On the following day, at the opening of the court, Mr. Bradley said:

"If your honor please, before we proceed with the trial of this case,

I beg leave to call the attention of the Court to an incident which

occurred just before the adjournment yesterday, and to ask that the

notes of the reporter may be read. Your honor was very much occupied at

the time, and I desire that the record may be read in order that you

may see what passed, and what led to the attack made by the witness

upon the stand upon the counsel with whom I am associated, your honor,

without having heard what passed at that time, if not in precise words

yet in substance, censured the counsel to whom these observations were

addressed. I think, in looking at it, your honor will see that there

was no provocation given; and that if there was, it is due to the

dignity of this court, and to the protection of the members of the bar,

to which they are entitled at the hands of the Court, that some notice

should be taken of what then passed." After the reading of so much of

the report as related to the matter, the Court spoke as follows: "I did

not hear what was said by the witness in regard to the gunboats, for

the reason that I was at the time occupied in preparing some passes

for a friend. When my attention was called to the remark made use of

by the witness towards the counsel, I was under the impression that he

had been provoked to it by something that had been said by the counsel.

I cannot, however, perceive in the record which has been read anything

which ought to have called forth, or which justifies, the expression of

the witness. I will say now to the witness, that although Mr. Merrick

did say a few days ago, in regard to the witnesses who were in the

adjoining room (which Mr. Bradley had called a penitentiary) that they

(the witnesses) would soon be in another penitentiary, or words to that

effect, it is not the privilege of a witness to take exception in the

way he did to any remarks made in the court room. He may appeal to the

Court to protect him if he is aggrieved." [Turning to witness] "You

must not, hereafter, in your examination, make use of any expressions

to counsel which are at all insulting in their character, however much

you may feel yourself aggrieved by remarks which they may have made in

reference to witnesses generally, or in reference to yourself before

your examination.

"In this connection it may not be improper to observe that I have

never, in all my judicial experience, seen a case in which there has

been so much trouble with regard to the examination of witnesses and so

much bitterness of feeling displayed.

"It may be all right, but I confess I see no reason why it should be

so. I cannot, of course, enter into the feelings of counsel, and it

is possible they may feel themselves aggrieved, and therefore regard

themselves as justified in exhibiting this spirit. I will say, further,

that I have never seen witnesses cross-examined with so much asperity

as I have in the case now pending. It does not appear to me, therefore,

as at all strange that witnesses should be worried into such remarks

as this witness has uttered, especially when intimations are publicly

thrown out by counsel as to their fitness for the penitentiary, and

that, too, when some of the most respectable persons in the land, such,

for instance, as General Grant and Assistant Secretary Seward, are

among the number. And not even was the effect of the remark allowed

to stop with the intimation, but when attention was called to it

by the District Attorney, in the hope, I presume, that it would be

recalled, it was repeated, and with the additional observation that

the propriety of the remark could be shown. When such things occur it

is not at all surprising that witnesses should come here prepared to

avenge themselves by making insulting replies to the counsel. I deeply

deplore it, and will endeavor, by most carefully observing all that

transpires, to prevent a similar recurrence on the part of either

counsel or witnesses; but however watchful the Court may be, such

things will occasionally break forth at times and under circumstances

when, from not expecting it, it is impossible for the Court to check

them." [Again addressing himself to the witness.] "Dr. McMillen, you

are highly reprehensible for having made such remarks as that to which

exception has been taken. It was altogether out of place. If you felt

yourself aggrieved by any remark, you should have called on the Court

for protection. You will now proceed to give your evidence, and in a

manner respectful to the counsel. If the counsel on either side shall

treat you with what you conceive to be disrespect, you will appeal to

the Court, and the Court will intervene for your protection. I would,

however, suggest to gentlemen on both sides that in the examination of

witnesses, if they will consult Quintilion and Allison in regard to

their duty in this respect (and no doubt they have read the remarks

of both these authors on the subject), they will find that those

writers say nothing is to by gained by a bitterness of manner toward

witnesses either on examination in chief or cross-examination, but

that everything may possibly be gained by kindness and conciliatory

manners; and I think it would be a decided improvement in this case if

their suggestions were accepted. In the course of the five years that I

was engaged in prosecuting criminal cases, I do not recollect ever to

have had an unkind word with a witness on the one side or the other,

and never in a civil case except on one occasion, when a witness of

my own turned against me. Then I was led away by a natural quickness

of temper. I advise that we should all, to the best of our ability,

endeavor to control our tempers in conducting this case; and then there

will be no fear of a repetition of the unpleasant occurrences that have

happened during its progress."

To this Mr. Merrick replied: "I feel it incumbent upon me to say,

after what has fallen from the Court, especially as your honor seems

to have the impression that I intended my remarks to apply to all the

witnesses, including Secretary Seward and General Grant, that while

your honor misunderstood me in this regard, I do not believe I was

misunderstood by some others outside, in supposing I intended to

embrace all the witnesses in that remark. I will here say that I have

the greatest respect for General Grant and Mr. Seward, and I apprehend

that among the witnesses in the case it is perfectly well understood

to whom I referred and to whom I did not refer. I apprehend that no

sane man can suppose that I meant any such reference to General Grant,

Mr. Seward, or Mrs. Seward, and that class of witnesses. I will only

say, in conclusion, that I think, without any further explanation, or

more direct pointing of the remark at present, it is perfectly well

understood among the witnesses to whom the remark referred."

To this the Court replied: "I do not know whether it is understood

or not. I cannot understand it, because I am bound not to know the

witnesses, either as regards their own private character, or the

character of their testimony, and I enter into the trial of this case

knowing nothing, as it were, about either, scarcely ever having glanced

at the testimony, and of course, therefore, I cannot enter into the

feelings of counsel on the subject. I do not know to what witnesses

these remarks may be directed, but this I do know, that there are

certain legal methods pointed out in the text books of the law by

which we are to be guided in undertaking to discredit the testimony of

witnesses. One method is the discrediting of the witness by himself;

by his own contradictions, and by his mode and manner of testifying.

Another is by proving the witness to be utterly devoid of reputation

for truth and veracity, and not to be believed on his oath. Another is

by contradicting him by the conflicting testimony of other witnesses.

These are the legal modes that are pointed out in the law books, and

any side remarks that are made by way of prejudicing a jury, any acting

in the case, the casting of sinister looks at the jury, are departures

from the rules laid down.

"The examination of a witness ought to be conducted by the witness

standing up and the counsel standing up, and looking each other in the

face, without the counsel directing his remarks to the jury by turning

towards them instead of turning towards the witness. That is the proper

way to conduct either an examination in chief or a cross-examination."

The fact that the Court deemed it necessary to deliver such a lecture

as this to counsel, who were men of age and experience in their

profession, and who from their reading ought to have been as well

informed as the Court on the proper treatment of a witness and the

legal methods of discrediting testimony, indicates that he had found

in their conduct such flagrant departures from the requirements of

law and professional conduct a necessity for such criticism and such

admonitions. The opinion of the Court as thus expressed fully justifies

me in the charges I have made against the conduct of the defense and

their unprofessional efforts to discredit testimony. I am still further

justified in it by the remark of Mr. Merrick that they (the counsel

for the defense) "had laid at the feet of the attorneys a mass of the

most corrupt battalion that was ever summoned to support a cause in a

criminal court."

Here Mr. Merrick attempts to set aside all of the testimony that had

been offered by the government proving the guilt of the prisoner, by

denouncing it as corrupt throughout, and unworthy of the slightest

consideration. This would certainly be as easy a method as it would

be novel to throw out testimony _en masse_ upon the mere _ipse dixit_

of counsel, and in consequence of the legal standing and weight of

character claimed by them with such manifest self complacency, but when

we consider the fact that upon a candid and careful scrutiny of all the

testimony in the case, it could be set aside in no other way, we could

not perhaps reasonably expect them to refrain from trying to get the

benefit of all the method that was left them.

The most important witnesses introduced by the government and those

who most unequivocally proved the existence of a conspiracy and the

connection of the prisoner with it, as also his participancy in its

accomplishment, and also the fact that his mother belonged to it and

performed a part in preparing for its accomplishment, had stood every

test that ingenuity could devise to discredit their testimony. Some

of them had been kept on the stand under cross examination for nearly

two days, and could not be made to discredit their own testimony,

either by contradictions or mode of answering. Neither had they been

discredited by proving that they were utterly devoid of character for

truth and veracity, and not to be believed on oath. The attempts at

their contradiction by the conflicting testimony of other witnessess

had all proven miserable failures, and so the counsel for the defense

attempted to have their client declared innocent by scouting all of

the evidence in the case and offering their own convictions of his

entire innocence, and referring the jury to their weight of character

and legal standing to enforce their opinions on the jury as grounds

for a favorable verdict for their client. Never did able lawyers deal

more unfairly with witnesses nor with evidence, nor more wantonly set

at naught the established rules of evidence, not only in the respects

referred to, but also in the efforts that they made to introduce

testimony which they must have known to be inadmissible under the

rules of evidence, as already shown in the number of exceptions which

they not only took to the rulings of the court, but kept count of

and paraded before the jury. Their animus toward the government was

also shown in this matter of testimony, as also in other ways to

be hereafter noticed. They charged the government with presenting

testimony on this trial that it knew to be false, and withholding

testimony from the military commission that would have proven the

innocence of Mrs. Surratt. To sustain the first charge, they asserted

in regard to the handkerchief found by Blinn at the Burlington depot,

that it had been dropped by a government detective, and not lost by

Surratt. Blinn, however, was positive in his testimony that he found

the handkerchief on the morning of the 18th, but the handkerchief which

Hallohan, the detective, claimed to have lost, was lost at Burlington

on the morning of the 20th of April. He did not discover its loss,

however, until he got to Essex Junction, and did not know where he had

lost it. The handkerchief found by Blinn on the morning of the 18th,

and put in evidence by the government, could not therefore have been

the handkerchief that Hallohan claimed to have lost. There was also too

heavy a cloud of uncertainty hanging over his (Hallohan's) testimony

after his cross-examination, to have warranted the counsel in making so

serious a charge against the government as that it knew that Hallohan,

and not Surratt, lost the handkerchief.

In further proof of the charge that they disregarded and set at

naught the rules of evidence, they tried to get in a statement by

John Matthews of the contents of an article put into his hands by

Booth on the afternoon of the 14th of April, with a request that if

he (Booth) did not see him before 10 o'clock on the following morning

he should hand it to the _National Intelligencer_ for publication,

and which Matthews, after the assassination, had burned, thinking it

would put him in danger to have such a thing found in his possession.

They proposed to prove by this witness that neither the prisoner nor

his mother were in the conspiracy. Of course they knew that they could

not prove the contents of a paper that would have been inadmissible

even if it had been presented. But if they had had the paper in

their possession they could not have proven anything by it, as it

was represented to be a paper prepared by Booth to justify himself

in the crime he had in contemplation, and would have been no more

admissible as evidence than the diary which Booth kept during his

flight, every entry in it having been made in view of his probable

failure to make his escape, and with the intention of palliating his

crime. It was of no more value as evidence than was his assertion of

the entire innocence of his companion, Herold, just a few minutes

before he was shot. Yet they censured the government for not putting

this diary in evidence before the Commission, asserting that its reason

for withholding it was that it would have proven the innocence of

Mrs. Surratt, thus by implication asserting that the government was

thirsting for her blood, and was determined that she must be convicted

right or wrong.

This position was boldly taken by them in their arguments, as we shall

hereafter see, in the face not only of the evidence on which she

was declared guilty by the Commission, but also in the face of that

presented on this trial, which much more clearly and fully established

her guilt. I have thus been careful to show from the record that I am

justified in the strictures I am making on the course of the defense.

I would be sorry to do any injustice to these men if they were here to

answer for themselves, much more so now that the two senior members,

Mr. Bradley and Mr. Merrick, are numbered with the dead. My charitable

conclusion in their behalf is that their political opposition to

the government so prejudiced their minds that they could not bring

themselves into a judicial frame for the trial of this case. Their

religious sympathies with Mrs. Surratt, and their ready acceptance

of the assertion of Father Walter that she was "as innocent as the

newborn babe," so influenced their minds that they would reject as

false any testimony whatever that went to establish her guilt. Their

sympathies then would naturally lead them to conduct the defense of her

son in the same spirit of determination to hold him innocent in spite

of all adverse testimony. The prisoner found his counsel in a state of

mind to readily accept the ingenuous fabrication which he had had two

years to get into form, as also no doubt the able assistance of the

Reverend Fathers who so sedulously watched for his return to Canada

after the murder of the President, and who at once took him under their

protection on his return to Montreal, and kept him secreted for five

months, until they could get him landed in the Pope's dominions; and

then when he was brought back and put upon his trial, stood by him from

day to day with unfaltering fidelity, until he was set at liberty.

The story which Surratt gives in his Rockville, Md., lecture, which

bears throughout the marks of the "fine Italian hand" of the Jesuit,

and which is contradicted in all of its most important points by

the whole run of the testimony in the two trials, had no doubt

been accepted by his counsel as true, and hence they would hear no

testimony that conflicted with it; but were ready to accept any

evidence whatever, without regard to the character of the witnesses,

that corroborated it. This, in the opinion of the author, is the

most charitable construction that can be put upon their conduct in

the management of their case. Their eyes were blinded by their all

controlling prejudices, and bitter opposition to the course of the

government in sending Surratt's co-conspirators before a military

commission for trial. We shall now proceed to give the evidence of

their feelings toward the government in this matter. They could

apparently find no words bitter enough to express their abhorrence of

the trial by a commission.

As John H. Surratt and his mother were bound up in the same bundle by

all the testimony in the case, and his mother had been found guilty

upon this testimony by the court before which she was tried, his

counsel seemed to feel the necessity of getting rid of the effect of

this fact, in its bearing on their case. That I may not be accused of

doing them injustice in presenting their mode of doing this, I will let

them speak for themselves.

In the examination of jurors on their _voire dire_, Mr. Pierrepont

asked the question: "Have you formed any opinion in regard to the guilt

or innocence of the other conspirators?" The question was objected

to by the counsel for the defense, and Mr. Merrick, to sustain his

objection, said, among other things: "I presume there is scarcely

a gentleman in the United States who has not formed and expressed

the opinion that Booth shot Lincoln. I apprehend there are very few

who have not formed and expressed an opinion that the mother of the

prisoner at the bar suffered death without competent testimony to

convict her, and so we might go through in an inquiry in relation to

all the others." In replying, Mr. Pierrepont said: "The reason urged

by my learned friend against it is, that he believes, I do not know

but that he asserts, that there are very few in the United States who

do not believe that Mrs. Surratt was illegally executed. Therefore we

could not get a jury competent to try the prisoner at the bar if this

question is allowed to be put."

_Mr. Merrick_ [interrupting]. "My brother will allow me to say that he

did not state my entire proposition. I said there were few intelligent

persons in the United States who had not formed an opinion upon the

question of Booth's participation in the killing of Lincoln; and there

were also, I presumed, but few persons who had not formed an opinion

that Mrs. Surratt had been executed upon insufficient evidence."

_Mr. Pierrepont._ "Precisely; that is the very statement, except that

my friend has made it a little stronger than I did.

"I did not intend to overstate it, as there is nothing gained by

overstatement, but it seems I did not come up to the mark."...

In his opening for the defense, Mr. Joseph H. Bradley, Jr., said: "We

have at last arrived at that stage of this case when an opportunity is

afforded the prisoner for saying something by way of defense, not only

of his own character, his own reputation, his life and his honor, but

also as it shall rise incidentally in this discussion of this evidence

before you, something in the way of vindicating the pure fame of his

departed mother." Again. "As to Mrs. Surratt we hope to satisfy you

that a grave error has been made in her case." Again Mr. Merrick, in

his argument on the motion to strike out certain testimony, said: "The

counsel had said, if it was anything favorable, the defense would

insist on it; if anything unfavorable, they would not desire it. All he

had to say in reply was, that he would insist on the free confession of

all who had testified in the case, if he could get it. He would like to

have had the privilege of putting in whatever this poor boy's butchered

mother said, but had not. When he offered what she said, counsel on the

other side said, 'No, you cannot prove that. We can prove what she said

that will benefit the state, but you shall not throw the mantle of a

mother's declarations over the child standing in the prisoner's dock.'

Had we been allowed, we would have proved her declarations--proved them

when tottering from the dungeon to the scaffold, with the world behind

her, and nothing in the front but that God before whom she was shortly

to appear, and before whom she solemnly asseverated that she was

innocent of the crime for which she was being killed."

To all these charges and assumptions the District Attorney, in his

argument upon the evidence, replied as follows: "Well, I do most kindly

but most respectfully and emphatically repudiate the unjust imputation

that Mary E. Surratt has been murdered, as was alleged by one of the

counsel, and butchered as alleged by another. Where is the evidence to

justify it? If they have a right to make this accusation, have we not

a right to reply to it? For what purpose was it introduced before this

jury? Is it to appeal to your prejudices? I make no such accusation

against the gentlemen; they charge it home upon us when they say a

murdered and a butchered woman. I deny it, and I undertake to prove to

the contrary."

Mr. Bradley, interrupting, said "he supposed this threw the whole

subject open for discussion." The District Attorney rejoined: "It

had been introduced by the learned gentlemen on the other side." Mr.

Bradley replied "that he was not aware what evidence there was on which

this question could be discussed. But if it was understood that the

whole subject was open, and that the counsel for the prisoner could not

be interrupted in their discussion of it, he was satisfied."

_The District Attorney._ "Then why make allusion to it in the first

instance? Who cast the first stone in the presence of this jury?

"I regret that it should have been necessary for an American woman

to be executed by the judgment of an American tribunal. That verdict

has been rendered by an American tribunal, and the consequence of it

was the execution of an American woman. I know the character of the

American people. I know that imagination revolts at the execution of

one of the tender sex. But when the daughter of Herodias murdered

John the Baptist, she deserved death. When Lucretia Borgia darkened

the history of her country by her horrid crimes, she deserved death.

And when Mary E. Surratt murdered Abraham Lincoln, the great moral

hero of the age in which he lived, the patriot and philanthropist of

the nineteenth century, she deserved death. There is no man who has a

heart more capable of love for woman than myself. But when she unsexes

herself, when she conceives, when she encourages, when she urges on,

and is instrumental in committing the crime of murder, she places

herself beyond the pale of protection. The best wife who ever lived,

according to Milton, our great mother Eve, is thus represented as

speaking to her husband:--

"'What thou biddest,

Unargued I obey; so God ordains:

God is thy law, thou mine.'

"I believe in submission on the part of women; submission to her God,

to the laws of her country and to her husband. But when a woman opens

her house to murderers and conspirators, infuses the poison of her

own malice into their hearts, and urges them to the crime of murder

and treason, I say boldly, as an American officer, public safety,

public duty, requires that an example be made of her conduct. Murder!

gentlemen of the jury. Who composed that military commission? They are

no better men than you are, but you will not be offended with me if I

say they are as good men as you are, or I, or any of us." Naming over

the officers who constituted the tribunal by which Mrs. Surratt was

tried, he continued: "I say, gentlemen of the jury, that they are good

men, holding commissions under the government of the United States,

and they are presumed to be honorable men. The law declares that every

private citizen, and every public officer who is a servant of the

American people, is presumed to be honorable until the contrary is

proved.

"Your officers, your men, your representatives in the American army, in

an accusation which will travel upon the telegraph wires perhaps to the

four quarters of the world have been denounced, if not expressly, by

implication, as murderers and butchers who took the life of an innocent

woman. If so, when you come to try them, and you believe it, say it,

but it is not the question submitted to you now. She may be innocent

and the prisoner at the bar be guilty; the subject was introduced

collaterally by the learned counsel, for what purpose I know not,

except for effect. Before you brand these gentlemen with the character

of murderers, see that you have relevant grounds to act upon. Take

care, or you may be placed in the same situation; I have not charged

it, and I do not think my friends would, upon reflection, charge men

who are placed in such a solemn obligation with such a dereliction of

duty. It has been said that this has been pronounced by the Supreme

Court of the United States an illegal tribunal. What has that to do

with the action of these officers? What has that to do with your

action? What pertinency can it have to the issue now submitted to you

for your decision? But, gentlemen of the jury, let us first consider

the character of this crime, and then I will consider briefly the

connection of Mrs. Surratt with it. I do not desire to say much about

her; she has gone to her grave, and her spirit has passed before her

Eternal Judge."

After recounting the character of the crime, the District Attorney

thus refers to Mrs. Surratt's connection with it: "Now, gentlemen of

the jury, let us view the connection of Mrs. Mary E. Surratt with this

assassination. I feel the delicacy of the ground upon which I stand. I

know the situation. I know that you dislike to consider this question,

which has been forced upon you. I do not want to do it. My duty is

to prosecute the prisoner, but one of the counsel has said she was

murdered, and another that she was butchered, and it therefore becomes

my duty to trace her connection with this crime, and then leave it to

you to say whether she was guilty (though not relevant to this case),

of the crime for which she suffered. First, I call your attention to a

fact to which we have already adverted; that her house, 541, was the

rendezvous for these conspirators. Now, gentlemen, will you pause for a

moment, and let me ask you how you can reconcile it with innocence? You

remember the law, that it is not how much a party did, but whether she

had anything to do with it. Can you, I say, reconcile it with innocence

that this woman's house should have been the rendezvous of John Wilkes

Booth, Lewis Payne, Atzerodt, Herold, and John H. Surratt? Would you

not know by intuition? Would you not know by their conversation? Would

not your judgment and your hearts tell you who they were and what they

contemplated?

That is the great central truth, which I defy the learned counsel for

the defense successfully to assail. Secondly, who furnished the arms

with which the bloody deed was done?... The woman who puts an arm into

the hand of her lover, her son, her brother, or her husband, who urges

him on to the deed, by the law of God and of man is equally guilty

with the one who with his own hand perpetrates the crime. According to

the testimony of John M. Lloyd this is shown. Do you believe him or

disbelieve him? My friend, Mr. Bradley, who opened this case said he

was a common drunkard; but mark you, he was an attendant and friend of

Mrs. Surratt."

_Mr. Bradley._ "Who says so?"

_The District Attorney._ "I will prove it. When I was examining that

witness, and proposed to ask him certain questions in reference to Mrs.

Mary E. Surratt, he said, 'Mr. Carrington,' for he knew me personally,

'I don't wish to speak about Mrs. Surratt, for she is not on trial.'

I said 'Go on, Mr. Lloyd.' He declined. I applied to the Court, and

the Court said that it was his duty to answer. He saw her continually.

He lived in her house; he drank her liquor. Why, this evidence shows

that John H. Surratt, Herold, and John M. Lloyd played cards and drank

together.... But says the friend and companion of the prisoner at the

bar,--the confiding and confidential agent of his mother, unwilling

to testify against her when put on the solemn sanction of an oath,

but when required to do so he speaks out,--he says certain arms were

furnished him by the prisoner at the bar; that he concealed them,

the prisoner showing him where they could be safely concealed, he

protesting at the time against it, protesting that it might get him

into some personal difficulty. The mother knew of the transaction, for

on the 11th of April we have Lloyd's own testimony; she asked him where

those shooting-irons were, and said they might soon be needed, or words

to that effect. But I am going too fast, for I do not desire to speak

to confuse you. I say, first, that her house is the rendezvous; and

that, secondly, she furnishes arms, or knows of their being furnished.

On the night of the 14th of April, Booth and Herold returned, and

are leaving the city of Washington in flight for their lives. At

Surrattsville they called for whiskey from the agent and friend of

the prisoner and his mother. She gives them a home, gives them arms,

gives them whiskey, not to nerve them but to refresh them after the

commission of their horrid crime.

"But Booth, in making his escape, needs something more than whiskey and

arms.

"It is necessary that he should secrete himself as he traveled through

the country, and that he should see persons approaching him from an

immense distance, he needs a field-glass, and has it delivered to him

by his friend and agent, Mrs. Surratt." With the defense no witness

told the truth whose testimony went to convict their client, whilst

the stories of the most infamous men, self-confessed scoundrels and

accomplices after the fact, if not before, such as Father Boucher, and

Reverend Cameron, must be taken as gospel truth.[30] In the face of

all this testimony the counsel for the defense again bring their false

accusations against the government. Mr. Merrick in the course of his

argument, said: "Does the Attorney General feel that public justice

demands that he should employ assistant counsel in this case, or is

there somebody else behind?"... "Are there any other officers of the

federal government that have purposes to accomplish in this case? Says

the learned attorney on the other side (Mr. Pierrepont) in a speech

delivered I think before you were impaneled:--

"'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 others of these false

stories will be all set at rest forever in the progress of this trail;

and the gentlemen may feel assured that not only are we ready, but

that we are desirous of proceeding at once with the case.' Now if this

declaration of my learned brother on the other side is correct, this

trial was not entered upon for the purpose alone of inquiring into the

guilt or innocence of the prisoner at the bar. It was not entered upon

because public justice demanded his arraignment, before you, gentlemen,

but in order that a thousand false stories about men high in office

might be settled at his expense.

"Then, although my learned brother is here under appointment by the

Attorney General of the United States, yet it is an appointment which

probably had its origin in the stimulus of some private feeling lying

behind. He comes here, not to try this case alone, but he comes here

to set at rest certain false stories. Has he done it?"... "Where is

your record? Why didn't you bring it in? Did you find at the end of the

record a recommendation to mercy in the case of Mrs. Surratt that the

President never saw? You had the record here in court."

_Mr. Bradley._ "And offered it once and withdrew it."

_Mr. Merrick._ "Yes, sir, offered it and then withdrew it. Did you find

anything at the close of it that you did not like? Why didn't you put

that record in evidence, and let us have it here? We were not going

to quarrel about it; we would like to know all we can about the dark

secrets of those chambers whose doors are closed, but from which light

enough creeps to make us anxious to look within. We only know enough to

make us curious; but that is enough to make us _feel_. You were going

to show, too, that nobody prevented access to the President on the part

of those who waited to get a pardon. Why didn't you do it? Gentlemen

of the jury, I should have been glad to have heard that proof. They

have brought these charges into the case and I must meet them as part

of the case. I should have been glad to have heard that proof. Who of

you who was in the city of Washington, will ever forget that fatal day

when the tolling of the bells reminded you of the sad fact that the

hour had come when those people were to be hung? Your honor (referring

to Justice Wylie, who was at the time sitting beside Judge Fisher

on the bench), in your praise be it said, raised your judicial hand

to prevent that murder, but it was too weak. The storm beat against

your arm, and it fell powerless in the tempest. You remember that

day, gentlemen. Twenty-four hours for preparation. The echoes of the

announcement of impending death, scarcely dying away before the tramp

of the approaching guard was heard leading to the gallows. Priest,

friend, philanthropist, and clergyman went to the Executive Mansion

to get access to the President, to implore for that poor woman three

days respite to prepare her soul to meet her God, but got no access.

The heart-broken child--the poor daughter--went there crazed, and,

stretched upon the steps that lead to the Executive chamber, she raised

her hands in agony and prayed to every one that came, 'O God! let me

have access, that I may ask for but one day for my poor mother--just

one day.' Did she get there? No. And yet, says the counsel, there was

no one to prevent access being had. Why don't you prove it? O, God! if

such a thing could have been proved, how would I not have rejoiced in

that fact; for when reflecting upon that sad, unfortunate, wretched

hour in the history of my country--an hour when I feel she was so much

degraded, I could weep until the paper be worn away with the continual

dropping of my tears. Who stood between her and the seat of mercy? Has

conscience lashed the chief of the Bureau of Military Justice? [Gen.

Joseph Holt.] Does memory haunt the Secretary of War? Or is it true

that one who stood between her and Executive clemency now sleeps in the

dark waters of the Hudson, while another died by his own violent hand

in Kansas?

"The learned gentleman is right. He did come here to put these things

at rest, or to endeavor to put them at rest; but he could not do it.

What else is there in this case to show a feeling behind, besides

public justice impelling to conviction? Gentlemen of the jury, as

the counsel has stated in his speech, public rumors had gone abroad,

and certain grave charges had been made. You know that political

accusations had been brought against Judge Holt, Mr. Bingham, and

the Secretary of War, in the House of Representatives, and that it

had become a political matter." (Mr. Merrick here referred to an

effort that had been made by rebel sympathizers in Congress to make

political capital out of this transaction.) "There were parts of those

accusations that the learned counsel was going to put at rest. Where is

the proof? The proof is in this; follow me for a moment.

"I said I would show there was a conspiracy on conspiracy. What has the

chief of the Bureau of Military Justice got to do with this case? Does

not your honor hold an independent court? Is not the judicial tribunal

of the land separate from the executive? Is it not a fundamental

principle of American constitutional law that the executive and

judicial departments shall be distinct and separate? The Bureau of

Military Justice is a part of the executive department. What has he to

do with this case? Nothing, says the counsel. Is he counsel? we ask.

No, say they. Why, then, is he manipulating their witnesses in this

case? Smoot, one of their witnesses, tells you that he is called up

before Judge Holt, with ten others, examined, and his examination was

taken down in writing. The day after giving his testimony he comes back

and says that it was not Judge Holt that examined him, but was somebody

else.

"I pressed him, pressed him hard, as to the place and time. He then

recollected it was in the Winder Building, opposite the War Department;

and when I pressed him still further, he had to say that the office he

was in had written over the door 'Judge Advocate General's office.'

Again I ask what had the Judge Advocate General to do with this case?

Not only was Smoot there, but Norton was there, and God only knows how

many more. It is apparent, then, that he has taken a deep interest

in this case. Why is he taking such an interest? It is certainly

indiscreet. He has lost his prudence and he has lost his discretion;

he has lost his judgment thus to expose himself and his office in a

criminal prosecution.

"Mr. District Attorney, gird on your loins and answer me. Whose

discretion is broken down? Whose prudence is betrayed? Is there anybody

else's heart at which the vulture gnaws? Is there any high and great

man who is forgetting the dignity of his office and the duties of a

moral creature so far as to descend to the preparation of witnesses

with which he has nothing to do to satiate his hunger with the blood of

an innocent being?... But I am now speaking of the Bureau of Military

Justice. He you know has furnished the evidence in this case."

Mr. Merrick then went on to charge the government with preparing and

presenting evidence against Surratt that it knew to be false, and then

proceeded as follows: "No matter whether they knew the truth in this

case or not, prudence has been betrayed; discretion has been broken

down; courage has been conquered. Following on Judge Pierrepont's

declaration, which I have read to you, and these circumstances, comes

Mr. Carrington, breaking the cerements of the tomb, and demanding your

verdict against Mrs. Surratt. In God's name isn't it enough to try the

living? Will you play the gnome, and bring her from the cold, cold

earth and hang her corpse? Bring her in; but there is no occasion for

doing so; she is here already. We have felt our blood run cold as the

rustling of the garments from the grave swept by us. Her spirit moves

about, and the Judge Advocate General and all these men may understand

that it is the eternal law of God, though, so far as men are concerned,

fresh and innocent blood may apparently vindicate innocent blood

previously shed, yet the spirit will still walk beside them.

"He may shudder before her, because she is with him by day and by

night; and he may say--

"'Avaunt and quit my sight! Let the earth hide thee;

Thy bones are marrowless; thy blood is cold.'

But the cold blood and marrowless bones are still beside him, and her

whisperings are presaging that great judgment day when all men shall

stand equal before the throne of God, and when Mrs. Surratt is called

to testify against Joseph Holt, what will he in vindication say?...

"Mr. Carrington, your honor, has gone outside of this record, and I

must follow him to some extent, at least. He has gone outside of it in

speaking of the military commission, defending the major generals and

others. I am glad I recurred to it, for it reminds me of a statement of

his that I desire to correct. He says we accused those honorable men

of murder. No, sir; I refrain from any expression of opinion on that

subject. It is true the most exalted judicial tribunal in the world,

vindicating the liberty of American citizens and their constitutional

rights against military authority, and maintaining the supremacy of

the courts over military law, have pronounced that, and all other

commissions similarly constituted, to be illegal; but what I denounce

here is not the men who in judgment sat there, but the men conducting

the trial, and who with this diary of Booth in their hands could have

proved Mrs. Surratt's innocence by showing this conspiracy to have

been organized on the 14th day of April, but who, though producing

the toothpick and the penknife found on Booth, yet never so much as

disclosed the fact that such a diary existed.

"They never made it known to those men or to the country. Do they not

deserve to be denounced? Now that it has become known to the country,

they come in before this jury to get them, with the diary in evidence

before them, to find the same verdict that the military commission

found.

"I put a question to a witness on that stand (referring to Father

Walter) and asked him, 'Did you administer the consolations of religion

to Mrs. Surratt?' 'I did. I gave her communion on Friday, and prepared

her for death.' I asked him, 'Did she tell you as she was marching

to the scaffold that she was an innocent woman?' I told him not to

answer the question before I directed him to. He nodded his head, but

he did not answer the question, because he had no right to, as the

other side objected. If you are going to try that woman, and she being

dead is unable to be here to defend herself, can you not at least

have charity enough to let her last words come in in her defence? Will

you try one who is not only absent from the court, but is dead? While

trying one that is dead, will you deny to her the poor privilege of

having the last word she uttered on earth spoken in her vindication?

Were you afraid of it? Did you feel that the words would sink deep into

the hearts of everybody that was here in this room, and in the United

States, and cause to well up from that heart a fountain of mercy, rich

and pure as the fountain that sprang from the rock at the bidding of

the sacred rod? Shame on you! Prepared for the world to come, and

marching to the scaffold, with her God before her and the world behind

her, and a load of sin laid at the feet of Almighty God, and no hope

but in that eternal mercy upon which we must all rely, I ask whether

she cannot at such an hour speak for herself? No! you answer. Why not?

is it likely she would lie? No, gentlemen, they will not say that.

Then why is it? They did not want to hear it. Oh, they must indeed be

hardened of heart, reckless of guilt, and indifferent to justice. But

although they had no desire to hear it, they do hear it, and you hear

it, for as that voice spoke then, it speaks now, and will continue to

speak until justice is meted out. It whispers and is heard. It descends

upon the head of that boy, and breathes on each of your hearts. Yes,

gentlemen, that woman in the nameless grave in yonder arsenal yard, the

cerements of which have been broken by the government, comes here to

vindicate her child. 'A nameless grave' did I say? Yes, alas! too true.

Aye, sir, it would seem as if the ordinary feelings of humanity and

common respect for the dead, to say nothing of regard for the honor of

our country and sympathy for the sufferings of a distracted and loving

daughter, would suggest to those pressing the prosecution (and who have

charge of the matter) to allow this poor girl the privilege of paying

a simple tribute to a mother's love by having her remains removed from

a felon's grave. Yes! there that mother lies in a nameless grave, on

which no flower is allowed to be strewn by that heart-broken daughter,

who for the past two years has been earnestly pleading that she might

have the privilege of placing those last sad, and to her, sacred

relics, where filial love might weep the tear, and a filial hand plant

a flower on the tomb."

Mr. Merrick then went on to meet the argument that Surratt had

confessed his guilt by flight by declaring that the mad passions of the

hour, and tyrannical usurpations of the government in its method of

dealing with those charged with this crime, by sending them before a

military commission instead of a civil court for trial, justified him

in his flight.

He then went on to vindicate the Catholic Church, which he claimed had

been assailed in this matter. The only reference to the Catholic Church

in connection with this trial had been made in the public press. The

prosecution had carefully abstained from any assault on that church,

and had tried to exclude religious prejudices from the minds of the

jurors.

Mr. Merrick, however, seized the occasion to pass an eulogium on

that church, in which he showed as much disregard for the facts of

history as he did for the proven facts in this case. Perhaps he felt

this vindication to be called for from the fact that most of the

conspirators were Catholics in religion, and the further fact that

the friends who waited and watched for the return of his client to

Montreal after the assassination, and who, on his return, spirited

him away and kept him secreted for five months and then helped him

off to Italy, where he was found in the ranks of the Pope's army, and

who voluntarily came before the court on his trial to testify, and to

procure testimony in his behalf, were priests of that church. In his

eulogium on that church he forgot to mention the fact that the Pope

at an early period of the war acknowledged the Southern Confederacy

and wrote a sympathizing letter to Jefferson Davis, in which he called

him his dear son and denounced President Lincoln as a tyrant. He could

scarcely have forgotten that the Pope of Rome had sought to take

advantage of the arduous struggle in which our government was engaged

for the preservation of its life, to establish a Catholic Empire in

Mexico, and had sent Maximillian, a Catholic prince, to reign over

that, at that time, unhappy people, under the protection of the arms

of France, lent to the furtherance of his unholy purpose by the last

loyal son of the church that ever occupied a throne in Europe. Perhaps

he did not realize that it was God who frustrated that last grasp of

the drowning man at a straw that eluded his grasp, by preparing for

his holiness, the Pope, and for Louis Napoleon just at that moment the

Franco-Prussian war, which resulted in the final loss of his temporal

power to the Pope and with it his grip on the world, and of his empire

and crown to the last servile supporter of his temporal pretensions. To

claim for that church, as Mr. Merrick did, friendship to civil liberty,

respect for the rights of conscience and of private judgment, and love

for our republican institutions, is to ignore, or set at naught, all

the dogmas of that church on the above questions and all the claims of

the Papacy. Mr. Merrick manifestly thought that the attitude of the

Catholic clergy toward the assassination of the President could be

hidden from public view by his fulsome eulogy.

The appeals made by the eminent counsel for the prisoner to the

political and religious prejudices of jurors was ably seconded all

through the trial by the Jesuit priesthood of Washington City and

the vicinity. It will be recalled by scores of people who attended

the trial that not a day passed but that some of these were in the

court-room as the most interested of spectators. That they were not

idle spectators may be inferred from the fact that whenever it seemed

necessary to the prisoner's counsel to find witnesses to contradict

any testimony that was particularly damaging to their cause they

were always promptly found, and were almost uniformly Catholics in

religion, as shown by their own testimony on their cross-examination.

It was a remarkable fact, also, that these witnesses were scarcely

ever able to come from under the fire of Judge Pierrepont's searching

cross-examinations uncrippled, and also that when they took the risk

of bringing two witnesses in rebuttal of the same testimony their

witnesses uniformly killed each other off before they got through the

ordeal that tests the truthfulness of witnesses--the cross-examination.

Other outside influences were brought to bear on jurors, such as these:

Father John B. Menu, from St. Charles College, spent a day in the

court-room, sitting beside the prisoner all day, thus saying to the

jury, "You see which side I am on." A great many of the students from

the same college also visited the trial, it being vacation, and they

uniformly took great pains to show their sympathy with the prisoner by

shaking hands with him. The press also was prostituted almost daily by

publishing cunningly devised paragraphs impugning the motives of the

government in the prosecution and management of the case. Thus were

the prejudices of jurors appealed to and efforts also made to pervert

public opinion.

I have quoted thus at length from Mr. Merrick's argument to show,

first the animus of the defense toward the government, and especially

toward the Judge Advocate General, Joseph Holt, and the Secretary of

War at time of the assassination, Edwin M. Stanton. These two officers

of the government need no vindication at my hands before the loyal

people of this country, as they were never denounced by any but rebels,

whose especial venom against them would be the strongest presumptive

evidence of their virtue and efficiency. A purer man, a truer patriot,

a braver, more intelligent and able officer than Gen. Joseph Holt

never will grace the pages of American history. He was only hated and

denounced by rebels because of his faithfulness to duty and efficiency

in its performance. Of Edwin M. Stanton, also, it is needless for me

to say a word. His place is fixed in history, and his record cannot be

blurred by the false and vile charges or insinuations of his enemies,

for his enemies were only found amongst the enemies of his country,

and precisely for the same reason that they were enemies of the Judge

Advocate General. The charges here so boldly made that they stood

between Mrs. Surratt and an appeal to the Executive for clemency, was

shown to be false by Judge Pierrepont, who produced the official record

of the trial of the conspirators, together with a paper signed by some

members of the court recommending commutation of the sentence of Mrs.

Surratt to imprisonment for life on account of her age and sex, and

showed that this whole record had been laid before the President and a

full cabinet, and that after mature discussion and consideration it had

received their unanimous approval, with the exception of the request

for the commutation of Mrs. Surratt's sentence which, though not a part

of the record, was presented with it; and that the President's order

for the execution of the sentence of the court had been written on the

back of this very record.

These papers containing this whole record were handed to Mr. Merrick,

who tossed them from him indignantly, afterwards assigning as his

reason for doing so that he had learned to distrust everything that

came from the Bureau of Military Justice. His real reason was that he

did not desire to be estopped from reiterating the falsehoods he had so

boldly proclaimed.

His denunciation of the Judge Advocate General for assisting the

prosecution by furnishing them with witnesses, to prove facts found on

his records, if he did indeed thus assist, is unmerited; as it is not

only the duty of every private citizen, but of every public officer as

well, to assist, if it be in his power to do so, in securing the ends

of justice where crimes have been committed, and the safety, peace, and

welfare of society put in jeopardy. His deliberate false assumption

that the prosecution had put Mrs. Surratt on trial is worthy of note,

as he himself dragged her case in even before a jury was impaneled; and

his colleague, Mr. Jos. H. Bradley, Jr., in his opening speech, had

also brought it up in such a way that the District Attorney was forced

to notice it. It was evidently a premeditated scheme of the defense,

and was done for the purpose of appealing to the prejudices of jurors,

and of making political capital.

Mr. Merrick's portrayal of the scenes incident to the execution of

Mrs. Surratt was a fine piece of eloquent and pathetic declamation. We

cannot but deplore, however, that the fine sensibilities of the counsel

had not found occasion for their display in the case of the widow and

orphan child of the martyred President, rather than in the person of

one proven guilty of complicity in his assassination, and of being so

actively engaged in that tragedy that she had traveled twenty miles

on that fatal Friday afternoon to carry, at Booth's request, a field

glass which he had delivered to her for the purpose, to Surrattsville,

to be deposited and delivered by Lloyd, at her request, along with the

carbines and the whiskey, to the assassins on that night, when fleeing

from the seat of their crime, and from offended justice. It is to be

deplored that he had no tears for the crazed widow and orphan child of

the murdered President, when he could find such a generous fountain for

his murderers. Such, however, is the deplorable effect of political and

religious prejudice on frail human nature, that it perverts our moral

sensibilities and warps our judgment. Mr. Merrick could see nothing

but innocence in the prisoner and his mother, although the proof of

their guilt was piled mountain high. It will have been noticed that

he unequivocally asserts that the Supreme Court of the United States

had decided that the commission that tried the assassins was an illegal

tribunal. We shall have occasion hereafter to show that this is untrue.

If the counsel for the defense was not aware of this fact, it was

because they had failed to grasp the meaning of the decision to which

they referred, and on which they relied.

It was neither fair nor honest in them, after dragging into the

trial the question of Mrs. Surratt's guilt or innocence, and that

for the purpose we have above indicated, to endeavor, in the face

of the facts, to shift the burden of the responsibility for this on

to the prosecution. It was equally dishonest to insinuate that the

prosecution of John H. Surratt was not entered upon alone for the

purpose of ascertaining his guilt or innocence, but in order that the

false stories that had been published in regard to the course of the

government in executing Mrs. Surratt might be set at rest. The most

eloquent counsel for the defence, ably assisted by his colleagues,

endeavored to put the government, and not the prisoner, on trial

before the jury, and before the country. They uniformly and boldly

asserted his innocence, whilst they arraigned the government for having

murdered, according to one, and butchered according to another, an

innocent woman; and also of being in this trial engaged in an endeavor

to cover up the guilt of shedding her innocent blood, by shedding

the blood of her innocent son. To cap the climax of their audacity

Mr. Bradley, after reiterating the charges made by Mr. Merrick and

Joseph H. Bradley, Jr., asked the jury, in making up their verdict, to

make a written statement at the same time of their belief that Mrs.

Surratt had been unjustly condemned, and found guilty upon insufficient

evidence.

They charged the government with dishonesty in withholding Booth's

diary from the commission; claiming that it would have proven Mrs.

Surratt's innocence. They could not have failed to know, as able

lawyers, that this diary was of no account whatever as evidence. It was

no more admissible than was Atzerodt's confession, as every entry that

was made in it was made with the almost certainty of his capture in

view, and for the purpose of concealing the greatness of the conspiracy

and its personnel. It was of no more value than was his declaration in

favor of his fellow-conspirator, Herold, that he was an innocent man,

made a few moments before he was shot.

In his argument on the defense of an _alibi_ set up by the prisoner,

Mr. Merrick makes great account of the evidence of the detectives who

visited and searched Mrs. Surratt's house at two o'clock on the morning

of the 15th of April, that Mrs. Surratt declared that John was not

there, and that she had not seen him for two weeks.

She claimed that he was in Montreal, and that she had received a letter

from him on the day previous. They well knew that her declarations had

no value as testimony, and that there was evidence flatly contradicting

her statements.

That she had received the letter as claimed, was true; but that that

letter had been written for the very purpose of being used in the

defence of an _alibi_ is evident from its contents, when considered in

connection with the evidence in the case. It will be remembered that

Wiechmann, who was a boarder in the house, answered the door-bell,

when the detectives rang it for the purpose of demanding admittance,

that they might search the house. He rapped at Mrs. Surratt's door and

informed her as to who was at the door and what they had come for. Her

answer was, "For God's sake, let them come in; I have been expecting

them."[31] When they inquired for her son she said, "He is not here;

I have not seen him for two weeks." This was a sufficient answer, but

her guilty conscience would not let her stop here, she had to add,

"There are a great many mothers who do not know where their sons are."

Let us ask ourselves at this point, how many mothers in Washington

City at that hour of that eventful night were lying awake expecting

their houses to be searched by detectives? Our inner consciousness will

unerringly dictate the answer, "Not one who was innocent of crime." It

is only necessary to say, further, in regard to this defense set up,

of an _alibi_, that although there is no more common defense resorted

to by criminals, because there is none more easy of establishment,

there was never perhaps in all the history of jurisprudence a weaker

and more unsuccessful effort made to establish it than in this defense.

The effort made by the prisoner to establish an _alibi_ showed plainly

that he had endeavored to prepare for it, in anticipation for his

defense, and that, in this preparation he had had able help. There is

good reason to conclude that he and a half dozen other of his friends

in Canada had found an opportunity to visit Canandaigua in disguise,

for the purpose of doctoring up a hotel register to be used in

evidence. The effort after all, proved a miserable failure.

That he went from Montreal to Elmira, N.Y., leaving the former place

at two o'clock on the morning of the 12th of April, was admitted.

There was evidence that he was in Elmira on the morning of the 13th,

and two or three credible witnesses were found who swore that they saw

him there either on the 13th or 14th. They were willing to conclude

that it might have been on the 14th; but would not positively swear

that it was. On the other hand the government produced two witnesses

who identified him as a man whom they saw on the road making his way

towards Baltimore, on the 13th, one of whom ferried him over the

Susquehanna river, and stopped mid-stream to collect his fare, and

so talked with him and had a good look at him. It was then proven by

nearly a dozen witnesses that they saw him in Washington City on the

14th. So that the great preponderance of evidence was against the

_alibi_; and so it legally failed. The defense was lame and weak at

every point in the light of the evidence, which all tended to show the

prisoner's guilt. It was only strong in the bold efforts of his counsel

to scout all the testimony against him, and to have the jury accept

their assertions of his innocence, backed by their weight of character

as lawyers, in lieu of evidence, to establish his innocence, and in

contumning and rejecting that which established his guilt.

They also made great complaint that they were not allowed to prove by

John Matthews, the contents of the paper which he alleged was put into

his hand by Booth, a few hours before the commission of his crime,

with the request that he would, on the following day, upon certain

contingencies, give it to the editor of the _National Intelligencer_

for publication, and which Matthews claimed to have destroyed. Of

course they knew that nothing could be proven by this paper, much less

by evidence as to its contents, yet, when it was not admitted by the

court, they reserved an exception, and then in argument claimed that

had they been allowed the benefit of this, they could have shown that

the purpose of assassination was not formed until that day, and that

neither the prisoner nor his mother was in it.

Matthews afterwards published what he said he desired to testify

to, but was not permitted to do so by the Court. The statement that

he claimed to be of Booth in this paper, gave the lie to Atzerodt's

confession. These able lawyers knew full well that culprits,

anticipating arrest and trial, could not be permitted to manufacture

evidence in their own favor in advance. Yet they did not scruple

to use, in an indirect way, in argument before the jury, this very

testimony that had been excluded. Booth's diary, Booth's statement

for publication, Atzerodt's confession, and the lecture of John H.

Surratt, in which he makes his confession and statement of the affair,

are all of a piece, and alike unworthy of credit, because they are all

contradicted by sufficient and reliable testimony in every important

particular. The eloquence of counsel in regard to the grave of Mrs.

Surratt, who was buried in the grounds of the old arsenal, being a

nameless grave, is wasted eloquence in the mind of every loyal man and

woman in the country, as the heniousness of the crime of which she was

convicted, made it fitting that she should sleep in a nameless grave,

and that the spot of her resting-place be unknown, as an admonition to

all traitors to their country, and its free institutions of government,

and whose disloyalty fits them for the highest crimes that man can

commit, of the infamy that awaits them in the just verdict of an

outraged people. Mrs. Surratt's remains were given up to her daughter

two years later, in 1869.

We will now give a few of the opening paragraphs of Judge Pierrepont's

argument for the prosecution, in which he disposes of the outside and

irrelevant matter that had been lugged into the defense, and out of

which they had endeavored to make so much capital.

"May it please your honor, and gentlemen of the jury, I have not, in

the progress of this long and tedious cause, had the opportunity as

yet of addressing to you one word. My time has now arrived, 'Yea, all

that a man hath will he give for his life.' When the book of Job was

written, this was true, and it is just as true to-day. A man, in order

to save his life, will give his property, will give his liberty, will

sacrifice his good name, and will desert his father, his brother, his

mother and his sister. He will lift up his hand before Almighty God and

swear that he is innocent of the crime with which he is charged. He

will bring perjury upon his soul, giving all that he hath in the world,

and be ready to take the chances and jump the life to come; and so

far as counsel place themselves in the situation of their client, and

just to the degree that they absorb his feelings, his terror, and his

purposes, just so far will counsel do the same.

"I am well aware, gentlemen, of the difficulties under which I labor

in addressing you. The other counsel have all told you that they know

you and that you know them. They know you in social life, and they know

you in political affairs. They know your sympathies, your habits, your

modes of thought, your prejudices even. They know how to address you,

and how to awaken your sympathies, whilst I come before you a total

stranger. There is not a face in those seats that I have ever beheld

until this trial commenced, and yet I have a kind of feeling pervading

me that we are not strangers.

"I feel as though we had a common origin, a common country, and a

common religion, and that, on many grounds, we must have a common

sympathy. I feel as though, if hereafter I should meet you in my native

city, or in a foreign land, I should meet you, not as strangers, but

as friends. It was not a pleasant thing for me to come into this case.

I was called into it at a time ill-suited in every respect. I had just

taken my seat in the convention called for the purpose of forming a

new constitution for my State, and I was a member of the judiciary

committee. The convention is now sitting, and I am now absent where I

ought to be present. I feel, however, that I had no right to shirk this

duty.

"The counsel asked whether I represented the Attorney General in this

case. They had, perhaps, the right to ask, and so asking I give you

the answer. There surely is no mystery about the matter. The District

Attorney, feeling the magnitude of this case, felt that he ought to

apply to the Attorney General for assistance in the prosecution of it,

and he accordingly made the application. I have known the Attorney

General for more than twenty years. Our relations have been most

friendly, both in a social and professional point of view. The Attorney

General conferred with the Secretary of State, who is, as you know,

from my own State, and they determined to ask me to assist in the

prosecution of this cause. On receiving a letter from the Secretary of

State, I came to Washington, when I met him and the Attorney General.

This is the way I happened to be here engaged in this case; and I may

say that I am assured that there was no member of the cabinet but those

two who ever heard or knew of my retainer until after my arrival here.

I have simply tried to perform my duty as I best could, but I have, no

doubt, failed to a great extent. A trial, protracted as this has been,

and in such oppressive weather, is indeed a trial. It is a trial to

the court, it is a trial to you, it is a trial to the counsel, it is a

trial to health, it is a trial to patience, and it is a trial to temper.

"When the President of the United States was assassinated, I was one

of a committee sent on by the citizens of New York to attend his

funeral. When standing, as I did stand, in the east room by the side

of that coffin, if some citizen sympathizing with the enemies of my

country had, because my tears were falling in sorrow over the murder

of the President, there insulted me, and I had at that time repelled

the insult with insult, I think my fellow-citizens would have said to

me that my act was deserving of condemnation; that I had no right, in

that solemn hour, to let my petty passions or my personal resentments

disturb the sanctity of the scene. To my mind the sanctity of this

trial is far above that funeral occasion, solemn and holy as it was,

and I should forever deem myself disgraced if I should ever allow any

passion pf mine or personal resentment of any kind to bring me here

into any petty quarrel over the murder of the President of the United

States. I have tried to refrain from anything like that, and God

helping me, I shall so endeavor to the end.

"To me, gentlemen, this prisoner at the bar is a pure abstraction.

I have no feeling toward him whatever. I never saw him until I saw

him in this room, and then it was under circumstances calculated to

awaken only my sympathy. I never knew one of his kindred, and never

expect to know one of them. To me he is a stranger. Toward him I have

no hostility, and I shall not utter any word of vituperation against

him. I came to try one of the assassins of the President of the United

States, as indicted before you. I laid personal considerations aside,

and I hope I shall succeed in keeping them from this cause, so far as

I am concerned. I believe, gentlemen, that what you wish to know in

this case is the truth. I believe it is your honest desire to find

out whether the accused was engaged in this plot to overthrow this

government and assassinate the President of the United States. My

duty is to try to aid you in coming to a just conclusion. When this

evidence is reviewed, and when it is honestly and fairly presented,

when passions are laid aside, and when other people who have nothing to

do with the trial are kept out of the case, you will discover that in

the whole history of jurisprudence no murder was ever proved with the

demonstration with which this has been proven before you. The facts,

the proofs, the circumstances all tend to one point, and all prove the

case, not only beyond a reasonable, but beyond any doubt.

"This has been, as I have already stated, a very protracted case. The

evidence is scattered. It has come in link by link, and as we could

not have witnesses here in their order when you might have seen it in

its logical bearings, we were obliged to take it as it came; and now

it becomes my duty to put it together and show you what it is. I shall

not attempt, gentlemen, to convince you by bold assertions of my own.

I fancy I could make them as loudly and as confidently as the counsel

on the other side, but I am not here for that purpose. The counsel

are not witnesses in the cause. We have come here for the purpose of

ascertaining whether under the law and on the evidence presented, this

man arraigned before you is guilty as charged. I do not think it proper

that I should tell you what I think about everything that may arise in

the case, or that I should tell you that I know that this thing is so,

and that the other is another way. My business is to prove to you from

this evidence that the prisoner is guilty. If I do that I shall ask

your verdict. If I do not do that, I shall neither expect nor hope for

it."

"I listened, gentlemen, to the two counsel who have addressed you for

several days, without one word of interruption. I listened to them

respectfully and attentively. I knew their earnestness, and I know the

poetry that was brought into the case, and the feeling and the passion

that was attempted to be excited in your breasts, by bringing before

you the ghost trailing her calico dress and making it rustle against

these chairs. I have none of these powers which the gentlemen seem to

possess, nor shall I attempt to invoke them. I have come to you for the

purpose of proving that this party accused here was engaged in this

conspiracy to overthrow this government, which conspiracy resulted in

the death of Abraham Lincoln, by a shot from a pistol in the hands of

John Wilkes Booth. That is all there is to be proven in this case.

"I have not come here for the purpose of proving that Mrs. Surratt

was guilty or that she was innocent, and I do not understand why that

subject was lugged into this case in the mode that it has been; nor

do I understand why the counsel denounced the military commission who

tried her, and thus indirectly censured, in the severest manner, the

President of the United States. The counsel certainly knew when they

were talking about that tribunal, and when they were thus denouncing

it, that President Johnson, President of the United States, ordered

it with his own hand; that President Johnson, President of the United

States, signed the warrant that directed the execution; that President

Johnson, President of the United States, when that record was presented

to him, laid it before his cabinet, and that every single member voted

to confirm the sentence, and that the President with his own hand,

wrote his confirmation of it, and with his own hand signed the warrant.

I hold in my hand the original record, and no other man, as it appears

from that paper, ordered it. No other one touched this paper; and when

it was suggested by some of the members of the commission that in

consequence of the age and the sex of Mrs. Surratt it might possibly

be well to change her sentence to imprisonment for life, he signed the

warrant for her death with the paper right before his eyes--and there

it is (handing the paper to Mr. Merrick). My friend can read it for

himself.

"My friends on the other side have undertaken to arraign the

government of the United States against the prisoner. They have talked

very loudly and eloquently about this great government of twenty-five

or thirty millions of people being engaged in trying to bring to

conviction one poor young man, and have treated it as though it was

a hostile act, as though two parties were litigants before you, the

one trying to beat the other. Is it possible that it has come to

this, that, in the city of Washington, where the President has been

murdered, that when under the form of law, and before a court and

jury of twelve men, an investigation is made to ascertain whether the

prisoner is guilty of this great crime, that the government are to

be charged as seeking his blood, and its officers as lapping their

tongues in the blood of the innocent? I quote the language exactly.

It is a shocking thing to hear. What is the purpose of a government?

What is the business of a government? According to the gentleman's

notion, when a murder is committed the government should not do

anything towards ascertaining who perpetrated that murder; and if the

government did undertake to investigate the matter and endeavor to find

out whether the man charged with the crime is guilty or not guilty the

government and all connected with it must be expected to be assailed

as 'blood hounds of the law,' and as seeking 'to lap their tongues in

the blood of the innocent.' Is that the business of government, and

is it the business of counsel under any circumstances thus to charge

the government? What is government for? It is instituted for your

protection, for my protection, for the protection of us all. What could

we do without it? Tell me, my learned and eloquent counsel on the other

side, what would you do without a government? What would you do in this

city? Suppose, for instance, a set of young men, who choose to lead an

idle life, say to themselves that it is not right that some rich man

living here should be enjoying his hoarded wealth, and they break into

his house at night and steal therefrom. My learned friend would say,

when you came to prosecute them for that robbery, 'What! would you have

this great and generous government of twenty-five or thirty millions

of people pursue these poor young men, who merely tried to break into

the house of one of your citizens and steal his money? Should not this

government be generous and let them go? Oh, yes! Let them off. Well,

they are let off, and a few days afterward they break into the house

of my friend, Mr. Merrick, for the purpose of stealing his money, when

he, a brave man, undertakes to resist them, and in doing so they strike

him down in death. Oh, generous government! with twenty-five or thirty

millions of people, let the young men off. Why should a great and

generous government with all its powers be pursuing the young men who

thus murdered Mr. Merrick while attempting to prevent a robbery at his

house?

"Why should the officers of the government be 'lapping their tongues

in the blood of the innocent?' Suppose this view as to the duty of a

government were universally entertained, what would be the result? How

long would your government last? How long would you hold a dollar of

property? How long would the safety of your daughters be secure? How

long would the life of your sons, who stand in resistance to lust and

rapine, be safe? I have never heard such shocking sentiments uttered

in relation to the duty of government from any human lips, or from

any writer on the face of the earth. We have been told here that our

government has nothing of divinity that hedges it about; that it is

only the government of man's making. The Bible tells us that all

government is of God; that the powers that be are ordained of God; and

I can tell you, gentlemen, if such are the sentiments of this country

that there is no divinity and no power of God that hedges about this

government, its days are numbered, its condemnation is already written,

and it will lie in the dust before many years have rolled by. No

government that is not of God will last. It will soon come to naught.

No other government ever did long exist. No other government can exist.

Every government which is a government of the people is of God, and

the powers that be are ordained of God. When you come together to the

polls, and you elect as the ruler of this great nation a President, he

is made so by the sanction of your votes, and in that act the voice of

the people becomes the voice of God. I repeat, a government which is

thus instituted is ordained of God, and it is as much hedged about as

that of any king that ever reigned on England's throne. Is it possible

that our countrymen will say that the government which we thus have

made, which our fathers established, and which we are thus cherishing,

has nothing of divinity hedging it about?

"Does it rest alone on human whim, without having anything sacred about

it, and without any protection of the Almighty over it? If so, let

me again repeat, its days are numbered; it will soon pass away. Once

there was an empire in Rome. It was an empire which was in its day the

greatest which the human mind had ever reared; but it did not believe,

or rather ceased to believe, that there was a God who ruled; that

government was of God; and they ceased to punish great crimes, such as

treason, rapine, and murder, and it happened a very short time after

they ceased to inflict punishment for such crimes--ceased to exercise

the powers which belong to government--that the Roman empire tumbled

into ruins.

"It was trampled down by the barbarians, and now not a son of the

Cæsars lives on the face of the earth, and not a descendant of a Roman

matron exists anywhere in this wide universe. The empire perished, and

crumbled into dust; nothing but its ashes remain. And thus will it

ever be whenever a people cease to obey God, and cease to think that

government is of God. Let us see what the Bible says on this subject;

what views were entertained in the Old Testament, and what in the New."

Mr. Pierrepont then read from 1st Samuel, chapter xv, as follows:--

"'Samuel also said unto Saul, the Lord sent me to anoint thee to be

king over his people, over Israel; now therefore hearken thou unto the

voice of the words of the Lord.

"'Thus saith the Lord of hosts, I remember that which Amalek did to

Israel, how he laid wait for him in the way, when he came up from Egypt.

"'Now go and smite Amalek, and utterly destroy all that they have, and

spare them not; but slay both man and woman, infant and suckling, ox

and sheep, camel and ass.

"'And Saul gathered the people together, and numbered them in Telaim,

two hundred thousand foot-men, and ten thousand men of Judah.

"'And Saul came to a city of Amalek, and laid wait in the valley.

"'And Saul said unto the Kenites, go, depart, get you down from among

the Amalekites, lest I destroy you with them; for ye showed kindness

to all the children of Israel, when they came up out of Egypt. So the

Kenites departed from among the Amalekites.

"'And Saul smote the Amalekites, from Havilah _until_ thou comest to

Shur, that is over against Egypt.

"'And he took Agag, the king of the Amalekites, alive, and utterly

destroyed all the people with the edge of the sword.

"'But Saul and the people spared Agag, and the best of the sheep, and

of the oxen, and of the fatlings, and of the lambs, and all _that was_

good, and would not utterly destroy them; but every thing _that was_

vile and refuse, that they destroyed utterly.

"'Then came the word of the Lord unto Samuel, saying, It repenteth

me that I have set up Saul _to be_ king; for he is turned back from

following me, and hath not performed my commandments. And it grieved

Samuel, and he cried unto the Lord all night.

"'And when Samuel rose early to meet Saul in the morning, it was told

Samuel, saying, Saul came to Carmel, and behold, he set him up a place,

and is gone about, and passed on, and gone down to Gilgal.

"'And Samuel came to Saul, and Saul said unto him, blessed be thou of

the Lord; I have performed the commandment of the Lord.

"'And Samuel said, what meaneth then this bleating of sheep in mine

ears, and the lowing of the oxen which I hear?

"'And Saul said, they have brought them from the Amalekites; for the

people spared the best of the sheep, and of the oxen, to sacrifice unto

the Lord thy God, and the rest we have utterly destroyed.

"'Then Samuel said unto Saul, stay, and I will tell thee what the Lord

hath said to me this night. And he said unto him say on.

"'And Samuel said, when thou _wast_ little in thine own sight, _wast_

thou not _made_ the head of the tribes of Israel, and the Lord anointed

thee king over Israel?

"'And the Lord sent thee on a journey, and said, go and utterly

destroy the sinners of the Amalekites, and fight against them until

they be consumed.

"'Wherefore then didst thou not obey the voice of the Lord, but didst

fly upon the spoil, and didst evil in the sight of the Lord.

"'And Saul said unto Samuel, yea, I have obeyed the voice of the Lord,

and have gone the way which the Lord sent me, and have brought Agag,

the king of Amalek, and have utterly destroyed the Amalekites.

"'But the people took of the spoil, sheep and oxen, the chief of the

things, which should have been utterly destroyed to sacrifice to the

Lord thy God in Gilgal.

"'And Samuel said, hath the Lord as great delight in burnt offerings

and sacrifices as in obeying the voice of the Lord? Behold to obey is

better than sacrifice, and to hearken than the fat of rams.

"'For rebellion _is as_ the sin of witchcraft, and stubbornness is as

iniquity and idolatry; because thou hast rejected the word of the Lord,

he hath also rejected thee from being king.

"'And Saul said unto Samuel, I have sinned, for I have transgressed the

commandment of the Lord, and thy words; because I feared the people,

and obeyed their voice.

"'Now, therefore, I prayed thee, pardon my sin, and turn again with me

that I may worship the Lord.

"'And Samuel said unto Saul, I will not return with thee; for thou hast

rejected the word of the Lord, and the Lord hath rejected thee from

being king over Israel.

"'And as Samuel turned about to go away, he laid hold upon the skirt of

his mantle, and it rent.

"'And Samuel said unto him, the Lord hath rent the kingdom of Israel

from thee this day, and hath given it to a neighbor of thine, _that is_

better than thou.

"'And also the strength of Israel will not lie nor repent; for he is

not a man that he should repent.

"'Then he said, I have sinned; _yet_ honor me now, I pray thee, before

the elders of my people, and before Israel, and turn again with me,

that I may worship the Lord thy God.

"'So Samuel turned again after Saul, and Saul worshiped the Lord.

"'Then said Samuel, bring ye hither to me Agag, the king of the

Amalekites. And Agag came unto him delicately. And Agag said, surely

the bitterness of death is past.

"'And Samuel said, as thy sword has made women childless, so shall thy

mother be childless among women. And Samuel hewed Agag in pieces before

the Lord in Gilgal.

"'Then Samuel went to Ramah; and Saul went up to his house to Gibeah of

Saul.

"'And Samuel came no more to see Saul until the day of his death;

nevertheless, Samuel mourned for Saul; and the Lord repented that he

had made Saul king over Israel.'"

Mr. Pierrepont then read from the eighteenth chapter of St. Matthew as

follows:--

"'Woe unto the world because of offences, for it must needs be that

offences come; but woe unto that man by whom the offence cometh.... It

were better for him that a millstone were hanged about his neck, and

that he were drowned in the depth of the sea.'

"Such was the order in the times of this Book. All government is of

God. The powers that be are ordained of God. Now, from whom come those

words? Not from the Old Testament, but they come from the meek and

lowly Jesus, the Saviour of the world, who died for you, for me, for

all. It is true as the counsel have said, that God is a God of mercy;

but he says: 'Though I am a God of mercy, I will by no means clear the

guilty.' Now the counsel who has addressed you, you will remember, said

in his speech, with great earnestness: 'We have had blood enough; let

us have peace.' The question before you, gentlemen, is not about blood.

The question is not about peace. The question before you is whether

you have not had murder enough, and assassination enough, and crime

enough, to enable us to have at least once before a civil tribunal

in this land a trial and a verdict. Not a single one of all those

engaged in the conspiracy has been tried before a civil tribunal; and

the question now is, have you not had enough of this murder, enough

of this assassination, to have at least one jury of the country say

so, and to say that we will stop it? You and I have nothing to do with

the consequences. All we have to do is to do our duty, and ascertain

whether the man is guilty. You do not punish the man; I do not punish

the man. I have not a feeling toward him of punishment, and you have

no such feeling. The duty does not lie with you, nor with me; we have

nothing to do with that. The question for us is to see whether this

man is guilty of this violation of the law of the land as charged; and

if so, to so declare; and then, if for any cause, the Executive sees

fit to show leniency, he will show it. If he does not, he will not.

It is not for you or for me to have to say what the leniency should

be. It is not for you or for me to have anything to say upon that

question. Our business is, I repeat, to ascertain whether he is guilty

of this violation of the law, and if he is guilty, so to say, and then

afterward to say whatever we thought fit to be said with regard to any

leniency. Our duty is, and the duty of the court is, to find out that

one fact, and to have you pronounce your verdict, under your oath,

according to the facts as you find them.

"There are one or two other things that I must notice before I come

to the main question. One of these is in regard to the attacks which

were made by counsel yesterday upon the learned District Attorney and

myself. Have you seen anything in the conduct of the District Attorney

in this case that was improper? Have you seen anything but an earnest

desire to discharge his duty? If I understood the counsel aright

yesterday, he said that if he should stand in the place and should have

done as the District Attorney had, he would expect the women, as they

passed him, to gather their skirts and pull them aside, lest they be

contaminated by the touch. I did not at that time know why there was so

much bitterness of feeling thus expressed, but I have been shown since

last night this record called the 'Rebellion Record,' and I find in it

that on the 5th of January, 1861, Edward C. Carrington, now District

Attorney, issued to the public a stirring letter calling out the

militia of this District for the purpose of aiding in the protection of

the government of the United States; calling upon them to rally; and

they did rally at his call. The fact of this native born citizen of

Virginia, one of your own number and living in your midst, having thus

early and practically taken the side in favor of the government, when

even his own State had deserted him, of course would be likely to call

down the greatest bitterness and hatred against this loyal and noble

citizen on the part of a certain class. We have been told, gentlemen,

by the counsel upon the other side, that the Judge Advocate General had

done a great many wrong things in his life. We have been told that the

military commission which Mr. Johnson had established, and he alone,

had done wrong things in their prosecution; and we have been told,

likewise, that the Supreme Court of the United States had decided that

this commission was illegal. Now you would hardly expect an eminent

lawyer to make such a statement unless he believed it. But he is wholly

mistaken. No court in the United States has declared this commission to

have been illegal. There is no such decision on record--not any.

"Some of these very persons are now in confinement, and if the Supreme

Court of the United States had declared the commission that tried them

illegal, why should they now, in a time of profound peace, be kept

in prison? If such were the case would not an application have been

immediately made by my learned brother for a writ of _habeas corpus_ to

release them? But nothing of the kind is done. And why? Because no such

decision has ever been pronounced. No court has, and in my judgment no

court will, pronounce this commission, thus formed by the President of

the United States, to have been illegal."

As this is a question of the gravest importance we all ought to know

whether, as claimed twice in the arguments of defendant's counsel,

the military commission which tried the conspirators and assassins

has been decided by the Supreme Court of the United States to have

been an illegal tribunal. Judge Pierrepont, as we have seen, asserts

boldly that in his judgment no such decision had ever been given by

that tribunal, or ever would be. That the counsel for the defense did

not really so understand it he clearly shows by the fact that they had

never asked for a writ of _habeas corpus_ in behalf of those who were

working out the sentence of the commission. To his opinion I will now

add that of Judge Fisher as given in his charge to the jury. It is as

follows:--

"You have been told, gentlemen, in the argument of this case, that

those who were tried before that military commission, and hung upon

its findings, were themselves the victims of a base and disgraceful

conspiracy to murder. Brave, gallant, and honest soldiers of their

country have been held up before you as inhuman butchers of innocent

men. It has been said in support of this denunciation, that the Supreme

Court of the United States have, in the case of Milligan, declared that

the military court which tried Herold and others for the murder of

Abraham Lincoln was an illegal tribunal, organized without law, without

right, and without warrant in the Constitution--a mere convocation of

military men, having no right to try the cause committed to them by

President Johnson; and it has been said that it was convoked not to try

but to condemn.

"In my humble judgment the Supreme Court has made no such decision. If

so, why have not the prisoners now confined upon the Dry Tortugas for

complicity in the greatest crime of the age been released from their

confinement? They have sympathizing friends enough to have applied

any such decision in the direction of their deliverance, and they

would not have remained there a week after the decision had been made

to the effect that they were unlawfully restrained of their liberty.

If I understand the decision in Milligan's case aright, it went upon

the ground that the commission which tried Milligan was not organized

in obedience to the act of Congress providing for the punishment of

such crimes as he was charged with committing, and the opinion of the

majority of the court went upon the additional ground that no hostile

foot had ever pressed the soil of Indiana at the time when he was

arraigned before a military tribunal there, and that, therefore, that

tribunal which condemned him for acts of treason committed in that

State had no authority to try him, notwithstanding the whole nation

was involved in the most terrible struggle for its life. The majority

opinion being thus predicated upon a misapprehension of historic truth,

we could not, perhaps, have looked for a more rightful deduction.

"Unprepared, however, as all loyal hearts were for such an

announcement, the American people would be even yet more astounded

to have it declared by any court in this country that the

commander-in-chief of the army and navy, the President of the United

States, has not the power in time of war to institute a military

commission for the purpose of trying a gang of spies and traitors

who have found their way within the intrenched encampments of the

nation's capital to take the life of the chief of the army and navy, to

assassinate all the heads of the executive departments, in the interest

of the pretended government with which the federal government was

engaged in war. They who maintain such a doctrine profess to defend it

upon the ground that no such power is delegated by the constitution, as

_they_ did who could find no warrant there to coerce seceding States

into submission to the federal authority; but the day has passed

by when honest statesmen will longer, if they ever did, regard the

sovereignty of the federal Union as possessing no powers save those

expressly enumerated in the Constitution.

"The government of the United States was doubtless created by the

adoption of the Constitution. But when it had once been spoken into

being it stood upon the same level with other nations, and was clothed

with all the powers incident to an independent sovereignty under the

laws of nature and of nations, and among these was the power, in time

of war or great public emergency, to arrest and inflict upon spies and

traitors the most summary punishment, whenever and wherever the strong

hand of military justice can be laid upon them. It is a power incident

to the right and duty of self preservation, and ought to be exercised,

just as the individual owes it to himself to strike down the assassin

who is feeling for his heartstrings, without waiting to lose his own

life, in order that the courts of justice may, at their leisure,

proceed to try the felon according to the formularies of the law and

the Constitution. The right of self-defense needs not to be inscribed

upon parchment, either for individuals or for sovereign states. The

Almighty impressed this right and duty upon the hearts and minds of

men long before he wrote the decalogue upon the tables of stone. To

say that this government has not the power in time of war to exercise

this great duty of self-preservation, for want of warrant in the

Constitution, is to condemn the action of the government in acquiring

from France and Spain and Mexico and Russia territory lying far beyond

the limits of the original thirteen States, because such power of

acquisition and growth is not provided for by the Constitution. Both

these powers are but the incidents of sovereignty, requiring no

warrant in written governmental charter; they are derived from the

common law of nations, and are co-existent with sovereignty.

"But with this military commission, gentlemen, you have no concern

at this time; whether it was a legal or illegal tribunal, is not the

matter on which you are now called to decide. The oath that you have

taken requires that you shall 'well and truly try, and true deliverance

make between the United States of America and John H. Surratt, the

prisoner at the bar, whom you have in charge, and a true verdict

give according to your evidence.' The prisoner stands before you

indicted for the murder of Abraham Lincoln on the 14th day of April,

1865, in this city. About the time and place and manner of the death

of your late President no controversy has been made in the case. If

there had been your recollection of a nation in tears, and of a whole

civilized world in mourning would have revived your memory of the sad

and terrible fact. The only question, therefore, for you to determine

is, whether the prisoner at the bar participated with John Wilkes

Booth and the others named in the indictment, or either or any of

them, in the diabolical crime. If, from all the evidence in the case,

your minds shall be convinced beyond a reasonable doubt growing out

of that evidence that the prisoner did co-operate with them; if that

shall have produced a moral conviction in your minds that the prisoner

did participate in the conspiracy to murder, or in a plot to do some

unlawful act which resulted in this foul murder, no consideration as to

the legality or illegality of the tribunal which tried the prisoner's

mother; no feelings of sympathy for other members of the family; no

consideration of his youth, or that other lives have already been

forfeited for the crime, should for a single moment, tempt you to step

aside from the plain pathway of duty."

The last paragraph quoted is directed to some of the many artful

appeals made to the political prejudices or to the feelings of the

jury to swerve them from the duty devolved upon them by their oath.

The former paragraphs may well be said to set at rest forever the

question of the right of a government to defend its life when the

occasion requires it by sending offenders against its life before a

military commission for trial. This question may be taken as settled,

as is the question of the right of the federal government to coerce

into submission a refractory State. The opportunity thus sought by the

prisoner's counsel to foist upon the public mind the assertion that the

Supreme Court of the United States had made a decision denying to the

government this right, thus gave occasion not only for denying that

such opinion had ever been delivered, but also for showing that it

never could be.

It will be remembered that for reasons heretofore given the crime

charged in the indictment was simply that of murder--the murder of

Abraham Lincoln.

The fact of his being, at the time of his murder, the President of

the United States was not mentioned. The treasonable purpose of that

murder was also omitted no reference being made to the political

reasons that moved the conspirators to the commission of the crime. The

counsel for the defense contended most earnestly that because of these

omissions the fact of the official position of Abraham Lincoln and of

the political motives that inspired the crime could not be taken into

consideration in the trial of the prisoner. They argued that it must be

regarded in law simply as the murder of a man, and as a crime no more

henious in character than the murder of the humblest citizen. Had the

crime of treason been alleged in the indictment the defense would have

been entitled to have a list of the witnesses by whom the government

expected to prove the crime in advance of the trial; and it would have

taken two witnesses to have established an overt act. The defense

contended that because they were not entitled to these advantages under

this indictment the prosecution could derive no advantages from the

consideration of these facts; and that the case must be treated simply

as a case of murder. The spirit of their argument would rather indicate

that they really regarded it in the same light that Miss Anna Surratt

did, as "nothing more than the death of the meanest nigger in the Union

army."[32] The following is Mr. Pierrepont's reply to their argument on

this point:--

"Our learned friends on the other side have told us, in the progress

of their argument, that they could not subscribe in the least degree

to the doctrine that it was a higher crime to conspire against the

government of the United States, and through that conspiracy commit a

murder upon the Chief Magistrate, than it was to murder the humblest

vagabond in the streets, or words to that effect. Now that is not the

doctrine of a statesman; it is not the doctrine of the Bible; it is not

the doctrine of the law. It is a far more heinous crime to conspire

against the government of the United States and to murder its President

for the purpose of bringing anarchy and confusion on the land, than to

murder a single individual. It is because its consequences are so much

more terrible. It is because it is involving the lives of hundreds and

of thousands. It is because it is involving considerations affecting

the stability, the protection, the life, and the liberty, it may be, of

a nation. The law of England, which I have cited, but which it would

seem, my friends have not read, lays it down, and without a statute,

but as the common law, that it is a crime of such heniousness as to

admit of no accessories.

"They, however, undertake to say that the crime of the murder of the

President of the United States in time of war or great civil commotion,

is not as henious a crime as it would be in England to murder the Chief

of their country; and that there is no divinity about our government.

What is its origin? All government is either of God or the devil, and

they will have to take their choice. I say that the government is of

God, and that no other government will stand. What says the civilized

world upon this subject? I wrote a note to the Secretary of State two

days ago, asking him to send me the letters that were transmitted from

the different governments of the civilized world upon the subject of

this murder, and what do you think he sent me? He sent me the note I

hold in my hand and with it this large printed volume. It takes every

line and word of that book, a book of 717 pages, closely printed, to

contain the letters of condolence that were written to this government

from the foreign governments of the world. Entire Christendom wrote,

entire Christendom looked upon it as one of the most horrible of

crimes--one that required every nation, even to the Turk, to write

for the purpose of expressing their abhorrence of the crime. And,

gentlemen, I hold in my hand the original paper sent by some 13,000

rebel prisoners, and our prisoners, at Point Lookout. Here is the paper

in which these rebel prisoners, met together, passed their resolutions

of condemnation, and their curse upon this crime. I would try this

case before any twelve of those rebel prisoners, and feel certain of

a verdict, and yet the gentlemen tell us this murder is like that of

the commonest vagabond that ever walked the streets, and the crime no

higher. Not so thought the rebels; not so thought any honorable man in

arms against us; not so thinks any right-minded man upon the face of

the earth."

The judge in giving his charge to the jury, addressing himself to this

point, spoke as follows:--

"Historians and text writers on the law may treat of the heinousness

of the crime of imagining the death of a weak or a wicked king or of

a wise or benignant monarch, but you know, gentlemen, as well as you

know that you exist, that to murder the duly elected President of the

most powerful people on earth, is not less atrocious in its character

than to compass the death of a king, or an emperor, albeit he may

have sprang from the loins of the people, who have made him their

representative head, and may have no royal blood coursing through his

veins. You may be told that it is a crime surpassingly heinous to take

or compass the life of him who has occupied a throne simply because he

may be the king of an enslaved people, but that to take the life of

the President of a free republic is an offense of no greater magnitude

than to murder the 'veriest vagabond that walks your streets'; but an

American jury will only believe this doctrine when the people have

become so demoralized and corrupt, so devoid of the love of liberty and

patriotic feeling, as to prefer to have a king and ruler foisted upon

them by the accident of birth or fortunate adventure, rather than have

the making of their own selection of him who is to execute their laws,

and, for the time being, to stand as the representative head of their

collective sovereignty.