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THE JUDICIAL MURDER
--OF--
MARY E. SURRATT.
DAVID MILLER DEWITT.
Baltimore:
JOHN MURPHY & CO.
1895.
COPYRIGHT, 1894, BY DAVID MILLER DEWITT.
"_Oceans of horse-hair, continents of parchment, and learned-sergeant
eloquence, were it continued till the learned tongue wore itself small in
the indefatigable learned mouth, cannot make the unjust just. The grand
question still remains, Was the judgment just? If unjust, it will not and
cannot get harbour for itself, or continue to have footing in this
Universe, which was made by other than One Unjust. Enforce it by never
such statuting, three readings, royal assents; blow it to the four winds
with all manner of quilted trumpeters and pursuivants, in the rear of them
never so many gibbets and hangmen, it will not stand, it cannot stand.
From all souls of men, from all ends of Nature, from the Throne of God
above, there are voices bidding it: Away! Away!_"
PAST AND PRESENT.
CONTENTS.
PAGE.
PRELIMINARY
CHAPTER I. The Reign of Terror, 1
CHAPTER II. The Bureau of Military (In)Justice, 15
PART I. THE MURDER.
CHAPTER I. The Opening of the Court. Was She Ironed? 23
CHAPTER II. Animus of the Judges. Insults to Reverdy Johnson
and General Edward Johnson, 41
CHAPTER III. Conduct of the Trial, 56
CHAPTER IV. Arguments of the Defense, 70
CHAPTER V. Charge of Judge Bingham, 82
CHAPTER VI. Verdict, Sentence and Petition, 91
CHAPTER VII. The Death Warrant and Execution, 112
CHAPTER VIII. Was it not Murder? The Milligan Case, 126
PART II. THE VINDICATION.
CHAPTER I. Setting Aside the Verdict. Discharge of Jefferson
Davis, 145
CHAPTER II. Reversal on the Merits. Trial of John H. Surratt, 165
CHAPTER III. The Recommendation to Mercy, 182
CHAPTER IV. Trial of Joseph Holt, 207
CHAPTER V. Andrew Johnson Signs another Death Warrant, 236
CHAPTER VI. Conclusion, 249
PRELIMINARY.
CHAPTER I.
THE REIGN OF TERROR.
The assassination of Abraham Lincoln burst upon the City of Washington
like a black thunder-bolt out of a cloudless sky. On Monday, the 3d of
April, 1865, Richmond was taken. On the succeeding Sunday (the ninth),
General Lee with the main Army of the South surrendered. The rebellion of
nearly one-half the nation lay in its death-throes. The desperate struggle
for the unity of the Republic was ending in a perfect triumph; and the
loyal people gave full rein to their joy. Every night the streets of the
city were illuminated. The chief officers of the government, one after
another, were serenaded. On the evening of Tuesday, the eleventh, the
President addressed his congratulations to an enthusiastic multitude from
a window of the White House. On the night of Thursday (the thirteenth)
Edwin M. Stanton, the Secretary of War, and Ulysses S. Grant, the
victorious General of the Army of the North, were tumultuously greeted
with banners and music and cannon at the residence of the Secretary. The
next day, Friday the 14th, was the fourth anniversary of the surrender of
Fort Sumter to the South, and that national humiliation was to be avenged
by the restoration of the flag of the United States to its proper place
above the fort by the hand of the same gallant officer who had been
compelled to pull it down. In the evening, a torch-light procession
perambulated the streets of the Federal Capital. Enthusiastic throngs
filled the theatres, where the presence of great officials had been
advertised by huge placards, and whose walls were everywhere festooned
with the American flag. After four years of agonizing but unabating
strain, all patriots felt justified in yielding to the full enjoyment of
the glorious relaxation.
Suddenly, at its very zenith, the snap of a pistol dislimns and scatters
this great jubilee, as though it were, indeed, the insubstantial fabric of
a vision. At half past ten that night, from the box of the theatre where
the President is seated, a shot is heard; a wild figure, hatless and
clutching a gleaming knife, emerges through the smoke; it leaps from the
box to the stage, falls upon one knee, recovers itself, utters one shout
and waves aloft its bloody weapon; then turns, limps across in front of
the audience and disappears like a phantom behind the scenes.
Simultaneously, there breaks upon the startled air the shriek of a woman,
followed close by confused cries of "Water! Water!" and "The President is
shot!"
For the first few moments both audience and actors are paralyzed. One man
alone jumps from the auditorium to the stage and pursues the flying
apparition. But, as soon as the hopeless condition of the President and
the escape of the assassin begin to transpire, angry murmurs of "Burn the
Theatre!" are heard in the house, and soon swell into a roar in the street
where a huge crowd has already assembled.
The intermingling throng surges into the building from every quarter, and
mounts guard at every exit. Not one of the company of actors is allowed to
go out. The people seem to pause for a moment, as if awaiting from Heaven
a retribution as sudden and awful as the crime.
All their joy is turned to grief in the twinkling of an eye. The rebellion
they had too easily believed to be dead could still strike, it seemed, a
fatal blow against the very life of the Republic. A panic seizes the
multitude in and around the theatre, and from the theatre spreads, "like
the Night," over the whole city. And when the frightened citizens hear, as
they immediately do, the story of the bloody massacre in the house of the
Secretary of State, occurring at the same hour with the murder of the
President, the panic swells into a reign of terror. The wildest stories
find the quickest and most eager credence. Every member of the Cabinet and
the General of the Army have been, or are about to be, killed; the
government itself is at a standstill; and the lately discomfited rebels
are soon to be in possession of the Capital. Patriotic people, delivering
themselves over to a fear of they know not what, cry hoarsely for
vengeance on they know not whom. The citizen upon whose past loyalty the
slightest suspicion can be cast cowers for safety close to his
hearth-stone. The terror-stricken multitude want but a leader cool and
unscrupulous enough, to plunge into a promiscuous slaughter, such as
stained the new-born revolution in France. A leader, indeed, they soon
find, but he is not a Danton. He is a leader only in the sense that he has
caught the same madness of terror and suspicion which has seized the
people, that he holds high place, and that he has the power and is in a
fit humor to pander to the panic.
Edwin M. Stanton was forced by the tremendous crisis up to the very top of
affairs. Vice-President Johnson, in the harrowing novelty of his position,
was for the time being awed into passive docility. The Secretary of State
was doubly disabled, if not killed. The General of the Army was absent.
The Secretary of War without hesitation grasped the helm thus thrust into
his hand, but, alas! he immediately lost his head. His exasperation at the
irony of fate, which could so ruthlessly and in a moment wither the
triumph of a great cause by so unexpected and overwhelming a calamity, was
so profound and intense, his desire for immediate and commensurate
vengeance was so uncontrollable and unreasoning, as to distort his
perception, unsettle his judgment, and thus cause him to form an estimate
of the nature and extent of the impending danger as false and exaggerated
as that of the most panic-stricken wretch in the streets. Personally,
besides, he was unfitted in many respects for such an emergency. Though an
able and, it may be, a great War-Minister, he exerted no control over his
temper; he habitually identified a conciliatory and charitable disposition
with active disloyalty; and, being unpopular with the people of Washington
by reason of the gruffness of his ways and the inconsistencies of his past
political career, he had reached the unalterable conviction that the
Capital was a nest of sympathizers with the South, and that he was
surrounded by enemies of himself and his country.
When, therefore, upon the crushing news that the President was slain,
followed hard the announcement that another assassin had made a
slaughter-house of the residence of the Minister's own colleague,
self-possession--the one supreme quality which was indispensable to a
leader at such an awful juncture--forsook him and fled.
Before the breath was out of the body of the President, the Secretary had
rushed to the conclusion, unsupported as yet by a shadow of testimony,
that the acts of Booth and of the assailant of Seward (at the moment
supposed to be John H. Surratt) were the outcome of a widespread, numerous
and powerful conspiracy to kill, not only the President and the Secretary
of State, but all the other heads of the Departments, the Vice-President
and the General of the Army as well, and thus bring the government to an
end; and that the primary moving power of the conspiracy was the defunct
rebellion as represented by its titular President and his Cabinet, and its
agents in Canada. This belief, embraced with so much precipitation,
immediately became more than a belief; it became a fixed idea in his mind.
He saw, heard, felt and cherished every thing that favored it. He would
see nothing, would hear nothing, and hated every thing, that in the
slightest degree militated against it. Upon this theory he began, and upon
this theory he prosecuted to the end, every effort for the discovery,
arrest, trial and punishment of the murderers.
He was seconded by a lieutenant well-fitted for such a purpose--General
Lafayette C. Baker, Chief of the Detective Force. In one of the two
minority reports presented to the House of Representatives by the
Judiciary Committee, on the Impeachment Investigation of 1867, this man
and his methods are thus delineated:
"The first witness examined was General Lafayette C. Baker, late chief
of the detective police, and although examined on oath, time and
again, and on various occasions, it is doubtful whether he has in any
one thing told the truth, even by accident. In every important
statement he is contradicted by witnesses of unquestioned credibility.
And there can be no doubt that to his many previous outrages,
entitling him to an unenviable immortality, he has added that of
wilful and deliberate perjury; and we are glad to know that no one
member of the committee deems any statement made by him as worthy of
the slightest credit. What a blush of shame will tinge the cheek of
the American student in future ages, when he reads that this miserable
wretch for years held, as it were, in the hollow of his hand, the
liberties of the American people. That, clothed with power by a
reckless administration, and with his hordes of unprincipled tools and
spies permeating the land everywhere, with uncounted thousands of the
people's money placed in his hands for his vile purposes, this
creature not only had power to arrest without crime or writ, and
imprison without limit, any citizen of the republic, but that he
actually did so arrest thousands, all over the land, and filled the
prisons of the country with the victims of his malice, or that of his
masters."
In this man's hands Secretary Stanton placed all the resources of the War
Department, in soldiers, detectives, material and money, and commanded him
to push ahead and apprehend all persons suspected of complicity in the
assumed conspiracy, and to conduct an investigation as to the origin and
progress of the crime, upon the theory he had adopted and which, as much
as any other, Baker was perfectly willing to accept and then, by his
peculiar methods, establish. Forthwith was ushered in the grand carnival
of detectives. Far and wide they sped. They had orders from Baker to do
two things:
I.--To arrest all the "Suspect." II.--By promises, rewards, threats,
deceit, force, or any other effectual means, to extort confessions and
procure testimony to establish the conspiracy whose existence had been
postulated.
At two o'clock in the morning of Saturday, the fifteenth, they burst into
the house of Mrs. Surratt and displaying the bloody collar of the coat of
the dying Lincoln, demanded the whereabouts of Booth and Surratt. It being
presently discovered that Booth had escaped on horseback across the Navy
Yard Bridge with David Herold ten minutes in his rear, a dash was made
upon the livery-stables of Washington, their proprietors taken into
custody, and then the whole of lower Maryland was invaded, the soldiers
declaring martial law as they progressed. Ford's theatre was taken and
held by an armed force, and the proprietor and employees were all swept
into prison, including Edward Spangler, a scene-shifter, who had been a
menial attendant of Booth's. The superstitious notion prevailed that the
inanimate edifice whose walls had suffered such a desecration was in some
vague sense an accomplice; the Secretary swore that no dramatic
performance should ever take place there again; and the suspicion was
sedulously kept alive that the manager and the whole force of the company
must have aided their favorite actor, or the crime could not have been so
easily perpetrated and the assassin escaped.
On the night of the fifteenth (Saturday) a locked room in the Kirkwood
House, where Vice President Johnson was stopping, which had been engaged
by George A. Atzerodt on the morning of the fourteenth, was broken open,
and in the bed were found a bowie-knife and a revolver, and on the wall a
coat (subsequently identified as Herold's), in which was found, among
other articles, a bank book of Booth's. The room had not been otherwise
occupied--Atzerodt, after taking possession of it, having mysteriously
disappeared.
On the morning of the seventeenth (Monday), at Baltimore, Michael
O'Laughlin was arrested as a friend of Booth's, and it was soon thought
that he "_resembled extremely_" a certain suspicious stranger who, it was
remembered, had been seen prowling about Secretary Stanton's residence on
the night of the 13th, when the serenade took place, and there doing such
an unusual act as inquiring for, and looking at, General Grant.
On the same day at Fort Monroe, Samuel Arnold was arrested, whose letter
signed "Sam" had been found on Saturday night among the effects of Booth.
On the night of the seventeenth, also, the house of Mrs. Surratt with all
its contents was taken possession of by the soldiers, and Mrs. Surratt,
her daughter, and all the other inmates were taken into custody. While the
ladies were making preparations for their departure to prison, a man
disguised as a laborer, with a sleeve of his knit undershirt drawn over
his head, a pick-axe on his shoulder, and covered with mud, came to the
door with the story that he was to dig a drain for Mrs. Surratt in the
morning; and that lady asseverating that she had never seen the man
before, he was swept with the rest to headquarters, and there, to the
astonishment of everybody, turned out to be the desperate assailant of
the Sewards.
During these few days Washington was like a city of the dead. The streets
were hung with crape. The obsequies, which started on its march across the
continent the colossal funeral procession in which the whole people were
mourners, were being celebrated with the most solemn pomp. No business was
done except at Military Headquarters. Men hardly dared talk of the
calamity of the nation. Everywhere soldiers and police were on the alert
to seize any supposed or denounced sympathizer with the South. Mysterious
and prophetic papers turned up at the White House and the War Department.
Women whispered terrible stories of what they knew about the "Great
Crime." To be able to give evidence was to be envied as a hero.
And still the arch-devil of the plot could not be found!
The lower parts of Maryland seethed like a boiling pot, and the prisons of
Washington were choking with the "suspect" from that quarter. Lloyd--the
drunken landlord of the tavern at Surrattsville, ten miles from
Washington, at which Booth and Herold had stopped at midnight of the fatal
Friday for carbines and whisky--after two days of stubborn denial was at
last frightened into confession; and Doctor Mudd, who had set Booth's leg
Saturday morning thirty miles from Washington, was in close confinement.
All the intimate friends of the actor in Washington, in Baltimore, in
Philadelphia, in New York and even in Montreal were in the clutches of the
government. Surratt himself--the pursuit of whom, guided by Weichman, his
former college-chum, his room-mate, and the favorite guest of his mother,
had been instant and thorough--it was ascertained, had left Canada on the
12th of April and was back again on the 18th.
But where was Booth? where Herold? where Atzerodt?
On the 20th, the Secretary of War applied the proper stimulus by issuing a
proclamation to the following effect:
"$50,000 reward will be paid by this department for the apprehension
of the murderer of our late beloved President.
"$25,000 reward for the apprehension of John H. Surratt, one of
Booth's accomplices.
"$25,000 reward for the apprehension of Herold, another of Booth's
accomplices.
"Liberal rewards will be paid for any information that shall conduce
to the arrest of either of the above-named criminals or their
accomplices.
"All persons harboring or secreting the said persons, or either of
them, or aiding or assisting in their concealment or escape, will be
treated as accomplices in the murder of the President and the
attempted assassination of the Secretary of State, and shall be
subject to trial before a military commission and the punishment of
death."
What is noteworthy about this document is that Stanton had already made up
his mind as to the guilt of the persons named as accomplices of Booth;
that he needed only their arrest, being assured of their consequent
conviction; and that he had already determined that their trial and the
trial of all persons connected with the great crime, however remotely,
should be had before a military tribunal, and that the punishment to
follow conviction should be death.
At four o'clock in the morning of the very day this proclamation was
issued, Atzerodt was apprehended at the house of his cousin in Montgomery
County, Md., about twenty-two miles northward of Washington, by a detail
of soldiers, to whom, by the way, notwithstanding the arrest preceded the
proclamation, $25,000 reward was subsequently paid. With Atzerodt his
cousin, Richter, was taken also. O'Laughlin, Payne, Arnold, Atzerodt and
Richter, as they were severally arrested, were put into the custody of the
Navy Department and confined on board the Monitor _Saugus_, which on the
morning of Saturday, when the President died, had been ordered to swing
out into the middle of the river opposite the Navy Yard, prepared to
receive at any hour, day or night, dead or alive, the arch-assassin. Each
of these prisoners was loaded with double irons and kept under a strong
guard. On the 23d, Atzerodt, by order of the Secretary of War, was
transferred to the Monitor _Montauk_, to separate him from his cousin, and
Payne, in addition to his double irons, had a ball and chain fastened to
each ankle by the direction of the same officer. On the next day Spangler,
who had hitherto been confined in the Old Capitol Prison, was transferred
to one of the Monitors and presumably subjected to the same treatment. On
the same day the following order was issued:
"The Secretary of War requests that the prisoners on board iron-clads
belonging to this department for better security against conversation
shall have a canvass bag put over the head of each and tied around the
neck, with a hole for proper breathing and eating, but not seeing, and
that Payne be secured to prevent self-destruction."
All of which was accordingly done.
And still no Booth! It seems as though the Secretary were mad enough to
imagine that he could wring from Providence the arrest of the principal
assassin by heaping tortures on his supposed accomplices.
At length, in the afternoon of the 26th--Wednesday, the second week after
the assassination--Col. Conger arrived with the news of the death of Booth
and the capture of Herold on the early morning of that day; bringing with
him the diary and other articles found on the person of Booth, which were
delivered to Secretary Stanton at his private residence. In the dead of
the ensuing night, the body of Booth, sewed up in an old army blanket,
arrived, attended by the dog-like Herold; and the living and the dead were
immediately transferred to the _Montauk_. Herold was double ironed, balled
and chained and hooded. The body of Booth was identified; an autopsy held;
the shattered bone of his neck taken out for preservation as a relic (it
now hangs from the ceiling of the Medical Museum into which Ford's Theatre
was converted, or did before the collapse); and then, with the utmost
secrecy and with all the mystery which could be fabricated, under the
direction of Col. Baker, the corpse was hurriedly taken from the vessel
into a small boat, rowed to the Arsenal grounds, and buried in a grave dug
in a large cellar-like apartment on the ground floor of the Old
Penitentiary; the door was locked, the key removed and delivered into the
hands of Secretary Stanton. No effort was spared to conceal the time,
place and circumstances of the burial. False stories were set afloat by
Baker in furtherance of such purpose. Stanton seemed to fear an escape or
rescue of the dead man's body; and vowed that no rebel or no rebel
sympathizer should have a chance to glory over the corpse, or a fragment
of the corpse, of the murderer of Lincoln.
CHAPTER II.
THE BUREAU OF MILITARY (IN)JUSTICE.
Mingling with the varied emotions evoked by the capture and death of the
chief criminal was a feeling of deepest exasperation that the foul
assassin should after all have eluded the ignominious penalty of his
crime. Thence arose a savage disposition on the part of the governing
powers to wreak this baffled vengeance first, on his inanimate body;
secondly, on the lives of his associates held so securely in such close
custody; and thirdly, on all those in high places who might be presumed to
sympathize with his deeds. It was too horrible to imagine that the ghost
of the martyred Lincoln should walk unavenged. So stupendous a calamity
must of necessity be the outcome of as stupendous a conspiracy, and must
in the very justice of things be followed by as stupendous a retribution.
A sacrifice must be offered and the victims must be forthcoming. To employ
the parallel subsequently drawn by General Ewing on the trial of the
conspirators: On the funeral pyre of Patroclus must be immolated the
twelve Trojan captives. They were sure of Payne and of Herold. They held
Arnold and O'Laughlin and Atzerodt and Spangler and Doctor Mudd--all the
supposed satellites of Booth, save one. John H. Surratt could not be
found. Officers in company with Weichman and Holahan, boarders at his
mother's house, who in the terror of the moment had given themselves up on
the morning of the fifteenth, traced him to Canada, as has already been
noticed, but had there lost track of him. They had returned disappointed;
and now Weichman and Holahan were in solitary confinement. Notwithstanding
the large rewards out for his capture, as to him alone the all-powerful
government seemed to be baffled. One consolation there was, however--if
they could not find the son, they held the mother as a hostage for him,
and they clung to the cruel expectation that by putting her to the torture
of a trial and a sentence, they might force the son from his hiding place.
In the meanwhile the Bureau of Military Justice, presided over by
Judge-Advocate-General Holt, had been unceasingly at work. General Baker
with his posse of soldiers and detectives scoured the country far and wide
for suspected persons and witnesses, hauled them to Washington and shut
them up in the prisons. Then the Bureau of Military Justice took them in
hand, and, when necessary, by promises, hopes of reward and threats of
punishment, squeezed out of them the testimony they wanted. Colonel Henry
L. Burnett, who had become an expert in such proceedings from having
recently conducted the trial of Milligan before a military tribunal at
Indianapolis, was brought on to help Judge Holt in the great and good
work. In the words of General Ewing in his plea for Dr. Mudd:
"The very frenzy of madness ruled the hour. Reason was swallowed up in
patriotic passion, and a feverish and intense excitement prevailed
most unfavorable to a calm, correct hearing and faithful repetition of
what was said, especially by the suspected. Again, and again, and
again the accused was catechised by detectives, each of whom was
vieing with the other as to which should make the most important
discoveries, and each making the examination with a preconceived
opinion of guilt, and with an eager desire, if not determination, to
find in what might be said the proofs of guilt. Again, the witnesses
testified under the strong stimulus of a promised reward for
information leading to arrest and followed by convictions."
The Bureau conducted the investigation on the preconceived theory,
adopted, as we have seen, by the Secretary of War, that the Confederate
Government was the source of the conspiracy; and, by lavishing promises
and rewards, it had no difficulty in finding witnesses who professed
themselves to have been spies on the rebel agents in Canada and who were
ready to implicate them and through them the President of the defunct
Confederacy in the assassination. Richard Montgomery and Sanford Conover,
who had been in personal communication with these agents during the past
year, were eagerly taken into the employ of the Bureau, and made frequent
trips to Canada, to return every time laden with fresh proofs of the
complicity of the rebels.
To illustrate how the Bureau of Military Justice dealt with witnesses who
happened to have been connected more or less closely with Booth, and who
were either reluctant or unable to make satisfactory disclosures, here are
two extracts from the evidence given on the trial of John H. Surratt in
1867.
The first is from the testimony of Lloyd, the besotted keeper of the
Surratt tavern:
"I was first examined at Bryantown by Colonel Wells. I was next
examined by two different persons at the Carroll prison. I did not
know either of their names. One was a military officer. I think some
of the prisoners described him as Colonel Foster. I saw a man at the
conspiracy trial as one of the Judges who looked very much like him. *
* * I told him I had made a fuller statement to Colonel Wells than I
could possibly do to him under the circumstances, while things were
fresh in my memory. His reply was that it was not full enough, and
then commenced questioning me whether I had ever heard any person say
that something wonderful or something terrible was going to take
place. I told him I had never heard anyone say so. Said he I have seen
it in the newspapers.
"He jumps up very quick off his seat, as if very mad, and asked me if
I knew what I was guilty of. I told him, under the circumstances I did
not. He said you are guilty as an accessory to a crime the punishment
of which is death. With that I went up stairs to my room."
The next is from the testimony of Lewis J. Carland, to whom Weichman
confessed his remorse after the execution of Mrs. Surratt:
"He [Weichman] said it would have been very different with Mrs.
Surratt if he had been let alone; that a statement had been prepared
for him, that it was written out for him, and that he was threatened
with prosecution as one of the conspirators if he did not swear to it.
He said that a detective had been put into Carroll prison with him,
and that this man had written out a statement which he said he had
made in his sleep, and that he had to swear to that statement."
Let us add another; it is so short and yet so suggestive. It is from the
testimony of James J. Gifford, who was a witness for the prosecution on
both trials.
"Q.--Do you know Mr. Weichman?
"A.--I have seen him.
"Q.--Were you in Carroll prison with him?
"A.--Yes, sir.
"Q.--Did he say in your presence that an officer of the government had
told him that unless he testified to more than he had already stated
they would hang him too?
"A.--I heard the officer tell him so."
After a fortnight of such wholesale processes of arrest, imprisonment,
inquisition, reward and intimidation, the Bureau of Military Justice
announced itself ready to prove the charges it had formulated. Thereupon
two proclamations were issued by President Johnson. One, dated May the
first, after stating that the Attorney General had given his opinion "that
all persons implicated in the murder of the late President, Abraham
Lincoln, and the attempted assassination of the Hon. William H. Seward,
Secretary of State, and in an alleged conspiracy to assassinate other
officers of the Federal Government at Washington City, and their aiders
and abettors, are subject to the jurisdiction of and legally triable
before a Military Commission," ordered 1st, "that the Assistant
Adjutant-General (W. A. Nichols) detail nine competent military officers
to serve as a Commission for the trial of said parties, and that the
Judge-Advocate-General proceed to prefer charges against said parties for
their alleged offences, and bring them to trial before said Military
Commission." 2d, "that Brevet Major-General Hartranft be assigned to duty
as Special Provost-Marshal-General for the purpose of said trial and
attendance upon said Commission, and the execution of its mandates."
The other proclamation, dated May 2nd, after reciting that "it appears
from evidence in the Bureau of Military Justice, that the atrocious murder
of the late President, Abraham Lincoln, and the attempted assassination of
the Hon. William H. Seward, Secretary of State, were incited, concerted,
and procured by and between Jefferson Davis, late of Richmond, Va., and
Jacob Thompson, Clement C. Clay, Beverly Tucker, George N. Sanders,
William C. Cleary, and other rebels and traitors against the Government of
the United States, harbored in Canada," offered the following rewards:
"$100,000 for the arrest of Jefferson Davis.
"$25,000 for the arrest of Clement C. Clay.
"$25,000 for the arrest of Jacob Thompson, late of Mississippi.
"$25,000 for the arrest of Geo. N. Saunders.
"$25,000 for the arrest of Beverly Tucker.
"$10,000 for the arrest of Wm. C. Cleary, late clerk of Clement C.
Clay.
"The Provost-Marshal-General of the United States is directed to cause
a description of said persons, with notice of the above rewards, to be
published."
At this date the President of the defunct Confederacy was a fugitive,
without an army; and bands of U. S. Cavalry were already on the scout to
intercept his flight. Military Justice, however, was too impatient to
await the arrest of the prime object of its sword; and in obedience to the
first proclamation proceeded without delay to organize a court to try the
prisoners selected from the multitude undergoing confinement as the
fittest victims to appease the shade of the murdered President. Over some
of the "suspect" the Judge-Advocates for a time vacillated, whether to
include them in the indictment or to use them as witnesses; but, after a
season of rigid examinations, renewed and revised, they at last concluded
that such persons would be more available in the latter capacity.
On the third day of May the funeral car, which, leaving Washington on the
twenty-first of April, had borne the body of the lamented Lincoln through
State after State, arrived at last at Springfield; and on the following
day the cherished remains were there consigned to the tomb. On the sixth,
by special order of the Adjutant-General, a Military Commission was
appointed to meet at Washington on Monday, the eighth day of May, or as
soon thereafter as practicable, "for the trial of David E. Herold,
George A. Atzerodt, Lewis Payne, Michael O'Laughlin, Edward Spangler,
Samuel Arnold, Mary E. Surratt, Samuel A. Mudd and such other prisoners as
may be brought before it, implicated in the murder of the late President
and in the attempted assassination of the Secretary of State and in an
alleged conspiracy to assassinate other officers of the Federal Government
at Washington City, and their aiders and abettors. By order of the
President of the United States." And so, all things being in readiness,
let the curtain rise.
PART I.
THE MURDER.
CHAPTER I.
THE OPENING OF THE COURT.
On the ninth day of May the Commission met but only to adjourn that the
prisoners might employ counsel. On the same day, two of its members,
General Cyrus B. Comstock and Colonel Horace Porter--names to be noted for
what may have been a heroic refusal--were relieved from the duty of
sitting upon the Commission, and two other officers substituted in their
stead.
So that Tuesday, May 10th, 1865--twenty-six days after the assassination,
a period much too short for the intense excitement and wild desire for
vengeance to subside--may properly be designated as the first session of
the Court. On the early morning of that day--before daylight--Jefferson
Davis had been captured, and was immediately conducted, not to Washington
to stand trial for his alleged complicity in the assassination, but to
Fort Monroe. On the next day Clement C. Clay, also, surrendered himself to
the United States authorities, and was sent, not to Washington to meet the
awful charge formulated against him, but to the same military fortress.
The room in which the Commission met was in the northeast corner of the
third story of the Old Penitentiary; a building standing in the U. S.
Arsenal Grounds at the junction of the Potomac with the Eastern Branch, in
a room on the ground floor of which the body of Booth had been secretly
buried. Its windows were guarded by iron gratings, and it communicated
with that part of the prison where the accused were now confined, by a
door in the western wall. The male prisoners had been removed some days
before from the Monitors to the Penitentiary, where Mrs. Surratt was
already incarcerated, and each of them, including the lady, was now
immured in a solitary cell under the surveillance of a special guard.
Around a table near the eastern side of this room sat, resplendent in full
uniform, the members of the Court. At the head as President was
Major-General David Hunter--a stern, white-headed soldier, sixty-three
years old; a fierce radical; the first officer to organize the slaves into
battalions of war; the warm personal friend of Lincoln, at the head of
whose corpse he had grimly sat as it rested from place to place on the
triumphal progress to its burial, and from whose open grave he had
hurried, in no very judicial humor to say the least, to take his seat
among the Judges of the accused assassins. On his right sat Major-General
Lew Wallace, a lawyer by profession; afterwards the President of the
Court-Martial which tried and hung Henry Wirz; but now, by a sardonic
freak of destiny, known to all the world as the tender teller of "Ben Hur,
a Tale of the Christ." To the right of General Wallace sat Brevet
Brigadier-General James A. Ekin and Brevet Colonel Charles A. Tompkins;
about whom the only thing remarkable is that they had stepped into the
places of the two relieved officers, Colonel Tompkins being the only
regular army officer on the Board. On the left of General Hunter sat,
first, Brevet Major-General August V. Kautz, a native of Germany; next,
Brigadier-General Robert S. Foster, who may or may not have been the
"Colonel Foster" alluded to in the testimony of Lloyd quoted above, as
threatening the witness and as afterwards being seen by him on the
Commission--the presence of an officer, previously engaged by the
Government in collecting testimony against the accused, as one of the
judges to try him not being considered a violation of Military Justice.
Next sat Brigadier-General Thomas Mealey Harris, a West Virginian, and the
author of a book entitled "Calvinism Vindicated;" next, Brigadier-General
Albion P. Howe, and last, Lieutenant-Colonel David R. Clendenin.
Not one of these nine men could have withstood the challenge which the
common law mercifully puts into the hands of the most abandoned culprit.
They had come together with one determined and unchangeable purpose--to
avenge the foul murder of their beloved Commander-in-Chief. They dreamt
not of acquittal. They were, necessarily, from the very nature of their
task, _organized to convict_.
The accused were asked, it is true, whether they had any objections to any
member of the Court. But this was the emptiest of forms, as bias is no
cause of challenge in military procedure, and peremptory challenges are
unknown.
Moreover, it was nothing but a cruel mockery to offer to that trembling
group of prisoners an opportunity, which, if any one of them had the
temerity to embrace, could only have resulted in barbing with the sting of
personal insult the hostile predisposition of the judges.
At the foot of the table around which the Court sat--the table standing
parallel with the north side of the room--there was another, around which
were gathered the three prosecuting officers, who, according to military
procedure, were also members of the Commission.
First, was Brigadier-General Joseph Holt, the Judge-Advocate of the U. S.
Army, and the Recorder of the Commission. During his past military career
he had distinguished himself on many a bloody court-martial.
Second, designated by General Holt as First Assistant or Special
Judge-Advocate, was Hon. John A. Bingham, of Ohio--long a Representative
in Congress, then for a short interval a Military Judge-Advocate, now a
Representative in Congress again, and to become in the strange
vicissitudes of the near future, one of the managers of the impeachment of
President Johnson, whom he now cannot praise too highly. He was one of
those fierce and fiery western criminal lawyers, gifted with that sort of
vociferous oratory which tells upon jurors and on the stump, by nature and
training able to see but one side to a case and consequently merciless to
his victims. His special function was to cross-examine and brow-beat the
witnesses for the defense, a branch of his profession in which he was
proudly proficient, and, above all, by pathetic appeals to their
patriotism and loyalty, and by measureless denunciations of the murder of
their Commander-in-Chief and of the Rebellion, to keep up at a white heat
the already burning passions of the officers composing the tribunal. Next
to him came Colonel Henry L. Burnett; brought from Indiana where he had
won recent laurels in conducting the trial of Milligan for treason before
a Military Commission--laurels, alas! soon to be blasted by the decision
of the U. S. Supreme Court pronouncing that and all other Military
Commissions for the trial of citizens in places where the civil courts are
open illegal, and setting free the man this zealous public servant had
been instrumental in condemning to death.
In the centre of the room was a witness-stand facing the Court. To the
left of the witness-stand a table for the official reporters. Along the
western side and directly opposite the Court was a platform about a foot
high and four feet broad, with a strong railing in front of it. This was
the prisoners' dock. The platform was divided near the left hand or
southern corner by the doorway which led to the cells. In front of the
southern end of the dock and behind the witness-stand was the table of the
prisoners' counsel.
At the appointed hour the door in the western side opens and an impressive
and mournful procession appears. Six soldiers armed to the teeth are
interspersed among seven male prisoners and one woman.
First walks Samuel Arnold, the young Baltimorean, who is to sit at the
extreme right (_i. e._, of the spectators), followed close by his armed
guard; next, Dr. Samuel T. Mudd and a soldier; next, Edward Spangler and a
soldier; next, Michael O'Laughlin, another Baltimorean, and his soldier;
next, George B. Atzerodt and a soldier; next, Lewis Payne, a tall
gladiator, though only twenty years old, and his soldier; and then David
E. Herold, looking like an insignificant boy, who is to sit next the door.
As they enter, their fetters clanking at every step, they turn to their
left and take seats on the platform in the order named, the six soldiers
being sandwiched here and there between two of the men.
Each of these prisoners, during the entire trial, was loaded down with
irons made as massive and uncomfortable as possible. Their wrists were
bound with the heaviest hand-cuffs, connected by bars of iron ten inches
long (with the exception of Dr. Mudd, whose hand-cuffs were connected by a
chain), so that they could not join their hands. Their legs were weighed
down by shackles joined by chains made short enough to hamper their walk.
In addition to these fetters, common to all, Payne and Atzerodt had,
attached by chains to their legs, huge iron balls, which their guards had
to lift and carry after them whenever they entered or left the Court room.
Last, there emerges from the dungeon-like darkness of the doorway the
single female prisoner, Mary E. Surratt. She, alone, turns to her right
and, consequently, when she is seated has the left hand corner of the
platform to herself. But she is separated from her companions in misery by
more than the narrow passage-way that divides the dock; for she is a lady
of fair social position, of unblemished character and of exemplary piety,
and, besides, she is a mother, a widow, and, in that room amongst all
those soldiers, lawyers, guards, judges and prisoners, the sole
representative of her sex. Her womanhood is her peculiar weakness, yet
still her only shield.
Is she too ironed?
The unanimous testimony of eye-witnesses published at the time of the
trial is, that, though not hand-cuffed, she was bound with iron "anklets"
on her feet. And this detail, thus universally proclaimed in the Northern
Press and by loyal writers, was mentioned not as conveying the slightest
hint of reprobation, but as constituting, like the case of the male
prisoners, a part of the appropriate treatment by the military of a person
suffering under such a charge. And, moreover, no contemporaneous denial of
this widespread circumstance was anywhere made, either by Provost-Marshal,
Counsel, Judge-Advocate or member of the Court. It passed unchallenged
into history, like many another deed of shame, over which it is a wonder
that any man could glory, but which characterized that period of frenzy.
Eight years after, during the bitter controversy between Andrew Johnson
and Joseph Holt over the recommendation of mercy to Mrs. Surratt, General
Hartranft, the former Special Provost-Marshal in charge of the prisoners,
first broke silence and, coming to the aid of the sorely-tried
Ex-Judge-Advocate, sent him a vehement categorical denial that Mrs.
Surratt was ever manacled at any time, or that there was ever a thought of
manacling her in any one's mind. Now, what force should be given to such a
denial by so distinguished an officer, so long delayed and in the face of
such universal contemporaneous affirmation?
No one knows how close and exclusive the charge of the prisoners by the
special Provost-Marshal was, nor how liable to interruption, interference
and supersession by the omnipotent Bureau of Military Justice, or by the
maddened Secretary of War and his obsequious henchmen.
At the time the naked assertion was made, to heap indignities upon the
head of the only woman in the whole country whom the soldiery took for
granted was the one female fiend who helped to shed the blood of the
martyred President, was so consonant with the angry feeling, in military
circles, that an officer, having only a general superintendence over the
custody and treatment of what was called "a band of fiends," would be very
likely to overlook such a small matter as that the she-assassin was not
exempted, in one detail, from the contumelies and cruelties it was thought
patriotic to pile upon her co-conspirators. The only wonder ought to be
that they relieved her from the hand-cuffs. They appear to have
discriminated in the case of Dr. Mudd also, substituting a chain for an
inflexible bar so that he for one could move his hands. There may have
been some unmentioned physical reasons for both of these alleviations, but
we may rest assured that neither sex, in the one case, nor profession in
the other, was among them.
General Hartranft (or any other General) never denied, or thought it
necessary to deny, that the seven male prisoners sat through the seven
weeks of the trial, loaded, nay tortured, with irons. And there is no
doubt that this unspeakable outrage, if thought of at all at the trial by
the soldiery--high or low--so far from being thought of as a matter of
reprobation, was a subject of grim merriment or stern congratulation.
Eight years, however, passed away--eight years, in which a fund of
indignation at such brutality, above all to a woman, had been silently
accumulating, until at length to a soldier, whose beclouding passions of
the moment had in the meantime cooled down, its weight made every
loop-hole of escape an entrance for the very breath of life.
The entire atmosphere had changed, and denials became the order of the
day. Memory is a most convenient faculty; and to forget what the lapse of
years has at last stamped with infamy is easy, when the event passed at
the time as a mere matter of course. Leaving these tardy repudiators of an
iniquity, the responsibility for which in the day of its first publication
they tacitly assumed with the utmost complacency, to settle the question
with posterity;--we insist that the preference is open to writers upon the
events of the year 1865 to rely upon the unprejudiced and unchallenged
statements of eye-witnesses; and, therefore, we do here reaffirm that Mary
E. Surratt walked into the court-room, and sat during her trial, with
shackles upon her limbs.
At this late day it is a most natural supposition that these nine stalwart
military heroes, sitting comfortably around their table, arrayed in their
bright uniforms, with their own arms and their own legs unfettered, must
have felt at least a faint flush of mingled pity, shame and indignation,
as they looked across that room at that ironed row of human beings.
Culprits arraigned before them, guarded by armed soldiery, without arms
themselves--why, in the name of justice, drag them into Court and force
them to sit through a long trial, bound with iron, hand and foot? Was it
to forestall a last possible effort of reckless and suicidal despair?
These brave warriors could not have feared the naked arm of Payne, nor
have indulged the childish apprehension that seven unarmed men and one
unarmed woman might overpower six armed soldiers and nine gallant
officers, and effect their escape from the third story of a prison guarded
on all sides with bayonets and watched by detective police! And yet, so
far as appears, no single member of the Court, to whom such a desecration
of our common humanity was a daily sight for weeks, thought it deserving
of notice, much less of protest.
There is but one explanation of this moral insensibility, and that applies
with the same force to the case of the woman as to those of the men. It
is, that the accused were _already doomed_. For them no humiliation could
be thought too deep, no indignity too vile, no hardship too severe,
because their guilt was predetermined to be clear. And the members of the
Military Commission, as they looked across the room at that sorry sight,
saw nothing incongruous with justice, or even with the most chivalrous
decorum, that the traitorous murderers of their beloved Commander-in-Chief
should wear the shackles which were the proper precursors of the death of
ignominy, they were resolved the outlaws should not escape.
We, civilians, must ever humbly bear in mind that the rule of the common
law, that every person accused of crime is presumed to be innocent until
his guilt is established beyond a reasonable doubt--a rule the benignity
of which is often sneered at by soldiers as giving occasion for lawyers'
tricks and quibbles, and as an impediment to swift justice, is reversed in
military courts, where every person accused of crime is presumed to be
_guilty_ until he himself prove his innocence.
After the prisoners had been seated, and the members of the Commission,
the Judge-Advocates and the official reporters sworn in, the accused were
severally arraigned. There was but one Charge against the whole eight.
Carefully formulated by the three Judge-Advocates upon the lines of the
theory adopted by the Secretary of War, and which Gen. Baker and the
Bureau of Military Justice had been moving heaven and earth to establish,
it was so contrived as to allege a crime of such unprecedented,
far-reaching and profound heinousness as to be an adequate cause of such
an unprecedented and profound calamity.
The eight prisoners were jointly and severally charged with nothing less
than having, in aid of the Rebellion, "_traitorously_" conspired,
"together with one John H. Surratt, John Wilkes Booth, Jefferson Davis,
George N. Sanders, Beverley Tucker, Jacob Thompson, William C. Cleary,
Clement C. Clay, George Harper, George Young and others unknown, to kill
and murder" "Abraham Lincoln, late President of the United States and
Commander-in-Chief of the Army and Navy thereof, Andrew Johnson, then
Vice-President, Wm. H. Seward, Secretary of State, and Ulysses S. Grant,
Lieutenant-General;" and of having, in pursuance of such "traitorous
conspiracy," "together with John Wilkes Booth and John H. Surratt"
"traitorously" murdered Abraham Lincoln, "traitorously" assaulted with
intent to kill, William H. Seward, and lain in wait "traitorously" to
murder Andrew Johnson and Ulysses S. Grant.
On this elastic comprehensive Charge, in which treason and murder are
vaguely commingled, every one of the men, and Mary E. Surratt, were
arraigned, plead not guilty, and were put upon trial. There is no doubt,
by the way, that the Secretary of War would have been included as one of
the contemplated victims, had not Edwin M. Stanton borne so prominent a
part in the prosecution; and it was for this reason, and not because of
any change in the evidence, that General Grant stood alone, as the mark
of O'Laughlin.
To this single Charge there was, also, but a single Specification. This
document alleged that the design of all these traitorous conspirators was,
to deprive the Army and Navy of their Commander-in-Chief and the armies of
their Commander; to prevent a lawful election of President and
Vice-President; and by such means to aid and comfort the Rebellion and
overthrow the Constitution and laws.
It then alleged the killing of Abraham Lincoln by Booth in the prosecution
of the conspiracy, and charged the murder to be the act of the prisoners,
as well as of Booth and John H. Surratt. It then alleged that Spangler, in
furtherance of the conspiracy, aided Booth in obtaining entrance to the
box of the theatre, in barring the door of the theatre box, and in
effecting his escape. Then, that Herold, in furtherance of the conspiracy,
aided and abetted Booth in the murder, and in effecting his escape. Then,
that Payne, in like furtherance, made the murderous assault on Seward and
also on his two sons and two attendants. Then, that Atzerodt, in like
furtherance, at the same hour of the night, lay in wait for Andrew Johnson
with intent to kill him. Then, that Michael O'Laughlin, in like
furtherance, on the nights of the 13th and 14th of April, lay in wait for
General Grant with like intent. Then, that Samuel Arnold, in prosecution
of the conspiracy, "did, on or before the 6th day of March, 1865, and on
divers other days and times between that day and the 15th day of April,
1865, combine, conspire with and counsel, abet, comfort and support"
Booth, Payne, Atzerodt, O'Laughlin and their confederates. Then, "that, in
prosecution of the conspiracy, Mary E. Surratt, on or before the 6th of
March, 1865, and on divers other days and times between that day and the
20th of April, 1865, received, entertained, harbored and concealed, aided
and assisted" Booth, Herold, Payne, John H. Surratt, O'Laughlin, Atzerodt,
Arnold and their confederates, "with the knowledge of the murderous and
traitorous conspiracy aforesaid, and with intent to aid, abet and assist
them in the execution thereof, and in escaping from justice." And, lastly,
that in prosecution of the conspiracy Samuel A. Mudd did from on or before
the 6th day of March, to the 20th of April "advise, encourage, receive,
entertain, harbor and conceal, aid and assist" Booth, Herold, Payne, John
H. Surratt, O'Laughlin, Atzerodt, Mary E. Surratt, Arnold and their
confederates, in its execution and their escape.
After the prisoners, who as yet had no counsel, had pleaded not guilty to
the Charge and Specification, the Court adopted rules of proceeding--one
of which was that the sessions of the Court should be secret, and no one
but the sworn officers and the counsel for the prisoners, also sworn to
secrecy, should be admitted, except by permit of the President of the
Commission; and that only such portions of the testimony as the
Judge-Advocate should designate should be made public.
On the next day (Thursday, May 11th), Mr. Thomas Ewing, Jr. and Mr.
Frederick Stone appeared as counsel for Dr. Mudd, and Mr. Frederick A.
Aiken and Mr. John W. Clampitt for Mrs. Surratt; and on the succeeding day
(12th), Mr. Frederick Stone appeared for Herold "at the earnest request of
his widowed mother and estimable sisters;" General Ewing for Arnold (and
on Monday, the 15th, for Spangler); Mr. Walter S. Cox for O'Laughlin, and
Mr. William E. Doster for Payne and Atzerodt.
By the rules of the Commission no counsel could appear for the prisoners
unless he took the "iron-clad oath" or filed evidence of having taken it.
So supersensitive was the loyalty of the Court that it could not brook the
presence of a "sympathizer with the South," even in such a confidential
relation as counsel for accused conspirators in aid of the Rebellion.
The demeanor of the Court towards the counsel for the defense, reflecting
as in a mirror the humor of the Judge-Advocates, was highly
characteristic. Sometimes they were treated with haughty indifference,
sometimes with ironical condescension, often with contumely, generally
with contempt. Their objections were invariably overruled, unless acceded
to by the Judge-Advocate. The Commission could not conceal its secret
opinion that they were engaged in a disreputable and disloyal employment.
This statement must be somewhat qualified, however, so far as it relates
to General Ewing. He was, or had been recently, of equal rank in the army
of the Union with the members of the Court. He was a brother-in-law of
General Sherman, and he had acquired a high reputation for gallantry and
skill, as well as loyalty, during the war. That such a distinguished
fellow-soldier should appear to defend the fiendish murderers of their
beloved Commander-in-Chief--outlaws they were detailed as a Court to
hang--evidently perplexed and disconcerted these military Judges and
tended in some degree to curb the over-bearing insolence of the Special
Judge-Advocate. Thus, this able lawyer and gallant officer and noble man
was enabled to be "the leading spirit of the defense;" and, as we shall
see, he wrought the miracle of plucking from the deadly clutches of the
Judge-Advocates the lives of every one of the men he defended. But this
instance was a most notable exception. As a rule, even the silent presence
of the counsel for the accused jarred upon the feelings of the Court, and
their vocal interference provoked, at intervals, its outspoken
animadversion. A trifling incident will serve to illustrate.
The witnesses, while giving their testimony, were required to face the
Court, so that they necessarily turned their backs on the counsel for the
prisoners who were placed some distance behind the witness-stand. These
counsel were also forced to cross-examine the witnesses for the
prosecution, and interrogate their own, without seeing their faces; and as
often as a witness in instinctive obedience to the dictates of good
manners would turn round to answer a question, the President of the Court
would check him by a "sharp reprimand" and the stern admonition: "Face the
Court!" The confusion of a witness, especially for the defense, when
thundered at in this way by General Hunter, and the reiterated humiliation
of counsel implied in the order, seem to have only called forth the wonder
that witnesses "would persist in turning towards the prisoners' counsel!"
Clearly these lawyers were an unmeaning, an impeding, an offensive, though
unavoidable, superfluity.