... 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.”