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diff --git a/42855.txt b/42855.txt deleted file mode 100644 index 20500d7..0000000 --- a/42855.txt +++ /dev/null @@ -1,18458 +0,0 @@ -The Project Gutenberg eBook, Assassination of Lincoln: a History of the -Great Conspiracy, by Thomas Mealey Harris - - -This eBook is for the use of anyone anywhere at no cost and with -almost no restrictions whatsoever. You may copy it, give it away or -re-use it under the terms of the Project Gutenberg License included -with this eBook or online at www.gutenberg.org - - - - - -Title: 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 - - -Author: Thomas Mealey Harris - - - -Release Date: June 1, 2013 [eBook #42855] - -Language: English - -Character set encoding: ISO-646-US (US-ASCII) - - -***START OF THE PROJECT GUTENBERG EBOOK ASSASSINATION OF LINCOLN: A -HISTORY OF THE GREAT CONSPIRACY*** - - -E-text prepared by Greg Bergquist, Charlie Howard, and the Online -Distributed Proofreading Team (http://www.pgdp.net) from page images -generously made available by Internet Archive/American Libraries -(https://archive.org) - - - -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 L61 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 aegis 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 Caesar, tells us that the - barbarians in Gaul, having sent some embassadors to Caesar, 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 Caesar 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 Caesar, 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 L2,061 17_s._ and 1-1/2_d._, -and L20,618 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 L446 12_s._ 1_d._, and on the same day L4,000, -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 L6,500 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 L61 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 L61 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 L446 12_s._, 1_d._, and then again on the same day for L4,000 -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 -Caesars 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 - Daedalus, 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 Thermopylae, -'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 Benet, -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 L61 - 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 L61 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 ASSASSINATION OF LINCOLN: A HISTORY -OF THE GREAT CONSPIRACY*** - - -******* This file should be named 42855.txt or 42855.zip ******* - - -This and all associated files of various formats will be found in: -http://www.gutenberg.org/dirs/4/2/8/5/42855 - - - -Updated editions will replace the previous one--the old editions -will be renamed. - -Creating the works from public domain print editions means that no -one owns a United States copyright in these works, so the Foundation -(and you!) can copy and distribute it in the United States without -permission and without paying copyright royalties. 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