CHAPTER IX.
CONSTITUTION OF THE COMMISSION, AND TRIAL.
The order of the President required the Assistant Adjutant General of the army to detail nine competent military officers to serve as a commission for the trial of the parties in custody, and also that the Judge Advocate General should proceed to prefer charges against them for their alleged offenses, and bring them to trial before the Commission, under the conduct of the Judge Advocate General as the recorder thereof, in person, and assisted by such assistant, or special judge advocates as he might select, and that the trial should be conducted with all diligence, consistent with the ends of justice. Brevet Major General Hartranft was assigned to duty, by the President's order, as Special Provost Martial General for the occasion. The following officers were designated by the Assistant Adjutant General as the detail for the court:--
Major General David H. Hunter, U.S.V., to preside over the Commission.
Major General Lewis Wallace, U.S.V.
Brevet Major General August V. Kautz, U.S.V.
Brigadier General Albion P. Howe, U.S.V.
Brigadier General Robert S. Foster, U.S.V.
Brevet Brigadier General Cyrus Comstock, U.S.V.
Brigadier General T. M. Harris, U.S.V.
Brevet Colonel Horace Porter, Aide-de-Camp.
Lieutenant Colonel David R. Clendennin, Eighth Illinois Cavalry.
Brigadier General Joseph Holt, Judge Advocate General United States Army, Judge Advocate and Recorder of the Commission, aided by such special or assistant judge advocates as he might designate.
The details for the Commission were made on the 6th of May, 1865, and it was ordered to meet at Washington City on the 8th of May, or as soon thereafter as possible. The Commission held its first meeting on the 9th of May, at ten o'clock A.M., all the members being present, also the Judge Advocate General.
The Hon. John A. Bingham, and Brevet Colonel H. L. Burnett, Judge Advocate, were introduced by the Judge Advocate General as assistant or special judge advocates. The accused, David E. Herold, George A. Atzerodt, Samuel Arnold, Lewis Payne, Michael O'Laughlin, Edward Spangler, Mary E. Surratt, and Samuel A. Mudd were brought into court, and being asked whether they desired to employ counsel replied in the affirmative. To afford them an opportunity to do so, the court adjourned to meet on the 10th day of May, at ten o'clock A.M. At the assembling of the court on the 10th, the Judge Advocate read a special order from the Assistant Adjutant General, E. D. Townsend, relieving General Comstock and Brevet Colonel Porter from service on the Commission, and substituting for them Brevet Brigadier General James A. Ekin, U. S. V., and Brevet Colonel C. H. Tompkins, U. S. A.
All the members being present, the Commission proceeded to the trial of the parties accused as above named, who were brought into court, and having the order detailing the Commission read to them, they were asked if they had any objection to any member named therein, to which they all replied, severally, that they had not. The members of the Commission were then duly sworn by the Judge Advocate General in the presence of the accused. The Judge Advocate General and the assistant judge advocates were then duly sworn by the president of the court in the presence of the accused.
Ben Pittman, R. Sutton, D. F. Murphy, R. R. Hitt, J. J. Murphy, and Edward V. Murphy were sworn by the Judge Advocate General, in the presence of the accused, as reporters to the Commission. The accused were then severally arraigned on the following charge and specifications:--
_Charge and Specifications against David E. Herold, George A. Atzerodt, Lewis Payne, Michael O'Laughlin, Edward Spangler, Samuel Arnold, Mary E. Surratt, and Samuel A. Mudd._
_Charge._--For maliciously, unlawfully, and traitorously, and in aid of the existing armed rebellion against the United States of America, on or before the 6th day of March, A.D. 1865, and on divers other days between that day and the 15th day of April, A.D. 1865, combining, confederating, and conspiring together with one John H. Surratt, John Wilkes Booth, Jefferson Davis, George N. Sanders, Beverly Tucker, Jacob Thompson, William C. Cleary, Clement C. Clay, George Harper, George Young, and others unknown, to kill and murder within the military department of Washington, and within the fortified and intrenched lines thereof, Abraham Lincoln, late, at the time of said combining, confederating, and conspiring President of the United States of America and Commander-in-Chief of the army and navy thereof; Andrew Johnson, now Vice-President of the United States aforesaid; William H. Seward, Secretary of State of the United States aforesaid; and Ulysses S. Grant, Lieutenant General of the army of the United States aforesaid, then in command of the armies of the United States under the direction of the said Abraham Lincoln; and in pursuance of, and in prosecuting said malicious, unlawful, and traitorous conspiracy aforesaid, and in aid of said rebellion, afterwards, to wit, on the 14th day of April, A.D. 1865, within the military department at Washington aforesaid, and within the fortified and intrenched lines of said military department, together with said John Wilkes Booth and John H. Surratt, maliciously, unlawfully, and traitorously murdering the said Abraham Lincoln, then President of the United States and Commander-in-Chief of the army and navy of the United States as aforesaid; and maliciously, unlawfully, and traitorously assaulting with intent to kill and murder the said William H. Seward, then Secretary of State of the United States as aforesaid; and lying in wait with intent maliciously, unlawfully, and traitorously to kill and murder Andrew Johnson, then being Vice-President of the United States; and the said Ulysses S. Grant, then being Lieutenant General, and in command of the armies of the United States as aforesaid.
_Specifications._--In this, that they, the said David E. Herold, Edward Spangler, Lewis Payne, Michael O'Laughlin, Samuel Arnold, Mary E. Surratt, George A. Atzerodt, and Samuel A. Mudd, together with the said John H. Surratt and John Wilkes Booth, incited and encouraged thereunto by Jefferson Davis, George N. Sanders, Beverly Tucker, Jacob Thompson, William C. Cleary, Clement C. Clay, George Harper, George Young, and others unknown, citizens of the United States aforesaid, and who were then engaged in armed rebellion against the United States of America, within the limits thereof, did, in aid of said armed rebellion, on or before the 6th day of March, A.D. 1865, and on divers other days and times between that day and the 15th day of April, A.D. 1865, combine, confederate, and conspire together at Washington City, within the military department of Washington, and within the intrenched fortifications and military lines of the said United States, there being unlawfully, maliciously, and traitorously to kill and murder Abraham Lincoln, then President of the United States aforesaid, and Commander-in-Chief of the army and navy thereof; and unlawfully, maliciously, and traitorously to kill and murder Andrew Johnson, now Vice-President of the said United States, upon whom, on the death of the said Abraham Lincoln, after the 4th day of March, A.D. 1865, the office of President of the said United States and Commander-in-Chief of the army and navy thereof would devolve; and to unlawfully, maliciously, and traitorously kill and murder Ulysses S. Grant, then Lieutenant General, and under the direction of Abraham Lincoln, in command of the armies of the United States aforesaid; and unlawfully, maliciously, and traitorously to kill and murder William H. Seward, then Secretary of State of the United States aforesaid, whose duty it was by law, upon the death of the said President and Vice-President of the United States aforesaid, to cause an election to be held for electors of President of the United States; the conspirators aforesaid, designing and intending by the killing and murder of the said Abraham Lincoln, Andrew Johnson, Ulysses S. Grant, and William H. Seward, as aforesaid, to deprive the army and navy of the said United States of a constitutional commander-in-chief; and to deprive the armies of the United States of their lawful commander; and to prevent a lawful election of President and Vice-President of the United States aforesaid; and by the means aforesaid to aid and comfort the insurgents engaged in armed rebellion against the said United States as aforesaid, and thereby to aid in the subversion and overthrow of the Constitution and laws of the said United States.
And being so combined, confederated and conspiring together in the prosecution of said unlawful and traitorous conspiracy, on the night of the 14th day of April, A.D. 1865, at the hour of about ten o'clock and fifteen minutes P.M., at Ford's Theatre on Tenth Street, in the City of Washington, and within the military department and military lines aforesaid, John Wilkes Booth, one of the conspirators aforesaid, in pursuance of said unlawful and traitorous conspiracy, did then and there unlawfully, maliciously, and traitorously, and with intent to kill and murder the said Abraham Lincoln, discharge a pistol then held in the hands of him, the said John Wilkes Booth, the same being then loaded with powder and a leaden ball, against and upon the left and posterior side of the head of the said Abraham Lincoln; and did thereby then and there inflict upon him, the said Abraham Lincoln, then President of the United States and Commander-in-Chief of the army and navy thereof, a mortal wound whereof afterwards, to wit, on the 15th day of April, A.D. 1865, at Washington City aforesaid, the said Abraham Lincoln died; and thereby, then and there, and in pursuance of said conspiracy, the said defendants, and the said John Wilkes Booth and John H. Surratt did, unlawfully, traitorously and maliciously, and with intent to aid the rebellion as aforesaid, kill and murder the said Abraham Lincoln, President of the United States, as aforesaid. And in further prosecution of the unlawful, and traitorous conspiracy aforesaid, and of the murderous and traitorous intent of said conspiracy, the said Edward Spangler, on the said 14th day of April, A.D. 1865, at about the same hour of that day as aforesaid, within the said military department and military lines aforesaid, did aid and assist the said John Wilkes Booth to obtain entrance to the box in the said theatre, in which said Abraham Lincoln was sitting at the time he was assaulted and shot as aforesaid by John Wilkes Booth; and also did, then and there, aid said Booth in barring and obstructing the door of the box of said theatre, so as to hinder and prevent any assistance to, or rescue of, the said Abraham Lincoln against the murderous assault of the said John Wilkes Booth; and did aid and abet him in making his escape after the said Abraham Lincoln had been murdered in manner aforesaid.
And in further prosecution of said unlawful, murderous, and traitorous conspiracy, and in pursuance thereof, and with the intent as aforesaid, the said David E. Herold did, on the night of the 14th day of April, A.D. 1865, within the military department and military lines aforesaid, aid, abet, and assist the said John Wilkes Booth in the killing and murder of the said Abraham Lincoln, and did, then and there, aid, abet, and assist him, the said John Wilkes Booth, in attempting to escape through the military lines aforesaid, and did accompany and assist the said John Wilkes Booth in attempting to conceal himself and escape from justice after killing and murdering said Abraham Lincoln as aforesaid.
And in further prosecution of said unlawful and traitorous conspiracy, and of the intent thereof, as aforesaid, the said Lewis Payne did, on the same night of the 14th day of April, A.D. 1865, about the same hour of ten o'clock and fifteen minutes P.M., at the city of Washington, and within the military department and military lines aforesaid, unlawfully and maliciously make an assault upon the said William H. Seward, Secretary of State, as aforesaid, in the dwelling house and bed-chamber of him, the said William H. Seward, and the said Payne did, then and there, with a large knife held in his hand, unlawfully, traitorously, and in pursuance of said conspiracy, strike, stab, cut, and attempt to kill and murder the said William H. Seward, and did thereby, then and there, and with the intent aforesaid, with said knife inflict upon the face and throat of the said William H. Seward divers grievous wounds. And the said Lewis Payne, in further prosecution of said conspiracy, at the same time and place last aforesaid, did attempt, with the knife aforesaid, and a pistol held in his hand, to kill and murder Frederick W. Seward, Augustus H. Seward, Emrick W. Hansel and George F. Robinson, who were striving to protect and rescue the said William H. Seward from murder by the said Lewis Payne, and did, then and there, with said knife and pistol held in his hands, inflict upon the head of the said Frederick W. Seward, and upon the persons of said Augustus H. Seward, Emrick W. Hansel, and George F. Robinson, divers grievous and dangerous wounds, with intent then and there to kill and murder the said Frederick W. Seward, Augustus H. Seward, Emrick W. Hansel, and George F. Robinson.
And in further prosecution of said conspiracy and its traitorous and murderous designs, the said George A. Atzerodt did, on the night of the 14th of April, A.D. 1865, and about the same hour of the night aforesaid, within the military department and military lines aforesaid, lie in wait for Andrew Johnson, then Vice-President of the United States aforesaid, with the intent unlawfully and maliciously to kill and murder him, the said Andrew Johnson.
And in further prosecution of the conspiracy aforesaid, and of its murderous and treasonable purposes aforesaid, on the nights of the 13th and 14th of April, A.D. 1865, at Washington City, and within the military department and military lines aforesaid, the said Michael O'Laughlin did, then and there, lie in wait for Ulysses S. Grant, then lieutenant general and commander of the armies of the United States as aforesaid, with intent then and there to kill and murder the said Ulysses S. Grant.
And in further prosecution of said conspiracy, the said Samuel Arnold did, within the military department and the military lines aforesaid, on or before the 6th day of March, A.D. 1865, and on divers other days and times between that day and the 15th day of April, A.D. 1865, combine, conspire with, and aid, counsel, abet, comfort, and support the said John Wilkes Booth, Lewis Payne, George A. Atzerodt, Michael O'Laughlin, and their confederates in said unlawful, murderous and traitorous conspiracy, and in the execution thereof aforesaid.
And in further prosecution of said conspiracy, Mary E. Surratt did, at Washington City and within the military department and military lines aforesaid, on or before the 6th day of March, A.D. 1865, and on divers other days and times between that day and the 20th day of April, A.D. 1865, receive, entertain, harbor, and conceal, aid and assist the said John Wilkes Booth, David E. Herold, Lewis Payne, John H. Surratt, Michael O'Laughlin, George A. Atzerodt, Samuel Arnold, and their confederates, with knowledge of the murderous and traitorous conspiracy aforesaid, and with the intent to aid, abet, and assist them in the execution thereof, and in escaping from justice after the murder of the said Abraham Lincoln as aforesaid.
And in further prosecution of said conspiracy the said Samuel A. Mudd did at Washington City and within the military department and military lines aforesaid, on or before the 6th day of March, A.D. 1865, and on divers other days and times between that day and the 20th day of April, A.D. 1865, advise, encourage, receive, entertain, harbor and conceal, aid and assist the said John Wilkes Booth, David E. Herold, Lewis Payne, John H. Surratt, Michael O'Laughlin, George A. Atzerodt, Mary E. Surratt, and Samuel Arnold, and their confederates, with knowledge of the murderous and traitorous conspiracy aforesaid, and with the intent to aid, abet, and assist them in the execution thereof and in escaping from justice after the murder of the said Abraham Lincoln, in pursuance of said conspiracy in manner aforesaid. By order of the President of the United States.
J. HOLT, _Judge Advocate General_
_Charge and Specifications Indorsed._
"Copy of the within charge and specification delivered to David E. Herold, George A. Atzerodt, Lewis Payne, Edward Spangler, Michael O'Laughlin, Samuel Arnold, Mary E. Surratt, and Samuel A. Mudd, on the 8th day of May, 1865.
[Signed] "J. F. HARTRANFT,
"_Brevet Major General and Special Provost Marshal General_."
The accused severally plead as follows:--
To the specification, "Not guilty."
To the charge, "Not guilty."
The Commission then proceeded to consider the rules and regulations by which its proceedings should be governed or conducted. The prisoners were served, as we have seen, with a due notice of the offenses with which they were charged, and required to be confronted with the witnesses against them. They were allowed the benefit of counsel of their own choice and compulsory attendance of witnesses in their defense. In short, they were accorded every condition that was necessary to a fair and impartial trial. In this case the only qualification required of the counsel selected or employed by the accused in their defense was, that they should submit or file evidence of having taken the oath required by an act of Congress, or should take said oath before being permitted to appear in the case.
The examination of witnesses was conducted on the part of the government by the Judge Advocate and by counsel on the part of the accused. The evidence was taken down by short-hand reporters who were sworn to record the evidence faithfully and truly, and not to communicate the same, or any part of the proceedings on the trial, except by authority of the presiding officer. They were required to furnish a copy of the evidence taken each day to the Judge Advocate, and also a copy to prisoners' counsel. No reporters except the official reporters were allowed access to the court-room. The Judge Advocate, however, was allowed to furnish to the agent of the Associated Press, at his discretion, a copy of such testimony and proceedings as might be published during the trial without injury to the public and to the ends of justice. All other publication of the evidence and of the proceedings during the trial was forbidden, and was to be dealt with as a contempt of court. The testimony being closed, the case was to be immediately summed up by one judge advocate, selected by the Judge Advocate General, to be followed or opened, if the Judge Advocate General so selected, by counsel for the prisoners, and the argument closed by one judge advocate.
The argument being closed, the court was to proceed immediately to deliberate and make its determination. The provost marshal was required to have the prisoners present during the trial, and was held responsible for their safe keeping. Their counsel was permitted to hold communication with them in the presence, but not in the hearing, of the guard. Counsel for the prisoners were required to furnish immediately a list of witnesses required for the defense of their respective clients to the Judge Advocate General, who procured their attendance in the usual manner. At the meeting of the Commission on May the 11th, Samuel A. Mudd asked permission to introduce Frederick Stone, Esq., and Thomas Ewing, Jr., Esq., as his counsel. Mary E. Surratt asked to introduce Frederick Aiken, Esq., and John W. Clampitt, Esq., as her counsel, which applications were granted by the court. At its meeting on May 12th, David E. Herold asked to introduce Frederick Stone, Esq., as his counsel; Samuel Arnold asked to introduce Thomas Ewing, Jr., Esq., as his counsel; George A. Atzerodt asked to introduce William E. Doster, Esq., as his counsel; Michael O'Laughlin applied for permission to introduce Walter S. Cox, Esq., as his counsel; Lewis Payne asked to introduce William E. Doster, Esq., as his counsel; Edward Spangler applied for permission to introduce Thomas Ewing, Jr., Esq., as his counsel; which applications were granted, and Messrs. Doster and Cox, having first taken the oath prescribed by act of Congress approved July 2d, 1862, in open court, appeared accordingly. The accused, Mary E. Surratt, applied for permission to introduce Hon. Reverdy Johnson as additional counsel for her, and permission being granted, he appeared accordingly. The admission of Mr. Johnson was objected to by the author, a member of the court, on the ground that he had very light views of the obligations of an oath, and in proof of this, reference was made to an open letter to the people of Maryland, written a few months previously by the honorable gentleman, in which he advised them to take the oath prescribed by the late Constitutional Convention of that State as a qualification for the exercise of the right of suffrage in the adoption or rejection of the amended Constitution, in which letter he took the ground that as the convention had transcended its power in prescribing such an oath, which in effect was intended to exclude all disloyal persons from participation in this right of citizenship, it carried in it no moral obligation; and that they might therefore take it as a matter of indifference, even though they were disloyal. The honorable gentleman at first treated this objection to his appearance with great _hauteur_ of manner, and appeared to be astonished that an obscure officer in the army, whom nobody knew, should presume to arraign a man in his position as incompetent to appear before such a court. He was answered by the president of the Commission, who said, that had not General Harris raised this objection he had intended doing so himself. The honorable gentleman, seeing that there was danger of his exclusion from the court, and that it could not be bluffed, immediately came down from his high horse, and in a very respectful manner entered into a lengthy explanation of the letter referred to, which explanation did not put a better face on the matter, but as he in closing emphatically declared that he did recognize the moral obligation of an oath, the objection was withdrawn, and he was admitted and appeared accordingly. The accused severally then asked, for the time, to withdraw their plea of "Not guilty," heretofore filed, so that they might plead to the jurisdiction of the court.
This being granted, they offered the following plea to the jurisdiction of the court:--
"---- ----, one of the accused, for plea says that this court has no jurisdiction in the proceedings against him, because he says he is not, and has not been, in the military service of the United States.
"And for further plea, the said ---- ---- says that loyal civil courts, in which all the offenses charged are triable, exist, and are in full and free operation in all the places where the several offenses charged are alleged to have been committed.
"And for further plea, the said ---- ---- says that the court has no jurisdiction in the matter of the alleged conspiracy, so far as it is charged to have been a conspiracy to murder Abraham Lincoln, late President of the United States, and William H. Seward, Secretary of State, because he says said alleged conspiracy, and all acts alleged to have been done in the formation and in the execution thereof, are in the charge and specifications alleged to have been committed in the City of Washington, in which city are loyal civil courts in full operation, in which all said offenses charged are triable.
"And the said ---- ---- for further plea says this court has no jurisdiction in the matter of the crime of murdering Abraham Lincoln, late President of the United States, and William H. Seward, Secretary of State, because he says said crimes and acts done in execution thereof are, in the charge and specifications, alleged to have been committed in the City of Washington, in which city are loyal civil courts, in full operation, in which said crimes are triable."
In answer to this plea the judge advocate presented the following replication:--
"Now come the United States, and for answer to the special plea by one of the defendants, ---- ----, plead to the jurisdiction of the Commission in this case, say that this Commission has jurisdiction in the premises to try and determine the matters in the charge and specifications alleged and set forth against the said defendant, ---- ----.
"J. HOLT, "_Judge Advocate General_."
The court was then cleared for deliberation, and on being reopened the Judge Advocate announced that the pleas of the accused had been overruled by the Commission. The accused then made application for severance as follows:--
"---- ----, one of the accused, asks that he be tried separate from those who are charged with him, for the reason that he believes his defense will be greatly prejudiced by a joint trial."
The Commission overruled the application for severance. The accused then severally plead:--
To the specifications, "Not guilty."
To the charge, "Not guilty."
The considerations on which the motion for severance was overruled were, that the charge alleged a conspiracy on the part of the persons accused and on trial, with others unknown, unlawfully, maliciously, and traitorously to kill and murder the President and others. The fact of entering into a conspiracy to do unlawful acts gives to the associated body, in law, an individuality; personality is merged in the common purpose of those thus combining themselves together, and so the declaration or act of any one of them, touching the accomplishment of the common purpose, becomes the declaration or act of all. The guilt is equally shared by all. If the government could not sustain the charge of a conspiracy, then none of the accused could be found guilty of entering into a conspiracy as alleged. The fact of a conspiracy being established, it only remained to be shown in each case that the accused was a member of it; proving this, he would be held to be a sharer in the guilt, although not present at the commission of the crime; but failing to establish the fact of his belonging to the conspiracy, his innocence must be legally admitted. In other words he could not be found guilty. There can in law be no severance of an individuality; and so the application for a separate trial was denied, or overruled.
On the demurrer to the jurisdiction of the court, the Commission held that it could not admit this to be a question that it could properly take under its consideration. To the executive department of the government alone belonged the decision of this question as to the kind of trial that the accused should have; and the President, after maturely considering it in the light of the Constitution and the related facts, and after having submitted it to his Attorney General for his opinion, accepting that opinion as the correct conclusion of his very exhaustive argument, embracing all the Constitutional questions involved, had determined that these parties were offenders against the laws of war, as their offense was the act of secret, active participants in the existing hostilities, and committed with a deep political intent, the purpose of which was to give aid to the existing rebellion, and so, justly, under the Constitution, subjecting them to _law martial_, and trial by a military commission. The President, being _ex-officio_ Commander-in-Chief of the armies of the United States, had the right to order a detail of officers to constitute such court, and by order to specify the duties required of them. Their duty as officers of the army required of them simply obedience to the orders of the President of the United States and to those over them in the organization of the military arm of the government. To this they were bound by the solemn obligations of their official oath. To have entertained this question would have been an act of disobedience, subjecting them to discipline; to have refused to serve would have been an act of mutiny. The officers composing this court were, according to the biographers of President Lincoln (Nicolay and Hay) "not only officers high in rank, but of unusual weight of character"; they had been thoroughly schooled in military discipline, and so recognized the duty of obedience to orders as the first duty of a soldier. It was not any part of their duty to discuss the wisdom, propriety, or legality of an order before entering upon the act of obedience. Their duty was simply to obey, and for this they were properly held responsible. The order of detail assigned to them the specific duty of trying the accused under the charge and specifications prepared against them by the government, and so, as loyal, obedient soldiers, loving their country and having faith in its government, they had nothing to do but to enter upon and discharge the duties for which they had been detailed.
As before stated, the Hon. Reverdy Johnson, a United States Senator from Maryland, volunteered to defend Mrs. Mary E. Surratt, selecting her for his client that he might have the benefit, for the purpose of his argument, of the sympathy which we all naturally feel for her sex. It was not his purpose to defend her any more than any other one or all of the prisoners, as he addressed himself simply to the task of arguing the question of jurisdiction. His real object was, evidently, to get himself before the Commission, that he might arraign the martyred President before the country and before the world, and denounce his acts for the prosecution of the war as unconstitutional and tyrannical usurpations of power. He made a lengthy, and from the stand-point of the right of secession, able argument against the right to try these cases before a military tribunal. The Commission was made up largely of men sufficiently versed in constitutional law, as well as the laws of nations and of war, to be little influenced by his sophistries. Their position towards the government on these questions had placed them where they were, as officers in its military service, and they could not be swerved from the loyal discharge of their duty. The reply of the Hon. John A. Bingham to the sophistries of the honorable senator, is a masterpiece of logical reasoning, as also of forensic eloquence and legal acumen, and will well repay the careful study, not only of every student of law, but of every young man who has an ambition to become intelligent in matters of public interest, involving the rights, duties, and privileges of the citizen in time of peace and in time of war.
It will be found not only thoroughly learned and exhaustive of all questions involved, as a legal argument, but also the very embodiment of patriotic devotion to our free institutions of government, and to the cause of civil liberty, justice, humanity, and moral progress.
The Commission was diligently engaged in the trial of the prisoners from the 11th day of May until the 30th day of June, a period of about seven weeks being consumed in hearing the testimony and the motions and arguments of counsel. As I have given, in narrative form, the facts proven against each of the accused, as they stood unimpeached and uncontroverted by testimony given in defense, in giving the history of their arrest, it is unnecessary that I should give it formally, as it appears upon the record of the trial.
After maturely deliberating on the evidence adduced in the case of each of the accused, the findings of the Commission were as follows:--
In the case of David E. Herold: Of the specification guilty; except "combining, confederating, and conspiring with Edward Spangler," as to which part thereof not guilty. Of the charge guilty; except the words of the charge, "combining, confederating, and conspiring with Edward Spangler," as to which not guilty. And the Commission did, therefore, sentence him, the said David E. Herold, to be hanged by the neck until he be dead, at such time and place as the President of the United States should direct, two-thirds of the Commission concurring therein.
In the case of George A. Atzerodt: After mature consideration of the evidence adduced, the Commission found the accused, of the specification guilty; except "combining, confederating, and conspiring with Edward Spangler," of this not guilty. Of the charge guilty; except "combining, confederating, and conspiring with Edward Spangler," of this not guilty. And the sentence of the Commission was that he be hanged by the neck until he be dead, at such time and place as the President of the United States might direct, two-thirds of the Commission concurring therein.
In the case of Lewis Payne, the Commission found him, of the specifications guilty; of the charge guilty; with the same exceptions as in the case of Atzerodt; and sentenced him to be hung as above, two-thirds of the Commission concurring therein.
In the case of Mary E. Surratt, the Commission found her, of the specifications guilty, and of the charge guilty; except as to "receiving, sustaining, harboring, and concealing Samuel Arnold and Michael O'Laughlin"; and except as to "combining, confederating, and conspiring with Edward Spangler," and of this not guilty; and sentenced her to be hanged by the neck until she be dead, at such time and place as the President of the United States should direct, two-thirds of the Commission concurring therein.
In the case of Michael O'Laughlin, the Commission found him guilty of the specifications, except the words thereof, "And in further prosecution of the conspiracy aforesaid, and of its murderous and treasonable purposes aforesaid, on the night of the 13th of April, A.D. 1865, at Washington City, and within the military department and military lines aforesaid, the said Michael O'Laughlin did, then and there, lie in wait for Ulysses S. Grant, then Lieutenant General and commander of the armies of the United States, with intent, then and there, to kill and murder the said Ulysses S. Grant"; of said words not guilty. Of the charge guilty, except "combining, confederating, and conspiring with Edward Spangler"; of this not guilty. O'Laughlin was sentenced by the Commission to be imprisoned at hard labor for life, at such place as the President might direct, two-thirds of the Commission concurring therein. In the case of Edward Spangler, the Commission found him guilty of the charge and specifications, with exceptions similar to the above, and sentenced him to be imprisoned at hard labor for the term of six years, at such place as the President might direct, two-thirds concurring therein.
In the case of Samuel Arnold, the decision of the Commission was, that he was guilty of the charge and specifications, with exceptions similar to the above, and that he should be imprisoned for life at hard labor at such place as the President should direct, two-thirds concurring.
In the case of Samuel A. Mudd, the Commission found him guilty of the charge and specifications, with similar exceptions, as the evidence required, and sentenced him to be imprisoned at hard labor for life, as above.
The findings and sentences of the Commission were approved by the President, and those of the accused who were sentenced to imprisonment at hard labor were ordered by him to be sent to the military prison at the Dry Tortugas, and they were transported there accordingly.
In the case of those who were sentenced to death, the President ordered their execution to take place on the 7th day of July, one week after they were convicted and sentenced by the court, and they were accordingly executed.
After the conviction and sentence of Mrs. Surratt, Judge Bingham, at the request of a member of the court, drew up the following petition: "To the President: The undersigned, members of the military commission appointed to try the persons charged with the murder of Abraham Lincoln, etc., respectfully represent that the Commission have been constrained to find Mary E. Surratt guilty upon the testimony of the assassination of Abraham Lincoln, late President of the United States, and to pronounce upon her, as required by law, the sentence of death; but in consideration of her age and sex, the undersigned pray your Excellency, if it is consistent with your sense of duty, to commute her sentence to imprisonment for life in the penitentiary."
This petition was signed by five members (a majority) of the court, and although not constituting a part of the record, was presented along with the record by the Judge Advocate General to the President. The record was carefully considered and discussed by the President and a full cabinet, when, without a dissenting voice, the sentences of the Commission were confirmed, and the prayer of the petition was rejected.
Mrs. Surratt's counsel then sued out a writ of _habeas corpus_ to take her out of the hands of the military authorities, and thus to secure for her a civil trial, or perhaps an entire release, after the President had approved the findings and sentence of the court.
The President had set the 7th day of July, 1865, as the day for the execution of those who had been sentenced to death, and had given orders accordingly to the military officer under whose charge they had been placed. On the forenoon of that day, on the application of Mrs. Surratt's counsel, Judge Wylie, of the Supreme Court of the District of Columbia, endorsed on her application:--
"Let the writ issue as prayed, returnable before the criminal court of the District of Columbia, now sitting at the hour of ten o'clock A.M., this 7th day of July, 1865.
[Signed] "ANDREW WYLIE,
"_A Justice of the Supreme Court of the District of Columbia_.
"July 7th, 1865."
This writ was served on General Hancock, who had custody of, and was charged with the execution of the prisoners, and who, accompanied by Attorney General Speed, appeared before Judge Wylie in obedience to the writ, on which the following return was made:--
HEADQUARTERS MIDDLE MILITARY DIVISION, WASHINGTON, D. C., July 7th, 1865.
To Hon. ANDREW WYLIE, _Justice of the Supreme Court of the District of Columbia_:--
I hereby acknowledge the service of the writ hereto attached and return the same, and respectfully say that the body of Mary E. Surratt is in my possession under and by virtue of an order of Andrew Johnson, President of the United States, and Commander-in-Chief of the army and navy, for the purposes in said order expressed, a copy of which is hereto attached and made part of this return; and that I do not produce said body by reason of the order of the President of the United States, indorsed upon said writ, to which reference is hereby respectfully made, dated July 7th, 1865.
The order of the President, made a part of the above return, is as follows:--
EXECUTIVE OFFICE, July 7th, 1865, 10 o'clock A.M.
To Major General W. S. HANCOCK, _Commander, etc._:--
I, ANDREW JOHNSON, President of the United States, do hereby declare that the writ of habeas corpus has been heretofore suspended in such cases as this, and I do hereby especially suspend this writ, and direct that you proceed to execute the order heretofore given upon the judgment of the military commission, and you will give this order in return to the writ.
ANDREW JOHNSON, _President_.
The court ruled that it yielded to the suspension of the writ of _habeas corpus_ by the President of the United States.
Thus ended the contest over the jurisdiction of the military commission. It has never been revived with success and never will be, as the sound sense of every patriotic American, whose heart beats true to the cause of liberty, justice, good morals, and good government, rests on the arguments that determined this trial by a military commission as its sanction, both by our inimitable Constitution and by the laws of war. In the light of these arguments, this trial will ever hereafter have the authority of a precedent, should another crisis arise involving the principles on which it rests. It was only those whose sympathies were with the rebellion who demurred to it at the time, and whose yelp is occasionally heard, even at this late day, but on a very cold trail.
The sentence of the Commission was executed on the 7th day of July, 1865, in accordance with the President's order, by General Hancock, in the yard of the old Capitol prison. Thus the trial and the execution were alike at the hands of the military; and thus the authority and justice of the government were vindicated, and a solemn warning was given to all traitors to desist from schemes of assassination; a warning which, as we shall yet see, taught them a salutary lesson, and in some measure brought them to their senses.
We shall now turn our attention to the persons just now referred to, some of whom were known, but many were unknown. Before doing this, however, it seems due to our history at this point to say a word about Booth's co-conspirator, John H. Surratt, who would seem to have dropped out of sight in the narrative I have given of the arrest and trial of the conspirators.
It will be remembered that he carried the dispatches from the Richmond government to the Canada conspirators, sanctioning the arrangements that had been made by them to secure the assassinations they had planned; that he arrived with these dispatches at Montreal on the 6th of April; and that the execution of the plot was at once entered upon, those of the conspirators who were to take an active part preparing immediately and starting for Washington, boasting openly of what they would do when they should have reached their destination. Some of these were known, and will be hereafter referred to by name; but there would seem to have been a number of them whose names were never learned. John H. Surratt came back, either alone or in company with some of them. That he was in Washington, aiding and abetting, on the day and night of the assassination, was positively sworn to by one of the witnesses who was well acquainted with him; and from the concurrence of testimony, there is good reason to believe that he was one of the two parties with whom Booth was in communication on the sidewalk in front of the theatre, as heretofore narrated, and that he acted as monitor, calling the time for Booth. He seems, however, to have had the bumps both of cautiousness and secretiveness largely developed, and so kept himself as much as possible out of sight in the transaction in which he was no doubt, at the same time, an active participant. He most probably left Washington on the first train after the work was done, as we have no trace of him again until we find him at Burlington, Vt., on his way to Canada, on the 18th of April. As it is my purpose to devote a chapter or two to his case especially, I shall not, at this time, pursue it any further; but as he was undoubtedly a very active and important factor in the conspiracy, and escaped justice merely by escaping capture at the time, and so securing a civil trial after the war was over, a history of his case naturally comes within the scope of my plan, and will serve to illustrate what I have already said in relation to the existing facts in regard to the population of the District of Columbia that would have rendered a civil trial futile in the cases brought before the Commission.