FLIGHT AND CAPTURE OF JOHN H. SURRATT.
The presence of John H. Surratt in Washington City on the day of the
assassination was proven before the Military Commission by a single
witness. This witness, however, was a man who was personally acquainted
with him, and who swore positively to having seen him on that day. His
testimony was given about a month after the event, and the circumstance
was fresh in his memory. He stated the time of the day when, and the
place where, he saw him; described his dress, the kind of hat he was
wearing, etc., etc. He was clear in his statements, could have had no
motives for swearing falsely, and it is scarcely possible that he could
have been mistaken. From the description given by Sergeant Dye of the
man who acted as monitor, calling the time three times in succession
at short intervals, the last time calling "Ten minutes past ten," in
front of the theatre, it will be remembered that the writer came to the
conclusion that this was John H. Surratt. This conclusion was verified
by this same witness on the trial of Surratt. Sergeant Dye had taken
a seat on the platform in front of the theatre, and just before the
conclusion of the second act of the play had his attention arrested by
an elegantly-dressed man, who came out of the vestibule, and commenced
to converse with a ruffianly-looking fellow. Then another joined them,
and the three conversed together. The one who appeared to be the the
leader said, "I think he will come out now," referring, as the witness
supposed, to the President. The President's carriage stood near the
platform on which the witness was sitting, and one of the three passed
out as far as the curbstone and looked into the carriage. It would
seem that they had anticipated the possibility of his departure at the
close of the second act, and had intended to assassinate him at the
moment of his passing out of the door. Quite a crowd of people came
out at the conclusion of the act, and Booth and his companions stood
near the door, awaiting the opportunity which they sought. When most
of the crowd had returned into the theatre, and the would-be assassins
saw that the President would remain until the close of the play, they
then began to prepare for his assassination in the theatre. The writer
concludes, from a careful consideration of all the circumstances, that
this was a provisional arrangement, in case their plan to murder him at
the door should fail.
Booth and the ruffianly-looking fellow kept their stations by the
door, to make sure of not missing the opportunity of which they had
planned to avail themselves, whilst the other stepped up and looked at
the clock in the vestibule, and called the time. He then immediately
walked rapidly up the street. He returned in a few minutes, and looking
at the clock again called the time, and again walked away rapidly up
the street. Very soon he returned again, and called the time louder
than before, "Ten minutes past ten!" and walking rapidly away, did not
return.
Booth had left the side of his companion before this long enough to
go into the saloon, where he drank a glass of whiskey, and then, as
soon as the time had been called the third time, went at once into the
theatre, and in less than ten minutes thereafter fired the fatal shot.
It is evident that it had been arranged between Booth and Payne that
the assassination of Secretary Seward should be concurrent with that of
President Lincoln; and that a system of signals had been arranged, of
which the man who called the time was acting as monitor. The suspicions
of Sergeant Dye having been aroused by the conduct of these three men,
he naturally scanned them very closely, and testified that he had a
good view, not only of the person, but of the face and features of
the man who called the time, and had his image indelibly impressed
on his memory. Upon being confronted by Surratt on his trial, he
unhesitatingly and positively declared that he was the man. In addition
to Reed and Dye, who testified before the Commission, there were nine
others who testified on the trial of Surratt to having seen him that
day in the City of Washington. All of these persons, except four, were
personally acquainted with him, and could not have been mistaken, as
they were able to give the time of day when, and the place where, they
saw him, as also, in the case of most of them, to describe his person,
dress, hat, moustache, etc., etc., without any discrepancies in their
testimony.
The other four, though not acquainted with him, identified him before
the jury, more or less positively, as the man they had seen. It is
worthy of remark that though they all testified with more or less of
particularity in their descriptions of his person, his dress, his hat,
his moustache, and as to the time of day when, and the place where,
they had seen him, there was nothing incongruous or contradictory in
their testimony. One witness, a colored woman, Susan Ann Jackson,
who was in service at Mrs. Surratt's at the time, and had been for
three or four weeks previous to the assassination, testified that
under the direction of Mrs. Surratt she had made tea for the prisoner
after the family and boarders had left the table on the night of the
assassination, and that Mrs. Surratt had said to her on that occasion,
"This is my son," and had asked her if he did not look like Annie. She
said this was the first and only time she had seen him until she met
him on his trial, and then she positively identified him as the man
she had waited upon that night. The time was impressed on her memory
by its being Good Friday, and the night of the assassination. Several
of the witnesses who testified to his presence in the city on that
day also testified that they saw him in company with Booth, and one,
at least, with Booth and O'Laughlin. Surratt himself told his old
acquaintance, St. Marie, with whom he renewed his acquaintanceship in
the ranks of the Papal Zouaves at Velletri, in Italy, that he left
Washington early on the morning of the 15th of April, disguised as an
English tourist; and that he had a very hard time to make his escape.
As the trains leaving Washington for Baltimore on the morning of the
15th were thoroughly scrutinized by the police before being permitted
to leave, it is uncertain whether Surratt's disguise sufficed to get
him through, or whether he went a part or all of the way to Baltimore
on horseback. There was some evidence on this trial tending to the
conclusion that he had escaped from the city on horseback. The next
place we get track of him in his flight is at the railroad depot at
Burlington, Vt., on the early morning of the 18th of April. Here he
turns up with a rough-looking man, no doubt the ruffianly-looking
fellow who was seen with him and Booth in front of the theatre on the
night of the assassination. They had crossed Lake Champlain on a boat
that ran from White Hall to Rouse's Point, on the night of the 17th,
and landed at Burlington, in order to take the train to Montreal. This
was the first trip the boat had made that season, and it was four hours
late in reaching Burlington, arriving there about midnight. They had to
wait for the morning train, which was due at four o'clock A.M.
of the 18th. They requested permission to sleep at the depot, and the
night watchman allowed them to sleep on the benches. He awakened them
in time for the train, and after daylight, when sweeping the floor, he
found a handkerchief under the bench where the taller of the two had
slept, and upon examining it after it was fairly light found it marked,
"J. H. Surratt 2." At Essex Junction, where they changed trains for St.
Albans, these two travellers made the change, and were found by the
conductor on his passing through the train standing on the platform
outside. He asked them for their fare, and was told that they had no
money. Surratt did all the talking. He represented that they were
laboring men, had been at work in New York, and had been unfortunate
and lost their money. He said they were now making their way back to
Canada, and were ready to promise that if he would carry them through
they would send him the fare as soon as they reached their friends. The
conductor reminded them of the necessity of having money if they would
travel.
Surratt disguised his speech, trying to use the dialect of a Canadian;
but when he became excited from fear of being put off the train he
forgot his Cannuck, and talked in good square English. The conductor
also noticed that his hands were not those of a laboring man, and
so concluded that the men were traveling _incognito_. This was on
the early morning of the 18th of April. They arrived at St. Albans
for breakfast. At the table they found everybody excited, and upon
Surratt's inquiring what it meant, his next neighbor at the table, an
old gentleman, informed him that the President had been assassinated,
to which Surratt replied that "The news was too good to be true." The
old gentleman then handed him a paper, and on looking it over he saw
his own name given as one of the assassins. He dropped the paper, and
found that he did not want any more breakfast. On passing out into the
next room, he heard some one say that Surratt must be in town, or had
passed through, as his handkerchief had been found in the street; when,
upon feeling for his handkerchief, he found that he had lost it. They
then left the place as quickly as possible, narrowly escaping arrest.
He understood that his handkerchief had been picked up in the street of
St. Albans, and no doubt, in the excitement, the news had taken that
shape, but, as we have seen, he lost it at Burlington depot, and so the
news must have been telegraphed to St. Albans.
[Illustration: JOHN H. SURRATT.]
It is not known how they traveled from St. Albans to Montreal, but it
is most probable that they walked across the country. We find Surratt's
name on the hotel register at Montreal, where he arrived at about
two o'clock on the 18th of April, he having been absent from that
place from the 12th. This had been to him an eventful week, full of
difficulties and hazards; but he may now feel safe, as he has reached
the abode of the chief conspirators, his employers, and is ready to
claim his reward. He can feel that he is in the midst of sympathizing
friends. But, alas! a criminal can never feel safe. An angry God
is ever on the track of the guilty conscience. As it was with the
first murderer, so it must be with every murderer,--a fugitive and a
vagabond he is compelled to be. He had hardly recorded his name on
the hotel register when he was informed that detectives were on the
look-out for him, and he was at once spirited away to the house of a
Mr. Porterfield. This man was a Southerner, who belonged to Thompson's
cabal, but who had abjured his allegiance to his country and taken
the oath of allegiance to the Queen of England, and had thus become a
British subject. He knew all about the conspiracy, and the means that
had been employed to carry it into effect; and was waiting and watching
anxiously for the return of his co-conspirators that had been sent
to Washington on their mission of assassinations. He at once took
Surratt into his house, and kept him secreted there for several days.
Finding the detectives who were in pursuit of the fugitive vigilant and
determined in their search, Porterfield became fearful that he could
not keep his charge concealed, and so made arrangements to get him into
a place of greater security.
At this point we meet with a new element amongst the Canada
conspirators, viz., the Roman Catholic priesthood. Porterfield had
arranged with Father Boucher to take his charge in custody, and keep
him concealed. This Father was rector of the parish of St. Liboire,
a newly-settled place, about forty-five miles from Montreal--an
out-of-the-way place, and so a good place in which to hide him away.
The arrangements had been made in advance with this Father to take
charge of Surratt, and keep him secreted at his house. He was conveyed
there by one Joseph F. Du Tilley, who seems to have been priest
Boucher's right hand man. The stratagem to get him away from Montreal
was as follows: two carriages drove up in front of Porterfield's house
late in the afternoon, when two persons, dressed as nearly as possible
alike, went out together; one of these got into one of the carriages,
and the other into the other, when they drove away in different
directions. Father Boucher appeared at the trial of Surratt as a
voluntary witness for the defense, and without any apparent sense of
shame convicted himself, by his own testimony, of being an accomplice
after the fact. We think that the testimony he gave warrants the
conclusion, also, that another priest, Father La Pierre, placed himself
in the same category. Both of these Fathers took Surratt into their
houses, and kept him concealed,--the first for three, and the latter
for two months,--knowing him to be charged with being a conspirator to
the assassination of the President of the United States.
Father Boucher's parish being in an out-of-the-way country place,
it was only necessary that he should constantly exercise a prudent
vigilance in behalf of his charge. He was visited frequently by his
friends whilst staying with Boucher; at one time three or four of
these came together, and stayed three or four days with him. The time
was spent in hunting, sporting, and revelry. It was very remarkable,
however, that Father Boucher could not remember the names of any of
these friends. Being a volunteer witness for the defense, he could
not give their names without implicating persons whom he did not
desire to compromise; hence, no doubt, his convenient Jesuitical
failure of memory. Perhaps he could not have given their names without
injury to the cause he desired to help. He could only say that some
of their names were English names, using the word English in contra
distinction from French or French-Canadian, in which sense it implied
not really English, but American,--Beverly Tucker for instance, perhaps
Porterfield, and likely, also, La Pierre. As two of these, Beverly
Tucker and La Pierre, along with Boucher, accompanied Surratt from
Montreal to Quebec, and did not leave him until they had seen him safe
on board the ocean steamer, "Peruvian," when he finally was sent to
Europe, it would seem highly probable that we have rightly surmised who
were his visitors on the occasion referred to. Surratt was not kept in
close confinement by Father Boucher, but his safety from discovery and
arrest was looked after with cunning vigilance. At length the time came
when it was thought safe and advisable to transfer the fugitive back to
Montreal. This was affected as secretly as had been his removal from
that place to the parish of St. Liboire.
Father La Pierre now took him in charge. He had provided for him a
secluded upstairs room at his father's house, _right under the shadow
of the bishop's window_. This Father had been a visitor of Surratt at
the lonely parish of St. Liboire, and now took him under his especial
protection. He kept him concealed, and never allowed him to go out
until after nightfall, and then never alone, but always accompanied
him. La Pierre thus kept his charge safely from the latter part of
July until the 5th of September, 1865. During all of this time he was
visited regularly twice a week, on Mondays and Thursdays, by Father
Boucher, who always remained over night with him at each visit. How
can we account for this great interest taken by these two priests in
secreting the murderer of the head of the greatest nation on earth,
and that with a full knowledge that he stood charged with this crime,
and that a great reward was offered for his apprehension? How can we
consider them less guilty, in a moral point of view, than Surratt
himself?
But at length a time came when it was thought safe and advisable to
send him abroad.
Early in September Father La Pierre sought an interview with Dr. Lewis
J. A. McMillen, surgeon on board the ocean steamer "Peruvian," which
was to sail on the 16th of that month from Quebec for Liverpool, and
made arrangements to put in his care for the passage a friend of his
by the name of McCarthy, who, for certain reasons, desired to embark
secretly on the voyage. The doctor took a steamer at Montreal, on the
15th, to join his ship, which was to sail on the following day.
Boucher and La Pierre conveyed Surratt in a covered carriage, and
went with him on board the same steamer on which the doctor had taken
passage. La Pierre was in disguise, inasmuch as he was dressed in
citizen's dress. They had also disguised Surratt by coloring his hair,
painting his face, and putting spectacles over his eyes. On the passage
from Montreal to Quebec, they kept him locked up in the state-room
occupied jointly by him and Father La Pierre. When they reached Quebec
and went on board the transport that was to convey them to the ocean
steamer "Peruvian," in which they were to sail, the doctor was there
introduced to Beverly Tucker, who had also felt enough of interest
in Surratt's case to induce him to accompany him from Montreal to
Quebec, and who stood in that relation to his case in the knowledge
of Fathers La Pierre and Boucher that they could safely take him into
their confidence in their plans for conveying Surratt out of the
country. This trio saw Surratt safely on board the "Peruvian," and then
bade him good-by. The interest thus manifested by Tucker in getting
Surratt safely away confirms the testimony given before the Military
Commission, showing him to have been justly charged by the government
with being a member of the great conspiracy. Before parting from his
charge Father La Pierre requested Dr. McMillen to let Surratt stay in
his room until after the vessel should have sailed.
Surratt is not an innocent man carrying a good conscience, that
enables him to look every man he meets squarely in the face. He is a
fugitive and a vagabond, carrying the weight of a terrible crime in
his memory--a weight that neither time nor distance can efface. He is
haunted by his fears, having before him the vision of a detective and
of capture; and so he skulks and hides from the phantom of an American
detective which he cannot banish from his mind.
The vessel being now on her way, and in British waters, the fugitive
ventured forth, and naturally sought the company of the surgeon of
the vessel in whose care he had been placed, and whom he regarded
as his friend. His social nature yearned for companionship, and all
the more as a means of relief from a guilty conscience. Does he now
enjoy a sense of security? To him this is impossible. He scanned
closely every passenger he met, that phantom of a detective being
ever present to his imagination. He sees a gentleman whom he takes to
be an American. He seeks his friend McMillen, and discloses to him
his fears, saying: "I think that man is an American detective." Upon
being asked by the doctor what he had done that he should be afraid
of a detective, he replied: "If you knew all the things I have done,
it would make you stare." Murder is a crime that will out. It imposes
a weight of guilt upon the conscience that will, at some unguarded
moment, let the fearful secret slip through the door of the lips
that are most firmly closed by a purpose of concealment. The doctor
reassured him, by reminding him that he was on board a British ship
sailing on British waters, and that he had nothing to fear from an
American detective. Surratt then drew a small four-barrelled revolver
from his vest pocket, and remarked: "I don't care; this will settle
him." The doctor now began to feel a great interest in his charge,
arising from the suspicion that he was John H. Surratt. The voyage
across the Atlantic occupied nine or ten days. The fugitive was so
full of his terrible secret that he could not keep quiet. Every day
he sought opportunities to converse with the doctor privately, and at
every interview the history of his crimes kept leaking out. He was
nervous, and constantly haunted by his fears; so that he could never
hear any one coming up behind him without starting and looking around.
Amongst his important revelations to the doctor were the following:
that he had for a considerable time previously to the assassination
been a bearer of despatches from Richmond to the Confederate agents
in Canada; that he had at one time carried to them from Richmond
thirty thousand dollars, and at another time seventy thousand dollars;
that he arrived in Montreal the last time on the 6th of April, with
despatches from Davis and Benjamin, thus confirming the testimony of
Conover and Merritt before the Military Commission. These despatches
he claimed to have delivered to Thompson. After the military trial,
and previous to the trial of Surratt, the witness, Conover, had been
convicted of perjury; but this does not discredit the testimony he
gave before the Commission, as it was confirmed by other witnesses who
stand unimpeached, and is here also confirmed by Surratt himself in
regard to one of its most important points. It will be remembered that
Conover testified to having been present at a meeting of the Canada
conspirators in Montreal, on the 6th of April, 1865, and that John H.
Surratt, who was present, had just arrived from Richmond, bringing a
cipher despatch from Jefferson Davis, and also a despatch from his
Secretary of State, Benjamin, and that Thompson, laying his hand on
these despatches, said: "This makes the thing all right"; and that
active measures were at once entered upon for putting the assassination
plot into effect. Now Surratt comes to McMillen five months later, on
the face of the broad Atlantic, and confirms Conover's testimony in its
major part. He also related to the doctor the particulars of his trip
to Richmond late in March, 1865, when he was accompanied by a woman,
who by other testimony was shown to have been Mrs. Slater, _alias_
Brown, the rebel spy and blockade runner. The arrangement was made
whilst he was in Canada for him to meet her in New York and accompany
her to Richmond, which he did, passing through Washington. In this
statement the testimony of Wiechmann is confirmed. Surratt related
to the doctor the difficulty they had in crossing the Potomac. They
were hailed by a gun-boat, and called upon to surrender. They said
they would do so, but waited for the small boat that had been sent
to bring them in to come alongside, when they suddenly arose, poured
a volley into the crew of the small boat, and then, in the confusion
that ensued, made their escape. There were twelve or fifteen crossing
with him at the time, and all were armed with revolvers. Having
gotten within the Confederate lines south of Fredericksburg, they were
being pushed along by negroes on a hand-car when they met five or six
forlorn, half-starved Union soldiers, who had made their escape from a
rebel prison and were striking for freedom. At the suggestion of this
wicked woman they shot them down, and passed on, leaving them lying on
the ground.
He also related to the doctor the plot, at one time discussed, to
capture the President and carry him to Richmond, but said it was found
to be impracticable, and so was abandoned. He claimed that Booth and
himself had spent ten thousand dollars in preparations for carrying out
their plot. When we remember that neither Booth nor Surratt had any
means of their own, and yet were carrying on an enterprise that called
for so large an outlay of money, we may well ask who stood behind them
and furnished the funds?
But if we take all of the testimony we have before us into
consideration we need have no difficulty in answering this question.
Jacob Thompson was the treasurer of the concern, and his government
kept him amply supplied with means. It will be remembered that Clay
said, "We have plenty of money to pay for anything that is worth paying
for." After the assassination Surratt was in some way supplied with
money to support him for a year, and carry him to Italy. In regard to
the assassination, Surratt told McMillen that he received a letter from
Booth at Montreal, in the beginning of the week of the assassination,
which was written in New York, calling him to Washington at once, as
it had become necessary to change their plans and to act quickly. He
started at once, and telegraphed Booth at New York City from Elmira,
but found that he had already gone to Washington. In regard to his
escape from Washington after the assassination, he related all of the
incidents that have already been given in regard to his experience at
St. Albans, the loss of his handkerchief, his hasty departure from that
place, etc., etc.
Every day during the voyage, he was filling McMillen's ears with these
stories, and as they neared the end of the voyage he began to revolve
in his mind whether he would land on the Irish coast or go on to
Liverpool. He asked McMillen which he had better do, but McMillen, who
must have known by this time who this McCarthy was, declined to give
him any advice. Surratt finally said he would go on to Liverpool, but
could not dismiss from his mind the fear that he might there meet a
detective awaiting his arrival. Pulling out his revolver, he said, "If
he did, this would settle him." Upon McMillen making the reply that
"they would make short work of it with him in England if he should do
such a thing as that," he said, "It is for that very reason I would do
it, for I would rather be hung by an English than a Yankee hangman, and
I know I would be hung should I be taken back to the United States."
Upon sighting the coast of Ireland he exclaimed, "Here is a foreign
country at last! I only wish that I may live two years to go back to
the United States and serve Andy Johnson as we served Lincoln."
When the "Peruvian" was about to land her passengers and mail at an
Irish port, Surratt sent for McMillen, and upon the latter expressing
surprise at finding him dressed, and prepared to land, saying that "he
thought he had concluded to go on with them to Liverpool," Surratt
replied, "that he had thought the matter over carefully, and had
concluded that it would be safer for him to land there, as it was then
nearly midnight." McMillen then said to him, "You have been telling me
a great many things, and I have come to the conclusion that the name by
which you were introduced to me is not your true name. Will you be kind
enough to tell me who you are?" The fugitive then whispered in his ear,
"I am Surratt." He then asked the doctor to send for the barkeeper,
and before leaving the ship drank so freely of brandy that the doctor
found it necessary to request the chief officer at the gangway to take
him by the arm and see him safely on shore. On the Wednesday following,
Surratt called on the doctor at his boarding house in Birkenhead,
opposite the city of Liverpool, and requested him to go over with him
to the city to find a house to which he had been directed to go. The
doctor had, on the previous day (which was the day after the "Peruvian"
had landed in Liverpool), visited the Vice-Consul of the United States,
Mr. Wildings, and made a sworn statement of the facts that Surratt had
revealed to him, his purpose being to aid the United States in securing
his arrest. He told the Vice-Consul that he was only making a partial
statement of Surratt's confessions during the voyage, deeming it only
important that the government should be informed of Surratt's arrival
in Liverpool. The doctor testified, on Surratt's trial, that Mr.
Wilding told him that he had been informed by Mr. Adams, the American
Minister at London, that the government was not going to prosecute
Surratt; that it hadn't anything against him.
Of all this Surratt was ignorant, and the doctor went with him, as
requested, across the river from Birkenhead to Liverpool, and finding
a cab, gave the driver directions where to take him, and then parted
from him. Surratt visited him again before the doctor started on the
return voyage, and requested him to see a party in Montreal, and bring
him some money. The doctor did as requested, but the person on whom he
was requested to call said he had no money for him. The rebellion had
collapsed; the plot had failed of its purpose, as it had also failed
in part of its fulfillment; and now Surratt was to suffer the fate of
Hyams--be shaken off and disowned. On the doctor's return to Liverpool
Surratt called on him, but only to learn that there was no money for
him. This was the last time that McMillen saw him until he saw him on
his trial.
Surratt is next found in Italy, in the army of the Pope, where he had
enlisted as a soldier in the ninth company of Zouaves about the middle
of April, 1866. He had found friends after his escape from Washington,
who had supported him, kept him secreted, watched over his safety,
planned his trip from Montreal to Italy, and furnished him money for
the expenses of his journey; friends who, no doubt, were accomplices
before, as well as after, the fact, for we find them waiting and
watching for his return to Montreal after the assassination, and ready
to hurry him off into seclusion. He was to them a stranger; only known
to them as a fugitive from his country, charged with the highest crime
that a man could commit,--a blow at the nation's life, by murdering the
nation's head,--a crime against liberty and humanity. These could not
have been his friends for mere personal reasons, but from sympathy in
the general purpose of this great crime,--the subversion of our free
institutions.
Certainly he may now feel safe, being hid away under the _alias_ of
Watson, in the ranks of the Papal Zouaves, in the town of Velletri,
in Italy, forty miles from Rome. But no! Here he meets Henry Benjamin
St. Marie, an old acquaintance of his, and now a fellow-soldier in his
company.
About the 18th or 19th of June, 1866, during an afternoon's walk, he,
in his confidences with his old acquaintance, tells of the events of
the 14th of April, 1865, and of the difficulty he had in making his
escape from Washington on the morning of the 15th. He said he left
disguised as an English traveler and succeeded in making his way out.
The American Consul was informed of his whereabouts, and upon the
matter being brought to the notice of the Pope through Cardinal
Antonelli, an order was issued for his arrest and delivery to the
United States authorities. He was thus arrested by his comrades in the
service, and kept under guard, but succeeded in making his escape from
his guards (if we may believe the story), by making a bold dash down a
precipice, at the risk of his life. Having thus escaped he made his way
to Naples, and thence to Alexandria, in Egypt. What must have been his
surprise on reaching the latter place to find an officer awaiting his
arrival, and ready to make him a prisoner. He was put in chains, placed
on board the United States man-of-war ship "Swatara," and brought back
to Washington, where he was held to answer for his crime.
PART II.
REVIEW OF THE TRIAL OF JOHN H. SURRATT.
CHAPTER I.
INDICTMENT AND TRIAL.
On the 4th day of February, 1867, the grand jury for the county of
Washington, District of Columbia, found an indictment against John H.
Surratt for the murder of Abraham Lincoln. The indictment contained
four counts. The first count charged him with the murder of one Abraham
Lincoln at the county of Washington, District of Columbia, on the 14th
day of April, 1865. The second count charged that John H. Surratt and
John Wilkes Booth did, on the 14th day of April, 1865, make an assault
upon one Abraham Lincoln in the county and district aforesaid, and that
John Wilkes Booth did murder the said Abraham Lincoln.
The third count charged that John H. Surratt and John Wilkes Booth,
David E. Herold, George A. Atzerodt, Lewis Payne, Mary E. Surratt, and
others to the jury unknown, did, on the 14th day of April, 1865, in
the county and district aforesaid, make an assault upon one Abraham
Lincoln, and that he was murdered by the hand of John Wilkes Booth.
The fourth count charged that John Wilkes Booth, John H. Surratt,
David E. Herold, George A. Atzerodt, Lewis Payne, Mary E. Surratt,
and divers other persons to the jury unknown, on the 14th day of
April, 1865, at the county of Washington, District of Columbia, did
unlawfully and wickedly combine, confederate, and conspire and agree
together feloniously to kill and murder one Abraham Lincoln, and that
the said John Wilkes Booth, John H. Surratt, David E. Herold, George A.
Atzerodt, Lewis Payne, Mary E. Surratt, and other persons to the jurors
unknown, did, on the 14th day of April, 1865, in pursuance of said
unlawful conspiracy, make an assault, and that the said John Wilkes
Booth, in pursuance of said unlawful and wicked conspiracy, did kill
and murder one Abraham Lincoln.
It will be noticed that the legal allegations designating the crime
used in this indictment are the same as are used in the charge and
specifications on which Surratt's co-conspirators were arraigned and
tried before the Commission, except that the word "traitorously,"
there used, is omitted in this indictment. This indictment in its
first count charged the prisoner on trial with the murder of Abraham
Lincoln. This was done on the principle that when two or more persons
conspire together to do an unlawful act, or to do that which is lawful
by unlawful means, the act of any one of the parties thus conspiring,
in pursuance of said conspiracy becomes the act of all. They are held
equally guilty in law. To make this count good, it was only necessary
to prove the existence of a conspiracy to do this murder--that it was
done by one of the conspirators, and that the person indicted was a
member of said conspiracy at the time the murder was committed, and
that he aided and abetted and performed his part, whatever that might
be, in accomplishing the object of the conspiracy. The second count
charges that Surratt and Booth murdered Abraham Lincoln, and that the
murder was actually accomplished by the hand of Booth. This implies
that they acted together for the accomplishment of the crime and would
be made good only by proving the presence of John H. Surratt at the
time and place of its commission, and that he was there aiding and
abetting Booth in the alleged murder. The third count simply enlarges
the conspiracy by designating others known to have been included in its
membership, alleging also, that there were still others belonging to
it, who were unknown to the jury, and that in pursuance of its object
and purpose the murder was done by the hand of one of its members.
The fourth count more distinctly and emphatically alleges the
combining, confederating, conspiring, and agreeing together of these
persons to do this murder, and that it was so done by one of its
members, viz., Booth. This would require proof to be made of such
combination and agreeing together to commit this crime on the part of
the persons named in the indictment; that the crime was perpetrated,
and that the prisoner was a member of said conspiracy at the time of
its perpetration. It will be remarked that in addition to the word
"traitorously," used in the charge and specifications against the
members of this conspiracy who were tried before the Commission, the
political purpose of the conspiracy, as there alleged, is here omitted.
The real purpose of the conspiracy was to aid the existing rebellion
in its purpose and effort to overthrow the government by assassinating
the President, Vice-President, Secretary of State, and the general in
command of the armies of the United States.
The parties tried before a military commission were tried under
the laws of war, during a state of war, and were brought under the
jurisdiction of a military tribunal because they were _secret active_
enemies of the government, and were engaged in an effort to aid the
rebellion. This required that the word traitorously should be used, and
that the treasonable purpose of the conspiracy should be alleged. This
member of the conspiracy was indicted for his participation in this
crime; but he had made good his escape, and had not been brought within
the jurisdiction of the authorities that could hold him to account
until long after the rebellion had been suppressed, and peace had been
declared; and under the political policy which had been adopted by the
government in dealing with the question of treason and traitors in
connection with the war, he could only be indicted for his crime, as
it was a violation of civil law. Hence these omissions in framing this
indictment.
The case is unique in the history of American jurisprudence. A number
of his co-conspirators had been tried before a military commission
under an arraignment that fully set forth, not only the crime of
murder and a conspiracy to murder, but also the fact that it involved
much more than the mere killing of a man--a private individual--that
it was a conspiracy to murder the President of the United States, a
treasonable conspiracy to subvert the government. It was a blow aimed
at the nation's life. He who murders the humblest citizen sets at
naught God's image impressed on man at his creation, and so commits
a crime not only against a fellow man and a crime against society,
but a crime against God. When Noah became the new head and progenitor
of the race after the flood, God, who had just destroyed the world of
mankind because they had filled the world with violence and blood, gave
this law: "Whoso sheddeth man's blood by man shall his blood be shed;
_for in the image of God created he him_." God is also the author of
civil government, as we read in the thirteenth of Romans: "Let every
soul be subject to the higher powers, for there is no power but of
God. The powers that be are ordained of God." Here we learn that civil
government is the ordinance of God; and so he who assassinates a ruler,
not only sets at naught God's image in man, but despises his ordinance
for the welfare, protection, and peace of society.
This treasonable aspect of his crime, although it could not, for the
reasons stated, be embraced in his indictment, yet, as we shall see,
was a matter of which the court and jury could take judicial cognizance.
Here we have a man on trial for participation in the murder of a
President; yet, in his indictment, he is only charged with the murder
of one Abraham Lincoln. His fellow conspirators had been convicted
of murdering Abraham Lincoln, President of the United States, and
Commander-in-Chief of the armies and navy of the United States, and of
attempting to kill William H. Seward, Secretary of State of the United
States, and lying in wait to kill Andrew Johnson, Vice-President of
the United States, and Ulysses S. Grant, commander in the field of
the armies of the United States, for the purpose of overthrowing the
government of the United States in aid of the existing rebellion. Under
this charge they had been condemned and some of them executed. This was
the result of a military trial in time of war.
This trial had been denounced by every rebel sympathizer in the land.
Great lawyers and statesmen had argued with vehemence that these
assassins had been tried by an unconstitutional tribunal. The dead
President had been denounced as a tyrant, and usurper of authority; one
who had trampled under foot the Constitution he had sworn to protect
and defend by proclaiming martial law, and suspending the writ of
_habeas corpus_; and even in prosecuting a war to compel rebellious
States to submit to the lawful authority of the government, and now
they would tie up the hands of the government by insisting that it
could only try these traitorous assassins, constitutionally, before a
civil court. The country stood divided on this contention, just as it
did on the issues of the war, and partisan feeling ran as high in this
discussion as it did on the right of secession or the right of the
government to compel submission to its authority.
The sophistry of this reasoning, when applied to a time of war, was
made apparent by the results of this trial of John H. Surratt before a
civil court, in time of peace. No government could protect itself under
such a construction of the Constitution, because no government could
ever convict a traitorous assassin before a jury made up of its enemies
as well as its friends.
This trial necessarily aroused the passions and prejudices engendered
by the war that gave occasion for the crime of the prisoner, and could
not be conducted on a strictly judicial and legal basis. It was just
as impossible now, almost two years after the close of the war, as
it would have been at the time of the trial by a military commission
of Surratt's fellows in crime; and a conviction by a jury in a civil
court was just as impossible now as it would have been then because a
jury of partisans embracing those of both sides politically can never
be expected to come to an agreement in a case that appeals to their
partisan feelings. This case was unique then, because it was the first
case of a man on trial before a civil court for the murder of the civil
head of the nation, the President of the United States, and although
since that time another has been tried, convicted, and executed, for
the murder of a President, the case of Surratt is still unique in
this, that his crime was overshadowed by a higher crime out of which
it grew--the crime of treason--of being engaged in a treasonable
conspiracy to overthrow his government, and yet the circumstances
surrounding the case were such that this could not be alleged in the
indictment, but were of such a nature that this phase of his crime
could not be excluded from view.
On the day appointed for the trial of John H. Surratt a very large
number of people assembled, and all were deeply interested in his
case. The court house was crowded, and it was remarked by a most
intelligent observer that the appearance and spirit of the crowd wore
more of the air of a political convention than that of men assembled
to participate in, and witness, the solemn scene of a fellow-being on
trial for his life.
The trial was before Judge Fisher of the Criminal Court of the county
of Washington, and District of Columbia, a man of great legal ability,
sterling patriotism, and high moral character. The trial was a very
lengthy one, and was hotly contested at every point by counsel for
and against the prisoner. He was defended by lawyers who had made an
enviable local reputation for ability in their profession. The District
Attorney and his assistant were aided in the prosecution by that pure
patriot and eminent jurist, Judge Edwards Pierrepont, of New York, who
had been retained for that purpose by Attorney General Stanbury and
William H. Seward, Secretary of State, and also by A. G. Riddle, Esq.
A deep partisan spirit was manifested by the defense from the first
opening of their mouths to the close of the case. Every effort was made
to drive the presiding judge from his fearless duty, but without avail.
He stood firm as the adamantine rock. He was not only well qualified
by his knowledge of law for his high position, but was also impartial,
honest, and brave in his decisions on the very numerous questions of
law and evidence that were raised by counsel during the trial. His
carriage during that most notable trial must command the admiration of
both friend and foe; and his decisions will ever command the respect of
courts and lawyers.
The 10th day of June, 1867, was the day that had been set for calling
up this case. The United States was represented by the District
Attorney, E. C. Carrington, Esq., his assistant, Nathaniel Wilson,
Esq., and associate counsel, Messrs. Edwards Pierrepont and A. G.
Riddle. The prisoner was represented by Messrs. Joseph H. Bradley, R.
T. Merrick, and Joseph H. Bradley, Jr. At the earnest solicitation
of the Secretary of State and the Attorney General, and upon their
representation that the trial would not last more than a week, Judge
Pierrepont had consented to assist in the prosecution. He had just
taken his seat in the convention which had met at Albany to make a
new constitution for the state of New York and in which he had been
appointed on the judiciary committee, and left his place there to take
a part in this trial. He was a Democrat in politics, but loyal to the
government in its struggle for the perpetuation of its life. He had
filled a judicial position in his own State, was a man of great legal
acumen, and was noted for his patriotism and purity of character.
At ten o'clock on the 10th day of June, 1867, the Court said:
"Gentlemen, this is the day assigned for the trial of John H.
Surratt, indicted for the murder of Abraham Lincoln, late President
of the United States. Are you ready to proceed?" To this Mr. Bradley
responded, "The prisoner is ready, Sir, _and has been from the
first_." In this answer we have sounded forth the key-note to the
spirit and policy of the defense. That candor and honesty of purpose
which always characterize a judicial frame of mind, would have found
their sufficient expression in the first clause of this reply. The
addition of the declaratory clause, "And has been from the first" was
not mere surplusage, but had in it the distinct and manifest intent
of boldly assuming in advance, and in the face of all the adverse
facts, the entire innocence of the prisoner. The purpose was at this
first moment of opportunity to present the prisoner to the jury and
to the country as one who was only anxious for an opportunity to
exculpate himself from all guilt. The reader, if he chance to be of an
imaginative turn of mind, will be able when he reads this clause of
the reply of the learned counsel to see the assumed air of assurance
and self-importance, and to hear the arrogant and confident tone of
voice with which it was uttered. But without thus giving license to
our imagination, the addition of that clause to Mr. Bradley's reply,
when contrasted with the efforts of the prisoner to escape and evade a
trial, creates an impression of a sinister design that is calculated to
throw a taint of suspicion over all which is to follow in the line of
the defense. We shall have abundant occasion, as we proceed with the
review of this trial, to show that the suspicion which has been thus
created is fully justified.
John H. Surratt, as was shown by the evidence on the trial, was in
Washington on the 14th day of April, 1865, performing his part in the
great crime. He was there aiding and abetting Booth, and co-ordinating
the agencies employed in the execution of the plot, in order that
all of the assassinations embraced in it might be simultaneously
accomplished. Acting first as a counsellor and then as monitor, passing
rapidly up and down the street to keep himself in communication with
the fiends who were to do the work; calling the time loud enough to be
heard at some distance; then going up the street to ascertain whether
his warning could be heard by Payne, and the last time with a face
deadly pale and manifesting a degree of nervous excitement, inseparable
from the commission of such a crime, he called the fatal hour, "Ten
minutes past ten!" and vanished from sight. He has gone, but he has
left an image imprinted on the mind and memory of Sergeant Dye that can
never be effaced. He now becomes a fugitive in disguise, and hies away
to Canada to join the hellish clan that first conceived and then led
him into his crime. Here he was at once taken in charge by sympathising
friends, who kept him hidden away for five months and then, under a
disguise and an _alias_, sent him across the Atlantic, and finally to
Italy.
Here he is found in the Pope's army, and being charged with his crime,
which he has already confessed in words as well as by flight, is
arrested, escapes from his guards, flies to Naples and thence to Egypt,
is met and arrested at Alexandria, and brought back to the scene of
his crime, and is now put upon his trial. When asked if he is ready,
he replies through his counsel, "I am ready, and have been from the
first." Why, then, did he leave the city of his home, his mother and
sister and all of his youthful associations, in the early morning of
the 15th of April, 1865? Why did he fly to Canada disguised as an
English tourist? Why did he hide in Canada for almost half a year, and
then, in disguise, and under an _alias_, flee to Europe? Why did he
escape from his guards in Italy at the risk (?) of his life, and flee
to Egypt? Why, if innocent, did he flee to the ends of the earth, and
never cease his flight until his way was hedged before him and further
flight was impossible? Was it because he was innocent and desired an
opportunity to prove his innocence to the world? In the presence of
all these facts, what a mistake it was to say, "And has been from the
first." In how much better taste it would have been to have simply
replied, "The prisoner is ready, your honor."
The District Attorney replied as follows: "If your honor please, I am
happy to be able to announce that the government is ready to proceed
with the trial. Before we proceed, however, sir, to impanel a jury, we
desire to submit a motion to the court, which motion we have reduced to
writing. With the permission of the court I will now proceed to read it
to your honor. It is as follows:--
IN THE SUPREME COURT OF THE DISTRICT OF COLUMBIA.
UNITED STATES AGAINST JOHN H. SURRATT.
Indictment, Murder.
"And now, at this day, to wit, on the 10th day of June, A.D.
1867, come the United States and the said John H. Surratt,
by their respective attorneys; and the jurors of the jury
impanelled and summoned also come; and hereupon the said United
States, by their attorney, challenge the array of the said
panel, because he saith that the said jurors comprising said
panel were not drawn according to law, and that the names from
which said jurors were drawn were not selected according to
law, wherefore he prays judgment, and that the said panel may
be quashed." This motion, if your honor please, is sustained
by an affidavit which I hold in my hand, and which, with the
permission of your honor, I will now proceed to read. We think
after this affidavit shall have been read it will be found
unnecessary to introduce any oral testimony."
The motion to quash this panel, it will be observed, rests on two
allegations: first, that the names were not drawn according to law;
and, second, that the names from which the jury had been drawn were
not selected according to law. These allegations were fully sustained
by the affidavit of Samuel E. Douglas, register of Washington City,
which was presented and read by the District Attorney, and more fully
afterwards, upon his oral examination. The law governing the question
was found in an act of Congress of June 16th, 1862, entitled, "An act
providing for the selection of jurors to serve in the several courts of
the District of Columbia."
Under the provisions of this act the register of the city of
Washington, the clerk of the city of Georgetown, and the clerk of the
levy court of the county of Washington, District of Columbia, was each
required to make out a list of names of persons deemed by him to be
most suitable for the duty of jurors, having respect to the exemptions
and qualifications specified in the act.
The law required that such lists should be made out annually on,
or before, the first day of February. The register of the city of
Washington was to make out a list of names from which four hundred
should be selected: the clerk of the city of Georgetown was to make out
a list of names from which eighty were to be selected; and the clerk
of the levy court of the county of Washington was to make out a list
from which forty were to be selected, and that such lists should be
preserved, and any names that had not been drawn for service during the
year might be transferred to the list made up for the subsequent year.
Having thus made out their respective lists, these officers were
required to meet together and jointly select from their respective
lists the number specified for each one. The names thus selected were
then to be written on separate and similar pieces of paper, folded, or
rolled up, so that the name could not be seen; and then deposited in
a box provided for the purpose. The box was required to be thoroughly
shaken and sealed, and was then by these three officers to be delivered
into the custody of the clerk of the court of Washington County for
safe keeping. These officers were required to meet at the City Hall,
in Washington City, at least ten days before the commencement of each
term of the circuit court or of the criminal court, and there the clerk
of the circuit court was to publicly, and in their presence, break the
seal of the box and proceed to draw out the number of names required;
and if it was a grand jury court, the first twenty-three names drawn
were to constitute the grand jury, and the next twenty-six names
drawn were to constitute the petit jury for that term. The jury or
juries required, having been drawn, the box was again to be sealed and
delivered to the clerk of the circuit court.
The affidavit of Samuel E. Douglas, register of the city of Washington,
was offered with the motion to sustain its allegations. This affidavit
was supplemented by the oral examination of Mr. Douglas, under oath.
The affidavit and oral examination developed the facts that no such
lists had been made out and preserved as required; also that there
had been no joint action of these three officers in the selection of
names, but that each one had written his respective number of names and
deposited them in the box, without exhibiting them to the other two.
There had been no joint selection as the law required.
Still further, the fact was developed that these offices had not sealed
the box as required, but had delivered it to the clerk of the circuit
court to be sealed by him. It was further shown that the names had been
drawn, not by the clerk of the circuit court, but by the clerk of the
city of Georgetown.
It will be seen at a glance that the affidavit and oral examination
of Mr. Douglass fully sustained the allegations of the motion of
the District Attorney, and that the utter disregard of all the most
essential requirements of the law could have easily been made to
subserve a corrupt purpose. Without charging fraud in the case, we can
easily see how the clerk of the city of Georgetown, who drew this jury,
and who had no right to put his hand in the box, could have carried in
his own hand names of his own selection for that special purpose, and
from this store to have drawn a jury without taking a single name from
the box.
The substance of the affidavit and oral examination of Mr. Douglass
having been incorporated with the motion of the District Attorney, the
defense made the following replication:--
UNITED STATES }
VS. } _In the Criminal Court of the
JOHN H. SURRATT.} District of Columbia, No. ----._
And thereupon, the defendant saith the said motion is bad in
law and in substance. The facts stated do not constitute any
ground in law for a challenge of the array.
BRADLEY & MERRICK, _for defense_.
_Mr. Pierrepont._--We join in the demurrer.
The question now before the court was simply one of law and of fact,
and whether the facts in the case admitted by all, constituted such a
violation of the law as justified and required the setting aside of the
array. It would seem that it ought to have been easily settled, and the
fact the motion was hotly contested by the defense through a discussion
of three days continuance, would seem to indicate that for some reason
they had a special desire to have their case tried by that particular
jury. The argument was opened by Mr. Merrick for the defense. His
argument was first addressed to the construction of the statute, and to
the contention that the facts alleged and admitted did not constitute
such a violation of the law as would justify the setting aside of the
array. And then as there was no statute in regard to the quashing of
the panel the question was argued on the principles of the common law,
and many decisions were invoked, both in England and in this country,
to show that the failure of the officers to comply with the law was not
such as would vitiate what they did.
The question was ably discussed on both sides, and ingeniously on
the part of the defense, which did not confine itself to the legal
discussion of the question, but made it the occasion for manifesting
its spirit and attitude toward the government by insinuations and
innuendo. Thus, Mr. Merrick said, "I hope the United States is looking
for the attainment of justice in this case; I trust nothing may be
developed in this case looking towards anything else. I trust the
government will tread the high and honorable path which leads to the
attainment of simple and, I may add, speedy justice. And entertaining
this hope, I suggest to your honor, whether it is probable a jury,
against whose qualification nothing is alleged, who were summoned
without regard to this case, and before it was anticipated it might be
tried, are not better fitted to do justice then another summoned in
anticipation of the case,--a case not of an ordinary private nature,
but one of great public interest, in which, while the United States as
a government, I trust, will tread in the highways I have spoken of,
there are individuals occupying offices in the government who may be
disposed to tread lower paths which we will have to follow.
"May it please your honor, I shall say no more upon this motion than to
add that after the most careful examination I have been able to give
to it, the honest conclusion to which I have come is, that the ground,
probably, upon which the motion rests, is to be found in the act of
1853, page 160, 10 Statutes at Large, which act provides that where a
criminal case is on trial in this court and a jury has been impanelled,
and another term begins during the progress of the trial, the cause
shall continue; but leaves it exceedingly questionable whether unless
the jury is fully impanelled before the end of the term, the cause can
be tried. That other term begins Monday next, and unless a jury in this
case is impanelled before Saturday night it is questionable whether
this case will be tried for many days or many years."
To this sly insinuation that the government felt that it had an
elephant on its hands, and that the motion was a dilatory one thus made
so early in the case to influence both the jury and public opinion,
Judge Pierrepont replied as follows: "They will discover before we
proceed much further, that the United States are as zealous, as
earnest, and as eager to try this cause as the other side, and they
will discover before it is through that the public mind will be set
right with regard to a great many subjects about which there have been
active, numerous, and unfounded reports. Since I have been here in this
city for these past few days, it has been circulated in nearly all the
journals of this country that the United States dared not bring forward
the diary found upon the murderer of the President, because that diary
would prove things they did not want to have known. All these things
will be proved to be false, and all the papers, about the suppression
of which so much has been said, will be exhibited here on the trial of
this case. We are anxious that it should be proceeded with at once. It
has likewise been circulated through all the public journals that after
the former convictions, when an effort was made to go to the President
for pardon, men active here at the seat of government prevented any
attempt being made, or the President even being reached for the purpose
of seeing whether he would not exercise clemency; whereas, the truth,
and the truth of record, which will be presented in this court, is that
all this matter was brought before the President and presented to a
full cabinet meeting, where it was thoroughly discussed; and after such
discussion, condemnation, and execution, received not only the sanction
of the President, but that of every member of his cabinet. This, and a
thousand other of these false stories, will be all set at rest forever
in the progress of this trial; and the gentlemen may feel assured
that not only are we ready but that we are desirous of proceeding
at once with the case." The insinuation of Mr. Merrick, having been
thus bravely and fully met, the defense felt it necessary to shift
its ground, and so Mr. Bradley, in the course of his argument, found
another reason for the motion of the prosecution to quash the panel,
which he artfully put forth in the form of an insinuation as follows:
"I think I can see where this thing is drifting. It is not delay that
is sought, but they have another motive more powerful than delay. It is
to get another jury in the place of this honest jury already summoned.
Why, sir, the gentleman talks about the misgivings in the public
prints. I do not know that he has seen what I hold in my hand,--an
article from this place denouncing this jury because sixteen of them
are Catholics, as they say, but there it is--such an article has been
written and published in the New York _Herald_. I know, too, that the
same article, published yesterday morning, foreshadows the fact that
these gentlemen were to come into court on the day they did, and make
the identical motion that they have submitted here."
_Mr. Merrick._ "And states the ground of the motion?"
_Mr. Bradley._ "Yes Sir, states the ground of the motion. It looks to
me as though it came from very near home."
_Mr. Pierrepont._ "What does it state as the ground of the motion?"
_Mr. Bradley._ "There it is, just the same ground precisely as was
stated here that it was not a lawful panel."
_Mr. Pierrepont._ "Oh!" (laughingly.)
Thus we get a glimpse at the outside pressure that was brought to
bear on this trial by a constant fusilade of falsehoods couched
in cunningly-devised paragraphs that they might gain a general
circulation through the press of the country for the purpose not only
of influencing the jury in this case, but also of misleading and
perverting public opinion.
The fact brought out in this paragraph is somewhat remarkable. It
might have been a mere chance that sixteen out of the twenty-six drawn
for the jury happened to be Catholics, but we cannot help feeling a
suspicion that had the law been a little more closely followed it might
have been otherwise.
To the insinuation of Mr. Bradley, the District Attorney replied as
follows: "I do not rise for the purpose of arguing the motion before
the court, but with the permission of your honor, and my learned
friend, simply to say a word or two in regard to a certain statement
in one of the newspapers of the day to which my attention has just
been called. It is an item in the New York _Herald_, purporting to be
telegraphed from this city.
The article is not very complimentary to myself, but as my friend is
spoken of in very high terms, I am not disposed to quarrel with the
writer, for, as a generous-hearted man, I am more anxious for the
reputation of my friend than I am for my own. What is intimated in
it, I would not think of sufficient importance to be called to the
attention of the court, were it not that allusion has been made to it
here by the learned counsel who last addressed your honor.
He stated that there was some reason not made known for this motion
which we have submitted. I deem it due to myself to say--"
_Mr. Bradley._ "I beg your pardon if I have said anything wrong. I
thought it was a fair retort on what was said by Judge Pierrepont."
_The District Attorney._ "Notwithstanding the disclaimer of the
gentleman to impute any wrong motive to us in submitting the motion
now before your honor, I think, inasmuch as public reference has been
made to it here, it is due to my position before the country to say
a word. I will here say, then, that there is no one who would more
earnestly and sincerely deprecate any appeal to religious prejudices
than myself. Politicians may speak, think, and act as they please, but
for my part I would drive from the halls of justice the demon of party
spirit and religious fanaticism. I trust in God the day will never come
when a judge, or a jury, will be influenced in the discharge of the
most solemn duty that can possibly be devolved upon human beings by
political or religious considerations."
At the assembling of the court on the morning of the 13th, Judge
Fisher delivered an exhaustive opinion on the motion before him. As
it is somewhat lengthy I shall only give its concluding paragraph.
"Believing, therefore, that the substantial requirements of the
act of Congress in this case providing for the selection of a fair
and impartial jury, have not been complied with, but entirely set
at naught, and that there has been grave default on the part of the
officers whom that act has substituted in the place of the marshal,
for the purpose of having them exercise a united judgment in the
selection of all the persons whose names are to go in the jury box, I
am constrained to allow the motion of challenge in this case. I do not
consider the fact that the present panel were improperly drawn by the
clerk of Georgetown, who had no right to put his hand into the box,
because the objection which I have allowed lies even deeper than that.
It is, therefore, ordered by the Court that the present panel be set
aside, and that the Marshal of the District of Columbia do now proceed
to summon a jury of talesmen."
Judge Fisher subsequently said: "My order is that the Marshal summon
twenty-six talesmen." The process of securing a jury from talesmen
occupied the next four days, and about two hundred talesmen were
summoned before a panel could be secured.
Many of those summoned by the marshal were excused on showing
sufficient grounds; a very large number were found disqualified on
their _voire dire_; and perhaps all of the challenges, or nearly so, to
which the parties were entitled, were exhausted, and it was not until
the evening session of the 16th of June, that the jury was impaneled to
try the case.
When a panel of twenty-six jurors had been secured, counsel for the
prisoner, through Mr. Merrick, said: "If your honor please, we are now
ready to proceed to empanel the jury. Before doing so, however, we
think it our duty, in behalf of the prisoner, to file our challenge to
the present array. Your honor has virtually decided the question, and
we do not desire to take up any time in its argument. We simply wish
that it may be filed so that it can be passed upon."
The challenge in word and form is as follows:--
IN THE SUPREME COURT OF THE DISTRICT OF COLUMBIA.
THE UNITED STATES VS. JOHN H. SURRATT.
In the Criminal Court, March Term, 1867.
And the said Marshal of the District of Columbia, in obedience
to the order of the Court, made in this case on the 12th of
June instant, this day makes return that he hath summoned, and
now hath in court here twenty-six jurors, talesmen, as a panel
from which to form a jury to try the said cause, and the names
of the twenty-six jurors so returned being called by the clerk
of said court, and they having answered to their names as they
were called, the said John H. Surratt, by his attorneys, doth
challenge the array of the said panel, because he saith it doth
plainly appear by the records and proceedings of the Court in
this cause that no jurors have ever been summoned according
to law to serve during the present term of this Court, and
no names of jurors, duly and lawfully summoned, have been
placed in the box provided for in the fourth section of the
act of Congress, entitled, "An Act providing for the Selection
of Jurors to serve in the Several Courts of the District,"
approved 16th of June, 1862, on or before the 1st day of
February, 1867, to serve for the ensuing year, wherefore he
prays judgment that the panel now returned by the said Marshal,
and now in court here, be quashed.
MERRICK, BRADLEY & BRADLEY,
_Attorneys for Surratt_.
This motion was made as a foundation for carrying the case up on a writ
of error in the event of the conviction of the prisoner.
On Monday, the 18th of June, the case was opened by Mr. Nathaniel
Wilson, Assistant District Attorney, as follows: "May it please your
honor and gentlemen of the jury, you are doubtless aware that it is
customary in criminal cases for the prosecution at the beginning of a
trial to inform the jury of the nature of the offense to be inquired
into, and of the proof that will be offered in support of the charges
of the indictment. By making such a statement I hope to aid you in
clearly ascertaining the work that is before us, and in apprehending
the relevancy and significance of the testimony that will be produced
as the case proceeds.
"The grand jury of the District of Columbia have indicted the prisoner
at the bar, John H. Surratt, as one of the murderers of Abraham
Lincoln. It has become your duty to judge whether he be guilty or
innocent of that charge,--a duty than which one more solemn or
momentous never was committed to human intelligence. You are to turn
back the leaves of history to that red page on which is recorded in
letters of blood the awful incidents of that April night on which
the assassin's work was done on the body of the Chief Magistrate of
the American republic,--a night on which for the first time in our
existence as a nation, a blow was struck with the fell purpose not
only of destroying human life, but the life of the nation, the life
of liberty itself. Though more than two years have passed by since
then, you scarcely need witnesses to describe to you the scene in
Ford's Theatre as it was visible in the last hour of the President's
conscious life. It has been present to your thoughts a thousand times
since then. A vast audience were assembled, whose hearts were throbbing
with a new joy, born of victory and peace, and above them the object of
their gratitude and reverence,--he who had borne the nation's burdens
through many and disastrous years,--sat tranquil and at rest at last, a
victor indeed, but a victor in whose generous heart triumph awakened no
emotions save those of kindliness, of forgiveness, and of charity. To
him, in that hour of supreme tranquility, to him in the charmed circle
of friendship and affection, there came the form of sudden and terrible
death.
"Persons who were then present will tell you that at about twenty
minutes past ten o'clock that night, the night of the 14th of April,
1865, John Wilkes Booth, armed with pistol and knife, passed rapidly
from the front door of the theatre, ascended to the dress circle, and
entered the President's box. By the discharge of a pistol he inflicted
a death wound, then leaped upon the stage, and passing rapidly across
it, disappeared into the darkness of the night.
"We shall prove to your entire satisfaction, by competent and credible
witnesses, that at that time the prisoner at the bar was then present,
aiding and abetting that murder; and that at ten minutes past ten
o'clock that night he was in front of that theatre in company with
Booth. You shall hear what he then said and did. You shall know that
his cool and calculating malice was the director of the bullet that
pierced the brain of the President and the knife that fell upon the
venerable Secretary of State. You shall know that the prisoner at the
bar was the contriver of that villainy, and that from the presence of
the prisoner, Booth, drunk with theatric passion and traitorous hate,
rushed directly to the execution of their mutual will. We shall further
prove to you that their companionship upon that occasion was not an
accidental or unexpected one, but that the butchery that ensued was the
ripe result of a long premeditated plot, in which the prisoner was the
chief conspirator. It will be proved to you that he is a traitor to the
government that protected him; a spy in the employ of the enemies of
his country in the years 1864 and 1865; passed repeatedly from Richmond
to Washington, from Washington to Canada, weaving the web of his
nefarious scheme, plotting the overthrow of this government, the defeat
of its armies, and the slaughter of his countrymen; and as showing
the venom of his intent,--as showing a mind insensible to every moral
obligation and fatally bent on mischief,--we shall prove his gleeful
boasts that during these journeys he had shot down in cold blood, weak
and unarmed Union soldiers, fleeing from rebel prisons. It will be
proved to you that he made his home in this city the rendezvous for the
tools and agents in what he called his "bloody work," and that his hand
deposited at Surrattsville, in a convenient place, the very weapons
obtained by Booth while escaping, one of which fell or was wrenched
from Booth's death grip, at the moment of his capture.
"While in Montreal, Canada, where he had gone from Richmond, on the
10th of April, on the Monday before the assassination, Surratt received
a summons from his co-conspirator, Booth, requiring his immediate
presence in this city. In obedience to that pre-concerted signal, he
at once left Canada, and arrived here on the 14th. By numerous, I had
almost said a multitude, of witnesses, we shall make the proof to be
as clear as the noonday sun, and as convincing as the axioms of truth,
that he was here during the day of that fatal Friday, as well as
present at the theatre at night, as I have before stated. We shall show
him to you on Pennsylvania Avenue, booted and spurred, awaiting the
arrival of the fatal moment.
"We shall show him in conference with Herold in the evening; we shall
show him purchasing a contrivance for disguise an hour or two before
the murder.
"When the last blow had been struck, when he had done his utmost to
bring anarchy and desolation upon his native land, he turned his back
upon the abomination he had wrought, he turned his back upon his home
and kindred, and commenced his shuddering flight.
"We shall trace that flight, because in law flight is the criminal's
inarticulate confession, and because it happened in this case as it
always happens, and always must happen, that in some moment of fear or
of elation, or of fancied security, he, too, to others, confessed his
guilty deeds. He fled to Canada. We will prove to you the hour of his
arrival there and the route he took. He there found safe concealment,
and remained there several months, voluntarily absenting himself from
his mother. In the following September he took his flight. Still in
disguise, with painted face, and painted hair, and painted hand, he
took ship to cross the Atlantic. In mid-ocean he revealed himself and
related his exploits, and spoke freely of his connection with Booth
in the conspiracy relating to the President. He rejoiced in the death
of the President, he lifted his impious hand to heaven and expressed
the wish that he might live to return to America and serve Andrew
Johnson as Abraham Lincoln had been served. He was hidden for a time in
England, and found there sympathy and hospitality; but soon was made
again an outcast and a wanderer by his guilty secret. From England he
went to Rome, and hid himself in the ranks of the Papal army in the
guise of a private soldier. Having placed almost the diameter of the
globe between himself and the dead body of his victim, he might well
fancy that pursuit was baffled, but by the happening of one of those
events which we sometimes call accidents, but which are indeed the
mysterious means by which Omnicient and Omnipotent justice reveals and
punishes the doers of evil, he was discovered by an acquaintance of
his boyhood. When denial would not avail he admitted his identity, and
avowed his guilt in these memorable words: 'I have done the Yankees as
much harm as I could. We have killed Lincoln, the nigger's friend.'
"The man to whom Surratt made this statement, did as it was his high
duty to do--he made known his discovery to the American minister. There
is no treaty of extradition with the Papal States; but so heinous
is the crime with which Surratt is charged, such bad notoriety had
his name obtained, that his Holiness the Pope and Cardinal Antonelli
ordered his arrest without waiting for a formal demand from the
American government. Having him arrested, he escaped from his guards
by a leap down a precipice--a leap impossible to any but one to whom
conscience made life valueless. He made his way to Naples, and then
took passage in a steamer that carried him across the Mediterranean Sea
to Alexandria, in Egypt. He was pursued, not by the 'blood hounds of
the law,' that seem to haunt the imagination of the prisoner's counsel
[this refers to a remark made by Mr. Merrick when discussing the motion
to quash the panel], but by the very elements, by destruction itself,
made a slave in the service of justice. The inexorable lightning
thrilled along the wires that stretch through the waste of waters that
roll between the shores of Italy and the shores of Egypt, and spake in
his ear its word of terrible command; and from Alexandria, aghast and
manacled, he was made to turn his face towards the land he had polluted
by the curse of murder. He is here at last to be tried for his crime.
And when the facts which I have stated have been proved, as proved
they assuredly will be, if anything is ever proved by human testimony,
and when all the subterfuges of the defense have been disproved,
as disproved they assuredly will be, we, having done our duty in
furnishing you with that proof of the prisoner's guilt, in the name
of the civilization he has dishonored, in the name of the country he
has betrayed and disgraced, in the name of the law he has violated and
defied, shall demand of you that retribution, though tardily, shall yet
surely be done, upon the shedder of innocent and precious blood."
Before the hearing of evidence was entered upon, the prisoner presented
the following petition to the Court:--
"_To the Honorable, the Justices of the Supreme Court of the
District of Columbia, holding the Criminal Court in March Term,
1867._
"The petition of John H. Surratt shows that he has been put
upon his trial in a capital case in this court; that he has
exhausted all his means, and such further means as have been
furnished him by the liberality of his friends, in preparing
for his defense, and he is now unable to procure the attendance
of his witnesses. He therefore prays your honor for an order
that process may issue to summon his witnesses, and to compel
their attendance at the cost of the government of the United
States, according to the statute in such cases made and
provided."
This petition was signed, sworn to in open court, and attested by the
clerk according to law, and was granted by the court.
The government introduced eighty-five witnesses in chief to sustain
the various counts in the indictment, and ninety-six in rebuttal. The
defense introduced ninety-eight witnesses to overthrow the testimony of
the witnesses in chief on the part of the government, and twenty-three
in surrebuttal, making in all three hundred and two witnesses that
were examined during the trial. The examination of these witnesses
occupied the period of thirty-nine days. The hearing of the evidence
commenced on the 17th of June, and was concluded on the 26th of July.
The arguments in the case were concluded on the 7th of August, and on
that day Judge Fisher delivered his charge to the jury and gave them
the case. On Saturday, the 10th day of August, just two months from
the commencement of the trial, the jury reported that they stood about
equally divided in favor of conviction and acquittal, and that there
was no prospect of their being able to agree.
The Court inquired whether anything was to be said why the jury should
not now be discharged. Mr. Bradley said: "The prisoner gave no consent
to any discharge of the jury. If they were to be discharged he wants it
understood that it was against his will and protest."
The District Attorney, on behalf of the government, left the whole
matter with the Court.
The Court remarked that this was the third communication of a similar
tenor he had received from the jury. If he thought there was any
possibility of their coming to an agreement as to the guilt or
innocence of the prisoner, he would have no objections to keeping them
out longer, but supposing from the statement made by them, no such
result could be expected, he directed the jury now to be discharged.
The prisoner was then remanded to the custody of the Marshal.
A second indictment was found against him for the murder of Abraham
Lincoln, and the District Attorney entered a _nolle prosequi_ on this.
Thus the prisoner was set at large.
The result of this trial by a civil court made it clear that no verdict
could be expected from any jury that could be obtained under the
law, and so the case was not further prosecuted. It does not come
within the scope of the author's plan to review in detail this great
mass of evidence. Neither is it necessary. It is sufficient for him
to say that the charges contained in the indictment were fully proven
by the testimony in chief of the witnesses for the government, and
that this testimony was not impaired in any essential point by the
efforts of the counsel for the defense in their cross-examination of
these witnesses, nor yet by the testimony offered by the defense. It
will be found upon a careful and candid scrutiny to fully sustain the
statements herein-before given as to the conduct of Surratt in his
relations to the transaction. No one can carefully read the masterly
summing up of the evidence, and the fair and honest interpretation
of it by Judge Pierrepont in his concluding argument, without being
thoroughly convinced that Surratt was a prominent and active member of
the conspiracy, and that he took an active hand through a period of
more than three months in preparing for the execution of its purposes,
as also in its final accomplishment. The evidence was shown to prove
conclusively the fact that from the time of his introduction to Booth,
on the 23d of December, 1864, to the time of the assassination, their
associations were of the most intimate and confidential character;
that they were much together, and co-operated in bringing together
in Washington City the other members of the conspiracy, on whom they
relied for important parts in the final act. It was shown that the
house of Mrs. Surratt, the mother of the prisoner, was the place of
rendezvous for Booth, Atzerodt, and Payne, and that her house at
Surrattsville, occupied by her tenant, Lloyd, was made the place of
deposit for arms to be used by Booth and Herold in their flight after
the murder; that these were placed there by Surratt, and that his
mother also had knowledge, not only of this fact, but of the purpose
for which they had been provided, and of the time they would be called
for, and was used by the conspirators to convey to her tenant, Lloyd,
the notification to have them ready, as they would be called for that
night.[29]
It was here, on this civil trial, that "the scales of justice fell,"
and not, as alleged by the prisoner's counsel, at the trial before the
Military Commission.
The District Attorney and His able assistant, Judge Pierrepont, had
both expressed their confidence in the ability of the civil courts to
compass the ends of justice; but the result of this trial showed that
in a crime committed to further political party interests, no jury
could be expected to find a verdict; and so the government refused to
prosecute the case any further. The prisoner was set at large.
At the conclusion of the trial, on Aug. 10th, 1867, Surratt was
remanded to prison, and on May 12th, 1868, he asked to be released on
bail, but was refused. On June 22d, 1868, he was released from custody.
On the 22d of September, 1868, a _nolle prosequi_ was entered.
Another indictment was found against him for engaging in rebellion.
Upon this he was ordered to be admitted to bail in a bond of $20,000.
He first pleaded not guilty, and then asked to withdraw this plea, and
to file a special plea, which was granted. The government demurred to
the plea on Sept. 22d, 1869. The demurrer was overruled, and he was
finally discharged.
CHAPTER II.
A CRITICISM OF THE DEFENSE.
It now remains for the writer to review the course of the defense in
this trial, and to point out its policy, its spirit, its perversion of
facts, and disregard of evidence in carrying out its purpose to appeal,
first, to the prejudice of the jury, and then to pervert public opinion.
The prisoner was defended by counsel of known and acknowledged
ability--men of reputation for their knowledge of law, and ability as
advocates at the bar. But despite all this, their defense of Surratt
was as unique in its character as was the case itself. Made by men
learned in the law, it ignored the requirements of law, and so was
managed by them more in the light of its political relations, than that
of its legal requirements. In proof of this assertion I shall quote
freely from the arguments of counsel, and I think I shall be able to
show that I am fully justified in expressing this opinion. I shall
first refer to the remarkable number of exceptions taken by the counsel
for the defense to the rulings of the Court on questions of evidence,
and the use made of them. I will quote first from the argument of Mr.
Merrick.
"In a prosecution such as this, conducted against one of its citizens
by a government, what should be the course of that government, and what
is due to the jury and to the prisoner? Whatever there is that can
throw light upon the alleged crime should be let into the jury box.
All evidence that could go before the human mind calculated to impress
it with conviction, or modify its opinions, should be allowed to come
before you. What has been the case with regard to this trial? Wherever
any technical rule of law could by any constraint whatever exclude a
piece of testimony calculated to enlighten your judgment, it has been
invoked to exclude that testimony; has been bent from its uniform
application and its generally understood principle for that purpose.
I shall find no fault with his honor on the bench in his rulings, for
this is not my place to express an opinion about a decision of the
Court.
A member of the bar should be loyal to the tribunal before which he
practices, to the full extent of gentlemanly and professional courtesy,
and in the court-room bow with pleasant acquiescence in whatever
the judge may say. With that acquiescence I bow, and yet there is
nothing--and I must say this, and say it in justice to myself--there is
nothing that has fallen from his honor in the adjudication upon these
questions of testimony that has changed my opinion that the testimony
should be allowed to go to the jury. _One hundred and fifty exceptions
taken by the defendant's counsel encumber this record._ It is certainly
strange that there should have been so wide a difference, and I regret
it. Without complaining, as I said, of the decisions of the Court, it
can only be accounted for from the fact that the attorneys representing
the government in this case have strained every principle of law, and
invoked in their behalf every discretionary power of the court, as
against the prisoner."
Notwithstanding his semblance of disclaimer, Mr. Merrick here makes an
appeal to the jury, on the implied charge of partiality on the part of
this Court. In giving his charge to the jury Judge Fisher very properly
takes notice of this charge, and effectually rebukes the arrogance of
the counsel in the following language: "Much stress has been laid by
the counsel for the defense upon the fact, which they assert, that
during the progress of this trial more than one hundred and fifty
exceptions have been taken to the rulings of the court concerning the
admissibility of evidence. If they have found themselves under the
necessity of calculating the number of these exceptions, and parading
them before you, with a view of having you render a verdict according
to irrelevant evidence not before you, rather than according to the
legal evidence which you have heard, I have no disposition to criticise
their taste, but leave them to present their case in their own way. At
the same time I feel it my duty to remark to you that if counsel will
be so bold as to present propositions to the Court which every tyro in
the profession ought to know are untenable, it does not necessarily
follow that the judge must always be so weak as to sustain them. It has
heretofore been supposed that exceptions to the rulings of a judge at
_nisi prius_ were intended to be passed in review before the appellate
tribunal. I have never before known them to be neatly calculated and
presented to the jury by way of argument."
A jury is sworn to decide according to the law and evidence in the
case. But how are jurors to decide according to the law, not being
acquainted with law? It is manifest they cannot take their instructions
on the law from the counsel employed in the case, as they will
naturally differ widely in their constructions of law. It is made,
therefore, the duty of the court, an impartial tribunal, skilled in
law, to instruct the jury on all the points of law involved in the
case. In this remarkable case the counsel for the defense, feeling that
the court could not sustain the interpretations of the law on several
important points which they had endeavored to impress on the jury in
their arguments, took the remarkable position that the jury was to be
its own judge of questions of law. Mr. Merrick, in the course of his
argument, took this position, and argued it at some length, as follows:
"The jury is specially charged, it is true, with the fact; but they are
also charged with the law. You are to instruct them by your learning,
your wisdom, and by your authority. You are to advise them; but they
must know and they must believe. My learned brother on the other side
(Mr. Carrington) seemed to feel that it was necessary to press you,
gentlemen, very hard upon your obligation to follow the instructions
of the Court. I have never heard him say that before. Other cases have
been tried before this, but I have never heard him talk so earnestly to
the jury about being obliged to follow the instructions of the Court.
Why is he so solicitous in this case? Does he think you won't dare to
do right? He told you, gentlemen of the jury, that you were sworn to
try this case according to the law and the fact, and that you must take
the law from the court; and if you departed from the law so given you,
you would be perjured. I tell you it is no such thing. If you find a
verdict of guilty, and do not believe the party to be guilty in every
particular, in your judgment and in your hearts, then you are perjured
men, I care not what the Court's instruction is.
"Has my learned friend read the oath? I don't think he has. Mr. Clerk,
will you be kind enough to read it." (The clerk then read the oath.)
Mr. Merrick resuming, said: "Where is the law? Why did you tell the
jury what you did? The language is, 'And a true verdict give according
to the evidence.' My learned brother has had that oath ringing in
his ears for six years. Why didn't he tell you what it was? You are,
gentlemen, to find a verdict according to the evidence. What sort of
verdict are you to find? Guilty, or not guilty. That is all you can
say. You cannot say 'Guilty,' under the Court's instruction, or 'Not
guilty,' under the Court's instruction. If you say 'Guilty,' you say
'Guilty as indicted,' upon your conscience resting the weight of the
guilt. If your verdict should be 'Guilty,' it will be followed by
blood, for you see there is no mercy anywhere in those that represent
the government. If your verdict is guilty, then, indeed, you look upon
a dying man. Upon your consciences will rest the responsibility of that
verdict.
"And let me say to you, gentlemen of the jury, that on that awful day
when you shall stand before the last tribunal to be judged, and the
All-Seeing Eye shall look into your hearts and ask you why you found
this verdict of guilty, think you He will harken if you say, 'The
judge's instructions made me do it.' He will say to you, 'Were you
not free agents, with minds and intellects, sworn as a jury in a free
country? Were you not told by the counsel for the prisoner at the bar
that it was your duty to find this verdict according to your judgments,
your consciences, and didn't you disregard him?'
"If Judge Fisher's instructions made you find it, bring Judge Fisher.
Where is the Judge? Think you he will step forward and say, 'I will
take the burden.' No, gentlemen. Let me say to you now, that by the
laws of the land, and by the laws of God, the responsibility is on
the judge to instruct you rightly, to guide you correctly, to give
you wise and judicious counsel, not as mandatory and binding on your
conscience, but as advisory to your judgment, to enlighten the pathway
you are to tread in your investigations. We shall ask no instructions,
and desire none. The law of murder is too plain to need any, and you,
gentlemen, are too intelligent not to understand it. Indeed, if we
desire some explanation, _we would prefer to give it to you in the
way of argument, rather than trust it to the distinguished judge who
presides_. We would trust it to argument, because, with regard to these
plain questions, all men can comprehend what the law is. _We would
prefer trusting it to the weight of our own character with the jury as
men and lawyers._" After this ingenious appeal to the jury, the learned
advocate then proceeded to recount and expound the propositions of law
on which the District Attorney had invoked the instructions of the
Court.
Judge Fisher in charging the jury made the following reference to this
remarkable argument by Mr. Merrick: "You have been told, gentlemen, by
the counsel for the defense, in a manner not very respectful, certainly
by no means complimentary to the Court, that you are the judges of the
law as well as the facts in criminal cases, and that you have the right
to disregard the instructions of the Court in matters of law; and they
tell you that their expositions of the law, and the weight of character
they possess, may be more safely relied upon than the instructions
which may be given you by the Court. The weight of character of a
prisoner's counsel would be a variable, and not unfrequently a very
unsafe criterion by which the jury should judge as to the law of his
case. Perhaps they would have you regard the court as sitting on the
bench merely to discharge the duty of preserving order and decorum in
the court room, which probably the crier of the court or baliff might
be disposed to regard as an usurpation of his prerogative. If the jury
are entirely to disregard the judge's instructions as to the law of a
case, I confess I can see but little left than that for him to perform.
"It is true, gentlemen, that you have the power, and in cases where
your consciences are satisfied that the instructions of the Court are
dictated, not by an honest desire to enlighten the jury as to the true
state of the law, but by corrupt and wicked motives, you have the right
to disregard the instructions purposely intended to mislead you. But
to claim that the jury are better judges of what the law may be than
the Court, is about as reasonable as to assert that a plain farmer or
merchant may be taken fresh from his plough or his counter, and be more
capable of navigating and manoeuvering a steam frigate, or to lead your
armies to certain victories, than your admiral or commander-in-chief.
In my opinion, you have just the same right to disregard the evidence
of the witnesses who stood before you unimpeached in any matter
respecting the facts involved in the cause, as you have to disregard
what the Court may say to you, under an official oath, as to the law
that may apply to the facts. A jury have the _power_, if they choose
to exercise it, after having assumed the obligations of an oath, to
say that they will neither believe the judge nor the witnesses, but
decide upon the law and facts according to their own caprice, or the
confidence which they may repose in the character of counsel on either
side, but such is not the purpose for which juries were instituted,
and they have no right so to act. When the witnesses in the cause
have testified before you as to the facts, it is then the office of
the judge, under his official oath, to testify to you in the spirit
of truth, according to the best of his knowledge and ability, as to
what is the law which may be applicable to those facts; and an honest
jury will disregard neither the testimony of the witnesses nor the
instructions of the judge, unless they are satisfied that corrupt
motives have actuated them. They will leave the party where the
law leaves him, to his legitimate redress,--a writ of error to the
appellate court."
Referring to the course of counsel in this illegitimate appeal to the
jury in their argument on this point, and to their appeal, based on
the number of their exceptions to the rulings of the Court, the judge
made this further remark in vindicating the position and dignity of
the Court: "In reference to these matters I may observe that, perhaps,
I owed it to the dignity of the bench to have interrupted counsel in
the conduct of the case in this particular, but in a cause involving
the life of the prisoner upon the one hand and the vindication of the
outraged justice of a nation in mourning upon the other, I deemed it my
duty to cast not an atom in the one scale or in the other which might
by any possibility tend to prejudice either side of the issue."
CHAPTER III.
TREATMENT OF WITNESSES AND EVIDENCE BY THE COUNSEL FOR THE
DEFENSE AND THEIR ANIMUS TOWARD THE GOVERNMENT AND APPEALS TO
THE POLITICAL PREJUDICES OF JURORS.
The conduct of this trial on the part of the defense toward the
witnesses for the prosecution was most remarkable. The law prescribes
the methods by which testimony is to be discredited, and the eminent
lawyers who defended the prisoner were of course well acquainted with
the legal methods of impeaching testimony. That they did not confine
themselves to these was not only unprofessional, but was calculated to
create a suspicion that they had an intuitive perception of the fact
that the methods known to the law would not avail them in this case.
Hence from the first they attempted to influence the jury by treating
the government witnesses with supercillious contempt, and even scorn.
They did not, however, stop here, but whenever they could find or make
an occasion they would throw out insinuations against the witnesses _en
masse_ by side remarks intended for the ears of the jury.
They spoke of the witnesses who were kept together in a room, to be
called as they were needed, as being in the "penitentiary," and added
to this that "they would soon be in another penitentiary."
On the examination of Dr. McMillen, the surgeon of the ocean steamer
"Peruvian," in whose charge Father La Pierre had placed Surratt under
the name of McCarthy, and to whom Surratt had made confessions during
his voyage across the Atlantic that were conclusive of his guilt, the
counsel for Surratt made themselves so offensive that the witness was
provoked to a retort in self-defense.
This witness was intolerable to them because of the directness and
force of his testimony. In self-defense the Doctor was provoked into
making the following remark: He said he would tell the counsel (Mr.
Merrick), and if he was not deaf, he could hear, and repeated his
answer, adding that Mr. Merrick had insulted witness the other day, and
that it was the act of a coward and a sneak. The Court here cautioned
the witness that such language was not becoming, but also remarked
"that it was not becoming in counsel to try to worry witness into bad
temper."
Witness stated "that Mr. Merrick had remarked the other day that all
the witnesses in the adjoining room ought to go to the penitentiary, or
something to that effect; that he was just as good as Merrick."