THE VERDICT, SENTENCE AND PETITION.
With the loud and repeated denunciations of this elaborate and vindictive
harangue, full as it was of rhetorical appeals to the members of the
Commission to avenge the murder of "their beloved Commander-in-Chief," and
of repeated and most emphatic assurances of the undoubted guilt of each
and every one of the prisoners, as well as of all their alleged
accomplices, still ringing in the ear of the Court; the room is for the
last time cleared of spectators, counsel for the prisoners and reporters;
the mournful procession of the accused marches for the last time from the
dock to their solitary cells, their fetters clanking as they go; and the
Commission meets to deliberate upon its verdict. But who remains in the
room, meets with the Court and participates in its secret and solemn
deliberations? Who but Colonel Burnett, the officer who had so zealously
conducted the preliminary examinations of the witnesses and marshalled the
evidence for the prosecution? Who but Recorder Joseph Holt, the head of
the Bureau of Military Justice, the left hand of Stanton as Baker was his
right? Who but John A. Bingham, the Special Judge-Advocate, who had so
mercilessly conducted the trial, assailing counsel, browbeating witnesses
for the defense, declaring that all participants in the rebellion were
virtually guilty of the assassination, and who had just closed his long
speech, in which he had done his utmost to stir up the Commission to the
highest pitch of loyalty, unreasoning passion and insatiable desire for
vengeance?
Where can we look in the history of the world for a parallel to such a
spectacle? A woman of refinement and education, thrown together in one
mass with seven men, to be tried by nine soldiers, for the crime of
conspiring with Jefferson Davis, the arch-enemy of every member of the
tribunal, to kill, and killing, the beloved Commander-in-Chief of every
member of the tribunal; three experienced criminal lawyers eagerly
engaging in the task of proving her guilty; pursuing it for days and weeks
with the unrelenting vigor of sleuth-hounds; winding up by reiterating in
the most solemn manner their overwhelming conviction of her guilt; and
then all three being closeted with the Court to take part in making up the
doom of death!
And here let us pause to consider one feature of the trial and of the
summing up of Judge Bingham, which has not yet been noticed because it
deserves special and prominent remark.
It appeared from the testimony on the part of the prosecution,
unmistakably, that, during the fall of 1864 and the winter of 1864-5,
Booth was brooding over a wild plot for the capture of the President
(either on one of his drives, or in the theatre, where the lights were to
be turned off), then hurrying off the captive to lower Maryland, thence
across the Potomac, and thence to Richmond; thereby to force an exchange
of prisoners, if not, possibly, a cessation of the war. It was a plot of
the kind to emanate from the disordered brain of a young, spoiled,
dissipated and disappointed actor. During this period, Booth made some
trifling and miserably inadequate preparations, and endeavored to enlist
some of his associates in its execution; and, by his personal ascendency
over them, he did in fact entangle, in a more or less vague adhesion to
the plot, Arnold, O'Laughlin, Atzerodt, Payne, Herold, John H. Surratt,
Lloyd, and, possibly, Dr. Mudd and Weichman.
On the fall of Richmond, and the surrender of Lee, this any-how
impracticable scheme was necessarily abandoned. Indeed, the proof showed
that Arnold and O'Laughlin had deserted their leader some time before.
It further appeared in the testimony that it was not until after the
forced abandonment of this plot and the desertion of most of his
adherents, that Booth, plunged as he was into the depths of chagrin and
despair because of the collapse of the rebellion, suddenly, as a mere
after-thought, the offspring of a spirit of impotent revenge, seized upon
the idea of murder, which was not in fact brought to the birth until the
afternoon of the fourteenth, when he was first informed of the promised
attendance of President Lincoln and General Grant at the theatre. Now, the
existence of the plot to capture, although it looked forth from the
evidence steadily into their faces, the Judge-Advocates bound themselves
not to recognize. In the first place, such a concession would forever
demolish the preconceived theory of the Secretary of War, Colonel Baker
and the Bureau of Military Justice, that the conspiracy to murder emanated
from the Confederate Government through its Canadian agents, by pointing
directly to another plot than the one to kill as that in which these
agents had been interested. The horrid monster of a widespread,
treasonable conspiracy to overthrow the government, which had been
conjured up in the imagination of the Secretary of War and then cherished
in the secret recesses of the Bureau of Military Justice, would have
immediately shrunk into the comparatively simple case of an assassination
of the President and an attempted assassination of the Secretary of State,
by two worthless villains suddenly seizing opportunity by the forelock to
accomplish their murderous purpose. And, in the next place, the concession
of such a plot as a fact would go far to establish the innocence of Mrs.
Surratt, Arnold, O'Laughlin and Mudd, as well as that of John H. Surratt,
by explaining such suspicious circumstances as the frequent rendezvous of
Booth, Payne and others at Mrs. Surratt's house, which practice, as it
was proved, ceased altogether on the fall of Richmond and the immediate
departure of the son to Canada. To the Judge-Advocates, if not to the
Court, any evidence looking towards innocence was most distasteful and
unwelcome. They were in no mood to reconcile what they considered the
damning proofs of a conspiracy to kill their "beloved Commander-in-Chief"
with the innocence of the fettered culprits before them, by admitting a
plot to capture, into which nevertheless those same proofs fitted with
surprising consistency. Besides, in the eyes of Bingham and Holt,
complicity in a plot to capture, although unexecuted, was proof of
complicity in the plot to murder, and also of itself deserved death. In
this direction, therefore, the Judge-Advocates were mole-eyed. On the
contrary, they hailed the slightest indication of guilt with a glow of
triumph. In the direction of guilt, they were lynx-eyed.
Consequently, they bent every energy to identify the plot to capture with
the plot to kill. They introduced anonymous letters, dropped letters; a
letter mailed nearly a month after the assassination directed to J. W. B.;
a letter in cipher, purporting to be dated the day after the
assassination, addressed to John W. Wise, signed "No Five," found floating
in the water at Morehead City, North Carolina, as late as the first of
May; this last, the most flagrant violation and cynical disregard of the
law of evidence on record.
They did more. They labored to keep out all reference to the plot to
capture. And it was for this reason, that the Judge-Advocates deliberately
suppressed the diary found on the body of Booth. Its contents demonstrated
the existence of the plot to capture.
Instead of allowing the officer who testified to the articles taken from
the dead body of Booth to make a detailed statement in response to one
general question as to what they were, the examining counsel shows him
first the knife, then the pistols, then the belt and holster, then a file
with a cork at one end, then a spur, then the carbine, then the bills of
exchange, then the pocket-compass; following the exhibition of every
article with the interrogatory, "Did you take this from the corpse of the
actor?" But no diary was exhibited or even spoken of, although, as has
been mentioned, it was carried by this same officer and Colonel Baker to
Secretary Stanton on the night following the capture. That these
Judge-Advocates had carefully searched through the diary for items they
could use against the prisoners, is shown by their calling one of the
proprietors of the "National Intelligencer," as a witness, to contradict
the statement that Booth had left a written article, setting forth the
reasons for his crime, for publication in that paper--a statement found
only in the diary whose very existence they kept secret.
Therefore, when Judge Bingham came to review the evidence, he utterly
refused to recognize in the testimony any such thing as a plot to
capture; he shut his eyes to it and obstinately ignored it; he scornfully
swept it aside as an absurdity it would be waste of time to combat; and he
twisted every circumstance which looked to a connection, however remote,
with an abandoned plot to kidnap, into a proof, solid and substantial, of
complicity in the plot to murder.
And, therefore, when this same thorough-going advocate, with his two
emulous associates, proceeded in secret conclave with the members of the
Commission to go over the testimony for the purpose of making up their
verdict and sentence, he summarily stifled any hint as to the possibility
of a plot to capture; he banished from the minds of the Court, if they
ever entertained such a purpose, any attempt to reconcile the
circumstantial evidence with the existence of such a plot; and, besides,
he held it up to the condemnation of those military men as equally heinous
and as deserving the same punishment as the actual assassination.
Thus, the presence of these prosecutors during the deliberations of the
Court must have exerted a deadly influence (if any influence were
necessary) against the prisoners, and benumbed any impartiality and
freedom of judgment which might otherwise have lodged in the members of
the Commission.
The Commission, with its three attending prosecuting officers, held two
secret sessions--Thursday and Friday, the 29th and 30th of June; on the
first day from 10 o'clock in the morning until 6 o'clock in the evening,
on the second day, probably, during the morning only. The record of the
proceedings is meagre, but contains enough to show the lines of the
discussion which, in such an unexpected manner through one whole day,
prolonged the deliberations of a tribunal organized solely to obey the
predetermination of a higher power, and even made necessary an adjournment
over night.
There was no difficulty with the verdicts, except in the case of Spangler,
over the degree of whose guilt a majority of the Commission presumed for
the first time to differ with the Judge-Advocates. They would unite in a
conviction of the crime of assisting Booth to escape from the theatre with
knowledge of the assassination, but they would go no farther. They would
not find him a participant in the "traitorous conspiracy." This poor
fellow, as we can see _now_, was clearly innocent of the main charge; but
that was no reason, _then_, why the Commission should find him so. There
was more testimony pointing to his complicity with Booth on the fatal
night than there was against Arnold or O'Laughlin or even Mrs. Surratt;
and Judge Bingham, the guardian and guide of the Court, had pronounced it
"Conclusive and brief." The testimony of the defense, however, appears
overwhelmingly convincing, and, moreover, his case was admirably managed
by General Ewing.
For all the rest there was no mercy in the verdict. Every one was found
guilty of the charge as formulated (eliminating Spangler); that is, in the
judgment of the Commission, they had, each and all, been engaged in a
treasonable conspiracy with Jefferson Davis, John H. Surratt, John Wilkes
Booth and the others named, to kill Abraham Lincoln, President, Andrew
Johnson, Vice-President, Wm. H. Seward, Secretary of State, U. S. Grant,
Lieutenant-General; and that in pursuance of such conspiracy they (the
prisoners) together with John H. Surratt and J. Wilkes Booth, had murdered
Abraham Lincoln, assaulted with intent to kill W. H. Seward, and lain in
wait with intent to kill Andrew Johnson and U. S. Grant.
This was the deliberate judgment of the Commission as guided by
Judge-Advocates Holt, Burnett and Bingham. With the same breath with which
they pronounced the guilt of Mrs. Surratt, they pronounced also the guilt
of her son, of Jefferson Davis, of Clement C. Clay, of George H. Sanders,
of Beverly Tucker. And there can be no doubt that if these men had also
been upon trial, they all would have been visited with the same
condemnation and would have met the same doom.
The Commission, further, found Herold, Atzerodt, Payne and Arnold guilty
of the Specification as formulated (eliminating Spangler); Mrs. Surratt
guilty, except that she had not harbored and concealed Arnold or
O'Laughlin; Dr. Mudd guilty, except that he had not harbored or concealed
Payne, John H. Surratt, O'Laughlin, Atzerodt or Mrs. Surratt; and,
strangest of all, they found O'Laughlin guilty of the Specification,
_except that he had not lain in wait for General Grant with intent to kill
him_, which was the very part in the conspiracy he was charged in the
Specification with having undertaken. It should be recollected that, in
the first moments of the panic succeeding the assassination, Stanton and
his subordinates had included among the objects of the conspiracy, as if
to complete its symmetry, the murder of the Secretary of War, himself.
Afterwards, probably because of the attitude of Stanton relative to the
prosecution, Grant was substituted as the victim of O'Laughlin and not of
Booth; Stanton's son having discovered a resemblance of the captured
O'Laughlin to the mysterious visitor at his father's house during the
serenade on the night of the 13th of April, when General Grant was also
present. This pretty romance, the testimony on behalf of O'Laughlin
effectually dissipated on the trial, but the indomitable Bingham still
insisted on holding the prisoner to a general complicity with the plot. In
this instance, as well as in that of Spangler, there may have been some
dissension between a majority of the officers and the Judge-Advocates,
but, taken altogether, the eight verdicts could not have cost the
Commission much time. It was organized to convict, and it did convict.
So that it was not until the Court, having made up its verdicts, proceeded
to affix its sentences, that the three advocates, still assisting at the
work of death, encountered the unforeseen difficulties which compelled a
prolongation of the session. The crime or crimes of which the prisoners
were all pronounced guilty (with the possible exception of Spangler's)
were capital, and the Secretary of War, on the eve of the assembling of
the Commission, had already denounced against such offenses (not excepting
Spangler's) the punishment of death.
The sentence, however, under the rules governing military commissions, was
wholly within the power of the Court, which, no matter what the nature of
the verdict, could affix any punishment it saw fit, from a short
imprisonment up to the gallows. Its two-fold function was, like a jury to
find a verdict, not only, but, like the judge in a common-law court, to
pronounce sentence; and, unlike such a judge, in pronouncing sentence, the
Commission was confined within certain limits by no statute. Although the
whole proceedings of the Court must be subjected to the final approval of
the President, yet its members were clothed alike with the full
prerogative of justice and the full prerogative of clemency. There was one
limit, however. While a majority could find the verdict and prescribe
every other punishment, it required two-thirds of the Commission to
inflict the penalty of death. Four officers, therefore, could block the
way to the scaffold, and five could mitigate any sentence, to any degree,
and for any, or for no reason.
The Commission must have taken up the cases for sentence in the order
adopted in the formal Charge. As to the first three--Herold, Atzerodt and
Payne--there could have been no dissent or hesitation. The Commission,
with hardly a moment's deliberation, must have ratified the judgment of
the Judge-Advocates and condemned the prisoners to be hung by the neck
until dead. The sentences of death formally declare in every instance that
two-thirds of the Commission concur therein, but, as to these three, we
can scarcely be in error in stating the Court was unanimous. It was not
until the cases of the next three--O'Laughlin, Spangler and Arnold--were
reached, that symptoms of dissatisfaction with the sweeping doom of death,
so confidently pronounced by Judge Bingham in his charge, first began to
show themselves amongst the members of the Court. It seems that now, after
having joined with the counsel in pronouncing capital punishment upon the
three most prominent culprits, the majority could no longer whet their
appetite for blood so as to keep it up to the same fierce edge as that of
the Judge-Advocates.
The deviations from the Charge and Specification, the Court had finally
prescribed in the verdicts against O'Laughlin and Spangler, were not
thought by the prosecutors to be of such importance as to warrant a
softening of the sentence. But here the loyalty of some members of the
Commission began to falter, and refuse to bear the strain. They had found
O'Laughlin guilty of the "traitorous conspiracy," and Spangler guilty of
aiding Booth to escape, and Arnold guilty in the same degree as Herold,
Atzerodt and Payne, but in none of these cases could the attending
advocates extort a two-thirds vote for death. In the case of Spangler,
owing, it is said, to the impression made by General Ewing and the
influence of General Wallace, they were compelled to allow a sentence of
but six years imprisonment. And in the case of the two others--convicted
co-conspirators with Booth and Davis though they were--these prosecuting
officers had to rest satisfied with but life-long imprisonment.
It was too evident that five members of the Commission had slipped the
bloody rein. Three lives had they taken. Henceforth they would stop just
this side the grave.
At this point--when the Commission had sentenced to death three men and
had just declined to sentence to death two more whom it had pronounced
guilty of the same crime--at this point it was, that the sentence of Mary
E. Surratt came up for determination.
Now, the crimes of which Arnold had been found guilty were both in law and
in fact the same of which she had been found guilty. Even the particular
allegation in the Specification is the same in both cases, except some
immaterial variance in the verbiage and in the names of co-conspirators.
Of course, it will be presumed that the Commission had found the woman
guilty without being pressed. But, equally of course, it will not be
doubted that, in determining the sentence which should follow the verdict,
the question of exercising the same mercy as the Commission had just
exercised in the case of a man convicted of the same crime, must have
arisen in the case of the woman. And, the question once having arisen, the
first impulse of the majority, if inclined still to mercy, must have been
to exert their own unquestioned function, and, as in the other cases,
mitigate the sentence themselves. They would have, originally, no motive
to thrust upon the President, who was to know comparatively nothing of the
evidence, the responsibility of doing that thing, which they themselves
who had heard the whole case thought ought to be done, and which in a
parallel case they had just done. Even if they believed the woman's crime
had a deeper tinge of iniquity than either Arnold's or Mudd's (of which
the respective verdicts, however, give no hint), but that nevertheless her
age and sex ought to save her from the scaffold, they need not have turned
to the President for mercy on such a ground. The woman clothed upon by her
age and sex had sat for weeks bodily before them. This very mitigation was
what a majority of the Court had power to administer. The reason of the
mitigation was a matter of no moment. The Court could commute for "age
and sex" as well as the President, and, for that matter, could state the
reason for the milder penalty in the sentence itself.
Therefore, it may be taken for granted that here the Judge-Advocates again
found that two-thirds of the Court would not concur in the infliction of
the death penalty. Nay, that even a majority could not be obtained. Five
out of the nine officers announced themselves in favor of imprisonment for
life.
Here, indeed, was a coil! The prosecutors were at their wits' ends. And
lo! when they passed on to consider the last case, that of Dr. Mudd, the
same incomprehensible reluctance to shed more blood did but add to their
discomfiture. The verdict indeed had been easily obtainable, but the
coveted death-sentence would not follow. The whole day had been spent in
these debatings. The expedient of adjourning over to the next day,
perhaps, was now tried; and the dismayed Judge-Advocates, with but three
out of the eight heads they had made so sure of, and their "female fiend"
likely to slip the halter, hurry away to consult with their Chief.
Edwin M. Stanton, as he had presided over the whole preparatory process,
so too had kept watch over the daily progress of the trial from afar.
Every evening his zealous aide-de-camps made report for the day and took
their orders for the morrow.
After the death of Booth and the escape of John H. Surratt, the
condemnation to death of the mother of the fugitive had become his one
supreme aim.
The condemnation of the other prisoners was to him either a matter of no
doubt or was a minor affair. Three heads of the band of assassins stood
out in bloody prominence--Booth, John H. Surratt and Payne. The first had
been snatched from his clutches by a death too easy. Payne, with
hand-cuffs and fetters and chains and ball and hood, he might be
confident, could not evade his proper doom. Surratt, by the aid of some
inscrutable, malignant power, had contrived to baffle all the efforts of
his widespread and mighty machinery of military and detective police. But
he had the mother, the friend of Booth and the entertainer of Payne; and
she, the relentless Secretary with his accordant lackeys had sworn, should
not fail to suffer in default of the self-surrender of her son. She,
moreover, was to be made an example and a warning to the women of the
South, who, in the judgment of these three patterns of heroism, had
"unsexed" themselves by cherishing and cheering fathers, brothers,
husbands and sons on the tented field.
In the conclave which Stanton and his two co-adjutors held, either during
the recesses of the prolonged session of the first day, or most likely
during the night of the adjournment, it was resolved, that if the manly
reluctance of five soldiers to doom a woman to the scaffold could be
overcome in no other way, to employ as a last resort the "_suggestion_,"
that the Court formally condemn her to death, and then, as a compromise,
the soft-hearted five petition the President to commute--the three
plotters trusting to the chances of the future, with the petition in their
custody and the President under their dominion, to render ineffectual this
forced concession to what they scorned as a weak sentimentalism. This
suggestion of what was in truth a most extraordinary device--a petition to
the President to do what the Court could do itself--could not have
emanated from the merciful majority of the Court, which subsequently did
sign the fatal document. _They_, at least, were sincere, and, if let
alone, would have proceeded immediately to embody their own clemency in a
formal sentence, as they had done with O'Laughlin and Arnold, and as they
were about to do with Mudd. Had there been but one, or two, or three
dissentients, so that they were powerless in the face of two-thirds of the
Commission; or even had there been four--a number sufficient to block a
death-sentence but not sufficient to dictate the action of the Court,
then, indeed, recourse to the clemency of the Executive might have been a
natural proceeding. But a clear majority had no need to look elsewhere for
a power of commutation which they themselves possessed in full vigor, and
which, in all probability, after the first three death-penalties, they had
determined to apply in every one of the other cases. Neither could the
suggestion have been made by one of the minority, because none of them
signed the petition to the last. The four must have been steadfast and
uncompromising for blood. The whole scheme proceeded from a quarter
outside the Court--a quarter which, on the one hand, was possessed by an
overmastering revengeful passion, such as was required to point the five
officers to a seeming source of mercy to which they might appeal and thus
avoid the exercise of their own prerogative in antagonism to their four
brethren, and, on the other hand, harbored some secret knowledge or malign
intent that the petition would or should be, in fact, an empty form; from
a quarter, in short, where the desire for the condemnation to death of
Mrs. Surratt was all-controlling and where the condition of the President
was well known. They, who suggested the death-sentence and the petition as
a substitute for the milder penalty, were surely all on the side of death,
and hoped, if they did not believe, that the prayer of the petition would
be of no avail; else they would not have adopted such a circuitous method
to do what the five officers could immediately have accomplished
themselves. In one word, the contrivers of the device of petition were not
those who desired to save the bare life of the convicted she-conspirator,
but were those who would be satisfied with nothing less than her death on
the scaffold. The suggestion was wholly sinister and malevolent. On the
other hand, the majority of the Court did really desire that her
punishment should not exceed that of Arnold, O'Laughlin and Mudd, and
they certainly would never have had recourse to a petition to the
President, had they not been cheated into believing that that method of
proceeding was likely to effectuate what they had full power to do. Never
would these five soldiers, or any two of them, have given their voices for
the death of this woman, had they dreamed for a moment that their signing
of the petition was, and was meant to be, but a farce. They would not have
played such a ghastly trick under the shadow of the gibbet.
Accordingly, when the Commission reassembled, either after recess or
adjournment, the reinvigorated counsellors immediately unfolded their
plan. We can almost hear their voices, in that upper room of the Old
Penitentiary, as they alternately urge on the Court. Holt, making a merit
of yielding in the cases of Spangler, of O'Laughlin, of Arnold and of
Mudd, denounces the universal disloyalty of the women of the South, and
pleads the necessity of an example.
Bingham, holding up both mother and son as equally deep-dyed in blood with
Booth and Payne, both insinuates and threatens at the same time, that, if
"_tenderness_," forsooth, is to be shown because of the age and sex of
such a she-assassin, then, for the sake of the blood of their murdered
Commander-in-Chief, do not his own soldiers show it, but let his successor
take the fearful responsibility.
One of the five gives way, and now there is a majority for death. One more
appeal! The life of the woman trembles in the balance. Once more to the
breach! The supreme reserve is at last brought forward--an argument much
in use with Judge-Advocates in cases of refractory courts-martial, as a
last resort--that the President will not allow a hair of her head to be
harmed, but that _terror_, TERROR, is necessary; in this instance, to
force the son to quit his hiding place, the life of the mother must be the
bait held out to catch the unsurrendering son. We will hang him and then
free the woman's neck.
Another vote comes over. Two-thirds at last concur, and her doom is
sealed. They sentence "Mary E. Surratt to be hanged by the neck until she
be dead." Judge Bingham sits down and embodies the memorable "suggestion"
in writing as follows:
[It is without address.]
"The undersigned, members of the Military Commission detailed to try
Mary E. Surratt and others for the conspiracy and the murder of
Abraham Lincoln, late President of the United States, &c.,
respectfully pray the President, in consideration of the sex and age
of the said Mary E. Surratt, if he can, upon all the facts in the
case, find it consistent with his sense of duty to the country, to
commute the sentence of death, which the Court have been constrained
to pronounce, to imprisonment in the penitentiary for life.
Respectfully submitted."
General Ekin copies it on a half-sheet of legal-cap paper, and the five
officers, viz.: Generals Hunter, Kautz, Foster and Ekin, and Colonel
Tompkins, sign the copy; General Ekin keeping the draft of Bingham as a
memento of so gentle an executioner.
The Commission then proceeds to the next and last case, and, again
exercising its prerogative of clemency, sentences Dr. Mudd to imprisonment
for life. It is now Friday noon. The result of the two-days' secret
session, consisting of a succinct statement of the verdict and sentence in
every case, in the foregoing order, is redacted into a record. The
presiding officer signs, and the Recorder countersigns it. It is placed in
the hands of the Judge-Advocate, together with the petition to the
President. There is an adjournment without day. The members disperse, and
the work of the Military Commission is over.