CHAPTER VIII.

WAS IT NOT MURDER?

And now what shall be said as to this taking of human life?

Maintaining the most rigorous allegiance to the simple unadulterated

truth, what can be said? Arraigned at the bar of the common law as

expounded by the precedents of centuries, and confronted by plain

provisions of the Constitution of the United States, which need no

exposition and yet have been luminously expounded; but one thing can be

said.

Had Mary E. Surratt the right guaranteed by the Constitution to a trial

singly and alone, in a regularly constituted civil court, and by a jury of

the vicinage, the individuals of which she might select by challenge, both

for cause, in all cases, and without cause to a certain number, before she

could be legally convicted of any crime whatever, or be lawfully punished

by the most trivial loss of property or the minutest injury to limb, to

say nothing of the brutal crushing out of her life? That's the unevadable

question which the ages put and will continue to put. And upon its

precisely truthful answer, depend the character and color of the acts of

every person who had lot or part in the execution of this woman.

* * * * *

On the 21st day of October, 1864--while the war was still raging--Lambdin

P. Milligan, a citizen of the United States and a resident of Indiana, was

arraigned before a Military Commission convened by the commanding General

of that Military District, at Indianapolis, on the following charges

preferred against him by Henry L. Burnett, Judge-Advocate of the

Department of the West:

1. Conspiracy against the Government of the United States.

2. Affording aid and comfort to the rebels.

3. Inciting insurrection.

4. Disloyal practices.

5. Violation of the laws of war.

There were also specifications, the substance of which was that Milligan

had joined and aided a secret society, known as the Order of American

Knights or Sons of Liberty, for the purpose of overthrowing the Government

and authorities of the United States; had communicated with the enemy;

conspired to seize munitions of war in the arsenals, and to liberate

prisoners; resisted and encouraged resistance to the draft: at or near

Indianapolis, in Indiana, "a State within the military lines of the Army

of the United States, and the theatre of military operations, and which

had been and was constantly threatened to be invaded by the enemy."

On these charges and specifications, Milligan was subjected to a lengthy

trial by this Military Commission which finally found him guilty on all

the charges and sentenced him to be hanged. The record was approved by the

Commanding General, and then transmitted to President Lincoln, who held it

long under advisement, and was so holding it when he was killed. His

successor, at about the same time that he summoned the Commission to try

Mrs. Surratt, at length approved the findings and ordered the sentence to

be executed on Friday, the 19th day of May, 1865.

But this object-lesson to the Commission sitting at that date in the old

Penitentiary was intercepted. On the 10th of May, Milligan brought the

record before the United States Circuit Court by a petition for his

discharge, and, the two judges differing upon the main question of the

jurisdiction of the Commission, the cause was certified under the statute

to the Supreme Court of the United States; in deference to which action

the President suspended the execution. The argument before that high

tribunal coming on in the winter of 1865-66, a great array of counsel

appeared upon both sides; David D. Field, James A. Garfield and Jeremiah

S. Black for the prisoner, and Attorney-General Speed and Benjamin F.

Butler for the United States. The counsel for the Government followed the

same line as did Judge Bingham in his argument on the "Conspiracy Trial;"

the counsel for the prisoner on their side, only enlarging, emphasizing

and enforcing the argument of Reverdy Johnson. At the close of the term

the Court unanimously decided that the Military Commission had no

jurisdiction to try Milligan; that its verdict and sentence were void; and

ordered the defendant discharged.

At the next term, the Court handed down two opinions--one the opinion of

the Court, read by Judge Davis, in which four of his colleagues concurred,

and one by Chief-Justice Chase, in which three of his colleagues

concurred. The two opinions agreed that, as matter of law, the President

could not of his own motion authorize such a Commission, and that, as

matter of fact, the Congress had not authorized such a Commission; and

therefore they were at one in their conclusion. But they differed in this;

that, whereas the majority of the Court held that not even the Congress

could authorize such a Court, the minority, while agreeing that the

Congress had not exercised such a power, were of opinion that such a power

was lodged in that branch of the Government.

The attempt has often been made to distinguish the case of Mrs. Surratt

from that of Milligan by alleging that Washington at the time of the

assassination was within the theatre of military operations, and actually

under martial law, whereas Indiana at the time of the Commission of

Milligan's alleged offenses was not.

Now, it must be admitted that at the time of the murder of President

Lincoln the war had swept far away from the vicinity of the Capital.

There had been no Confederate troops near it since Early's raid in the

summer of 1864, and no enemy even in the Shenandoah Valley since October.

It must also be admitted, and was, in fact, proved on the trial, that the

civil courts were open and in full and unobstructed discharge of their

functions. As for the reiterated affirmation of Judge Bingham that the

courts were only kept open by the protection of the bayonet; that is

precisely what was affirmed by General Butler, in his argument before the

Supreme Court, to have been the fact in Indiana.

None of the counsel in the Milligan case claimed that a Military

Commission could possibly have jurisdiction to try a simple citizen in a

State where there was no war or rumors of war.

"We do fully agree, that if at the time of these occurrences there

were no military operations in Indiana, if there was no army there, if

there was no necessity of armed forces there, * * * then this

Commission had no jurisdiction to deal with the relator, and the

question proposed may as well at once be answered in the negative."

They contended, as the very basis of their case, that the acts of Milligan

"took place in the theatre of military operations, within the lines of the

army, in a State which had been, and then was constantly threatened with

invasion."

And, in fact, the record in so many words so stated, and the statement was

uncontroverted by the relator.

General Butler with great earnestness put the question:

"If the Court takes judicial notice that the courts are open, must it

not also take judicial notice how, and by whose protection, and by

whose permission they were so open? that they were open because the

strong arm of the military upheld them; because by that power these

Sons of Liberty and Knights of the American Circle, who would have

driven them away, were arrested, tried and punished.

"If the soldiery of the United States, by their arms, had not held the

State from intestine domestic foes within, and the attacks of traitors

without; had not kept the ten thousand rebel prisoners of war confined

in the neighborhood from being released by these Knights and men of

the Order of the Sons of Liberty; there would have been no courts in

Indiana, no place in which the Circuit Judge of the United States

could sit in peace to administer the laws."

Moreover, the opinion of the minority Judges bases their contention that

Congress had the power, if it had chosen to exercise it, to authorize such

a Military Commission, upon this very fact.

"In Indiana, for example, at the time of the arrest of Milligan and

his co conspirators, it is established by the papers in the record,

that the State was a military district; was the theatre of military

operations, had been actually invaded, and was constantly threatened

with invasion. It appears, also, that a powerful secret association,

composed of citizens and others, existed within the State, under

military organization, conspiring against the draft, and plotting

insurrection, the liberation of the prisoners of war at various

depots, the seizure of the State and national arsenals, armed

co-operation with the enemy, and war against the national government."

Not one of which circumstances (except that it was a military district)

can be truthfully predicated of the District of Columbia at the time of

the assassination.

As for actual martial law, there was no declaration of martial law claimed

for the City of Washington, other than the proclamation of the President

which applied as well to Indiana, and, indeed, to the whole North.

We are justified, therefore, in saying, that the Supreme Court of the

United States, in this case of Milligan, pronounced the final condemnation

of the whole proceedings of the Military Commission which tried and

condemned Mary E. Surratt; declaring, with all the solemn force of a

determination of the highest judicial tribunal known to this nation, that

every one of its acts, from its creation by the President to its

transmission of its record of doom to the President, was in direct

contravention of the Constitution of the United States and absolutely null

and void.

That illustrious Court, speaking by Judge David Davis, thus enunciates the

law:

"The Constitution of the United States is a law for rulers and people,

equally in war and in peace, and covers with the shield of its

protection all classes of men, at all times, and under all

circumstances. No doctrine, involving more pernicious consequences,

was ever invented by the wit of man than that any of its provisions

can be suspended during any of the great exigencies of government.

Such a doctrine leads directly to anarchy or despotism."

"From what source did the Military Commission * * derive their

authority?"

"It is not pretended that the commission was a court ordained or

established by Congress."

"They cannot justify on the mandate of the President; because he is

controlled by law and has his appropriate sphere of duty, which is to

execute not to make the law; and there is no unwritten criminal code

to which resort may be had as a source of jurisdiction."

"The laws and usages of war can never be applied to citizens in states

which have upheld the authority of the government and where the courts

are open and their processes unobstructed. And no usage of war could

sanction a military trial there for any offence whatever of a citizen

in civil life, in nowise connected with the military service. Congress

could grant no such power; and to the honor of our national

legislature be it said it has never been provoked by the state of the

country even to attempt its exercise."

"All other persons," (_i. e._, all other than those in the military

and naval service) "citizens of states where the courts are open, if

charged with crime, are guaranteed the inestimable privilege of trial

by jury. This privilege is a vital principle, underlying the whole

administration of criminal justice; it is not held by sufferance, and

cannot be frittered away on any plea of state or political necessity."

"It is claimed that martial law covers with its broad mantle the

proceedings of this Military Commission."

"Martial law cannot arise from a threatened invasion. The necessity

must be actual and present; the invasion real, such as effectually

closes the courts and deposes the civil administration."

"Martial law can never exist where the courts are open, and in the

proper and unmolested exercise of their jurisdiction. It is also

confined to the locality of actual war."

Had the swift process by which this unfortunate woman was hurried to the

scaffold been interrupted by a stay to allow a review by the same high

tribunal which rescued Milligan from the jaws of death, it cannot be

doubted that in her case, as in his, the same conclusions would have been

reached, viz.:

1st. "One of the plainest constitutional provisions was, therefore,

infringed when" (Mary E. Surratt) "was tried by a court not ordained

and established by Congress, and not composed of judges appointed

during good behavior."

2nd. "Another guarantee of freedom was broken when" (Mary E. Surratt)

"was denied a trial by jury;"

that, in her case, as in his, the Court would have set the prisoner free;

there would have been no hanging, no felon's grave, and not even an

ulterior attempt at a constitutional trial.

For it is remarkable that although the Military tribunal which tried

Milligan pronounced him guilty of crimes deserving a traitor's death; the

seeming strength of the evidence must have melted away, strangely enough,

when subjected to the prospective investigation of constitutional courts,

as there was not even a subsequent effort on the part of the Government to

call him to account.

Let us add, as a final corollary to this exposition of the Constitution by

the Supreme Court, the following remark: that the ground and argument

employed by Attorney General Speed in his opinion upon the right of the

President to order the trial of the alleged assassins by Military

Commission, and by Judge-Advocate Bingham in his address to that

Commission, involve a _reductio ad absurdum_, or, rather, a _reductio ad

monstrosum_, that is, a _Reductio ad absurdum quia monstrosum_.

For, that ground and that argument, invoked to uphold and sanction the

trial of civilians by military commissions, necessarily and inevitably go

farther, and proclaim the right of President Johnson, alone, of his own

motion and without the interposition of a formal court, whether military

commission or drum-head court-martial, to have commanded the immediate

execution of every person whom he might believe to be guilty of

participation in the assassination of his predecessor or in the presumed

attempt upon himself.

The conclusion forced upon us, therefore,--the one only thing to be

said--is, that the hanging of Mary E. Surratt was nothing less than the

crime of murder.

Murder, not only in the case of the private soldiers who dragged her to

the scaffold and put the rope about her neck; they, at least can plead the

almost irresistible force of military discipline.

But murder, also, in the case of the Major-General whose sword gave the

signal for the drop to fall. General and soldiers are in the precise

position, before the law, of a mob of Lynchers carrying out the judgment

of a Lynch court.

Murder, not only in the case of the one military officer who superintended

the details of the execution. He, too, though with much less force, can

plead that he was the mere bailiff of what he believed to be a competent

Court.

But murder, also, on the part of the nine military officers and the three

advocates who tried and sentenced this woman to death. These men, in the

forum of the law, stand in the precise position of any nine policemen

steered by any three police attorneys in the city of New York, who should

dare to try, convict and sentence to death a citizen of that city.

Murder, not only on the part of the Commission and its lawyers; they too

might, possibly, plead--though with still diminishing force--that,

although they were warned and took the awful responsibility, still they

believed in their competency.

But murder, also, in the President of the United States, who appointed the

court, approved its findings, and commanded the execution of its sentence.

He stands before the law in the same position as though, sweeping aside

all empty forms, he had seized a sword and with his own hand cut off the

head of the woman, without the mockery of a trial. In our frame of

government, there is surely no room for such a twi-formed

barbarian-despot, as a President having the power to pick out from the

army, of which he is the commander-in-chief, the members of a court to try

and punish with death, at his option, any one of the citizens, for an

abortive attempt on his own life.

And it was murder, not only in the case of the President; he, too, but

with scarcely audible voice, might plead the coercion of his

situation--sitting as he did in the seat of the murdered Lincoln.

But it was murder, also, in the Secretary of War, who initiated the

iniquitous process, pushed on the relentless prosecution, shut his own

ears and the ears of the President to all pleas for mercy, presided like a

Moloch over the scaffold, and kept the key of the charnel-house, where,

beside the unpitied carcasses of the reputed ruffians forced upon her in

her ordeal of torture and in the hour of death, the slaughtered lady lay

mouldering in her shroud. Here, at least, the plea of mitigation exhales

in a cry like that of Payne, "I was mad!"

Weigh the extenuating circumstances in whatever scale you may; extend as

much mercy as possible to those who showed no mercy in their day of

power--still, the offense of every one and all, who had hand, part or lot

in this work of death, contains every element which, under the most

rigorous definition of the law, makes up the Crime of Murder. The killing

was there. The unlawful killing was there. The premeditated design to

effect death was there. The belief of the perpetrators, that they had a

right to kill, or that they were commanded to kill by an overruling power,

before a court of law avails not a whit. Ignorance of the constitution as

well as the law excuses no man, be he civilian or soldier, President or

assassin, War-Minister or Payne.

Murder it essentially was, and as such it should be denounced to the

present and future generations.

Garrett Davis told no more than the exact truth when he declared in his

place in the Senate of the United States:

"There is no power in the United States, in time of war or peace, that

can legitimately and constitutionally try a civilian who is not in the

naval or military service of the United States, or in the militia of a

State in the actual service of the United States, by a court-martial

or by a military commission. It is a usurpation, and a flagitious

usurpation of power for any military court to try a civilian, and if

any military court tries a civilian and sentences him to death and he

is executed under the sentence, the whole court are nothing but

murderers, and they may be indicted in the State courts where such

military murders are perpetrated; and if the laws were enforced firmly

and impartially every member of such a court would be convicted,

sentenced and punished as a murderer."

Although the actual guilt of any of the victims constitutes no legal

defense to this fearful charge, yet as the unquestioning obedience which

the soldier yields, as a matter of course, to the commands of his superior

officer must alleviate, if it do not wipe away, the guilt of the members

of the Commission, in the forum of morals; so the ascertainment that the

sufferers on the scaffold and in prison, in fact, deserved their doom,

cannot but blunt the edge of our condemnation of the iniquity of the

trial, as well as weaken our pity for the condemned and our sense of shame

over the tyrannous acts of the government.

A word or two, therefore, will be appropriate in respect to the

sufficiency of the testimony to establish the guilt of the accused.

I. As to Arnold and O'Laughlin, it may be said in one emphatic word, that

there was no evidence at all against them of complicity in the plot to

kill. The letter of Arnold to Booth shows, when fairly construed, that, if

the writer had conspired with the actor, he conspired to abduct; and,

also, for the time being, even that conspiracy he had abandoned. He was at

Fort Monroe for the two weeks prior to the assassination. His confession,

used on the trial against himself not only but also against O'Laughlin

because he was mentioned in it as present at a meeting of the

conspirators, was a confession only of a conspiracy to abduct which had

been given up. The condemnation of these two men was brought about by the

conduct of Judge Bingham, to which we have drawn attention, in

systematically shutting his eyes to the existence of any conspiracy to

capture, and employing the letter and confession as proof that both these

men were guilty of conspiracy to murder.

II. As to Dr. Mudd, the evidence leaves it doubtful whether or not he

recognized Booth under his disguise on the night he set his broken leg,

and therefore whether he may have been an accessory after the fact or not;

but the testimony of the informer Weichman, by which chiefly if not solely

the prosecution sought to implicate the doctor in the conspiracy to

murder, was greatly damaged, if not completely broken down, by the proof

on the part of the defense that Dr. Mudd had not been in Washington from

November or December, 1864, until after the assassination.

III. As to Payne, his guilt of the assault on Seward in complicity with

Booth was clear, and confessed by himself. He was but twenty years of age,

of weak mind, entirely dominated by the superior intellect and will of

Booth. He claimed he acted under the command of his captain. He was so

stolidly indifferent during the trial as to raise suspicion of his sanity,

and he repeatedly expressed his wish for the termination of the trial so

that he might cease to live.

IV. As to the boy Herold, it was manifest that, as the mere tool and

puppet of Booth, he was acquainted beforehand with the design of his

master to kill the President, but there is no evidence that he aided or

abetted Booth in the actual assassination in any way except to participate

in his flight after he had got out of Washington.

V. As to Atzerodt, for whom there appears to have been no pity or sign of

relenting, it is nevertheless a fact, that the testimony to his lying in

wait for Andrew Johnson is so feeble as to be almost farcical. The poor

German was a coward and never went near Johnson. There is no circumstance

in the evidence inconsistent with his own confession, that he was in the

plot to capture, knew nothing of the design to murder until 8 o'clock on

the evening of the 14th, and then refused to enact the part assigned him

by Booth.

Indeed, it would appear as if the Commission, by a sort of proleptic

vision of the future course of the President in his desperate struggle

with the Congress, in grim irony actually hung Atzerodt because he did

_not_ kill Andrew Johnson.

VI. And as to Mrs. Surratt, the only witnesses of importance against her

are Weichman and Lloyd. Without their testimony the case for the

prosecution could not stand for a moment. Weichman, a boarder and intimate

in her house, the college chum of her son, and, equally with him, the

associate of Payne, Atzerodt, Herold and Booth, who, frightened almost to

death at the outlook, was swearing, under a desperate strain, to clear his

own skirts from the conspiracy and thus save his threatened

neck:--Weichman's testimony before the Commission, even at such a pass, is

for some reason quite vague and indefinite, and only becomes deadly when

supplemented by Lloyd's. This man Lloyd it was who, in fact, furnished the

only bit of evidence directly connecting Mrs. Surratt with the crime. He

testifies to two conversations he had with her--one on the 11th and the

other on the 14th of April--when she alluded to the weapons left weeks

before at the hotel at Surrattsville owned by her and kept by Lloyd--on

the 11th, that the "shooting-irons" would be wanted soon; on the 14th,

that they would be called for that night. Lloyd, himself, however, admits,

and it is otherwise clearly shown, that on the 14th he was so drunk as

hardly to be able to stand up. Lloyd, also, was deeply implicated in the

conspiracy to capture if not to assassinate. He had aided the fugitive

assassins to escape, had kept their weapons hidden in his house, and he

had, for two days after his arrest, denied all knowledge of Booth and

Herold's stopping at his hotel at midnight after the murder. He had been

placed in solitary confinement and threatened with death. His nervous

system, undermined by debauchery, gave way; his terrors were startling to

witness and drove him well-nigh mad, and, at last, in a moment of

distraction, he turned against Mrs. Surratt and her son. Like Weichman's,

his, also, was the frenzied effort of a terror-stricken wretch to avoid

impending death by pushing someone forward to take his place. Reverdy

Johnson, at the close of his plea to the jurisdiction of the court, let

fall the following words, no less weighty for their truth than their

force:

"This conclusion in regard to these witnesses must be, in the minds of

the Court, and is certainly strongly impressed upon my own, that, if

the facts which they themselves state as to their connection and

intimacy with Booth and Payne are true, their knowledge of the purpose

to commit the crimes and their participation in them, is much more

satisfactorily established than the alleged knowledge and

participation of Mrs. Surratt."

Moreover, the testimony of both these witnesses, suborned as they were

alike by their terrors and their hopes, is perfectly reconcilable with the

alternative hypothesis, either that the woman in what she did was an

innocent dupe of the fascinating actor, or that she was unaware of the

sudden transformation of the long-pending plot to capture, of which she

might have been a tacit well-wisher, into an extemporaneous plot to kill.

Much stress was laid by Mr. Bingham on her solemn denial of any prior

acquaintance with Payne when confronted with him on the night of her

arrest. But it is more than probable that the non-recognition was

unsimulated, because of the disguise and pitiable plight of the desperado,

who had been hidden in the mud of the suburbs three days and three nights,

and, also, because the non-recognition was shared with her by the other

ladies of the house. Besides, that a woman, caught in the toils in which

Booth and her own son had unwittingly involved her, under the terror of

recent arrest and imminent imprisonment, should have shrunk from any

acknowledgment of this midnight intruder, even to the extent of falsehood,

certainly is in no wise incompatible with innocence.

These are the only circumstances by which Mrs. Surratt is brought nearer

than conjectural connection with the assassination, and the force of these

is greatly weakened by the testimony in her defense.

It is neither necessary, nor relevant to this exposition, to enter into a

lengthy discussion upon the _pros_ and _cons_ of her case. Her innocence

has been demonstrated in a more decisive manner by subsequent events, and

stands tacitly admitted by the acts of the officers of the government. Few

impartial hearers would have said then, and no impartial readers will say

now, that the testimony against her is so strong as to render her

innocence a mere fanciful or even an improbable hypothesis. No one can say

that a jury, to a trial by which she was entitled under the Constitution,

would have pronounced her guilty, and every one will admit that had her

sentence been commuted to imprisonment for life, as five of her judges

recommended, she would have been pardoned with Arnold, Spangler and Mudd,

and might have been living with her daughter to-day. The circumstances of

the whole tragedy warrant the assertion that, had John H. Surratt been

caught as were the other prisoners, he, and not she, would have been put

upon trial; he, and not she, would have been condemned to death; he, and

not she, would have died by the rope. If he was innocent, then much more

was she. Mary E. Surratt, I repeat, suffered the death of shame, not for

any guilt of her own, but as a vicarious sacrifice for the presumed guilt

of her fugitive son.

PART II.

THE VINDICATION.

CHAPTER I.

SETTING ASIDE THE VERDICT.

When the President of the United States, the Secretary of War, the

Military Commission, the Judge-Advocates, and the Executioner-General had

buried the woman against whose life the whole military power of the

Government, fresh from its triumph over a gigantic rebellion, had been

levelled;--buried her broken body deep beneath the soil of the

prison-yard, in close contact with the bodies of confessed felons;

flattened the earth over her grave, replaced the pavement of stone, locked

the door of entrance to the charnel-house and placed the key in the

keeping of the stern Secretary;--they may have imagined that the iniquity

of the whole proceeding was hidden forever.

But, _horribile dictu!_ the ghost of Mary E. Surratt would not down. It

troubled the breast of the witness Weichman. It haunted the precincts of

the Bureau of Military Justice. It pursued Bingham into the House of

Representatives. It blanched the laurels of the great War Minister.

Politics, history and the very vicissitudes of human events seemed

subservient to the vindication of this humble victim.

Hardly had the delivery of the prisons of Washington, which followed the

close of the trial, taken place, before the man who, as he himself swore,

always had been treated as a son by the woman he betrayed, began to make

advances to her sorrowing friends. He pretended to make confession of his

perjury. He told a friend that his testimony would have been very much

more favorable had it not been dictated to him by the officers who had him

in charge; that the meeting of Lloyd and Mrs. Surratt was accidental, as

she and he (Weichman) had already started for home before Lloyd returned,

and only turned back because the buggy was discovered to be broken. The

traitor soon discovered that he made no headway by such disclosures, but

only met with a sterner repulse and a deeper loathing. His troubled soul

then turned to another quarter. It has been stated that his testimony on

the trial was somewhat indefinite and inconclusive. Complaints had been

uttered by the officers conducting the prosecution. It was proved upon a

subsequent occasion that one of these officers had actually threatened the

witness that he would hang as an accomplice in the assassination did he

not make his evidence more satisfactory. It appeared, also, that the

Secretary of War had promised to protect and take care of him. Driven back

by Mrs. Surratt's friends from his attempt at propitiation, Weichman

resolved that he would yet earn his reward by retouching his former

testimony so as to make it more definite and telling. He saw, at last,

that to save himself from everlasting ignominy he must, as far as in him

lay, make sure of the guilt of his victim. Actuated by these or similar

motives, he, on the 11th day of August, 1865, wrote out, and swore to, a

statement in which he, by a suspicious exercise of memory, detailed

conversations with Mrs. Surratt and significant incidents, all pointing to

complicity with Booth, no mention of which had been made on the trial, and

which this candid witness stated "_had come to my_ (his) _recollection

since the rendition of my_ (his) _testimony_."

This affidavit, containing (if true) more evidence of the guilt of Mrs.

Surratt than his whole testimony on the trial, but, on the other hand,

drawn up to suit himself without fear of cross-examination--he transmitted

to Colonel Burnett, who, as though he, too, distrusted the sufficiency of

the evidence against the dead woman as it had been actually given on the

trial, was careful to append the _ex parte_ statement to the published

report.

Weichman, at length, gets his reward in the shape of a clerkship in the

Custom House at Philadelphia.

But the final breaking down of the fabric of testimony against the leaders

of the rebellion, as instigators of the assassination, threw consternation

into the Bureau of Military Justice and the Cabinet. Jefferson Davis was

still confined in Fort Monroe, and two companies of United States

soldiers, who had fought and shed each other's blood in their eagerness to

be the first to seize the fugitive, were already quarreling over the

$100,000 reward for his arrest as an accomplice of Booth. Clement C. Clay,

for whose arrest $25,000 reward had been offered, as another accomplice,

was also still in the hands of the authorities. Jacob Thompson, George N.

Sanders and Beverly Tucker, for the arrest of each of whom $25,000 had

been offered, were still at large. Every one of these men, it should be

borne in mind, had been pronounced guilty by the military board which had

condemned Mrs. Surratt. John H. Surratt, her son, for whose capture an

enormous reward had been offered both by the Government and by the City of

Washington, and whom the Military Commission had condemned as the

go-between of the President of the Confederacy and his agents in Canada in

the instigation of the murderous conspiracy, and also as the active aider

and abettor of both Booth and Payne in the perpetration of their bloody

crimes; he, too, had so far eluded all efforts to find even his

whereabouts. It is only fair to presume that the astute lawyers connected

with the Bureau of Military Justice must have had serious misgivings from

the first, concerning the testimony of the spies, Montgomery, Conover and

others, going to implicate Davis and the Canadian Rebels in the

assassination. Such testimony was hearsay or secondary evidence at best;

and they could have cherished no hope that such loose talk and the

fragmentary repetition of letters heard read would ever be allowed to pass

muster by an impartial judge in a civil court. And they had reason to

believe that public opinion would not tolerate the experiment of another

military commission. As early as July, 1865, an attempt was made to buy

the papers of Jacob Thompson, among which it was supposed were the

criminatory letters of Davis; and Attorney-General Speed was dispatched

with $10,000 government money to effect the purchase. William C. Cleary,

for whom $10,000 reward had been offered as one of the conspirators, and

who had just been found guilty by the Military Commission, was to deliver

the letters and receive the money. Speed met Cleary at the Clifton House,

but the latter, in the meanwhile, had seen in a newspaper a portion of the

testimony before the Military Commission implicating him, and he utterly

refused to give up the papers, as he had to rely upon them, as he said, to

vindicate himself. The shadows thus began to darken over the credibility

of the corps of spies that the Bureau had employed. Indictments for

perjury against Montgomery, Conover and other paid witnesses began to be

talked of. Friends, and enemies as well, of the imprisoned ex-President

began to clamor for his trial or release. Even the implicated agents in

Canada showed a bold front, and professed a willingness to meet the

terrible charge if guaranteed a trial by jury. A jury! A jury of twelve

men! Trial by jury! If there was anything that could shake the souls of

the members of the Bureau of Military Justice, it was to hear of trial by

jury. It was a damnable institution. It impeded justice. It screened the

guilty. It was beyond control. It could not be relied on to convict. And

yet it was to this tribunal they foresaw they must come.

In September, 1865, embarrassing news arrived at the Department of State.

The consul at Liverpool informed the American Minister at London that John

H. Surratt was in England and could be extradited at any time. Here was

the villain who was, with Booth, the prime mover of the conspiracy and the

active accomplice of Booth and Payne in their work of blood. At least, so

the Military Commission found, who hung his mother in his stead. And yet

the United States Government informed Mr. Adams, and Mr. Adams so informed

the consul, that the Government did not intend to prosecute. On the 24th

of November ensuing, the War Department, by general order, revoked the

"rewards offered for the arrest of Jacob Thompson, Beverly Tucker, George

N. Sanders, William S. Cleary and John H. Surratt." Where now was the

redoubtable Bingham who, over and over again, had assured the Commission

he guided of the unmistakable guilt of all these persons? The whole theory

of the Secretary of War, which he had preconceived in the midst of the

panic following the assassination, that the murder of the President was

the outcome of a deep-laid and widespread conspiracy, of which Jefferson

Davis was the head and Booth and Payne the bloody hands--this theory,

which the Bureau of Military Justice, aided by Baker and his detectives,

had so sedulously labored to establish, and which Judge Bingham had so

persistently pressed upon the nine military men who composed the Court, to

the exclusion of any such hypothesis as a plot to capture--this

preconceived theory all at once fell to the ground. The perjured spies,

who had been the willing and paid tools to build it up, were about to be

unmasked and their poisoned fangs drawn. After no great interval, Conover

was, in fact, convicted of perjury in another case, and sentenced to

imprisonment in the Albany penitentiary. The whole prosecution of the

so-called conspirators, from its inception to its tragic close, turned out

to have been founded on an enormous blunder. The findings of the

Commission were falsified. Whatever the guilt of the doomed victims, they

were not guilty of the crime of which they were convicted. The terrible

conspiracy, stretching from Richmond to Canada, and from Canada back to

Washington, involving statesmen and generals, and crowning the wickedness

of rebellion with the Medusa-head of assassination, shrank into the

comparatively common-place and isolated offense of the murder of Lincoln

and the assault upon Seward, suddenly concocted by Booth, on the afternoon

of the 14th of April, in wild despair over the collapse of the rebellion.

In such a predicament, the hanging of Mrs. Surratt could not have been a

pleasing reminiscence to the Secretary of War, to Judge-Advocate Holt, or

to the hangers-on of the Bureau of Military Justice. At such a moment they

certainly had no use for her son John.

On the 12th of November, Preston King, who held one side of the door of

the White House while the daughter of Mrs. Surratt pleaded for admission,

walked off a ferry-boat into the Hudson River, with two bags of shot in

the pockets of his overcoat, and was seen no more. This event might have

passed as a startling coincidence, to be interpreted according to the

feelings of the hearer, had it not been followed by the suicide of Senator

James S. Lane, who held the other side of the door, and who, on the 11th

day of July, 1866, blew his brains out on the plains of Kansas. That these

two men had together stood between the President and the filial suppliant

for mercy, in a case of life and death, and that, then, within a year,

both had perished by their own hands, aroused whispers in the air, caused

a holding of the breath and a listening, as if to catch the faint but

increasing cry of innocent blood, coming up from the ground.

When the Congress met in December, 1865, the leaders of the dominant party

were in a fierce and bitter humor. The Rebellion had been suppressed, the

South subjugated and its chiefs captured, yet no one--not even the

arch-traitor Davis--had been hung. And, more deeply exasperating still,

the man they had elected Vice-President, and who had thus succeeded the

martyred Lincoln, upon whom their hopes had been fixed to make treason

odious, to hang the leaders higher than Haman, and to set aside the humane

policy of reconstruction his predecessor had already outlined and

substitute a more radical and retributive method--this man, whose precious

life had been providentially spared from the pistol of the assassin to be

the Moses of the colored people, and for harboring any such blasphemous

purpose as lying in wait for him, a Court, appointed by himself and whose

sentence he himself had approved, had hung a bewildered German--why this

man had already shown himself a renegade, was bent on a general amnesty,

appeared to have forgotten the assassination, was already hobnobbing with

southern traitors, and was attempting to carry out a policy of

reconstruction in the South, the result of which could be nothing less

than the dethronement of the party who had brought the war for the Union

to a triumphant end. These men resolved that such treachery should be

balked at whatever cost. Ignorant as yet of the tainted character and of

the break-down of the evidence adduced to show Confederate complicity in

the assassination, the House of Representatives passed resolutions calling

for the trial of Jefferson Davis for treason and for the other crimes with

which he was charged; the ill-starred Bingham, once again in the House,

insisting that the Confederate Chief should be put upon trial before a

military tribunal for the same offense of which his former court had found

him guilty in his absence. The House appointed a committee to investigate

the complicity of Davis and others in the assassination, and in July,

1866, through its chairman, Mr. Boutwell, made a report, followed by a

resolution, "that it is the duty of the executive department of the

Government to proceed with the investigation of the facts connected with

the assassination of the late President without unnecessary delay, that

Jefferson Davis and others named in the proclamation of President Johnson

of May 2d, 1865, may be put upon trial," which was adopted _nem. con._ In

this action, little as they reeked, these radical politicians were the

unconscious tools of that Nemesis which stalks after lawlessness and

triumphant crime. This resolution, and the news that John H. Surratt had

been betrayed by one of his comrades in the Papal Zouaves into the hands

of the Roman authorities, who had detained him to await the order of the

American Government, and that the prisoner had escaped from his guard and

fled to Malta, forced the Department of War to revoke the order of

November, 1865, withdrawing the reward for the arrest of the fugitive.

Meanwhile the great contest over the reconstruction of the South waxed

fiercer and fiercer. Congress, during this session, became farther and

farther alienated from the President, so that when that body met in

December, 1866, the reckless majority in both Houses united in the resolve

to get rid of Andrew Johnson, not indeed by the bloody method employed by

Booth, but by the no less efficient, though more insidious and less bold,

expedient of impeachment by the House and conviction by the Senate. No

sooner had Congress convened than Mr. Boutwell made an attack upon the

Executive for its dilatory action in the arrest of John H. Surratt,

stating that he had reason to believe that the Government knew where the

assassin was the May before. A committee appointed to investigate the

matter made a report just at the close of the session obliquely censuring

the Executive Department for its lack of diligence in effecting the

arrest. On January 7th, 1867, the famous Ashley introduced his resolutions

impeaching Andrew Johnson. The Judiciary Committee, to which they were

referred, took testimony during the winter and made a report at the close

of the session that it was unable to complete the investigation, and

handed it over to the Fortieth Congress. That Congress met immediately at

the close of the Thirty-ninth, and the testimony already taken was

referred to the Judiciary Committee of its House, which proceeded with the

matter during the spring and summer, and in November, 1867, after the

recess; with the final result of a failure to pass the resolution of

impeachment reported by a bare majority of the committee.

In process of this investigation all sorts of accusations and charges were

made against the President. His enemies now employed the very same weapons

against him which had been employed to convict the alleged assassins of

his predecessor and the alleged conspirators against his own life. General

Baker and his detectives, Conover and his allies, appear once more upon

the scene. They actually invaded the privileged quarters of the White

House and stationed spies in the very private apartments of the President.

This time, however, they are ready to swear, and in fact do swear, not to

having seen letters from Jefferson Davis to his agents in Canada advising

assassination, but letters from Andrew Johnson to Davis squinting in that

direction. They actually charged the President with being an accomplice in

the assassination of Abraham Lincoln. Forgetting that a human being had

been hung for lying in wait to kill Andrew Johnson as a part of a general

conspiracy to murder the heads of the Government, these desperate men

propose to impeach the President for being an accomplice in his own

attempted murder. Ashley openly denounced him, in the House of

Representatives on the 7th of March, 1867, as "the man who came into the

Presidency through the door of assassination," and alluded to the "dark

suspicion which crept over the minds of men as to his complicity in the

assassination plot," and "the mysterious connection between death and

treachery which this case presents." Ashley had private interviews in the

jail with Conover and Cleaver, who were confined there for their crimes,

and they assured him of the guilt of Andrew Johnson. They furnished him

with memoranda and letters purporting to show that Andrew Johnson and

Booth were in communication with each other before the murder of Lincoln,

and that Booth had said before his death that if Andrew Johnson dared go

back on him he would have him hung higher than Haman. To such preposterous

stuff, from professional perjurers, did the zealous Ashley seriously

incline.

It was during this investigation that the evidence given by Secretaries

Seward and Stanton and by Attorney-Generals Speed and Stansbery,

demonstrated the utter futility of an attempt to establish complicity in

the assassination on the part of Davis, Thompson and the rest, by

witnesses who had been shown, in other cases, to be unworthy of a

moment's belief.

While the impeachers were in the very act of pursuing the President as an

accomplice in the murder of Abraham Lincoln, while the mighty Bingham, who

had so eloquently defended President Johnson before the Military

Commission against the charge of usurpation of power, and so bitterly

denounced Jefferson Davis for alluding to Johnson as "The Beast," now,

with a complete change of tune, was clamoring for the impeachment of "his

beloved Commander-in-Chief;"--Jefferson Davis, himself, is brought, by

direction of the Secretary of War, in obedience to a writ of habeas

corpus, before the United States Court at Richmond; there, without a word

of remonstrance, transferred to the custody of the civil authority; and

forthwith discharged on bail, Horace Greeley, who had never seen him

before, becoming one of his bondsmen. Since that day in May, 1867, no

attempt has ever been made to call the ex-President of the Southern

Confederacy to account as one of the conspirators in the murder of

Lincoln. Clay had been let go on parole as long before as April 19th,

1866; his property was restored to him in February, 1867; and proceedings

under an indictment found against him for treason and conspiracy,

indefinitely suspended on the 26th of March of the same year. Thompson and

Sanders and Tucker returned to their country and appeared unmolested

amongst us. Jefferson Davis died recently full of years and honors. At

the death of Thompson, the flags of the Interior Department were lowered

half-mast. Tucker was appointed to office not long ago by President

Harrison. And all this, notwithstanding the Judge-Advocate had assured the

Military Commission that the guilt of these men was as clear as the guilt

of Booth or of Surratt, notwithstanding the Military Commission under his

guidance so found, and, had these men been present before that tribunal,

would doubtless have hung them on the same scaffold with Mrs. Surratt.

It was during this same investigation, that the diary of Booth, which had

been so carefully concealed by the War Department and the Bureau of

Military Justice from the Military Commission, was unearthed. Its

publication produced a profound sensation, as it made clear the reality of

a plan to capture the President; a plan, which had been blasted by the

collapse of the Rebellion and, only at the last moment and without

consultation, arbitrarily superseded by a hurried resolution to kill. When

produced by Judge Holt before the committee, its mutilated condition gave

rise to a terrible suspicion. Holt, himself, and Stanton were confident

the book was in the same condition as when they first saw it. Colonel

Conger, also, though not positive, thought it was unchanged since he took

it from the dead body of Booth. But, to the great wonder of everybody, the

distinguished detective, General Baker, testified, and stuck to it with

emphasis when recalled, that, when he first examined the diary before it

was lodged with the Secretary of War, there were no leaves missing and no

stubs, although the diary, as exhibited to the committee, showed by means

of the stubs remaining that sixteen or twenty leaves had been cut or torn

out. The disclosures made by the production of the diary, together with

the fact of its suppression, stirred the soul of General Butler; and, in

this way, it came about that the ghost of Mrs. Surratt stalked one day

into the House of Representatives. Judge Bingham, in his rollicking way,

was upbraiding General Butler for having voted for Jefferson Davis fifty

times as his candidate for President, and slurring his war record by

calling him "the hero of Fort Fisher;" when, suddenly, at the petrific

retort of his adversary that "the only victim of the gentleman's prowess

was an innocent woman hung upon the scaffold!" the spectre stood before

him, forcing, as from "white lips and chattering teeth," the exclamation

of Macbeth: "Thou canst not say I did it!"

"Look to the true and brave and honorable men who found the facts upon

their oaths and pronounced the judgment!" he retorted, clutching at the

self-soothing sophistry of the murderer of Banquo, ignoring the fact that

he himself was a part of the tribunal and virtually dictated the

judgment.

Another discovery was made by the Judiciary Committee in the "Article"

which, as recorded in his diary, Booth had left behind him for publication

in the National Intelligencer. John Matthews, a fellow actor and an

intimate friend of the assassin, testified that on the afternoon of the

14th of April Booth had met him in the street and left with him a letter

directed to that newspaper, to be delivered in the morning. The witness

was on the stage of the theatre that night at the time the fatal shot was

fired, and, in the confusion that followed, he called to mind the

communication. Hurrying to his lodgings he opened the envelope, read the

letter, and, fearing to be compromised by the possession of such a

document, burnt it up. The substance of the letter, as near as Matthews

could recollect, was that for a long time he (Booth) had devoted his

money, time and energies to the accomplishment of an end, but had been

baffled. "The moment has at length arrived when my plans must be changed.

The world may censure me for what I do; but I am sure that posterity will

justify me." And the communication was signed (all the names being in the

hand-writing of Booth): "Men who love their country better than gold or

life. J. W. Booth, ---- Payne, ---- Atzerodt, ---- Herold."

The significance of this piece of testimony was negative. The name of

Surratt was not there.

One suggestive circumstance was called out in the testimony of Secretary

Seward and General Eckert. It appeared that Payne before his trial had

talked with General Eckert about his motives and movements in the assault

upon the disabled Secretary of State, the particulars of which

conversation Eckert had related to Seward, after the recovery of the

latter from his wound, and had promised to reduce to writing. Among other

things, Payne had said that he and Booth were in the grounds in front of

the White House on the night of Tuesday, the 11th of April, when Abraham

Lincoln made his speech of congratulation on the fall of Richmond and the

surrender of Lee; and that on that occasion Booth tried to persuade him to

shoot the President as he stood in the window, but that he would take no

such risk; and that Booth, turning away, remarked: "That is the last

speech he will ever make."

Such an incident is consistent only with the theory that the assassination

plot was concocted at the last moment as a forlorn hope, and that, if

there had been any conspiracy, it was a conspiracy to capture. It is easy

to see why the Bureau of Military Justice suppressed this testimony also,

because, although it bears hard upon Payne himself, and Herold, and

possibly John Surratt, it renders it highly improbable that Mrs. Surratt

was aware of any design to kill.

Even such a fragmentary review, as the foregoing, of the public history of

the two years succeeding the execution--which any reader may complete, as

well as test, for himself by referring to the Congressional Globe of that

period, to the printed reports of the Committee, and to the leading

newspapers of the day--is sufficient to indicate how the general tendency

of events, and every event in its place, appear to have conspired to the

accomplishment of one result,--the setting aside, in the public mind, of

the verdict of the Military Commission in the case of Mrs. Surratt.

This was not done by a direct assault upon that tribunal, or upon its mode

of procedure; not even upon the character of the witnesses against the

particular culprit, nor upon the weakness of the case made against her.

These points of attack were all passed by, and the verdict was taken on

the flank.

The condemnation of the woman was subverted by the _wind_, so to speak, of

passing events.

The irrepressible conflict between the President and the Congress; the

consequent schism in the very ranks of the triumphant conquerors; the

insane charge against Andrew Johnson of complicity in a conspiracy against

his own life, supported by the incredible statements of the very witnesses

who were responsible for the charge of complicity against Jefferson Davis

and others; the final and complete exposure of the fiction of a conspiracy

to assassinate, either by the Confederate authorities, or anybody else;

and the true, historical character of the Assassination of Abraham

Lincoln;--all combined to shake the edifice of guilt, which the Bureau of

Military Justice had so carefully built up around their helpless victim,

upon such an aerial foundation. Whilst the gradual abatement of that

furious uncharitableness, which in the hey-day of the war could find

nothing not damnable in the Southern people, and no secessionist who was

not morally capable either of murder or of perjury in its defense or

concealment, was, surely but imperceptibly, clearing up the general

atmosphere of public opinion, and thus preparing for the cordial reception

of such a measure of retributive justice, as Time, with his sure revenges,

was daily disclosing to be more and more inevitable.

The Milligan decision dissipated the technical jurisdiction of the

Commission. But lawyers could still distinguish, and the hyperloyal could

still maintain the essential rightfulness of the verdict.

But the explosion of the great assassination conspiracy; the nol-pros. of

the awful charge against Jefferson Davis, Clement C. Clay, Jacob Thompson,

and their followers--a crime, which, if capable of proof, no government on

earth would have dared to condone--discredited forever the judgment of the

Military Commission, reopened wide all questions of testimony, of

character, of guilt or innocence, and summoned the silent and dishonored

dead to a new and benignant trial.

CHAPTER II.

REVERSAL UPON THE MERITS.

The new trial was in fact at hand. In the summer of the year 1867, the

interest excited by the investigation of the Judiciary Committee of the

House of Representatives, referred to in the last chapter, suddenly became

merged into the intenser and more widespread interest excited by the trial

of John H. Surratt in the Criminal Court of the District of Columbia.

Surratt, after escaping from his captors in Italy by leaping down a

precipice, fled to Malta and thence to Alexandria, where, on the 21st of

December, 1866, he was recaptured and taken on board the United States

vessel "Swatara." In this vessel, bound hand and foot, the prisoner

arrived at Washington on the 21st of February following. Thus the radicals

in Congress, impelled by their growing enmity to the President over the

reconstruction contest, by scattering abroad sinister intimations that the

cause of his remissness in bringing to punishment the accomplices of the

convicted assassins was fear for himself of a full investigation of the

assassination, succeeded at last in forcing the Executive Department,

apprehensive, as it had good reason to be, of the shadows which any future

trial in the civil courts was likely to reflect back upon the Military

Commission, and aware of the breaking down of the case against the

Canadian confederates and Jefferson Davis, face to face with the necessity

of ratifying the conviction of the mother by securing the conviction of

the son. On the one hand, the radicals, in blind ignorance of the true

inwardness of affairs, clamored for the trial, in the hope that the guilt

of the prisoner's supposed accomplices, Davis and Company, and possibly of

the President himself, might be detected. On the other hand, the

administration, now that the man had been forced upon its hands, knowing

the futility of the hope of its enemies, pushed on the trial in the hope

that, with its powerful appliances, a result could be obtained which would

vindicate the verdict of the Military Commission. No one on either side,

however, so much as dreamed of renewing the iniquity of a trial by

court-martial. Amid the silence of the Holts and the Binghams and the

Stantons, Surratt was duly indicted by a grand jury for the murder of "one

Abraham Lincoln," and for conspiring with Booth, Payne, Atzerodt, Herold

and Mary E. Surratt to murder "one Abraham Lincoln," which conspiracy was

executed by Booth. There was no averment about the traitorous conspiracy

to murder the heads of Government, in aid of the rebellion; nor were the

names of Dr. Mudd, O'Laughlin, Arnold or Spangler, then undergoing

punishment on the Dry Tortugas, inserted as parties to the conspiracy; nor

was any mention made of Seward or Johnson or Grant, as among the

contemplated victims. All was precise and perspicacious, as is required in

pleadings in the civil courts. The loose, vague, indefinite and impalpable

charges permissible, seemingly, on military trials, gave place to plain

and simple allegations, such as an accused person might reasonably be

expected to be able to meet. On Monday, June 10, 1867, while the

investigation before the Judiciary Committee of the House was still going

on, while the sensation produced by the sight of Booth's diary and by

Matthews' disclosures was still fresh, while the echoes of the encounter

of Bingham and Butler still lingered in the air, the momentous trial came

on. Great and unprecedented preparations had been made by the prosecution.

Again the country was ransacked for witnesses, as in the palmy days of

Baker and his men. Again the Montgomeries and other Canada spies haunted

the precincts of the District Attorney's office, willing as ever to swear

to anything necessary to make out the case for the prosecution. Even the

voice of Conover was heard, _de profundis clamavi_, from his dungeon cell.

The Bureau of Military Justice started into active life, and Holt and his

satellites bestirred themselves as though fully conscious of the impending

crisis. Indeed, every one of these officials, from the President and the

Secretary of War down to the meanest informer and hired hangman, who had

had anything to do with the trial and execution of Mary E. Surratt, felt

as if he, too, was to be put on trial in the trial of her son. A Court

recognized in, and drawing its life and jurisdiction from, the

Constitution was to act as a court of appeal to review the process and

judgment of that extra-constitutional tribunal, which had, summarily and

without legal warrant, put a free American woman to a felon's death. A

Daniel in the shape of a jury--a common law jury--a jury of

civilians--unadorned by sword, epaulette or plume--a jury guaranteed by

the Bill of Rights--a Daniel had come to judgment! The Shylocks of the

days of arbitrary power dropped their sharpened knives and ejaculated, "Is

that the law?"

Great, assuredly, must have been the flurry of the once omnipotent Bureau,

when it was ascertained that the tribunal before which it must come could

not be "organized to convict;" that there could be no soldiery around the

Court, no shackles on the prisoners or the witnesses for the defense, no

prosecuting officers in the jury room. Everything must be done decently

and in order, with the same calm dignity, unruffled composure, the same

presumption of the innocence of the accused, as though the murdered man

had been the humblest citizen of the land. One great advantage, however,

the prosecution managed to secure. A Judge was selected to preside whom

they could rely on, as "organized to convict." But this was the sole

reminiscence of the unbridled reign of the military only two years before.

A jury of twelve intelligent men, some of them the best citizens of the

District, was speedily obtained to the evident satisfaction of both the

people and the prisoner,--and the succeeding Monday, the 17th, the

struggle began.

As we have given the names of the members of the Court which tried the

mother, we may be pardoned for giving the names of the jurors who tried

the son. Although there were no major-generals among them, they are

entitled to the honor of being within, and not without, the aegis of the

Constitution.

The jurors were W. B. Todd, Robert Ball, J. Russell Barr, Thomas Berry,

George A. Bohrer, C. G. Schneider, James Y. Davis, Columbus Alexander,

William McLean, Benjamin Morsell, B. E. Gittings, W. W. Birth.

They were thus spoken of by the District Attorney:

"It is a matter of mutual congratulation that a jury has been selected

agreeable to both parties; the representatives of the wealth, the

intelligence, and the commercial and business character of this community;

gentlemen against whose character there cannot be a whisper of suspicion.

I would trust you with my life and my honor; and I will trust you with the

honor of my country."

The scene which the court-room presented, when the Assistant District

Attorney arose to open the case for the United States, afforded a speaking

contrast to the scene presented at the opening of the Military Commission.

The Court was not held in a prison, and there was an entire absence of the

insignia of war. The doors of the court-room were wide open to the

entrance of the public, not locked up in sullen suspicion, and the keys in

the hands of the prosecuting officer. The counsel for the prisoner

confronted the jury and the witness-stand upon an equal line with the

counsel for the United States; and there was neither heard, seen, nor

surmised, in the words or bearing of Edwards Pierrepont, the leading

counsel for the prosecution, any of the insolence and supercilious

condescension shown in the words and bearing of John A. Bingham.

As the prisoner entered the court and advanced to the bar, no clank of

fetters jarred upon the ear; and, as he sat at his ease by the side of his

counsel, like a man presumed to be innocent, the recollection of that wan

group of culprits, loaded down with iron, as they crouched before their

imperious doomsmen, must have aroused a righteous wrath over the barbarous

procedure of the military, in comparison with the benign rules of the

civil, tribunals. The atmosphere surrounding the court and the trial

seemed, also, to be free from passion and prejudice, when contrasted with

the tremendous excitement and the thirst for blood, which permeated the

surroundings of the Military Commission. Although the Bureau of Military

Justice had busied itself in the prosecution, and thrust its aid on the

office of the District Attorney; although the whole weight of the federal

administration was thrown in the same direction to vindicate, if possible,

the signature of the President to the death warrant of the victims of his

military court; and notwithstanding the presence upon the bench of a judge

"organized to convict:" still, so repellant to partial passion were the

precincts of what might fitly be styled a temple of justice, a neutral

spectator might feel reliance that in that chamber innocence was safe.

But there was one sentiment hovering over the trial and dwelling in all

bosoms, which clothed the proceedings with a peculiar awfulness. All felt

that the dead mother was on trial with the living son. She had been

executed two years before for the same crime with which he was now

charged. And, as he stood in the flesh, with upraised hand, looking at the

jury which held his life in its hands, it required no great effort of

fancy to body forth the image of his mother, standing beside him,

murmuring from shadowy lips the plea of not guilty, amid the feeble

repetitions of which, to her priest, she had died upon the scaffold. To

convict her son, now, by the unanimous verdict of twelve men, and punish

him according to law, would go far to condone the unconstitutional trial

and illegal execution of the mother. Whereas, on the other hand, the

acquittal of her son of the same crime, by the constitutional tribunals

of the country, would forever brand the acts of the Military Commission as

murder under the forms of military rule. This dread alternative met the

prosecution at the threshold of the trial, oppressed them with its

increasing weight during its progress, and tarried with them even at its

close. It appeared in the indictment, where the name of the mother, as one

of the conspirators, was associated with the name of her son. It appeared

in the examination of the jurors, when Judge Pierrepont endeavored to

extract from them whether they had formed or expressed an opinion as to

the guilt or the innocence of the prisoner, not only, but also as to the

guilt or the innocence of his mother. It appeared during the taking of

testimony, where evidence bearing upon the guilt of Mrs. Surratt alone was

admitted at all times as evidence against her son. It appeared in the

argument of the District Attorney, when he compares the mother of the

prisoner to Herodias and Lucrezia Borgia, and "traces her connection with

the crime" and "leaves it to the jury to say whether she was guilty;"

where he pleads, like Antony, in behalf of the members of the Military

Commission that they were "all honorable men," and were not to be blamed

for obeying the orders of the President. It appeared in the arguments of

the counsel for the prisoner, when Mr. Merrick taunted the Government that

they were pressing for a verdict to "vindicate the fearful action they

had committed;" when he appealed to the jury to "deal fairly by this young

man," "even if the reputation of Joseph Holt should not have the

vindication of innocent blood;" when he invoked the spirit of Mrs. Surratt

as a witness for her son, and rebuked the prosecution for objecting to the

admission of her dying declaration when they were putting her again on

trial though dead; when Mr. Bradley charged that for four weeks and more

they had been trying Mrs. Surratt and not her son, and denounced Weichman

and Lloyd, avowing that "the proof against her was not sufficient to have

hung a dog" and was "rotten to the core." It appeared in the speech of

Judge Pierrepont, when he flourished the record of the Military Commission

before the jury, and asserted that the recommendation of Mrs. Surratt to

mercy was attached to it; in his avowal of his belief in her guilt; in his

extolling the jury as a tribunal far more fit for the trial of such crimes

than any military court; and in his covert threat that the people would

punish the City of Washington by the removal of the Capitol, if the jury,

by their verdict, did not come up to the high standard erected for them.

And, lastly, it appeared in the charge of the Judge, which is a model of

what a one-sided charge ought to be. It opens with the words of the Old

Testament: "Whoso sheddeth man's blood, by man shall his blood be shed."

Then follows a sneer at the "sentimental philosophers," who were opposed

to capital punishment. Then the Court inveighs against some imaginary

advocates, who argued that to kill a king was a greater crime than to kill

a president; and then casts an imputation upon the integrity of the

decision in the Milligan Case, as "predicated upon a misapprehension of

historic truth," and that therefore "we could not perhaps have looked for

a more rightful deduction," "all loyal hearts" being "unprepared for such

an announcement." The Judge, then, holds that the Court will take judicial

cognizance that the crime charged was the murder of the President of the

United States, and a more heinous offense than the murder of a simple

individual. He, then, complacently sets aside the rule of Sir Matthew

Hale, implicitly followed since, as he himself admits, by "writers and

judges seeming contented with his reasons or indisposed to depart from his

principles," as "not very satisfactory to my (the Judge's) mind;" and

accordingly he declares that, in felonies of such high grade, as in cases

of treason, there can be no accessories before the fact, but all are

principals; and, to support this conclusion, he then cites and details at

length two cases, apparently overruling Sir Matthew beforehand; (as he

says) "reported in that book of highest authority known among Christian

nations, decided by a judge from whose decision there can be no appeal and

before whose solemn tribunal all judges and jurors will in the great day

have their verdict and judgments passed in review." One, the case "of

Naboth and Ahab, contained in the 21st chapter of the First Book of

Kings," the other, "that of David and Uriah, recorded in the 11th chapter

of Second Samuel;" at the end of the statement of which case the Judge

remarks, "this judgment of the Lord was not that David was accessory

before the fact of this murder, but was guilty as the principal, because

he procured the murder to be done. It was a judgment to the effect that he

who does an act by another does it himself, whether it be a civil or a

criminal act." This extraordinary deliverance closes with an echo of Judge

Pierrepont's warning to the jury, to uphold by their verdict the District

of Columbia, as a place for "the public servants, commissioned by the

people of the nation, to do their work safe and sacred from the presence

of unpunished assassins within its borders."

It would be foreign to our purpose, as well as tedious to the reader, to

examine in detail the testimony given on this trial. One conclusion--and

that is the important thing--is certain. It is true, beyond the shadow of

a doubt, that the prosecution made an incomparably stronger case against

Surratt than was made against his mother. They had but one culprit at whom

to direct their aim, and they made a far more desperate and thorough-going

effort to convict, because of the known unreliability of a jury to do what

the prosecution might tell them to do without the aid of proof. Before a

Military Commission, tossed about by the passions of its members and

steered by Judge-Advocates, the accusers could afford to be careless of

gaps in their scheme of proof, missing links in the chain of

circumstantial evidence. Not so now and here. Vehement affirmation without

evidence availed nothing. Curses against treason, traitors, disloyalty,

apostrophes to the imperiled Union, tears over the beloved

Commander-in-Chief, could fill no void in the testimony. Of course, there

was no such outrage against not only the elementary rules of evidence, but

against ordinary decent fairness, as an attempt to introduce testimony of

the horrors of Libby Prison and Andersonville; but the door looking in

that direction was opened as wide as possible by the eager Judge. All the

material testimony given upon the "Conspiracy Trial" against Mrs. Surratt,

not only, but also against Payne, Herold, Atzerodt, Arnold and O'Laughlin,

was reproduced here. The direct testimony on the part of the United States

occupied from June 17th to July 5th, and in that period eighty-five

witnesses were examined. On the Conspiracy Trial, the direct case consumed

the time from May 12th to May 25th, and about one hundred and thirty

witnesses were examined against the eight accused persons, not only, but

also against the eight accessories, headed by Jefferson Davis, included in

the charge, the testimony ranging over the whole rebellion and including

Libby, Andersonville, Canada, St. Albans, and projected raids on New York,

Washington and other cities. Every witness, whose testimony on the former

trial had the remotest bearing upon the question of the guilt or innocence

of Mrs. Surratt, once more showed his face and retold his story.

Lloyd was there, compelled, despite his superstitious reluctance to speak

against a woman now she was dead, to rehearse the tale which his terrors

had evolved out of his drunken imagination. This time, however, his

sottish memory or failure of memory, his fright at the time of his arrest,

his repeated denials of the visit of Booth and Herold, his temptations and

bribes to accuse his landlady, were, under the keen cross-examination of

the counsel for the prisoner, fully exposed.

Weichman "came also:" this time with his story carefully elaborated,

touched and retouched here and there, and written down beforehand. He had

been engaged for three or four months in aiding the prosecution, had

prepared a carefully detailed statement for the use of the Assistant

District Attorney, and now openly acknowledged that "his character was at

stake" in this trial, and that he "intended to do all he could to help the

prosecution." He had conned over and over again the report of his evidence

on the Conspiracy Trial, had corrected it to meet objections subsequently

made and to eliminate discrepancies and contradictions, and had thus

brought its several disjointed parts into some logical sequence; he then

had added to it the incidents and conversations disclosed for the first

time in the affidavit sent to Colonel Burnett, which was appended to the

published report of the trial, to which allusion has been made; and, now,

in the final delivery of his deadly charge, coolly averring that his

memory was much more distinct now than at the time of the former trial two

years ago, he, with a superadded concentrated venom, flavored his

narrative with a few damning incidents never heard of before--one, the

most poisonous of all, that on the evening of the fatal 14th, while Booth

was about his murderous work, Mrs. Surratt was pacing her parlor floor

begging her pious boarder "to pray for her intentions." This time,

however, the witness did not escape unscathed. When he emerged from the

skillful hands of Mr. Bradley, his malicious and sordid _animus_ laid

bare,--his self-contradictions, his studied revisions, his purposeful

additions to his testimony, exposed--his intimacy with the conspirators,

his terrified repentance, his abject self-surrender and his cowardly

eagerness to shift his peril upon the head of his protectress,--and then

his simulated remorse and his later recantation--all made clear--he was an

object of loathing to gentlemen; a stumbling block to the philanthropist;

to the indifferent, an enigma; and to the common man, a perpetual

provocation to a breach of the peace.

Twelve witnesses testified that they saw John H. Surratt in Washington on

the 14th of April, only one of whom had testified to that effect on the

other trial. It is curious now to discern how the memory of the

witnesses, it may be unconsciously, swerved under pressure toward the mark

of identification. The witnesses for the defense established that the

prisoner was in Elmira on the afternoon of the 13th, made it more than

probable he was there on the 14th, and almost certain he was there on the

15th. The prosecution, under the force of this proof, suddenly conceded

his presence in Elmira on the 13th, and then, by the accident of a special

train and the testimony of a ferryman whom the notorious Montgomery

unearthed in the very crisis of the emergency, contrived with much

straining to land him in Washington at 10 o'clock on the morning of the

fatal day. Any calm observer, reading the account of the trial now, can

see plainly that the truth is, the prisoner had not been in Washington

since the 3rd of April.

The production of Booth's diary by the prosecuting officers was forced

upon them by the popular indignation over its suppression before the

Military Commission; otherwise, it is clear they would not have been

guilty of such a mistake in tactics as its introduction as a part of the

case for the United States. Its opening sentences--"Until to-day nothing

was ever thought of sacrificing to our country's wrongs. For six months we

had worked to capture. But our cause being almost lost something decisive

and great must be done"--settled the question of a plot to kidnap suddenly

given up; and the testimony of Weichman indicated the hour of

abandonment.

That every conceivable effort to obtain the conviction of the prisoner was

made, and that a most formidable array of circumstances was marshalled

against him, compared to which the two disconnected pieces of evidence

which were so magnified against his mother seem weak indeed, will be

controverted by no sane person. From June 10th to August 7th--nearly two

months--the contest went on. On the last-mentioned day, which was

Wednesday, Judge Fisher delivered his remarkable charge, and a little

before noon the jury retired. At one o'clock in the afternoon of Saturday,

the 10th, after a session of three days and three nights, a communication

was received from the jury to the effect that they stood as at first,

nearly equally divided, that they could not possibly agree, and the health

of several of their numbers was becoming seriously impaired. The Court,

notwithstanding the protest of the prisoner, discharged the jury, and the

prisoner was remanded to jail.

There he did not long remain, however. Every one recognized the futility

of another trial. The strength of the proof of the prisoner's presence in

Elmira on the day of the assassination wrought a reaction of public

opinion in his favor. The administration was glad to escape with less than

an unequivocal condemnation. The Bureau of Military Justice was silent.

John H. Surratt was quietly let go.

This obscure occurrence, the discharge of John H. Surratt, which caused

not a ripple on the surface of human affairs, nevertheless constituted a

cardinal event; for it worked a national estoppel. When that young man

stepped forth from the threshold of the prison, to which the United States

had brought him in irons from Egypt across the Mediterranean and the

Atlantic, not to follow his mother to the scaffold and a felon's grave,

but to walk the earth a living, free man,--the innocence of the mother was

finally and forever established by the universal acknowledgment of all

fair men. No condemnation of the Military Commission could be so heavy,

and at the same time so indubitably final, as the simultaneous conviction

arrived at by all men, that if the son had been tried by such a tribunal

he would assuredly have been put to death, and that if the mother had been

reserved to calmer times and the tribunal guaranteed by the Constitution

to every man and woman, she would now have been living with her daughter,

instead of lying, strangled to death, beneath the pavement of a prison.

CHAPTER III.

THE RECOMMENDATION TO MERCY.

The worst was still behind.

It was left to Time to disclose the astounding fact, that all the military

machinery of the War Department, its Bureaus, its Court, its

Judge-Advocates, its unconstitutional, anti-constitutional and

extra-constitutional processes, would not have compassed the death of this

helpless woman, had not the prosecutors, in the last extremity, called in

the help of Fraud.

It has been narrated in the chronological order of events, how five

members of the Military Commission were, in all probability, beguiled into

the abdication of their own power of commutation and did, as matter of

fact, sign a paper "praying" the President, "if he could find it

consistent with his sense of duty to the country," to commute the death

sentence of Mrs. Surratt; how that the paper may have been carried to the

President by Judge Holt and have been present at the confidential

interview when the death warrant was composed; and how that Judge Holt, in

drafting the death warrant, went out of his way to so write it out, as in

fact, if not by design, to withdraw from the eye of the President, as he

signed it, this paper praying him to withhold his signature.

But it should be borne in mind that all this was shrouded in the deepest

secrecy. That there had been any hesitation among the members of the

Commission in fixing the sentence of Mrs. Surratt--any more than in the

cases of Herold, Atzerodt and Payne--much more that it had been found

necessary to resort to a petition to the President, was entirely unknown

to the public at large. As to what had taken place in the sessions of the

Court when the sentences were made up, every member thereof and the three

Judge-Advocates were sworn to secrecy; and, outside these officers, the

knowledge of the petition was confined to the Secretary of War (possibly

the Attorney-General) and one or two subordinates in the War Department.

The record of the findings and sentences, to which the petition was

attached, was kept from the official reporters, and not a soul outside a

close coterie in the War Department was allowed to set eyes on it.

In the recital of the death sentences in the order of the Adjutant-General

directing their execution, the sentence of the woman differed in no

respect from the three sentences of the men which preceded it. So far as

the public eye could discover, there was not a gleam of mercy for the

woman in the bosom of the Commission.

It is true, that even before the execution there were rumors that the

Court had united in a recommendation to mercy, and it was stated in the

newspapers of the 6th and 7th of July that five members of the Commission

had signed such a recommendation and the whole Court concurred in it. It

is also certain, that almost immediately after the execution the story

sprang up that the President had never been allowed to see the

recommendation which the Court had addressed to him.

But all these statements remained without corroboration from any authentic

source, and could not stand before the indubitable facts of the sentence,

its approval by the President, and its summary execution. The single

indication that in all these reports the paper is miscalled "a

recommendation to mercy" shows of itself that the real nature of the

secret was well kept.

In November, 1865, there appeared a volume compiled by Benn Pitman styled

"The Recorder to the Commission," claiming to be "An authentic record of

the trial of the assassins of the late President," to which was prefixed a

certificate "to its faithfulness and accuracy" by Colonel Burnett, who had

been assigned by Judge Holt to superintend the compilation and "made

responsible for its strict accuracy." This work, so authenticated, was on

its face intended by its compiler to be a complete history "for future use

and reference" of the proceedings of the Commission, from the order of

the President convening it to the approval of the President of its

findings and sentences. It had for frontispiece portraits of the

conspirators and a map of portions of Maryland and Virginia showing the

route of Booth, and for afterpiece a diagram of the stage of Ford's

theatre and a diagram of the streets in its vicinity. Beside matter

strictly of record, such as the testimony and the findings and sentences,

it included the arguments of all the counsel, the approval of the

President, the order changing the place of imprisonment from Albany to the

Dry Tortugas, the proceedings under the writ of habeas corpus in the case

of Mrs. Surratt; and (in the appendix) the opinion of Attorney-General

Speed; army instructions in ten sections; a proclamation of President

Lincoln; a poisonous affidavit of Weichman, inclosed in a letter to

Colonel Burnett; and an affidavit of Captain Dutton, who took Dr. Mudd to

the Dry Tortugas, giving the confessions the Captain swears the Doctor

made on the way, sent to General Holt in obedience to his request for such

information. Nevertheless, amid all this wealth of illustration, there is

not the faintest allusion to any such thing as a recommendation to mercy,

in the volume. On the one hand, Pittman may not have seen the paper. His

findings and sentences are obviously taken from the order of the

Adjutant-General, and not from the original record, as he puts them in the

same order, which is not the order of the record. But, if he never saw the

paper, it must have been purposely kept from his knowledge, and thus from

the knowledge of the public, by some person interested in its suppression.

And Colonel Burnett, who had himself attached the paper "at the end" of

the record, instead of certifying to the "faithfulness and accuracy" of a

compilation omitting it, ought rather to have insisted that so important

and interesting a document, about the existence of which so much talk had

arisen, be at last given to the world.

On the other hand, if Pitman knew of the paper, he certainly would not

have voluntarily left it out of his book for the reason, he himself felt

constrained afterwards to assign, that "it formed no part of the

proceedings, was not mentioned in open session;" since he had given room

to so much matter, not of record, solely for the purpose of adding

interest and completeness to his work, and this critical document could

add so much to the one and its absence detract so much from the other.

Moreover, in December, the report of the Judge-Advocate-General to the

Secretary of War appeared, in which the trial was reviewed, and to which

the report to the President, dated July 5th, 1865, was appended. But in

both the existence of the petition was ignored.

Whatever may have been the true inwardness of these significant omissions,

their inevitable effect was to convince the mass of the people of the

non-existence of a recommendation to mercy; and the petition of the five

officers might have reposed in silence in the secret archives of the War

Department, had it not been for the alienation of the President from the

party which had elected him, his gradual gravitation towards his own

section, and finally his revolt from the sway of Stanton. During this

period, the rumors that the Court had recommended Mrs. Surratt to the

clemency of the Executive and that the paper had never reached the

Executive, coupled with stories that from the close of the trial to the

hour of the execution the President had been kept under confinement and in

a state of semi-stupefaction by a band of reckless partisans who were

bound there should be no clemency, grew louder and louder. But they were

never traceable to any reliable source. In fact, the coolness which had

been for a long time growing between Andrew Johnson and Edwin M. Stanton

did not break out into an open rupture until as late as the month of

March, 1867. The other members of the Cabinet, which Johnson had inherited

from Lincoln, who disagreed with Johnson on the question of

Reconstruction, Harlan, Dennison and Speed, resigned, on account of that

disagreement, in the summer of 1866; but Stanton stayed on. When the

Tenure of Office bill was passed by the Congress in February, 1867, the

Secretary of War was still so much in accord with the President as to

unite with the other members of the reconstructed Cabinet in an emphatic

condemnation of the bill as unconstitutional, and to be asked by the

President to draft his veto message.

But, on the passage of that Act over the veto, Stanton, thinking his

tenure of office secure, at last threw off the double-faced mask he seems

to have worn in every Cabinet to which he ever had the honor to belong.

From that time he stood alone in the Cabinet, irreconcilable in his

hostility to every move of his Chief, in open league with his Chief's

active enemies, and determined to remain where he was not wanted and could

only act as a hindrance and a spy. In this perilous state of affairs, a

secret like that of the petition of the five officers burned towards

disclosure. Yet, so far as is at present ascertainable, no authoritative

affirmation of the existence of such a paper, on the one hand, and no

authoritative denial that it had been presented to the President, on the

other, had yet been made.

Upon such an arrangement of combustible material, the trial of John H.

Surratt acted like a spark of fire.

On the second day (June 11th, 1867), during the impanelling of the jury,

Mr. Pierrepont, the leading counsel for the United States, alluding to the

rumors then flying about, took occasion to predict that the Government on

that trial would set all these false stories at rest.

Among other things he said:

"It has likewise been circulated through all the public journals that

after the former convictions, when an effort was made to go to the

President for pardon, men active here at the seat of government

prevented any attempt being made or the President being even reached

for the purpose of seeing whether he would not exercise clemency;

whereas the truth, and the truth of the record which will be presented

in this court, is that all this matter was brought before the

President and presented to a full Cabinet meeting, where it was

thoroughly discussed; and after such discussion, condemnation and

execution received not only the sanction of the President but that of

every member of his Cabinet."

The testimony in the case closed, however, and the summing up began, and

there had been no attempt at a fulfillment of this prediction.

On Thursday afternoon, August 1st, Mr. Merrick, the junior counsel for the

prisoner, then nearing the close of his address, twitted the prosecution

with this breach of its promise in these words:

"Where is your record? Why didn't you bring it in? Did you find at the

end of the record a recommendation to mercy in the case of Mrs.

Surratt that the President never saw? You had the record here in

Court.

"Mr. Bradley: And offered it once and withdrew it?

"Mr. Merrick: Yes, sir; offered it and then withdrew it.

"Did you find anything at the close of it that you did not like? Why

didn't you put that record in evidence, and let us have it here?"

Stung by the necessity of making some answer to this defiant challenge,

Mr. Pierrepont on the moment sent for the record. And in response to the

summons, Judge-Advocate Holt, who naturally must have followed the

prosecution and trial with the most absorbing anxiety, on that very

afternoon brought the record "with his own hand," "with his own voice"

told its history, in the presence of "three gentlemen," to Mr. Pierrepont,

and then left the papers with him.

On the succeeding day, August 2nd, Mr. Bradley, the senior counsel of the

prisoner, renewed the attack:

"It was boastfully said in the opening of this case that they would

vindicate the conduct of the law officers of the Government engaged in

the conspiracy trials. They would produce Booth's diary; they would

show that the judgment of the court was submitted to the Cabinet and

fully approved; that no recommendation for mercy for Mrs.

Surratt--that no petition for pardon to the Government--had been

withheld from the President. Is it so?"

The next morning, Saturday, August 3d, Mr. Pierrepont began his address to

the jury. Having kept possession of the record since Thursday afternoon,

and having been made acquainted with its history by Judge-Advocate Holt in

such an impressive manner, he, thus, in his exordium, at last, redeemed

the promise of the prosecution:

"The counsel certainly knew when they were talking about that

tribunal" (_i. e._ the Military Commission), "and when they were thus

denouncing it, that President Johnson * * * ordered it with his own

hand, that President Johnson * * * signed the warrant that directed

the execution, that President Johnson * * * when that record was

presented to him, laid it before his Cabinet, and that every single

member voted to confirm the sentence, and that the President with his

own hand wrote his confirmation of it, and with his own hand signed

the warrant. I hold in my hand the original record, and no other man

as it appears from that paper ordered it. No other one touched this

paper, and when it was suggested by some of the members of the

Commission that in consequence of the age and the sex of Mrs. Surratt,

it might possibly be well to change her sentence to imprisonment for

life, he signed the warrant for her death with the paper right before

his eyes--and there it is (handing the paper to Mr. Merrick). My

friend can read it for himself."

This is the first appearance in public of the precious record. On

Wednesday, July 5th, 1865, Andrew Johnson put his name to the

death-warrant written on its back by Judge Holt. And, now, two years

after, emerging from its hiding-place, it is flung upon a table in a

court-room by the counsel for the United States.

Even now it seems to be destined to a most unsatisfactory publication. For

the counsel of the prisoner decline to look at it, because (as Mr. Merrick

subsequently explained), "he mistrusted whatever came from the

Judge-Advocate-General's office;" because it "had been carefully withheld

until all opportunity had passed for taking evidence in relation to it;"

and because the official report of the trial contained no recommendation

of mercy. The mysterious roll of paper, consequently, lies there unopened,

until Judge Holt comes to reclaim it that same afternoon; and that officer

is careful, when receiving it back, to repeat over again, before other

witnesses, the same history of the document, he had told before to the

counsel for the prosecution, and which that counsel had just retold to the

jury.

But that had been said and done which must blow away the atmosphere of

unwholesome secrecy which had so long enveloped this addendum to the

record. The explicit declaration of the counsel for the United States,

made in a crowded court-room on so celebrated a trial, with the "identical

paper" in his hand, that the President had laid the record before his

Cabinet and "every single member voted to confirm the sentence," and that

the President had signed the death-warrant with the "suggestion" of

commutation "right before his eyes," was immediately published far and

wide, and must have been read on Sunday, the 4th, or at latest on Monday,

the 5th, by the President himself. And the President was certainly

astounded. By a most singular providence, Judge Holt himself, in a letter

written to himself, at his request, by his chief clerk, and published by

him in 1873 for another purpose, has furnished independent proof that the

President was now for the first time startled into sending for the record.

Here is what Chief Clerk Wright says:

"On the 5th day of August, 1867, Mr. Stanton, the Secretary of War,

sent for me, and in the presence of General Grant asked me who was in

charge of the Bureau in your absence. I informed him Colonel Winthrop.

He requested I should send him over to him, which I did. The Colonel

returned and asked me for the findings and sentence of the conspiracy

trial, telling me he had to take it to the President. On taking the

portion of the record referred to from the bundle, I found, from the

frequent handling of it, several of the last leaves had torn loose

from the ribbon fastening, and to secure them I put the eyelet in one

corner of it."

The Judge-Advocate-General, though in court on Saturday getting back the

record and retelling its history, was absent, it would appear, from his

office on Monday, or was considered absent by Stanton, who it also appears

was still Secretary of War and in communication with Johnson. It was

thought best to employ a deputy to carry the papers to the President.

Holt, probably, had no stomach for another "confidential interview," with

the identical record in his hand.

Let Andrew Johnson himself tell what followed. The statement is from his

published reply to Holt in 1873, and was made with no reference to, and

apparently with no recollection of, the foregoing incidents of the John H.

Surratt trial:

"Having heard that the petition had been attached to the record, I

sent for the papers on the 5th day of August, 1867, with a view of

examining, for the first time, the recommendation in the case of Mrs.

Surratt.

"A careful scrutiny convinced me that it was not with the record when

submitted for my approval, and that I had neither before seen nor read

it."

It may have been only a coincidence, but on this very day, Monday, August

5th, 1867, and necessarily after the sending for the record, because that

was done through the Secretary of War, the following interesting missive

was dispatched by the President to that member of his Cabinet:

"Sir: Public considerations of a high character constrain me to say

that your resignation as Secretary of War will be accepted."

Stanton immediately replied:

"Public considerations of a high character constrain me not to resign

before the next meeting of Congress."

And, on the 12th, he was suspended from office.