THE CONDUCT OF THE TRIAL.
The whole conduct of the trial emphasizes this conclusion. The Court, in
weighing the evidence, adopted and acted upon the following proposition;
that any witness, sworn for any of the prisoners, who had enlisted in the
Confederate service, or had at any time expressed secession sentiments, or
sympathized in any way with the South, was totally unworthy of credit. The
Court went a step farther, and adopted the monstrous rule that
participation in the Rebellion was evidence of participation in the
assassination! This assertion now seems incredible, but it is fully
attested by the record. At one stage of the trial, the Judge-Advocate
asked a witness whether or not the prisoner Arnold had been in the
military service of the rebels. General Ewing, his counsel, strenuously
objected to this question on the ground, that it tended to prove the
prisoner guilty of another crime than the one for which he was on trial,
and thus to prejudice him in the eyes of the Court.
Judge Holt remarked: "How kindred to each other are the crimes of treason
against a nation and assassination of its chief magistrate.
"The murder of the President * * * was preeminently a political
assassination.
"When, therefore, we shall show, on the part of the accused, acts of
intense disloyalty, bearing arms in the field against the Government, we
show with him the presence of an animus towards the Government which
relieves this accusation of much, if not all, of its improbability."
He asserted that such a course of proof was constantly resorted to in
criminal courts; and when General Ewing challenged him (as well he might)
to produce any authorities for such a position, he called upon the
indomitable Bingham to state them.
The Special Judge-Advocate responded, but he courteously, but
unmistakably, shied away from his colleague's position and put the
competency of the testimony upon another ground, viz.: that where the
intent with which a thing was done is in issue, other acts of the prisoner
which tend to prove the intent may be given in evidence. Here he was
dealing with a familiar principle, and could cite any number of cases. He
then proceeded to apply his good law. How? By claiming that conspiracy to
murder having been laid in the charge, "_with the intent to aid the
Rebellion_," that was the intent in issue here, and therefore to prove
that a man was in the Rebellion went to prove that intent.
At the request of General Ewing he read the allegation which ran "in aid
of the Rebellion," and not "_with intent_ to aid," and the counsel pointed
out that that was "an allegation of fact, and not of intent;" but the
Judge insisted that it was in effect an allegation of intent--implied if
not expressed.
General Ewing then replied to his adversary's argument by showing that
such an allegation was an unnecessary allegation. Conspiracy to murder and
attempted murder were crimes done with _intent to kill_; and it was a
matter of no moment in pleading to allege a general intent to aid the
Rebellion. Courts had no right to violate the laws of evidence because the
prosecution has seen fit to violate the laws of pleading.
Judge Bingham contended (and cited authorities) for his familiar law, and
then again in applying it triumphantly asked:
"When he [Arnold] entered it (_i. e._, the Rebellion) he entered into it
to aid it, did he not?"
"Mr. Ewing. He did not enter into that to assassinate the President."
At this, the Assistant Judge-Advocate rising to the decisive and
culminating point of his argument gave utterance to the following
proposition:
"Yes: he entered into it to assassinate the President; and everybody
else that entered into the Rebellion entered into it to assassinate
everybody that represented the Government, that either followed the
standard in the field, or represented its standard in the counsels.
That is exactly why it is germane."
And, thereupon, the Commission immediately overruled the objection.
General Ewing told the exact truth, without a particle of rhetorical
exaggeration, when, in the closing sentence of his argument against the
jurisdiction of the Commission, he exclaimed:
"Indeed, the position taken by the learned Assistant Judge-Advocate * * *
goes to this--and even beyond it--namely, that participation in the
Rebellion was participation in the assassination, and that the Rebellion
itself formed part of the conspiracy for which these men are on trial
here."
Throughout the whole trial, the Commission took the law from the
Judge-Advocates with the unquestioning docility usually manifested by a
jury on such matters in civil courts. In truth, the main function of a
Judge-Advocate appears to be to furnish law to the Court, as in civil
courts the main function of the Judge is to furnish law to the jury.
Consequently, his exposition of the law on any disputed point--whether
relative to modes of procedure, or to the competency of testimony, or even
to questions of jurisdiction--instead of standing on the same level with
the antagonistic exposition of counsel for the accused as an argument to
be weighed by the Court against its opposite in the equal scales of
decision, was at all times authoritative, like the opinion of a judge
overruling the contention of a lawyer. This, surely, was bad enough for a
defendant; but, what was still more fatal to his chances of fair dealing,
this habit of domination, acquiesced in by the Court on questions of law,
had the effect (as is also seen in civil courts) of giving the same
superior force to the expositions of questions of fact by the
Judge-Advocate. And as this office combined the functions of a prosecuting
officer with the functions of a judge, there could be no restraints of
law, custom or personal delicacy, against the enforcement, with all the
powers of reasoning and appeal at command, the conclusion of the
Judge-Advocate upon the matters of fact.
In a word, the judgment of the prosecuting officer--the retained counsel
for the Government, the plaintiff in the action--ruled with absolute sway,
both on the law and on the facts, the judgment of the Commission; the
members of which, for that matter, were also in the pay of the Government.
It may, therefore, be readily anticipated with how little impartiality the
trial was conducted.
Mrs. Surratt (as did the rest of the accused) plead to the jurisdiction of
the Commission on the grounds (1) that she was not and had not been in the
military service of the United States, and (2) that when the crimes
charged were committed the civil courts were open in Washington; both of
which allegations were admitted and were notoriously true. Whatever might
be the indifference with which the rights of the men to a constitutional
trial may have been viewed, it was so utterly incongruous with the spirit
of military jurisprudence and so unprecedented in practice to try a woman
by court-martial, that had Mrs. Surratt been alone before that Commission
we venture to say those nine soldiers could not have brought themselves,
or allowed the Judge-Advocate to bring them, to the overruling of her
plea. As it was, however, the court-room was cleared of all save the
members of the Commission and the three Judge-Advocates; and after a
season of what is called "deliberation" (which meant the further
enforcement of the opinion of the prosecuting officers upon the point
under discussion, where necessary), the court reopened and "the
Judge-Advocate announced that the pleas * * * had been overruled by the
Commission."
Mrs. Surratt (as did the other prisoners) then asked for a separate trial;
a right guaranteed to her in all the civil courts of the vicinage. It was
denied to her, without discussion, as a matter of course.
And yet no one now can fail to recognize the grievous disadvantage under
which this one woman labored, coupled in a single trial with such culprits
as Payne who confessed his guilt, and Herold who was captured with Booth.
In fact, the scheme of trial contrived by the Judge-Advocates on a scale
comprehensive enough to embrace the prisoners, the Canadian exiles and the
Confederate Cabinet, would not work on a trial of Mrs. Surratt alone. Of
this pet plan they were highly proud and greatly enamoured. To it,
everything--the rights of woman as well as man; considerations of equity
and of common fairness--must be made to give way.
To the maintenance of this scheme in its integrity, they had marshalled
the witnesses, and they guided the Commission with a firm hand so that not
a jot or tittle of its symmetry should be marred.
This determined purpose is indicated by the starting-point they chose for
the testimony.
On Friday, the twelfth, the first witness was sworn, and his name was
Richard Montgomery. His testimony, as well as that of the other witnesses
sworn that day, was taken in secret session, and no portion of it was
allowed to reach the public until long after the trial. It was all
directed to establish the complicity of the rebel agents in Canada and
through them the complicity of Jefferson Davis and other officers of the
"Confederacy" in the assassination. In other words, this testimony was
given to prove the guilt, not of the men much less of the woman on trial,
but of the men included in the charge but not on trial; and whom, as it
now appears, the United States never intended to try.
To connect the defunct Confederacy in the person of its captive Chief with
the murder of the President would throw a halo of romantic wickedness
about the crime, and chime in with the prevalent hatred towards every
human being in any way connected with the Rebellion.
This class of testimony continued to be introduced every now and then
during the trial--whenever most convenient to the prosecution--and as
often as it was given the court-room was cleared of spectators and the
session secret; the isolated counsel for Mrs. Surratt, utterly at a loss
to imagine the connection of such testimony, given under such solemn
precautions, with their own client, and knowing nothing whatever of the
witnesses themselves, must have looked on in bewildered amazement, and had
no motive for cross-examination.
The chief witnesses who gave this carefully suppressed evidence were spies
upon the rebel agents in Canada paid by the United States, and, at the
same time, spies upon the United States paid by the rebel agents.
They were, of course, ready to swear to as many conversations with these
agents, both before and after the assassination, in which those agents
implicated themselves and the heads of government at Richmond in the most
reckless manner, as the Judge-Advocates thought necessary or advisable.
The head, parent and tutor of this band of witnesses was a man called
Sanford Conover. After giving his testimony before the Commission, he went
to Canada and again resumed his simulated intimacy with the Confederates
there, passing under the name of James W. Wallace. An unauthorized version
of his testimony having leaked out and appearing in the newspapers, he was
called to account for it by his Canadian friends. He then made and
published an affidavit that the person who had given testimony before the
Commission was not himself but an imposter, and at the same time also
published an offer of $500 reward for the arrest of "the infamous and
perjured scoundrel who secretly personated me under name of Sanford
Conover, and deposed to a tissue of falsehood before the military
Commission at Washington."
Being reclaimed by the government from his Canadian perils, he appeared
again before the Court after the testimony had been closed and the summing
up of all the prisoners' counsel had been completed (June 27th); when he
testified that his affidavit had been extorted from him by the
Confederates in Canada by threats of death at the point of a pistol. This
man Conover was subsequently (in 1867) tried and convicted of perjury and
sent to the penitentiary; and with him the whole structure of perjured
testimony, fabricated for reward by him and Montgomery and their co-spies,
fell to the ground. Secretary Seward testified before the Judiciary
Committee of the House of Representatives, in 1867, that, "the testimony
of these witnesses was discredited and destroyed by transactions in which
Sanford Conover appeared and the evidence of the alleged complicity of
Jefferson Davis thereupon failed."
But, at the period of the trial, when the passionate desire for vengeance
was at its height, any plausible scoundrel, whose livelihood depended on
the rewards for wholesale perjury, and who was sure to be attracted to
Washington by the scent of his favorite game, was thrice welcome to the
Bureau of Military Justice. Any story, no matter how absurd or incredible,
provided it brought Jefferson Davis within conjectural fore-knowledge of
the assassination, was greedily swallowed, and, moreover, was rewarded
with money and employment. These harpies flocked, like buzzards, around
the doors of the old Penitentiary, and all--black and white, from
Richmond, from Washington and from Montreal--were eager, for a
consideration, to swear that Davis and Benjamin were the instigators of
Booth and Surratt. And such testimony as it was! For the most part the
sheerest hearsay! The private impressions of the witness! In one instance,
his recollection of the contents of a letter the witness had heard read or
talked about, the signature of which, although he did not see it himself,
he heard was the signature of Jefferson Davis!! Testimony wholly
inadmissible under the most elementary rules of evidence, but swept before
the Commission in the absence of counsel for the parties implicated and
under the immunity of a secret session.
For example: a blind man, who had been, at an undated period during the
war, a hanger-on around the camp at Richmond, being asked whether he had
heard any conversations among the rebel officers in regard to the
contemplated assassination, answered:
"In a general way, I have heard sums offered, to be paid with a
Confederate sum, for any person or persons to go North and assassinate
the President."
Being pressed to name the amount and by what officers, he answered:
"At this moment, I cannot tell you the particular names of
shoulder-straps, &c.
"Q.--Do you remember any occasion--some dinner occasion?
"A.--I can tell you this: I heard a citizen make the remark once, that
he would give from his private purse $10,000, in addition to the
Confederate amount, to have the President assassinated; to bring him
to Richmond dead or alive, for proof.
"Q.--I understood you to say that it was a subject of general
conversation among the rebel officers?
"A.--It was. The rebel officers, as they would be sitting around their
tent doors, would be conversing on such a subject a great deal. They
would be saying they would like to see his head brought there, dead or
alive, and they should think it could be done; and I have heard such
things stated as that they had certain persons undertaking it."
In the introduction of evidence against Mrs. Surratt, as well as the
others on trial, the Judge-Advocates allowed themselves the most unlimited
range.
Narrations of all sorts of events connected with the progress of the
War--historical, problematical or fabulous--having no relevancy to the
particular charge against her, or them, but deadly in their tendency to
steel the minds of the Court against her, were admitted without scruple or
hesitation.
Seven soldiers who had been prisoners of war at Libby Prison, Belle Island
or Andersonville were called and testified, in all its ghastly details, to
the terrible treatment they and their fellow-prisoners had undergone.
Three witnesses were sworn to prove that the rebel government buried a
torpedo under the centre of Libby Prison, to be fired if the U. S. troops
entered Richmond. Letters found in the Richmond Archives were read,
offering to rid the world of the Confederacy's deadliest enemies, and
projecting wholesale destruction to property in the North. Testimony was
allowed to be given of the burning of U. S. transports and bridges by men
in the Confederate service; of the raids from Canada into the United
States; of the alleged plot in all its horrible features to introduce the
yellow-fever into Northern cities by infected clothing, testified to by
the villain who swore he did it for money. It is scarcely to be credited,
yet it is a fact, that the confession of Robert Kennedy, hung in March
previous for attempting to burn the City of New York, was read in
evidence; as was also a letter from a Confederate soldier, detailing the
blowing up of vessels by a torpedo and the killing of Union men at City
Point, indorsed by a recommendation of the operator to favor.
On June 27th, after the testimony had been closed and the summing up of
counsel for the defense ended, the case was reopened and there was
introduced an advertisement clipped from the "Selma Dispatch" of December
1st, 1864, wherein some anonymous lunatic offered, if furnished
$1,000,000, to cause the lives of Lincoln, Seward and Johnson to be taken
before the first of March.
The prosecution closed its direct testimony on May 25th, reserving the
right (of which we have seen they availed themselves from time to time)
thereafter to call further witnesses on the character of the Rebellion and
the complicity of its leaders in the assassination.
Out of about one hundred and fifty witnesses sixty-six gave testimony of
that kind. Of the remaining eighty-four about fifty testified to the
circumstances attending the assassination, the pursuit and capture of
Booth and Herold, and the terrific assault of Payne on William H. Seward
and his household. Of the remaining thirty-four there were nine whose
testimony was directed to the incrimination of Mrs. Surratt.
The important witnesses against her were three soldiers testifying under
the eye of their superior officers as to her non-recognition of Payne, and
two informers who had turned state's evidence to save their own necks, who
connected her with Booth.
The witnesses for the defense, for the most part, were treated by the
Special Judge-Advocate as virtual accomplices of the accused; and, as soon
as, by a searching cross-examination, he had extorted from them a
reluctant admission of the slightest sympathy with the South (as in almost
every case he was able to do), he swept them aside as impeached, and their
testimony as unworthy of a moment's consideration. A former slave, who
announced himself or herself as ready to give evidence against his or her
former master, was a delicious morsel for the Bureau of Military Justice;
and several such were sworn for the prosecution. While, on the other hand,
nothing so exasperated the loyal Bingham or so astonished the Court as the
apparition of an old slave-woman, summoned by the defense, eagerly
endeavoring to exculpate her former master.
Several priests testified as to the good character of Mrs. Surratt as a
lady and a christian, but the effect of their testimony was immediately
demolished in the eyes of the Court, when, on cross-examination, although
they refused to substantiate what the Judge-Advocate called "her notorious
intense disloyalty," they could not remember that they had ever heard her
"utter one loyal sentiment."