As the prisoners filed into the courtroom, Pitman and his fe

... AND JUSTICE FOR ALL

BY

WILLIAM M. KUNSTLER

1963

OCEANA PUBLICATIONS, INC.

DOBBS FERRY, N. Y.

© Copyright, 1963, by William M. Kunstler

All Rights Reserved

Library of Congress Catalog Card Number 62-11115

Manufactured in the United States of America

To

Michael J. Kunstler

Introduction

Years ago, when I tried to enlist the services of the great defender

of the underdog, Clarence Darrow, against a free speech prosecution of

some midwestern radicals, he refused, not because of lack of sympathy

but, as he said, because it was hopeless. “You can’t get anybody off

in these radical cases,” he said. “Whenever I get a case with anything

radical in it I cut it out. I’m not taking any more of them. I am just

defending murderers and other respectable criminals; sometimes I can

get them off.”

What Darrow observed then is the theme of lawyer Kunstler’s selection

of cases where justice might have yielded to community passion and

prejudice. The cases are not exceptional: they are symptomatic. In

the First World War, passion against dissenters rose so high that, in

surveying the wreckage of the hundreds of federal prosecutions for

anti-war utterances, the then Chief Justice of the United State Supreme

Court, Charles Evans Hughes, was moved to wonder whether “American

democracy could survive another great war, however victoriously waged.”

Half of the ten dramatic court cases skillfully analyzed by lawyer

Kunstler for laymen are still for me vivid experiences in the struggles

of the American Civil Liberties Union for fair trials against fear

and prejudice. All but two of them occurred during the period of my

active association with the Union from 1920 on. In some the Union was

only indirectly involved; in others it directly took part, and in one,

the trial of Scopes for teaching the theory of evolution, the Union

initiated the prosecution and handled the defense.

This experience confirms the thesis underlying Mr. Kunstler’s selection

of a few of the hundreds of cases he could have cited to show how

difficult it is for juries and judges to rise above community fears to

deal justly and fairly with unpopular or hated defendants. In most of

the cases, “who you were, not what you did,” was on trial, what you

represented as a threat to majority prejudice or dominant powers, not

what you represented as a force of protest or progress with a claim on

equal justice.

It is an old story forever new, and the lesson of history needs

constant repetition for us in the United States in terms of our time.

It was just such community hostility that condemned Socrates before

the jury of Athenian citizens, and forced Pontius Pilate to turn over

Jesus of Nazareth to the jury of priests. The witches of Salem were

hung in a fury of community condemnation, with the blessing of clergy

and officials. In our times, Mr. Kunstler could have brought to witness

the hundreds of cases against members of the Industrial Workers of the

World before and after World War I, condemned even before they were

tried as destroyers of property and enemies of government. Or coming up

to date, he could have cited dozens of prosecutions of Communists in

which conviction was a foregone conclusion, whatever the charge.

His selection omits these cases in favor of more dramatic and

better-known trials illustrating a larger variety of intolerances,

racial, religious and political. Only four of the ten involve political

radicals,--three of them the casualties of cold war fears for national

security. All the defendants are long since dead or freed, with

the sole exception of Morton Sobell, convicted with the executed

Rosenbergs, now serving a savage thirty-year sentence. The stories are

therefore history in the dark chapter of dubious trials, with no call

to present action.

What lessons can be learned from the record? Mr. Kunstler offers a few

in his preface. I would add one or two of my own.

The emphasis on due process of law as the basic guarantee of our

liberties, so often voiced by courts and lawyers, and reasonably

true in ordinary trials, is secondary where prejudice prevails. And

prejudice is not confined to the fears of war-time, hot or cold, or to

the racial conflicts dramatized by a case nationally or internationally

famous, as most of these in this book were, but it exists in our

courts every day all over the country. What Negro can be assured that

he will get equal justice with a white man for the same offense? What

Mexican-American in the Southwest? What Puerto Rican in our eastern

cities? Is justice as equal in any court for the non-conformist and

unpopular as for the regulars?

If our juries and judges are to approach the goal of even-handed

justice, we need the restraints, as Mr. Kunstler suggests, of fewer

trials by newspapers, more searching screening of juries, more resolute

and independent judges, and public defenders, competent to counteract

prejudice, for indigent defendants. I would not tamper with the jury

system, imperfect as it is in rising above community prejudice; but

skilled defense lawyers always know, when there is a choice, whether a

judge or a jury is likely to assure a fairer trial.

Not all the cases Mr. Kunstler presents came out badly. Some had

salutary effects, even striking. The impact of the Tennessee evolution

case was so profound that, although anti-evolution laws were not

repealed, they were nullified in practice. The resistance to the

McCarthy inquisition, set forth in the Lamont case, combined with the

Senator’s own excess of zeal, destroyed him as a political demagogue

though the prejudice and fears he aroused continue, greatly diminished,

under cold war pressures. The recent school prayer decision will

doubtless do much to clarify the delicate relationship between church

and state.

The short-range good won from the evils of most of these trials may

be matched by their long-range effects if the lesson Mr. Kunstler

impresses on us is learned in the administration of justice. But it is

a hard task to guard against the prejudices and fears of an aroused

community, as all history shows, and yet one which must be achieved if

our professions of justice are to be vindicated.

ROGER N. BALDWIN

_Founder of the American Civil

Liberties Union_

New York, N. Y.

October 9, 1962

Preface

In 1953, Professor Edmund M. Morgan, of Vanderbilt University’s School

of Law, in his introduction to a reprint of Felix Frankfurter’s _The

Case of Sacco and Vanzetti_, wrote: “In times when the opinion of the

community is shot through and through with deep-seated prejudices

concerning race, social class, economic theories or political

ideologies, a case in which either the issues or the parties involved

touch these prejudices, arouses passions which becloud judgment and

make impossible a fair consideration of the evidence.” Like Professor

Morgan, I have always felt that “the fixed preconceptions of the

community” can, in too many instances, contribute more to the outcome

of criminal trials than the quantity or quality of the evidence. It was

with this uncomfortable thought in mind that this book was conceived

and written.

I do not claim that all the cases which appear in this collection bear

out the truth of Morgan’s observation. But they do illustrate some of

the difficulties that confront a defendant who is being tried in an

environment that is, to say the least, hostile to him or his cause.

This does not mean, of course, that his chance of a fair trial are

hopeless. But it goes without saying that he must struggle against

greater odds than those faced by others accused of crime who are more

acceptable to the community.

Leo Frank, for example, was an outsider and a Jew charged with a

particularly heinous crime. As the judge who presided at his trial so

aptly put it, “If Christ and his angels came down here and showed this

jury Frank was innocent, it would bring him in guilty.” The Scottsboro

boys were southern Negroes accused of raping two white women. The fact

that the complaining witnesses were tramps, the defendants young boys,

and the evidence far from convincing, did not deter three successive

juries from imposing the death penalty. Sacco and Vanzetti were

immigrant Italians whose anarchistic views had made them anathema to a

society which sought its salvation in Attorney General Mitchell Palmer

and his pre-dawn raids. Mary Surratt, Alger Hiss, the Rosenbergs and

Corliss Lamont were, in one way or another, enemies of the state, Tom

Mooney an obstreperous labor agitator in an era of anti-unionism, John

Thomas Scopes a threat to the Bible, and the five petitioners in the

recent Herricks school prayer case against God.

In all but three of these cases (Mary Surratt was tried by a military

commission, Corliss Lamont’s fate decided by a solitary judge and the

school prayer petitioners were limited to a single-judge court) the

defendants faced juries which were prepared to believe the worst of

them before their trials began. Mrs. Surratt was judged by nine army

officers wholly subservient to a vindictive, autocratic Secretary

of War, and Dr. Lamont, although he was spared a jury trial by the

dismissal of the indictment against him, would undoubtedy have been

confronted by a panel not overly favorable to an acknowledged leftist

who had defied a congressional investigating committee. But, whatever

the mode of trial, or type of tribunal involved, the fundamental fact

remains that all the pariahs had to run the gamut of a hostile climate

of opinion which militated strongly against their chances of success.

The dilemma of the unpopular defendant (or plaintiff) has caused

grave concern to those interested in the just administration of the

law. Many solutions have been suggested. Some have urged that, as

in Great Britain, the news media be forbidden to report any but the

most rudimentary details of pending civil or criminal cases. Others

have proposed that more frequent changes of venue be granted by the

courts. Still others have questioned the validity of the jury system

itself. It is my hope that the cases in this volume will illustrate the

gravity of the situation and provoke some fruitful discussion of the

problem. As Prof. Morgan points out, “the administration of justice,

particularly in times of crisis, is one of the most important functions

of government.” It deserves the immediate attention of us all.

WILLIAM M. KUNSTLER

New York, N. Y.

September 15, 1962

“I PLEDGE ALLEGIANCE TO THE FLAG OF

THE UNITED STATES OF AMERICA AND TO

THE REPUBLIC FOR WHICH IT STANDS, ONE

NATION UNDER GOD, INDIVISIBLE WITH

LIBERTY AND JUSTICE FOR ALL.”

PLEDGE OF ALLEGIANCE TO THE FLAG

Table of Contents

INTRODUCTION VII

PREFACE XI

_1. She Helped to Kill a President_ 1

UNITED STATES V. SURRATT

_2. Atlanta’s Northern Jew_ 24

GEORGIA V. FRANK

_3. In Union There is Death_ 37

CALIFORNIA V. MOONEY

_4. Anarchists With Bloody Hands_ 65

MASSACHUSETTS V. SACCO AND VANZETTI

_5. He Defied the Bible_ 102

TENNESSEE V. SCOPES

_6. Their Skin was Black_ 120

ALABAMA V. PATTERSON

_7. A Traitor from Harvard_ 137

UNITED STATES V. HISS

_8. They Gave the Bomb to Russia_ 170

UNITED STATES V. ROSENBERG

_9. Contempt by Silence_ 194

UNITED STATES V. LAMONT

_10. Five Against God_ 210

ENGEL V. VITALE

BIBLIOGRAPHY 230

INDEX 232

1

_She Helped to Kill a President_

The United States

_versus_

Mary Eugenia Jenkins Surratt

A few minutes after eight o’clock on the morning of Palm Sunday, April

9, 1865, Robert E. Lee sat down at a field table and wrote a note to

General Grant, requesting an interview “with reference to the surrender

of this army.” That afternoon, at the McLean farmhouse on the edge of

Appomattox village, the fifty-eight-year-old Lee turned over the Army

of Northern Virginia to its embarrassed conqueror. The brief surrender

document was written out in pencil by Grant at a table in the McLean

living room and corrected by Lee who, resplendent in dress uniform sat

across the room from the somewhat disheveled Union commander. At 3:45

p.m., the Confederate general signed his acceptance of Grant’s rather

generous terms and went out to explain to his incredulous troops what

he had done.

Even though Joe Johnston and Kirby Smith were still at large in the

deep South, the Civil War was all but over. Two days after Appomattox,

Grant and his wife arrived in Washington where the general was promptly

lionized by a city gone wild after more than four nerve-wracking years

of being a front line capital. In honor of the couple, Mrs. Lincoln

had done her part by inviting them to a theatre party at Ford’s Opera

House on the evening of Good Friday, April 14th. _Our American Cousin_,

a new comedy with the incomparable Laura Keene, had been playing to

enthusiastic audiences throughout the North and, although the President

wasn’t particularly overjoyed at the prospect of sitting through

a late-evening play, he knew better than to obstruct Mary’s plans.

However, at the last moment the Grants begged off, primarily because

the general had little stomach for what he termed “show business.”

At nine o’clock on Good Friday evening, coachman Francis Burns stopped

the White House carriage in front of Ford’s between E and F on Tenth

Street. Outside of the Lincolns, his only other passengers were Major

Henry Reed Rathbone and Clara Harris, an engaged couple who were

filling in for the Grants. When the quartet entered the Presidential

box, Major Rathbone and Miss Harris took the two seats nearest the

stage with their hosts sitting behind them. Lincoln sprawled in a

haircloth rocking chair directly in front of a door that opened on a

narrow hallway. Sometime during the afternoon, a small hole had been

bored in the door, through which it was possible to observe the box’s

occupants from the corridor.

Shortly after the Lincoln party had entered the box, John F. Parker, a

perennially thirsty patrolman who had been assigned by the Metropolitan

Police to guard the President, decided to leave his post in the hallway

and look for a nearby bar. At 10:15, just as, on stage, Harry Hawk was

referring to Mrs. Mountchessington as “you sockdologizing old mantrap,”

actor John Wilkes Booth opened the now unguarded door and put a bullet

into the head of the dozing man in the rocker. The rest was for the

chroniclers--the leap to the stage, the broken shinbone, the mad dash

across the Navy Yard Bridge, the frenzied manhunt through the woods and

swamps of Northern Virginia, and the end of the trail in a burning barn

on Garrett’s farm just south of Port Royal.

The self-styled avenger, who believed that “God ... made me the

instrument of his punishment,” was destined to die just before sunrise

on April 26th on the front porch of a Virginia tobacco farm. The cause

of death--a bullet wound in the neck. Whether Booth shot himself, as

Colonel Everton Conger, the leader of the cavalry patrol which had run

him to earth, believed, or was killed by fanatical Sergeant Boston

Corbett who claimed that God had been looking over his shoulder when

he squeezed the trigger, didn’t change the essential fact that the

assassin was as dead as he was ever going to be. The troopers who

searched his body found a small diary and the daguerrotypes of five

women in his pockets.

Seconds after Booth’s one-shot derringer had earned him a sizeable

place in the history books, a wild-eyed young man on a bay horse

pulled up in front of Secretary of State William H. Seward’s mansion

on Lafayette Square. Pretending to be a messenger sent by Seward’s

physician, he broke into the Secretary’s bedroom where he stabbed him

three times. Only a steel frame which the victim had been wearing to

support a fractured jaw saved him from death. The intruder then fought

his way out of the house, seriously wounding four other people in the

process, and rode off toward the east.

Meanwhile, four Pennsylvania artillerymen carried the President’s

unconscious form across Tenth Street to William Peterson’s house. There

he was placed on a walnut cot in the first floor bedroom of William

Clark, one of Peterson’s boarders. He lingered during the night, but it

was soon obvious to the six physicians in the room, who could do little

more than remove the pressure-causing blood clots that continuously

formed at the entrance to the wound, that their illustrious patient

would never see another day. By dawn, his breath had become stertorous

and labored and, at 7:22 a.m., Surgeon-General Joseph K. Barnes,

recorded the last heartbeat. “Now,” Secretary of War Edwin M. Stanton

was supposed to have said, as he closed the dead man’s eyes, “he

belongs to the ages.”

Some four hours earlier, a Metropolitan Police squad, headed by a

detective named Clarvoe, had arrived at a small boardinghouse at 541

H Street, which was owned by one Mary Eugenia Surratt, a widow who

had come to Washington from Surrattville, Maryland, in the Spring of

’64. They were looking for Mrs. Surratt’s son, John, who, Clarvoe told

her, had just murdered Secretary Seward. When Mrs. Surratt informed

them that John had left for Canada when Richmond fell on April 3rd,

the squad searched the eight-room brick building from cellar to attic.

After ordering Louis J. Weichmann, one of Mrs. Surratt’s borders, to

report to headquarters the next morning, the policemen left the house.

As soon as Lincoln died, Stanton, to whom one cause was as good as

another so long as he remained _primus motor_, announced that he

would not rest until he had found and prosecuted everybody who had

anything to do with what his reward circulars referred to as “the stain

of innocent blood.” Booth and David E. Herold, a slow-witted youth

whose only redeeming feature was his devotion to the actor, had been

identified as soon as they fled across the Navy Yard Bridge, minutes

after the murder. Herold had been captured by Colonel Conger’s cavalry

patrol just before it set fire to the barn in which the two men were

hiding.

By that time, Stanton had rounded up seven other persons whom he

accused of conspiring to kill the President. There was Lewis Payne,

a Confederate deserter and the son of a Florida minister, who had

created the havoc at the Seward house. Payne and George A. Atzerodt, a

carriage-maker from Port Tobacco, had both boarded at Mrs. Surratt’s

prior to the assassination. Atzerodt, who, with Herold’s help, was

supposed to kill Vice-President Andrew Johnson at the Kirkwood House,

had lost his nerve and spent the night of April 14th wandering

aimlessly around the streets of Washington. He was finally captured on

April 20th at his cousin’s farm in nearby Germantown. Payne was picked

up when he showed up at the H Street boardinghouse at midnight on April

17th, with his head wrapped in a bloody shirtsleeve, just as Major H.

W. Smith was in the process of arresting Mrs. Surratt.

Edward Spangler, the cantankerous stage carpenter at Ford’s had held

Booth’s horse while the actor was about his murderous business in the

President’s box. Samuel Arnold and Michael O’Laughlin, both of whom

had known Booth since childhood, had been persuaded by him to help out

in an abortive 1864 scheme to abduct Lincoln and hold him a hostage

until the North came to terms with the Confederacy. After almost a

year of fruitless discussions with Booth about ways and means, both

men had withdrawn from the project. On the night of the President’s

murder, O’Laughlin had been on a drinking bout in Washington with three

friends while Arnold was working for a sutler at Fortress Monroe near

Baltimore. Lastly, there was Dr. Samuel A. Mudd, the Maryland physician

who had set the murderer’s broken leg the morning after the shooting.

By the end of April, Stanton had everybody he wanted. Herold was

brought back to Washington on the same steamboat as his master’s

blanket-wrapped corpse, and incarcerated with the other prisoners in

the brigs of some gunboats moored near the Navy Yard. All that remained

was the selection of a court. The Secretary of War was determined not

to let his prizes enjoy the benefits of a civil trial and urged the

new President to appoint a military commission to try them. Johnson

agreed and, on May 1st, named a commission composed of seven generals

and two colonels “for the trial of David E. Herold, George A. Atzerodt,

Lewis Payne, Michael O’Laughlin, Edward Spangler, Samuel Arnold,

Mary E. Surratt, Samuel A. Mudd ... implicated in the murder of the

late President, Abraham Lincoln, and the attempted assassination of

William H. Seward, Secretary of State, and in an alleged conspiracy

to assassinate other officers of the Federal Government at Washington

City.” The main charge--“maliciously, unlawfully, and traitorously

murdering the said Abraham Lincoln, then President of the United States

and Commander-in-Chief of the Army and Navy of the United States.”

As far as Mrs. Surratt was concerned, Brigadier-General Joseph Holt,

the Judge Advocate General, didn’t mince words. She did, he said,

“receive, entertain, harbor and conceal, aid and assist, the said John

Wilkes Booth, David E. Herold, Lewis Payne, John H. Surratt, Michael

O’Laughlin, George A. Atzerodt, Samuel Arnold and their confederates,

with the knowledge of the murderous and traitorous conspiracy ... with

intent to aid, abet and assist them in the execution thereof, and in

escaping from justice after the murder of the said Abraham Lincoln, as

aforesaid.” On March 10th, Mrs. Surratt and the seven other defendants

pleaded, “Not Guilty.”

Their trial, which began officially at ten a.m. on May 10th, was held

in a large room on the third floor of the Old Penitentiary. Several

days earlier, the defendants had been transferred from their nautical

prisons to cells in the same building where they were kept in solitary

confinement. Even their guards were forbidden by Stanton to utter a

word to them. Shortly after their arrival at the Penitentiary, the male

prisoners’ heads were encased in heavy canvas sacks which were slit in

the vicinity of their mouths. Payne’s attempted suicide by butting his

head against his cell’s stone wall had alerted the Secretary of War to

the possibility that some of his birds might succeed in beating their

brains out before he could properly hang them. When General Hartranft,

the Special Provost Marshal assigned to the commission, suggested the

hoods, Stanton was quick to order them.

The trial had been scheduled to get underway on Tuesday, May 9th, but

since the defendants all asked for time in which to find lawyers,

General David Hunter, the President of the Commission, postponed

it twenty-four hours. The next morning, Mrs. Surratt applied for

permission, as Benn Pitman, the chief court stenographer recorded it,

“to introduce Frederick Aiken, Esq. and John W. Clampitt, Esq., as

her counsel, which applications were granted.” Dr. Mudd was the only

other defendant to have drummed up a lawyer, and Hunter adjourned the

Commission to the next day “to allow further time for the accused to

secure the attendance of counsel.”

Aiken and Clampitt were two young attorneys who volunteered their

services in Mary Eugenia’s behalf. Neither had had much experience in

criminal trials and they were only too happy to welcome the assistance

of Reverdy Johnson, the United States Senator from Maryland, who felt

that the least he could do for an old constituent was to help her

defend her life. On Saturday, his co-counsels introduced him to the

Commission, only to find that one member--Brigadier-General T. M.

Harris--objected to Johnson because he had publicly questioned the

legality of the loyalty oath of 1862. When the Senator informed the

Commission that he had merely expressed his opinion that the Maryland

Constitutional Convention of 1864 did not have the authority to make

the taking of such an oath a condition of voting on the new charter,

Harris withdrew his objection.

As the prisoners filed into the courtroom, Pitman and his fellow

reporters noticed that all except Mrs. Surratt and Dr. Mudd wore

ten-inch manacle bars which prevented them from bringing their hands

together. Mudd sported ordinary handcuffs while the feet of all the

male defendants were shackled together with chains. With Atzerodt and

the half-mad Payne, Stanton had taken the additional precaution of

welding heavy weights to their steel anklets which made it impossible

for them to walk without help from their guards.

The courtroom itself was a dimly lit room with only four small windows

to illuminate its more than twelve hundred square feet. The prisoners’

dock consisted of a railed-off raised platform at the far end of the

room. The defendants were separated from each other by blue-clad

guards who sat between them. Mrs. Surratt’s seat was the last chair

on the right side of the platform, just a few feet away from the door

through which prisoners were brought from their cells every morning at

precisely nine o’clock. There were two small field tables directly in

front of the makeshift dock around which the seven defense attorneys

sat. In the middle of the chamber were two long conference tables, one

of which was occupied by the members of the Commission, with the other

reserved for the official reporters. The witness stand was located

in dead center between two of the three pillars that supported the

room’s eleven-foot ceiling. The walls had been freshly white-washed and

cocoa-nut matting had been spread over the stone floor.

As soon as all the defendants were represented by counsel, they were

given permission to withdraw their “Not Guilty” pleas and attack the

Commission’s jurisdiction. Each prisoner took the position that, since

they were all civilians and there were appropriate Washington civil

courts available to try them, the Military Commission did not have

any power over them. The Judge Advocate answered this by claiming

unequivocally that “this Commission has jurisdiction in the premises.”

Hunter, who was very much Stanton’s man, went through the formality of

clearing the courtroom, and then announced that the prisoners’ pleas

were over-ruled. After a motion for separate trials had suffered the

same fate, all of the defendants then reaffirmed their innocence.

As it put in its case against the eight defendants, the prosecution

digressed for hours attempting to prove that Jefferson Davis and the

other Confederate leaders had been responsible for Lincoln’s murder. In

fact, Holt and his aides were determined to show that the assassination

plot had been connected with Southern guerilla warfare in New York

and Vermont as well as with the maltreatment of Union captives at

Andersonville and other rebel prisons. Although, the evidence hardly

supported their grandiose thesis, they succeeded in creating an

illusion that the prisoners in the dock were part of a gigantic plot in

which the President’s death was only one of many factors.

Late on the afternoon of May 13th, the Provost Marshal escorted Lou

Weichmann to the tri-railed witness stand. Weichmann stated that he

had first met John Surratt in the Fall of 1859 at St. Charles College

in Maryland. Because of this friendship, he had moved to the H Street

boarding house on November 1, 1864. He remembered that his landlady had

requested him to visit John Wilkes Booth at the National Hotel twelve

days before the President’s murder “and say that she wished to see him

on ‘private business’.” Later that same evening, Booth had come to the

house and closeted himself with Mrs. Surratt for more than an hour.

On April 11th, Mrs. Surratt had asked her boarder to see whether the

actor would lend her his buggy for a trip to Surrattsville, which was

some ten miles southeast of the capital. Booth informed Weichmann that

he had just sold his vehicle, but gave him ten dollars “that I might

hire one.” Weichmann had rented a surrey at Howard’s Stables and then

driven Mrs. Surratt to Surrattsville “for the purpose of seeing Mr.

Nothey, who owed her some money.” The couple had returned to Washington

late that afternoon.

After lunch on Good Friday, Mrs. Surratt had again asked Weichmann to

drive her into the country because, she told him, she had received a

letter “in regard to that money Mr. Nothey owed her.” She had given

him a ten-dollar bill with which to hire another rig. “We took with us

only two packages; one was a package of papers about her property at

Surrattsville; and another package done up in paper, about six inches,

I should think in diameter. It looked to me like perhaps two or three

saucers wrapped up. This package was deposited in the bottom of the

buggy and taken out by Mrs. Surratt when we arrived at Surrattsville.”

As soon as they reached Lloyd’s tavern at 4:30, Lou had headed for the

taproom while his passenger went into the parlor. When he called for

her at six o’clock, he had noticed that Booth was with her and that the

two were in deep conversation.

Before John Surratt left Washington early in April, Booth had been a

frequent visitor at 541 H Street. Whenever he called, he had always

asked for young Surratt or his mother. “Sometimes,” Weichmann recalled,

“when engaged in general conversations, Booth would say, ‘John, can

you go upstairs and spare me a word?’ They would then go upstairs and

engage in private conversation which would sometime last two or three

hours. The same thing would sometimes occur with Mrs. Surratt.”

The witness had first seen Lewis Payne at the boardinghouse early in

March. The defendant, who had been introduced to Weichmann as Wood,

had arrived with no luggage and remained overnight. The next morning,

Payne had taken the early train to Baltimore. He had returned three

weeks later, this time dressed as a Baptist preacher, and said that

he had just finished a seven-day term in a Baltimore prison but that

the experience had taught him a lesson. “He had taken the oath of

allegiance, and was now going to become a good and loyal citizen.”

From the first time he saw Payne, he was convinced that the latter

was up to no good. One day, he had found a black false mustache “of

medium size” on the table in his room. “When I found it, I thought it

rather queer that a Baptist preacher should use a mustache. I took it

and locked it up because I did not care to have a false mustache lying

round on my table.” Later, he used to entertain his fellow clerks in

the office of the Commissary-General of Prisoners with “a pair of

spectacles and the mustache.”

One evening, he had returned to the house to find Payne and Johnny

Surratt “playing with bowie knives” in his room. He also saw two

Navy revolvers and four sets of new spurs on the bed. Just after the

assassination, the Metropolitan Police had found one of these spurs in

Atzerodt’s room at the Kirkwood House. Weichmann had seen Atzerodt,

whom the ladies at Mrs. Surratt’s called Port Tobacco, “at the house,

ten or fifteen times.” Like Booth, the carriage-maker had always asked

for John Surratt or his mother.

Although Weichmann had never seen Arnold or McLaughlin before, he

had met Dr. Mudd walking with Booth on Seventh Street on January 15,

1865. The actor had invited him to join them for a glass of wine in

his room at the National. There, Booth and Mudd had had a private

conversation in the hallway, a discussion which Weichmann was told had

to do with the contemplated purchase of the physician’s farm by Booth.

“Dr. Mudd apologized to me for his private conversation and stated

... that Booth wished to purchase his farm, but that he did not care

about selling it, as Booth was not willing to give him enough.” It was

after this meeting, that Booth had begun to show up frequently at the

boardinghouse.

Herold had been at H Street once. But Weichmann had also seen him

at Surrattsville in the summer of 1863. The only other time that

he had met him was in March of ’65 when Booth, who was playing the

part of Pescara in _The Apostate_, had given Surratt and himself two

complimentary tickets. On the way to the theatre, the two young men had

met Atzerodt and Herold, who were also going to the play. After the

final curtain, the witness “found Atzerodt and Herold in the restaurant

adjoining the theatre, talking very confidentially to Booth.” When the

Judge Advocate asked him to identify Herold, Weichmann pointed to the

defendant. Benn Pitman, using his brother’s new shorthand system, noted

that Herold “smiled and nodded in recognition.”

Senator Johnson took over the brunt of the cross-examination. Weichmann

admitted that Mrs. Surratt, whom he had met through her son, was

a “member of the Catholic Church and a regular attendant upon its

services.” In fact, he had usually accompanied her to church on Sunday

mornings. Yes, he was on friendly terms with her son, John, who

had never intimated to him that there was a plot afoot to kill the

President. The only thing young Surratt had told him about Booth was

that he hoped to go on the stage with him in Richmond after the war.

No, there was nothing suspicious about Mrs. Surratt’s April 11th visit

to Surrattsville. A John Nothey had owed her $479.00 for more than

thirteen years and she had decided to see him personally about it. She

had met Nothey early that afternoon in the parlor of a tavern she had

leased to a retired Washington policeman by the name of John M. Lloyd,

for fifty dollars a month, just before she moved to the H Street house

in the Spring of ’64. Her second visit, three days later, had been

motivated by a letter she had received from George H. Calvert, Jr.,

“urging the settlement of the claim of my late father’s estate.” When

her husband died in 1862, he had still owed Calvert Senior part of the

purchase price of the Maryland property.

When Johnson sat down, young Clampitt took over. He wanted to know

whether Weichmann had heard Booth or Mudd discuss anything subversive

when he saw them at the National Hotel in January. The witness had not.

As for the ten dollars which Booth had given him to hire a buggy for

Mrs. Surratt, “I thought at the time that it was nothing more than an

act of friendship. I said to Booth, ‘I am come with an order for that

buggy that Mrs. Surratt asked you for last evening.’ He said, ‘I have

sold my buggy, but here are ten dollars, and you go and hire one.’”

No, he had never told Mary Eugenia about that. A few minutes later, he

told Aiken that he had written a letter for his landlady to Mr. Nothey,

threatening him with a law suit if he did not pay what he owed her at

once. He remembered that he had helped her to calculate the interest on

“the sum of $479 for thirteen years.”

When Weichmann stepped down late in the afternoon, Hunter adjourned for

the day. Since the next day--May 14th--was a Sunday, the commission did

not reconvene until the fifteenth. The first witness called on Monday

was Mrs. Surratt’s tenant, John M. Lloyd. He recalled that Herold,

Atzerodt and John Surratt had come to his house some five or six weeks

before the assassination. They had brought with them “two carbines with

ammunition ... a rope from sixteen to twenty feet in length, and a

monkey wrench.” Surratt had asked him to hide these articles and even

showed him a secret hiding place “underneath the joists of the second

floor of the main buildings.” On April 11th, he had met Mrs. Surratt on

the road at Uniontown. “When she first broached the subject to me about

the articles at my place, I did not know what she had reference to.

Then she came out plainer, and asked me about the ‘shooting irons.’...

Her language was indistinct, as if she wanted to draw my attention

to something, so no one else would understand. Finally, she came out

bolder with it, and said that they would be wanted soon.”

Three days later, when he returned from watching a trial in Marlboro,

he had found Mrs. Surratt in his backyard. “She met me by the wood-pile

as I drove in with some fish and oysters in my buggy. She told me to

have those shooting irons ready that night, there would be some parties

who would call for them. She gave me something wrapped in a piece of

paper which I took upstairs, and found to be a fieldglass. She told me

to get two bottles of whiskey ready, and that these things were to be

called for that night.”

At midnight, Herold had woken him up and said, “Lloyd for God’s sake,

make haste and get those things.” The tavern owner had immediately gone

to the place where he had hidden the carbines and given them to Herold.

For some reason, he did not turn over the rope and the monkey wrench.

Herold had taken the bottle of whiskey which Lloyd gave him and offered

it to a man who was sitting on a light-colored horse in front of the

tavern. In the bright moonlight, the tavern keeper had watched this

man, who “was a stranger to me,” put the bottle to his lips and drink

deeply. The two men had stayed for only five minutes before riding off

in the direction of Tee Bee, a hamlet a few miles to the south. Just as

they were about to leave, the man who was with Herold had said, “I will

tell you some news, if you want to hear it. I am pretty certain that

we have assassinated the President and Secretary Seward.” As they rode

off, only Herold took a carbine with him. The other man “said he could

not take his because his leg was broken.”

Whether it was the unseasonably hot weather or a monumental case of

stage fright, Lloyd had wilted fast as the long morning wore on. By

the time the prosecution let him go, he was on the verge of collapse.

As Colonel John A. Bingham, Holt’s chief assistant, put him through

his paces, the ex-policeman’s back country drawl frequently became so

low that even the members of the Commission who were sitting directly

in front of him had difficulty in hearing him. Both Aiken and Clampitt

were constantly imploring Hunter to instruct the whispering witness

to raise his voice, requests that the presiding officer consistently

ignored.

On cross-examination, Aiken couldn’t shake Lloyd’s story. But he did

get him to admit that there might have been a witness present at the

April 14th conversation with Mrs. Surratt about the “shooting irons.”

Q. Are you positive again that Mrs. Surratt told you at that time that

the shooting irons would be called for that night?

A. I am very positive.

Q. Was there any other persons present during the interview?

A. Mrs. Offutt, my sister-in-law, was, I believe, in the yard; but

whether she heard the conversation or not I do not know.

But he couldn’t remember whether or not he had told “these

circumstances” to Mrs. Offutt.

As for the package which Mrs. Surratt had brought to the tavern with

her on Tuesday, the 11th, he had taken it upstairs at once.

Q. Did you undo it immediately when you got upstairs?

A. As soon as I got upstairs, I saw what it was.

Q. Did you lay the package down and leave it anywhere before you went

upstairs?

A. No, sir.

He was sure that he had told Mrs. Offutt, shortly after Mrs. Surratt

had started back to Washington, “that it was a fieldglass she had

brought.”

He had gone to bed early on Good Friday because “I was right smart

in liquor that afternoon and after night I got more so.” He had been

sleeping soundly when Booth and Herold arrived. As soon as they had

ridden off, Lloyd went back to bed. When he awoke the next morning,

his yard was being picked over by Union soldiers who had traced Booth

and Herold there. He was asked whether he “had seen two men pass that

way in the morning.” He had replied that he had not. “That is the only

thing I blame myself,” he remorsefully told the Commission. “If I had

given the information they asked of me, I should have been perfectly

easy regarding it. That is the only thing I am sorry I did not do.” In

fact, it was not until the middle of the next week that he had decided

to tell Captain George Cottingham, who had locked him in Roby’s Post

Office in Surrattsville for safekeeping, that Booth and Herold had been

at the tavern at midnight on April 14th.

As Lloyd rushed out of the hearing room, obviously destined for the

first bar he could find, Holt recalled Weichmann. Outside of some

elaboration of his previous testimony about the strange goings-on at

chez Surratt, he contributed nothing further to the case against Mary

Eugenia. He conceded that he had not heard the conversation between

his landlady and Lloyd at Uniontown. It seemed that “Mrs. Surratt

leaned sideways in the buggy and whispered, as it were, in Mr. Lloyd’s

ear.” When Aiken asked him why he hadn’t told somebody about the

suspicious circumstances at the house on H Street, he insisted that

“my suspicions were not of a fixed or definite character.” Besides,

when he had tried to tell Captain Gleason of the War Department about

some peculiar remarks he had heard Booth utter about kidnapping the

President, the officer had “laughed and hooted at the idea.”

After Lloyd was brought back to explain that he now wasn’t sure where

he had taken the package which Mrs. Surratt had brought to the tavern

on Friday, April 14th, Emma Offutt took the stand. She had been in

the carriage with Lloyd when they had met Mrs. Surratt near Uniontown

three days before the assassination. No, she hadn’t heard a word of the

conversation because her brother-in-law had gotten out of the buggy

to talk to Mrs. Surratt and “I was some distance off.” As far as Good

Friday was concerned, she hadn’t heard anything that was said between

Lloyd and Mary Eugenia in the tavern’s backyard. Mrs. Offutt had spoken

to Mrs. Surratt shortly after the latter’s arrival that afternoon but

she “gave me no charge in reference to her business, only concerning

her farm, and she gave me no packages.”

Major H. W. Smith had been in charge of the troops who had arrested

Mrs. Surratt on the night of April 17th. “While we were there, Payne

came to the house. I questioned him in regard to his occupation, and

what business he had at the house that time of night. He stated that

he was a laborer, and had come there to dig a gutter at the request of

Mrs. Surratt.” Major Smith had asked Mrs. Surratt, who was sitting in

the parlor, whether she had hired Payne. She had stepped out into the

vestibule and, from a distance of three feet, taken a long look at the

man. “Before God, sir,” she had told Smith, “I do not know this man,

and have never seen him, and I did not hire him to dig a gutter for me.”

When Holt showed the witness a brown and white coat, he promptly

identified it as the coat that Payne had been wearing that April night.

Ten minutes later, when William E. Doster, Payne’s attorney, asked

him whether he was sure that the brown and white coat had been worn

by the defendant, he repeated that “I am certain that this is the

coat.” Seconds after the words had left his mouth, Major Smith was

busy eating them. Doster shoved a drab-gray coat under his nose and

asked him whether he didn’t want to change his mind. He did. “The coat

now shown me is the one worn by Payne on the night of his arrest,” he

conceded. It was very difficult, he explained, in the poor light of

Mrs. Surratt’s vestibule to tell one coat from another. But now he was

certain that “the coat just shown me is the one.”

Both Smith and R. C. Morgan, who had been sent to H Street to

superintend “the seizing of papers”, had found photographs of such

Confederate leaders as Beauregard, Jefferson Davis and Alexander H.

Stephens. Lieutenant John W. Dempsey, the officer in charge of the

search party, had turned up a rotogravure of John Wilkes Booth hidden

behind a small framed lithograph entitled _Morning, Noon and Night_

which hung in Mrs. Surratt’s first floor bedroom. But Captain W. M.

Wermerskirch, Smith’s executive officer, swore that he had also seen a

photograph of Union General George McClellan in the parlor.

Weichmann had testified that the H Street boardinghouse had been a

beehive of activity during March and early April of ’65. On May 22nd,

Holt called Honora Fitzpatrick, one of Mrs. Surratt’s more attractive

boarders. Miss Fitzpatrick was a very definite young lady. “During the

month of March last,” she said, “I saw John Wilkes Booth and John H.

Surratt there.” Payne and Atzerodt had also dropped in but only once or

twice. Early in March, Payne and Surratt had taken her to a performance

at Ford’s Theatre. “I do not know what box we occupied, but I think it

was an upper box. John Wilkes Booth came into the box while we were

there.”

On May 23rd, the Judge Advocate called it a day and Messrs. Johnson,

Aiken and Clampitt began their labors on behalf of Mrs. Surratt. Their

first witness was George Cottingham, the special officer who had

arrested John Lloyd on April 15th. For two solid days, he had urged his

prisoner to tell what he knew about Booth and Herold. Finally, Lloyd

had broken down and sobbed, “O, my God, if I was to make a confession,

they would murder me.” When Cottingham had asked him who had designs

on his life, he was informed that it was “these parties that are in

this conspiracy.”

Then the dam had burst. The conscience-stricken Lloyd had told

Cottingham everything. “He stated to me that Mrs. Surratt had come

down to his place on Friday between 4 and 5 o’clock; that she told him

to have the fire-arms ready; that two men would call for them at 12

o’clock....” The two men had turned out to be Booth and Herold, who

showed up at midnight and picked up a carbine and some whiskey. As he

had unburdened himself to Cottingham, he began to cry out, “O, Mrs.

Surratt, that vile woman, she has ruined me! I am to be shot! I am to

be shot!”

Cottingham had obviously caught the defense by surprise. Aiken had

interviewed him in the bar of the Metropolitan Hotel on May 20th

and, at that time, Cottingham had told the lawyer that Lloyd had not

mentioned Mrs. Surratt. But, he insisted, “I had an object in that

answer. He wanted to pick facts out of me in the case, but that is

not my business; I am an officer and I did not want to let him know

anything either way. I wanted to come here to the Court and state

everything that I knew.”

Q. Did I ask you if Mr. Lloyd, in his confession, said anything at all

in reference to Mrs. Surratt?

A. That question you put to me, and I answered; I said, “No.”

Q. That Mr. Lloyd did not say so?

A. I did say so. I do not deny that.

Q. Then you gave me to understand, and you are ready now to swear to

it, that you told me a lie?

A. Undoubtedly, I told you a lie there; for I thought you had no

business to ask me.

Q. No business! As my witness, had I not a right to have the truth

from you?

A. I told you you might call me into court; and I state here that I

did lie to you; but when put on my oath, I will tell the truth.

The fact that the Commissioners of Prince George’s County had offered

a $2000.00 reward for information leading to the arrest of “anybody

connected with the assassination” had had absolutely nothing to do with

this fine distinction!

At this juncture, the defense introduced two letters which it claimed

would satisfactorily explain Mrs. Surratt’s April 14th trip to

Surrattsville. The first was signed by George H. Calvert, Jr., and

was dated April 12th. When Mr. Calvert took the stand, he identified

his letter which insisted that Mary Eugenia “pay the balance

remaining due on the land purchased by your late husband.” The second

communication, which had been written by the defendant to John Nothey

from Surrattsville on April 14th, demanded that he settle his debt to

her “within the next ten days” or she would “settle with Mr. Calvert

and bring suit against you immediately.” B. F. Gwynn, who had read this

note to the illiterate Mr. Nothey, said he had received it from Mrs.

Surratt at the tavern on the afternoon of the 14th.

Lloyd had previously testified that he had been “right smart in liquor”

on that fateful Good Friday. The defense team saw nothing to be lost

by exploiting this admission to the fullest. Gwynn had seen him on the

Marlboro road at 4:30 that afternoon and “he had been drinking right

smartly.” Joe Nott, the bartender at Lloyd’s tavern, claimed that his

employer “had been drinking a good deal; nearly every day and night,

too, he was pretty tight. At times, he had the appearance of an insane

man from drink.” As far as the 14th was concerned, “he was pretty tight

that evening.”

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