to this, but the purport of it was that +'it was a disagreeable duty, and there would be endeavors to get him +not to perform it, and he wished to avoid them as much as possible.' +... I am very confident, though not absolutely assured, that it was +at this interview Mr. Johnson told me that the Court had recommended +Mrs. Surratt to mercy on the ground of her sex (and age, I believe). +But I am certain he did so inform me about that time; and that he said +he thought the grounds urged insufficient, and that he had refused to +interfere; that if she was guilty at all, her sex did not make her any +the less guilty; that he, about the time of her execution, justified +it; that he told me there had not been women enough hanged in this war." + +This evidence would seem to establish most conclusively that the +"petition" was not only attached to the record, and delivered by Judge +Holt at the President's office in the Executive Mansion, but that he +read the same and afterward considered and discussed it with at least +three members of his Cabinet; and intelligent charity can reach no +further than to say that President Johnson, when he charged Judge Holt +with having withheld this recommendation to mercy when he delivered +the record of the trial at the President's Mansion, made a cruel and +untruthful charge; and that when he asserted in 1873 that he had not +seen, read, or heard of this recommendation to mercy, at the time he +approved the sentences on the 5th day of July, 1865, had forgotten the +facts--that his "forgettery" was much better than his memory. + +One of the main points in President Johnson's response to this evidence +was that in the published volume of the record of the trial of the +assassins, prepared by Mr. Ben. Pittmann, of Cincinnati, under my +official supervision, this recommendation to mercy does not appear. +There is no force in this. The petition or recommendation to mercy +constituted properly no part of the official record of the trial. +Mr. Pittmann, who had his desk and place in my office at the War +Department, was one of the official stenographers of the court, and had +special charge and custody of the record from day to day. The other +reporters sent in to him their portions of the testimony as they were +written up, and thereafter he was responsible for them. My recollection +is also that as the testimony was written up a press copy was made of +it, which he (Mr. Pittmann) took with him to Cincinnati, and used, +after he had received permission from the War Department to publish. + +The commission met with closed doors at 10 A. M. on the 29th of June +to consider its findings, and continued and concluded its labors +with closed doors on the 30th. From these meetings all stenographic +reporters were excluded. The findings and sentences, when finally made +and recorded, were handed to me to be attached to the record, or to go +with the record to the Judge Advocate General's office, as was then +the course of procedure. By the oath administered, all the members +of the commission, as well as the Judge Advocates, were bound not to +reveal those findings and sentences. I therefore retained them in my +possession, instead of passing them on to the stenographers. When the +recommendation to mercy was drawn, and signed by five members of the +commission, that was also handed to me to accompany the findings. + +Mr. Pittmann never saw, I presume, either the original findings or the +recommendation to mercy, and the first knowledge he had of the former +doubtless was after they were promulgated by the Adjutant General on +the 5th day of July. This is evidenced by the fact that the Adjutant +General, in promulgating the proceedings, took Mrs. Surratt's name +from the position it occupies in the records, and placed it next +that of Payne, evidently for the purpose of grouping together the +four persons condemned to death. Mr. Pittmann gives the findings and +sentence in the order promulgated by the Adjutant General--that is to +say, he places the findings and sentence in Mrs. Surratt's case next +after that of Lewis Payne; while the Court, in making up its findings, +followed the order named in the charge and specifications, where Mrs. +Surratt's name follows that of Samuel Arnold. + +When I reached my office at the War Department on the 30th--possibly +on the morning of the 1st of July--I attached the petition or +recommendation to mercy of Mrs. Surratt to the findings and sentence, +and at the end of them, and then directed some one--probably +Mr. Pittmann--to carry the record of the evidence to the Judge +Advocate-General's office. I carried the findings and sentences and the +petition or recommendation and delivered them to the Judge Advocate +General in person or to the clerk in charge of court-martial records. +Before leaving the War Department I may have attached these findings +and sentences and petition to the last few days of testimony, and +carried that to the Judge Advocate General's office. I never saw the +record again until many years after--I think in 1873 or 1874. + +I left Washington several days before, and was not there on the day +of the execution. My recollection is, that I left there either on the +evening of the 5th or on the morning of the 6th of July. On the 5th +day of July, when Judge Holt had his conference with President Johnson +over the record and proceedings of the military commission, when the +President considered and passed upon the findings and sentences of +the accused persons, after that interview Judge Holt came directly to +Mr. Stanton's office in the War Department. I happened to be with Mr. +Stanton as Judge Holt came in. After greetings, the latter remarked, +"I have just come from a conference with the President over the +proceedings of the military commission." "Well," said Mr. Stanton, +"what has he done?" "He has approved the findings and sentence of the +Court," replied Judge Holt. + +"What did he say about the recommendation to mercy of Mrs. Surratt?" +next inquired Mr. Stanton. "He said," answered Judge Holt, "that she +must be punished with the rest; that no reasons were given for his +interposition by those asking for clemency, in her case, except age and +sex. He said her sex furnished no good ground for his interfering; that +women and men should learn that if women committed crimes they would be +punished; that if they entered into conspiracies to assassinate, they +must suffer the penalty; that were this not so, hereafter conspirators +and assassins would use women as their instruments; it would be mercy +to womankind to let Mrs. Surratt suffer the penalty of her crime." +After some futher conversation, and after making known to Mr. Stanton +that the President had fixed Friday, the 7th, as the day of execution, +Judge Holt left. In giving the above conversation I cannot say that +I have given the exact words; but the substance of what Judge Holt +said I know I have given. It is indelibly impressed upon my memory. +This conversation, while it does not constitute legal evidence of the +fact of President Johnson's consideration of the recommendation to +mercy, has always been a circumstance strong and convincing to my mind +that President Johnson's charge was totally false. It showed that Mr. +Stanton had knowledge of the recommendation--probably had examined +the record in the four or five days which had intervened since the +trial. As Secretary of War he was at that time daily--almost hourly--in +consultation with the President over the disbandment of the military +forces; the occupation by the army of the rebel States; the powers and +duties of officers there, and the innumerable questions semi-military +in character arising out of the chaotic political and social condition +of the rebel States; and they could hardly have come together at that +time without the question of the conviction and execution of the +assassins coming up. The circumstances of the assassination, the plot +or conspiracy to assassinate President Lincoln and his Cabinet, the +Vice President himself, and General Grant; who were concerned in it; +the evidence submitted to the Court, the weight given to it by the +Court, and the conclusion reached by the Court, were matters in which +the President and the Secretary of War could not fail to take, and, as +is well known, did take the deepest possible interest. It is past human +credulity to believe that they would thus come together during the +time intervening between the conclusion of the trial on the 30th day +of June and the execution of the sentences on the 7th of July, and the +result of the trial, together with the recommendation to mercy, not be +discussed between them. It is inconceivable to me that Judge Holt, even +if he were so malicious and murderous in purpose, could be so reckless +and foolish in execution of such purpose as to withhold from and try +to conceal from President Johnson this recommendation to mercy, when +the fact of its existence was known to Mr. Stanton, and was so certain +to be made known to the President by him, and its contents discussed +between them. + +The historian in passing judgment upon this event, and in weighing +evidence as to the truth or falsity of this charge made by President +Johnson, will take into consideration the mental characteristics +and moral fibre of the two men, and what adequate motive there was +actuating one occupying the exalted position of President Johnson to +make the charge, or of Judge Holt to commit so wicked and cruel a wrong. + +Andrew Johnson's mental make-up is well known to the officers of the +old Union army, and to the American people. His life, his acts, and +his speeches are still remembered, and the public judgment formed and +registered. I do not propose here to-night to take your time in going +into a statement or discussion of this subject. It is sufficient to +say that he was endowed by nature with more than ordinary intellectual +abilities, and that he had risen from the lowest walks of life by +the vigor of his own will, energy, and mental power, through many +intermediate places of honor and trust, to the second place in the +gift of the American people--the Vice-Presidency of the United States. +He was a man of controlling prejudices and strong personality. He +was ambitious, bold, hot-tempered, obstinate, and in the achievement +of the ends and aims he sought--right ends and aims he may have +thought them--he was unscrupulous in the means he used. This is well +illustrated in the instance given by General Sheridan in his memoirs +of President Johnson's treatment of him while he was in command of New +Orleans in 1866. + +You will recall the intense feeling aroused throughout the country +by the wanton and bloody massacre of the convention assembled at New +Orleans, on the 30th of July, that year, to remodel the constitution of +that State. General Sheridan had been absent several days in Texas, and +was returning, when the riot occurred. He reached New Orleans August +1st, made an investigation, and on the same day sent the following +telegraphic report to General Grant:-- + + "You, are doubtless aware of the serious riot which occurred in + this city on the 30th. A political body styling themselves the + 'Convention of 1864,' met on the 30th for, as it alleged, the + purpose of remodeling the present constitution of the State. + The leaders were political agitators and revolutionary men, and + the action of the convention was liable to produce breaches + of the public peace. I had made up my mind to arrest the head + men if the proceedings of the convention were calculated + to disturb the tranquility of the department, but I had no + cause for action until they committed some overt act. In the + meantime official duty called me to Texas, and the mayor of + the city, during my absence, suppressed the convention by the + use of the police force, and in so doing attacked the members + of the convention and a party of two hundred negroes with + fire-arms, clubs, and knives, in a manner so unnecessary and + atrocious as to compel me to say that it was murder. About + forty whites and blacks were thus killed, and about one hundred + and sixty wounded. Everything is now quiet, but I deem it best + to maintain a military supremacy in the city for a few days, + until the affair is fully investigated. I believe the sentiment + of the general community is great regret at this unnecessary + cruelty, and that the police could have made any arrest they + saw fit without sacrificing lives. + + "P. H. SHERIDAN, + _Major General commanding_." + +General Sheridan adds: "On receiving the telegram, General Grant +immediately submitted it to the President. Much clamor being made +at the North for the publication of the despatch, President Johnson +pretended to give it to the newspapers. It appeared in the issues of +August 4th, but with this paragraph omitted, viz.:-- + +"'I had made up my mind to arrest the head men, if the proceedings were +calculated to disturb the tranquilty of the department, but I had no +cause for action until they committed some overt act. In the meantime +official duty called me to Texas, and the mayor of the city, during +my absence, suppressed the convention by the use of the police force, +and in so doing attacked the members of the convention and a party of +two hundred negroes with fire-arms, clubs, and knives, in a manner so +unnecessary and atrocious as to compel me to say it was murder.'" + + * * * * * + +General Sheridan adds: "Against this garbling of my report, done by the +President's own order, I strongly demurred, and this emphatic protest +marks the beginning of Mr. Johnson's well-known personal hostility +toward me." + +It will be observed that the omission of this portion of the +despatch--this "garbling," done by President Johnson's own +order--changes its whole tenor and meaning; made General Sheridan +say exactly contrary to what he did in fact say. Omitting the part +struck out, and connecting the two sentences that come together, the +President made the despatch read: "The leaders were political agitators +and revolutionary men, and the action of the convention was liable to +produce breaches of the public peace. About forty whites and blacks +were _thus_ killed, and about one hundred and sixty wounded." + +Observe--this makes General Sheridan say that the action of the +convention was liable to produce breaches of the public peace, and +thus,--in this wise,--about forty whites and blacks were killed and +about one hundred and sixty wounded. General Sheridan said nothing of +the kind--nothing in the whole despatch had any such implication or +meaning. What he did say was that the mayor of the city "suppressed the +convention by the use of the police force, and in so doing attacked +the members of the convention and a party of two hundred negroes with +fire-arms, clubs, and knives, in a manner so unnecessary and atrocious +as to compel me to say that it was murder"; and "thus" by this means, +by this mayor and his police, about forty whites and blacks were killed +and about one hundred and sixty wounded. + +Is it too much to say that a man who could do this wrong to General +Sheridan,--could mutilate and corrupt a despatch so as to cause him +to make a false report about a people over whom he was placed in +government; to cause him to state falsely the facts and circumstances +about an event in which forty persons had lost their lives, and one +hundred and sixty had been grievously wounded,--would hesitate to +state a falsehood about Judge Holt? Is it too much to say that a man +who could do this, and then try to mislead and deceive the people +of the United States as to this tragic event, about which they were +clamoring to know the truth, perpetrating a lie upon them by mutilating +and corrupting a despatch and promulgating it as the true one, would +hesitate to deceive the people about the fact as to whether he did or +did not see the recommendation to mercy of Mrs. Surratt? Is it not fair +to say that he was of such mental structure and moral fibre as to do +this wrong? + +And now the motive:-- + +It is known of all men that Andrew Johnson had only fairly settled +himself in the presidential chair of the great Lincoln, before he began +to dream, to scheme, and to intrigue for an election by the people to +that office. + +The presidential bee was buzzing under the accidental presidential +hat. The Southern leaders, clever diplomats and long-headed politicans +as they are, soon took the measure of the man, and began to consider +how best they could use him, and his ambition for their own purposes. +It was noticed that Andrew Johnson had not been many months in the +White House before there was a decided change in the style and type of +visitors passing in and out under the great white portico. The men of +the North,--the old "Union Republican group" of the House and Senate +that were daily visitors there in the days of Lincoln, began to find +the atmosphere of the White House less kind and congenial; there was a +lack of warmth in the welcome, and a constraint in talk and exchange of +ideas, progressing gradually to actual antagonism over the questions +of amnesty, reconstruction, and constitutional guarantees to the +freedmen. Then the Northern men dropped away; seemed not to go there +any more. Men from the South who but lately had borne arms against the +government, and who had not yet taken the oath of allegiance, were +found plentiful about the White House, and apparently basking in the +sunshine of presidential favor, as in the rays of a southern sun. It +became the reign of the unreconstructed and unreconciled. Somebody had +whispered loud enough for Mr. Johnson to hear,--perhaps the bee buzzed +it,--that if the Southern States could be reconstructed previous to +the presidential convention of 1868, and he (President Johnson) should +be found friendly and faithful to the South in that work, there were +fifteen Southern States whose electoral votes might be found solid for +him as the Democratic nominee, and he would only need the votes of +two or three Northern States in addition to carry off the nomination. +You know how the poison took--how from the most radical of Union +Republicans he became the most extreme--the leader--of the "strictest +sect" of the Democrats; how the words "treason should be made odious," +"traitors should take back seats," "a few traitors should be hung," +with which his mouth was filled when elected, and were still sounding +in the air when he sat down in Lincoln's vacant chair, had hardly died +away before he had turned against and upon all those who had upheld +the Union cause--all his old Union friends; how he fought the Congress +with a bitterness and a boldness unparalleled in history. He took issue +with it on every measure by which the Congress sought to fix in statute +and in the fundamental law what the sword had achieved, what war had +enacted. Thus he stood. + +And now turning to Mrs. Surratt and her case. Over her execution a +great clamor was raised throughout the country, not only by those who +were lately in rebellion, and those in the North who were in sympathy +with that rebellion, but almost universally by the Roman Catholics +of the country, she being a member of that Church, they believing +her innocent and a martyr. Mr. Johnson heard this clamor, and "his +startled ambition grew sore afraid." He bethought him of some means +to turn this wrath away from himself. The press kept referring to the +fact that a recommendation to mercy had been signed by a majority of +the Court; and his new friends and allies were calling upon him with +a loud voice to know why he had not heeded the appeal for mercy, and +saved this hapless woman. His fears whispered that the storm might +grow so fierce and strong as to sweep away his carefully constructed +political fabric. How could he turn away this wrath and clamor? How +turn the fury of the storm? Were here not motive and interest enough? +He doubtless remembered that, when he examined the record, he and Judge +Holt had been alone. How easy to shift the blame, to turn the storm of +wrath and execration upon another head by having it circulated that +the recommendation had been suppressed by Judge Holt, and that he had +never seen nor heard of it up to the time of the execution! Here was +a sufficient motive--the motive of ambition--the motive which, as we +have seen, changed the whole nature of the man,--changed his political +thought and attitude--spoiled the purpose of his life. + +Of Judge Holt's life little need be said. Born and reared in Kentucky, +of the best blood of the State, he had achieved fame and stood in the +front rank with the great lawyers and orators of that State before +the rebellion began, and before he was called to the Cabinet of James +Buchanan, first, as Postmaster-General, and afterward as Secretary of +War, to fill the place made vacant by the retirement of the traitor +John B. Floyd. Judge Holt was a man of collegiate education, a student +and a scholar of wide and varied reading, and a rhetorician and +logician second to few men in the country. Of the next generation after +Henry Clay, he was of the time and type in intellectual grasp and power +of the Marshalls, the Breckinridges, and the Crittendens of that State. +He breathed in the spirit of loyalty, patriotism, and love of the Union +of Clay, and never doubted, never swerved in giving all his powers--in +dedicating his life to the work of saving the Union. It is related +by the historian that at one of the Cabinet meetings of President +Buchanan, when several of the Southern secretaries were still occupying +their places and were boldly demanding that the forts at Charlestown +should be evacuated, and Mr. Buchanan was too weak to take a position +against them, Mr. Stanton, who had been called to fill the office of +Attorney General, sprang to his feet and said, "Mr. President, it is +my duty, as your legal adviser, to say that you have no right to give +up the property of the government, or abandon the soldiers of the +United States to its enemies, and the course proposed by the Secretary +of the Interior, if followed, is treason, and will involve you and +all concerned in treason!" For the first time in this Cabinet treason +had been called by its true name. Floyd and Thompson, who had had +everything their own way, sprang fiercely to their feet, while Mr. Holt +sprang to Mr. Stanton's side, indorsing his utterances, and ready to +uphold him in any struggle. Mr. Buchanan begged that there would be no +violence, and for the gentlemen to resume their seats. Thus bolstered +by Mr. Stanton and Judge Holt, the President determined not to withdraw +Major Anderson. Soon after this meeting, Floyd resigned, and Judge Holt +was appointed Secretary of War in his place. + +Save this charge of Andrew Johnson, no stain or blot, nor the least +spot or soilure, has ever rested on the fair name and fame of Joseph +Holt. For the last year or two of the war I was brought in close +official and personal relations with him. I learned to know him well. +He was most refined and sensitive in his nature, gentle and kindly in +his intercourse, and in all his relations with those about him, pure +in his private life, exalted in his ideas and ideals, dignified, +and courtly in his bearing, yet always thoughtful, considerate, and +courteous. He had traveled much, read much, and held as his friends, +strongly attached to him, the best men of the land. I can now as little +associate him in my mind with the commission of a dishonorable action +as any man I have ever known. + +One of the interesting episodes connected with this charge against +Judge Holt is his appeal to Mr. Speed, Mr. Lincoln's Attorney General, +to "speak out" and state the fact whether or not the recommendation to +mercy was before President Johnson and his Cabinet, and considered by +them. The correspondence between Judge Holt and Mr. Speed is published +in the _North American Review_ for July, 1888. It will be remembered +that Mr. Speed, in his letter to Judge Holt of March 30, 1873, had +said:-- + +"After the finding of the military commission that tried the assassins +of Mr. Lincoln, and before their execution, I saw the record of the +case in the President's office, and attached to it was a paper, signed +by some of the members of the commission, recommending that the +sentence against Mrs. Surratt be commuted to imprisonment for life; and +according to my memory the recommendation was made because of her sex." + +As I have heretofore said, this settled, so far as the testimony of +James Speed could settle it, that the charge of Andrew Johnson that +Judge Holt had withheld the recommendation to mercy was false. It +settled the fact that previous to the execution the recommendation to +mercy was in the President's office, and was attached to the record. +But in this letter Mr. Speed added: "I do not feel at liberty to speak +of what was said at Cabinet meetings. In this case I know I differ +from other gentlemen, but feel constrained to follow my own sense of +propriety." + +Judge Holt had learned, through the statements of Mr. Seward and Mr. +Stanton to Judge Bingham, that the recommendation to mercy had been +presented to the President, and had been considered by him and members +of the Cabinet before the execution. But when this information came +to him, both Mr. Seward and Mr. Stanton were dead, and the statement +of Judge Bingham of what they told him was secondary evidence; and +Judge Holt was anxious, therefore, to get the direct evidence of Mr. +Speed that his recommendation was, to his personal knowledge, before +Mr. Johnson and his Cabinet, and considered by them. His appeals to +Mr. Speed are pathetic in the earnestness and depth of feeling they +reveal. What could be more profoundly sorrowful or touching than this, +in his letter of April 18, 1883: "Allow me to add that we are now, +each of us, far advanced in years, so that whatever is to be done for +my relief should be done quickly. While, however, it is sadly apparent +that I can remain here but a little while longer, I have not been able +to bring myself to the belief that you will suffer the closing hours of +my life to be darkened by a consciousness that this cloud, or even a +shred of it, is still hanging over me--a cloud which can be dissipated +at once and forever by a single word spoken by yourself in defense of +the truth and in rebuke of a calumny, the merciless cruelty of which +none can better understand than yourself. I make this final appeal to +your honor as a man to do me the simple justice, which, under the same +circumstances, I would render to you at once and joyfully." + +But Mr. Speed would not speak--finally saying, in his letter of October +25, 1883, "After very mature and deliberate consideration, I have come +to the conclusion that I cannot say more than I have." Neither would +he enter into consideration or discussion of his determination not "to +speak of what was said at Cabinet meetings." It seems to me that Judge +Holt was right and Mr. Speed was wrong in their relative positions upon +this question. In his letter of April 18, 1883, addressed to Mr. Speed, +to which I have referred, Judge Holt forcibly presents his view: "You +were a member of his (President Johnson's) Cabinet, and I have the +strongest reasons for believing that this atrocious accusation is known +to you to have been false in its every intendment. It originated with +President Johnson, and for years was industriously circulated by his +unscrupulous abettors, though he did not dare make open proclamation +of it until he felt assured, through your letter of the 30th of +March, 1873, that no damaging disclosures were to be apprehended from +yourself.... The question whether a President of the United States, as +a craven refuge from accountability for official action, did seek to +blacken the reputation of a subordinate officer holding a confidential +interview with him, is in no just sense a private question; it is +essentially a public one, which concerns the whole country, and one +of which the country may well expect to speak, seeing that you were a +member of that President's Cabinet, at the time of this disgraceful +transaction. Your unwillingness thus to speak of it in 1873, seemed to +have arisen from an exaggerated estimate of a rule which once prevailed +with regard to the inviolability of Cabinet councils and secrets. But +whatever may have been, in the remote past, the recognized force of +this rule, the frequent and conspicuous disregard of it during the +last two decades, by statesmen of the highest probity and rank, leaves +the impression that the rule itself has lived its day and is now +practically dead and inoperative. Waiving, however, this view, it is +clear to me that, were the rule accepted as now binding in its utmost +rigor, it could have no application to this case. I can not be misled +in supposing that the relations between the President and the Cabinet +are relations of honor, and that, therefore, they cannot be held to +oblige any member of his Cabinet to protect, by his concealment, and +thus become a moral accomplice in it--any criminal or wrongful act +into which the President may be drawn by a guilty ambition, or by any +other unworthy passion or purpose. In a word, the rule never has been +and never should be so construed as to become a shelter for perjury or +crime. + +"Your associates in the Cabinet,--Messrs Seward and +Stanton,--condemning the rule by which I have been so long victimized, +declared the truth fully to Judge Bingham, as he has so forcibly set +forth in his letter to which you are referred." + +But, as I have said, Mr. Speed would not speak. I can only account for +it by the life, circumstances, and education of the man. In the old +slave States, in the _ante-bellum_ days, there existed many of the +ideas, traditions, and rules of personal conduct of the feudal times. +Things touching personal honor, or trusted to it, or that partook of +the knightly and chivalrous, were esteemed above common right, common +honesty, or common sense. Restrained by these limitations of birth and +tradition, and controlled by his chivalrous idea of not revealing what +he regarded as Cabinet secrets, Mr. Speed would not speak, even to save +a public officer from a great wrong, or his personal friend from a +calumny which he knew would walk beside him, shadowing and embittering +a life, noble and void of wrong, down to its close. In this I think the +judgment of mankind will be that he erred. He knew that this charge of +Andrew Johnson was a cruel falsehood. Not only what he said, but what +he refused to say, proves this. His letter of March 30, 1873, states +that he saw the record, with the recommendation attached to it, in the +President's office before the execution. Judge Holt did not, therefore, +"withhold," as the President alleged. But, stronger than this, and +conclusive, I believe, in the mind of every honest and unprejudiced +man, were Mr. Speed's utterances, less than two years ago, at a meeting +of the Loyal Legion at Cincinnati. Mr. Speed read a paper at the +meeting of this society, held there on the 4th of May, 1887, in which +he said:-- + +"Only the group of fiends who stilled the pulsations of Lincoln's great +heart, paid the penalty of the crime. A maudlin sentiment has sought +to cast blame on the officials who dealt out justice to these. One in +particular is my distinguished friend, the then Judge Advocate General +of the army. Judge Holt performed his duty kindly and considerately. +In every particular he was just and fair. This I know; but Judge Holt +needs no vindication from me nor any one else. I only speak because I +know reflections have been made, and because my position enabled me to +know the facts, and because I know the perfect purity and uprightness +of his conduct." Could any words say in stronger form, he knew that +in this matter Judge Holt did his whole duty, and that President's +Johnson's charges were false? Could he have said, "In every particular +he was just and fair, this I know," if he did not _know_ and intended +to say that he knew Judge Holt did his whole duty and had presented +this recommendation to mercy to President Johnson? But what he refused +to say is as strongly convincing to my mind of the fact that the +recommendation to mercy was, to his knowledge, duly brought to the +President's attention, and was read and considered by him and members +of his Cabinet, as anything he has affirmatively stated. + +He was asked by Judge Holt to state whether this paper was or was +not before President Johnson and his Cabinet. He refused to answer +"because he did not feel at liberty to speak of what was said at +Cabinet meetings." If nothing was said about the recommendation, if no +such paper ever came before the Cabinet, might he not have so stated; +might he not have said, "No such matter ever came before the Cabinet?" +This would not reveal any Cabinet secret, would come nowhere near the +limitations he had prescribed for himself "not to speak of what was +said at Cabinet meetings." + +Is it not the inevitable logical conclusion that it was because of +this knowledge that this recommendation had been before, and had been +discussed by, the President and his Cabinet, and his determination "not +to speak of what was said at Cabinet meetings," that he would not speak? + +But, finally, my friends, has not the faith of Judge Holt been +realized? Has not time caused the truth to shine forth and his +innocence to appear? In 1873, he said: "An abiding faith, however, +remains with me that the public will do these witnesses justice, and +myself, also; and that if truth has power to disarm the cloud of +calumny of its lightnings, that then, standing in their presence and +under their shelter, I may well feel that for the future this cloud can +have no terrors for me." + +Saith an old poet:-- + + "... I have ever thought + Nature doth nothing so great for great men + As when she's pleased to make them lords of truth. + Integrity of life is fame's best friend, + Which nobly beyond death shall crown the end." + + + + +FOOTNOTES: + + +[1] "Life of Lincoln," by Nicolay and Hay, _Century Magazine_, pp. +431-32. + +[2] The evidence before the Commission left Booth and Herold, from +the time they left Dr. Mudd's until they arrived at Port Conway, +unaccounted for. I am indebted to articles in the _Century Magazine_, +by George A. Townsend, Major Ruggles, and Lieutenant Bainbridge, for +the ability to fill up this interval, and to General Baker's "History +of the Secret Service," for facts connected with the capture, death, +and burial of Booth.--AUTHOR. + +[3] Conspiracy Trial, pp. 29, 30, testimony of Conover; also p. 36, +testimony of Dr. Merritt; also p. 25, testimony of Montgomery. + +[4] The archives of the rebel war department reveal the fact that the +powder was placed under the Libby Prison by order of Davis and Seddon, +sanctioned by a committee of the rebel congress. + +[5] The Charles Selby letter was proven to be in the handwriting of +John Wilkes Booth by experts, on comparison, on the trial of John H. +Surratt. + +[6] It is highly improbable that the witness would have given +false testimony as to this conversation between Davis and General +Breckinridge because of the certainty of its contradiction by the +latter. + +[7] Trial John H. Surratt, p. 468, testimony of Dr. McMillen. + +[8] Official Report of the Conspiracy Trial, p. 114, testimony of L. J. +Wiechmann. + +[9] See Report Conspiracy Trial, pp. 114, 115 and pp. 85-87. Testimony +of L. J. Wiechmann and John M. Lloyd. + +[10] Official Report Conspiracy Trial, p. 115. + +[11] Official Report Conspiracy Trial, p. 114. + +[12] Official Report Conspiracy Trial, p. 115, and Trial of John H. +Surratt, pp. 377, 378. + +[13] Conspiracy Trial, p. 113. Trial of Surratt, pp. 377, 378. + +[14] Trial of Surratt, pp. 385, 386. + +[15] Trial Conspirators, pp. 113, 114, and Trial Surratt, 383, 384. + +[16] Trial Conspirators, p. 113. + +[17] Trial Conspirators, pp. 118-119. Trial Conspirators, p. 85. +Testimony of John M. Lloyd. + +[18] Trial Conspirators, p. 113, and Trial Surratt, pp. 391, 392. + +[19] Conspiracy Trial, pp. 85, etc. + +[20] See supplemental affidavit of L. J. Wiechmann, and Trial of +Surratt, p. 394. + +[21] Trial Conspirators, pp. 121, 122. + +[22] Conspiracy Trial. Testimony for the defense and testimony in +rebuttal, pp. 132, 139 inclusive. + +[23] Trial of Surratt, pp. 136, 137, and pp. 186, 187, 188. + +[24] Trial of Surratt, pp. 163, 164, 165. + +[25] Trial of Conspirators, p. 86. Trial of Surratt, pp. 282, 283. + +[26] See testimony of L. J. Wiechmann and John M. Lloyd on the trial of +the conspirators and on the trial of J. H. Surratt. Also testimony of +Trial Conspirators, p. 126. + +[27] See testimony of John M. Lloyd, Trial Conspirators, pp. 85, 86, +and testimony of Mrs. Emma Offutt, pp. 121-125, and Trial of Surratt, +p. 281. + +[28] See supplemental affidavit of L. Wiechmann and Trial of J. H. +Surratt, p. 295. + +[29] As Judge Pierrepont is now dead, I deem it best to cut out a +certain statement, which I had from him, with his consent to publish +it.--AUTHOR. + +[30] See testimony of Father Boucher, Trial of Surratt, p. 895, and +onward. Also testimony of Rev. Stephen F. Cameron, p. 793 and onward. +Trial of Surratt. + +[31] See p. 394, Trial of Surratt; also supplemental affidavit of L. J. +Wiechmann. + +[32] Testimony of L. J. Wiechmann, p. 454, Report of the trial of John +H. Surratt. + +[33] In a communication to a Philadelphia paper. + + + + + * * * * * + + + + +Transcriber's note: + +Punctuation and spelling were made consistent when a predominant +preference was found in this book; otherwise they were not changed. + +Unless the correction was unambiguous, inconsistent and unbalanced +(missing) quotation marks have not been changed. + +Simple typographical errors were corrected. + +Ambiguous hyphens at the ends of lines were retained. + +Text uses "henious" almost as often as "heinous"; not changed. + +Page 69; "12 M." could stand for "Midnight" or be a misprint for "A.M." + +Page 91: No obvious opening quotation mark to match the closing one at +the end of: and to have the assistance of counsel for his defense". + +Page 198: The anchor numbers for footnotes 20 and 21 (originally 2 and +3) were printed in reverse sequence, and have been swapped here. + +Page 156: Closing quotation mark added after 'put him down as a damned +fool.' + +Page 243: No closing quotation for: "I do not rise for the purpose ... + +Page 249: Missing opening quotation mark before 'And when the facts'. + +Page 292: No closing single quotation mark for "'What! would you have +this great...." and the opening mark was poorly printed, so it could be +something else. + +Page 367: No obvious closing quotation mark for ' "if I (the witness) +did not hear....' + +*** END OF THE PROJECT GUTENBERG EBOOK 42855 *** |