CHAPTER I.

INDICTMENT AND TRIAL.

On the 4th day of February, 1867, the grand jury for the county of Washington, District of Columbia, found an indictment against John H. Surratt for the murder of Abraham Lincoln. The indictment contained four counts. The first count charged him with the murder of one Abraham Lincoln at the county of Washington, District of Columbia, on the 14th day of April, 1865. The second count charged that John H. Surratt and John Wilkes Booth did, on the 14th day of April, 1865, make an assault upon one Abraham Lincoln in the county and district aforesaid, and that John Wilkes Booth did murder the said Abraham Lincoln.

The third count charged that John H. Surratt and John Wilkes Booth, David E. Herold, George A. Atzerodt, Lewis Payne, Mary E. Surratt, and others to the jury unknown, did, on the 14th day of April, 1865, in the county and district aforesaid, make an assault upon one Abraham Lincoln, and that he was murdered by the hand of John Wilkes Booth.

The fourth count charged that John Wilkes Booth, John H. Surratt, David E. Herold, George A. Atzerodt, Lewis Payne, Mary E. Surratt, and divers other persons to the jury unknown, on the 14th day of April, 1865, at the county of Washington, District of Columbia, did unlawfully and wickedly combine, confederate, and conspire and agree together feloniously to kill and murder one Abraham Lincoln, and that the said John Wilkes Booth, John H. Surratt, David E. Herold, George A. Atzerodt, Lewis Payne, Mary E. Surratt, and other persons to the jurors unknown, did, on the 14th day of April, 1865, in pursuance of said unlawful conspiracy, make an assault, and that the said John Wilkes Booth, in pursuance of said unlawful and wicked conspiracy, did kill and murder one Abraham Lincoln.

It will be noticed that the legal allegations designating the crime used in this indictment are the same as are used in the charge and specifications on which Surratt's co-conspirators were arraigned and tried before the Commission, except that the word "traitorously," there used, is omitted in this indictment. This indictment in its first count charged the prisoner on trial with the murder of Abraham Lincoln. This was done on the principle that when two or more persons conspire together to do an unlawful act, or to do that which is lawful by unlawful means, the act of any one of the parties thus conspiring, in pursuance of said conspiracy becomes the act of all. They are held equally guilty in law. To make this count good, it was only necessary to prove the existence of a conspiracy to do this murder--that it was done by one of the conspirators, and that the person indicted was a member of said conspiracy at the time the murder was committed, and that he aided and abetted and performed his part, whatever that might be, in accomplishing the object of the conspiracy. The second count charges that Surratt and Booth murdered Abraham Lincoln, and that the murder was actually accomplished by the hand of Booth. This implies that they acted together for the accomplishment of the crime and would be made good only by proving the presence of John H. Surratt at the time and place of its commission, and that he was there aiding and abetting Booth in the alleged murder. The third count simply enlarges the conspiracy by designating others known to have been included in its membership, alleging also, that there were still others belonging to it, who were unknown to the jury, and that in pursuance of its object and purpose the murder was done by the hand of one of its members.

The fourth count more distinctly and emphatically alleges the combining, confederating, conspiring, and agreeing together of these persons to do this murder, and that it was so done by one of its members, viz., Booth. This would require proof to be made of such combination and agreeing together to commit this crime on the part of the persons named in the indictment; that the crime was perpetrated, and that the prisoner was a member of said conspiracy at the time of its perpetration. It will be remarked that in addition to the word "traitorously," used in the charge and specifications against the members of this conspiracy who were tried before the Commission, the political purpose of the conspiracy, as there alleged, is here omitted.

The real purpose of the conspiracy was to aid the existing rebellion in its purpose and effort to overthrow the government by assassinating the President, Vice-President, Secretary of State, and the general in command of the armies of the United States.

The parties tried before a military commission were tried under the laws of war, during a state of war, and were brought under the jurisdiction of a military tribunal because they were _secret active_ enemies of the government, and were engaged in an effort to aid the rebellion. This required that the word traitorously should be used, and that the treasonable purpose of the conspiracy should be alleged. This member of the conspiracy was indicted for his participation in this crime; but he had made good his escape, and had not been brought within the jurisdiction of the authorities that could hold him to account until long after the rebellion had been suppressed, and peace had been declared; and under the political policy which had been adopted by the government in dealing with the question of treason and traitors in connection with the war, he could only be indicted for his crime, as it was a violation of civil law. Hence these omissions in framing this indictment.

The case is unique in the history of American jurisprudence. A number of his co-conspirators had been tried before a military commission under an arraignment that fully set forth, not only the crime of murder and a conspiracy to murder, but also the fact that it involved much more than the mere killing of a man--a private individual--that it was a conspiracy to murder the President of the United States, a treasonable conspiracy to subvert the government. It was a blow aimed at the nation's life. He who murders the humblest citizen sets at naught God's image impressed on man at his creation, and so commits a crime not only against a fellow man and a crime against society, but a crime against God. When Noah became the new head and progenitor of the race after the flood, God, who had just destroyed the world of mankind because they had filled the world with violence and blood, gave this law: "Whoso sheddeth man's blood by man shall his blood be shed; _for in the image of God created he him_." God is also the author of civil government, as we read in the thirteenth of Romans: "Let every soul be subject to the higher powers, for there is no power but of God. The powers that be are ordained of God." Here we learn that civil government is the ordinance of God; and so he who assassinates a ruler, not only sets at naught God's image in man, but despises his ordinance for the welfare, protection, and peace of society.

This treasonable aspect of his crime, although it could not, for the reasons stated, be embraced in his indictment, yet, as we shall see, was a matter of which the court and jury could take judicial cognizance.

Here we have a man on trial for participation in the murder of a President; yet, in his indictment, he is only charged with the murder of one Abraham Lincoln. His fellow conspirators had been convicted of murdering Abraham Lincoln, President of the United States, and Commander-in-Chief of the armies and navy of the United States, and of attempting to kill William H. Seward, Secretary of State of the United States, and lying in wait to kill Andrew Johnson, Vice-President of the United States, and Ulysses S. Grant, commander in the field of the armies of the United States, for the purpose of overthrowing the government of the United States in aid of the existing rebellion. Under this charge they had been condemned and some of them executed. This was the result of a military trial in time of war.

This trial had been denounced by every rebel sympathizer in the land. Great lawyers and statesmen had argued with vehemence that these assassins had been tried by an unconstitutional tribunal. The dead President had been denounced as a tyrant, and usurper of authority; one who had trampled under foot the Constitution he had sworn to protect and defend by proclaiming martial law, and suspending the writ of _habeas corpus_; and even in prosecuting a war to compel rebellious States to submit to the lawful authority of the government, and now they would tie up the hands of the government by insisting that it could only try these traitorous assassins, constitutionally, before a civil court. The country stood divided on this contention, just as it did on the issues of the war, and partisan feeling ran as high in this discussion as it did on the right of secession or the right of the government to compel submission to its authority.

The sophistry of this reasoning, when applied to a time of war, was made apparent by the results of this trial of John H. Surratt before a civil court, in time of peace. No government could protect itself under such a construction of the Constitution, because no government could ever convict a traitorous assassin before a jury made up of its enemies as well as its friends.

This trial necessarily aroused the passions and prejudices engendered by the war that gave occasion for the crime of the prisoner, and could not be conducted on a strictly judicial and legal basis. It was just as impossible now, almost two years after the close of the war, as it would have been at the time of the trial by a military commission of Surratt's fellows in crime; and a conviction by a jury in a civil court was just as impossible now as it would have been then because a jury of partisans embracing those of both sides politically can never be expected to come to an agreement in a case that appeals to their partisan feelings. This case was unique then, because it was the first case of a man on trial before a civil court for the murder of the civil head of the nation, the President of the United States, and although since that time another has been tried, convicted, and executed, for the murder of a President, the case of Surratt is still unique in this, that his crime was overshadowed by a higher crime out of which it grew--the crime of treason--of being engaged in a treasonable conspiracy to overthrow his government, and yet the circumstances surrounding the case were such that this could not be alleged in the indictment, but were of such a nature that this phase of his crime could not be excluded from view.

On the day appointed for the trial of John H. Surratt a very large number of people assembled, and all were deeply interested in his case. The court house was crowded, and it was remarked by a most intelligent observer that the appearance and spirit of the crowd wore more of the air of a political convention than that of men assembled to participate in, and witness, the solemn scene of a fellow-being on trial for his life.

The trial was before Judge Fisher of the Criminal Court of the county of Washington, and District of Columbia, a man of great legal ability, sterling patriotism, and high moral character. The trial was a very lengthy one, and was hotly contested at every point by counsel for and against the prisoner. He was defended by lawyers who had made an enviable local reputation for ability in their profession. The District Attorney and his assistant were aided in the prosecution by that pure patriot and eminent jurist, Judge Edwards Pierrepont, of New York, who had been retained for that purpose by Attorney General Stanbury and William H. Seward, Secretary of State, and also by A. G. Riddle, Esq.

A deep partisan spirit was manifested by the defense from the first opening of their mouths to the close of the case. Every effort was made to drive the presiding judge from his fearless duty, but without avail. He stood firm as the adamantine rock. He was not only well qualified by his knowledge of law for his high position, but was also impartial, honest, and brave in his decisions on the very numerous questions of law and evidence that were raised by counsel during the trial. His carriage during that most notable trial must command the admiration of both friend and foe; and his decisions will ever command the respect of courts and lawyers.

The 10th day of June, 1867, was the day that had been set for calling up this case. The United States was represented by the District Attorney, E. C. Carrington, Esq., his assistant, Nathaniel Wilson, Esq., and associate counsel, Messrs. Edwards Pierrepont and A. G. Riddle. The prisoner was represented by Messrs. Joseph H. Bradley, R. T. Merrick, and Joseph H. Bradley, Jr. At the earnest solicitation of the Secretary of State and the Attorney General, and upon their representation that the trial would not last more than a week, Judge Pierrepont had consented to assist in the prosecution. He had just taken his seat in the convention which had met at Albany to make a new constitution for the state of New York and in which he had been appointed on the judiciary committee, and left his place there to take a part in this trial. He was a Democrat in politics, but loyal to the government in its struggle for the perpetuation of its life. He had filled a judicial position in his own State, was a man of great legal acumen, and was noted for his patriotism and purity of character.

At ten o'clock on the 10th day of June, 1867, the Court said: "Gentlemen, this is the day assigned for the trial of John H. Surratt, indicted for the murder of Abraham Lincoln, late President of the United States. Are you ready to proceed?" To this Mr. Bradley responded, "The prisoner is ready, Sir, _and has been from the first_." In this answer we have sounded forth the key-note to the spirit and policy of the defense. That candor and honesty of purpose which always characterize a judicial frame of mind, would have found their sufficient expression in the first clause of this reply. The addition of the declaratory clause, "And has been from the first" was not mere surplusage, but had in it the distinct and manifest intent of boldly assuming in advance, and in the face of all the adverse facts, the entire innocence of the prisoner. The purpose was at this first moment of opportunity to present the prisoner to the jury and to the country as one who was only anxious for an opportunity to exculpate himself from all guilt. The reader, if he chance to be of an imaginative turn of mind, will be able when he reads this clause of the reply of the learned counsel to see the assumed air of assurance and self-importance, and to hear the arrogant and confident tone of voice with which it was uttered. But without thus giving license to our imagination, the addition of that clause to Mr. Bradley's reply, when contrasted with the efforts of the prisoner to escape and evade a trial, creates an impression of a sinister design that is calculated to throw a taint of suspicion over all which is to follow in the line of the defense. We shall have abundant occasion, as we proceed with the review of this trial, to show that the suspicion which has been thus created is fully justified.

John H. Surratt, as was shown by the evidence on the trial, was in Washington on the 14th day of April, 1865, performing his part in the great crime. He was there aiding and abetting Booth, and co-ordinating the agencies employed in the execution of the plot, in order that all of the assassinations embraced in it might be simultaneously accomplished. Acting first as a counsellor and then as monitor, passing rapidly up and down the street to keep himself in communication with the fiends who were to do the work; calling the time loud enough to be heard at some distance; then going up the street to ascertain whether his warning could be heard by Payne, and the last time with a face deadly pale and manifesting a degree of nervous excitement, inseparable from the commission of such a crime, he called the fatal hour, "Ten minutes past ten!" and vanished from sight. He has gone, but he has left an image imprinted on the mind and memory of Sergeant Dye that can never be effaced. He now becomes a fugitive in disguise, and hies away to Canada to join the hellish clan that first conceived and then led him into his crime. Here he was at once taken in charge by sympathising friends, who kept him hidden away for five months and then, under a disguise and an _alias_, sent him across the Atlantic, and finally to Italy.

Here he is found in the Pope's army, and being charged with his crime, which he has already confessed in words as well as by flight, is arrested, escapes from his guards, flies to Naples and thence to Egypt, is met and arrested at Alexandria, and brought back to the scene of his crime, and is now put upon his trial. When asked if he is ready, he replies through his counsel, "I am ready, and have been from the first." Why, then, did he leave the city of his home, his mother and sister and all of his youthful associations, in the early morning of the 15th of April, 1865? Why did he fly to Canada disguised as an English tourist? Why did he hide in Canada for almost half a year, and then, in disguise, and under an _alias_, flee to Europe? Why did he escape from his guards in Italy at the risk (?) of his life, and flee to Egypt? Why, if innocent, did he flee to the ends of the earth, and never cease his flight until his way was hedged before him and further flight was impossible? Was it because he was innocent and desired an opportunity to prove his innocence to the world? In the presence of all these facts, what a mistake it was to say, "And has been from the first." In how much better taste it would have been to have simply replied, "The prisoner is ready, your honor."

The District Attorney replied as follows: "If your honor please, I am happy to be able to announce that the government is ready to proceed with the trial. Before we proceed, however, sir, to impanel a jury, we desire to submit a motion to the court, which motion we have reduced to writing. With the permission of the court I will now proceed to read it to your honor. It is as follows:--

IN THE SUPREME COURT OF THE DISTRICT OF COLUMBIA.

UNITED STATES AGAINST JOHN H. SURRATT.

Indictment, Murder.

"And now, at this day, to wit, on the 10th day of June, A.D. 1867, come the United States and the said John H. Surratt, by their respective attorneys; and the jurors of the jury impanelled and summoned also come; and hereupon the said United States, by their attorney, challenge the array of the said panel, because he saith that the said jurors comprising said panel were not drawn according to law, and that the names from which said jurors were drawn were not selected according to law, wherefore he prays judgment, and that the said panel may be quashed." This motion, if your honor please, is sustained by an affidavit which I hold in my hand, and which, with the permission of your honor, I will now proceed to read. We think after this affidavit shall have been read it will be found unnecessary to introduce any oral testimony."

The motion to quash this panel, it will be observed, rests on two allegations: first, that the names were not drawn according to law; and, second, that the names from which the jury had been drawn were not selected according to law. These allegations were fully sustained by the affidavit of Samuel E. Douglas, register of Washington City, which was presented and read by the District Attorney, and more fully afterwards, upon his oral examination. The law governing the question was found in an act of Congress of June 16th, 1862, entitled, "An act providing for the selection of jurors to serve in the several courts of the District of Columbia."

Under the provisions of this act the register of the city of Washington, the clerk of the city of Georgetown, and the clerk of the levy court of the county of Washington, District of Columbia, was each required to make out a list of names of persons deemed by him to be most suitable for the duty of jurors, having respect to the exemptions and qualifications specified in the act.

The law required that such lists should be made out annually on, or before, the first day of February. The register of the city of Washington was to make out a list of names from which four hundred should be selected: the clerk of the city of Georgetown was to make out a list of names from which eighty were to be selected; and the clerk of the levy court of the county of Washington was to make out a list from which forty were to be selected, and that such lists should be preserved, and any names that had not been drawn for service during the year might be transferred to the list made up for the subsequent year.

Having thus made out their respective lists, these officers were required to meet together and jointly select from their respective lists the number specified for each one. The names thus selected were then to be written on separate and similar pieces of paper, folded, or rolled up, so that the name could not be seen; and then deposited in a box provided for the purpose. The box was required to be thoroughly shaken and sealed, and was then by these three officers to be delivered into the custody of the clerk of the court of Washington County for safe keeping. These officers were required to meet at the City Hall, in Washington City, at least ten days before the commencement of each term of the circuit court or of the criminal court, and there the clerk of the circuit court was to publicly, and in their presence, break the seal of the box and proceed to draw out the number of names required; and if it was a grand jury court, the first twenty-three names drawn were to constitute the grand jury, and the next twenty-six names drawn were to constitute the petit jury for that term. The jury or juries required, having been drawn, the box was again to be sealed and delivered to the clerk of the circuit court.

The affidavit of Samuel E. Douglas, register of the city of Washington, was offered with the motion to sustain its allegations. This affidavit was supplemented by the oral examination of Mr. Douglas, under oath. The affidavit and oral examination developed the facts that no such lists had been made out and preserved as required; also that there had been no joint action of these three officers in the selection of names, but that each one had written his respective number of names and deposited them in the box, without exhibiting them to the other two. There had been no joint selection as the law required.

Still further, the fact was developed that these offices had not sealed the box as required, but had delivered it to the clerk of the circuit court to be sealed by him. It was further shown that the names had been drawn, not by the clerk of the circuit court, but by the clerk of the city of Georgetown.

It will be seen at a glance that the affidavit and oral examination of Mr. Douglass fully sustained the allegations of the motion of the District Attorney, and that the utter disregard of all the most essential requirements of the law could have easily been made to subserve a corrupt purpose. Without charging fraud in the case, we can easily see how the clerk of the city of Georgetown, who drew this jury, and who had no right to put his hand in the box, could have carried in his own hand names of his own selection for that special purpose, and from this store to have drawn a jury without taking a single name from the box.

The substance of the affidavit and oral examination of Mr. Douglass having been incorporated with the motion of the District Attorney, the defense made the following replication:--

UNITED STATES } VS. } _In the Criminal Court of the JOHN H. SURRATT.} District of Columbia, No. ----._

And thereupon, the defendant saith the said motion is bad in law and in substance. The facts stated do not constitute any ground in law for a challenge of the array.

BRADLEY & MERRICK, _for defense_.

_Mr. Pierrepont._--We join in the demurrer.

The question now before the court was simply one of law and of fact, and whether the facts in the case admitted by all, constituted such a violation of the law as justified and required the setting aside of the array. It would seem that it ought to have been easily settled, and the fact the motion was hotly contested by the defense through a discussion of three days continuance, would seem to indicate that for some reason they had a special desire to have their case tried by that particular jury. The argument was opened by Mr. Merrick for the defense. His argument was first addressed to the construction of the statute, and to the contention that the facts alleged and admitted did not constitute such a violation of the law as would justify the setting aside of the array. And then as there was no statute in regard to the quashing of the panel the question was argued on the principles of the common law, and many decisions were invoked, both in England and in this country, to show that the failure of the officers to comply with the law was not such as would vitiate what they did.

The question was ably discussed on both sides, and ingeniously on the part of the defense, which did not confine itself to the legal discussion of the question, but made it the occasion for manifesting its spirit and attitude toward the government by insinuations and innuendo. Thus, Mr. Merrick said, "I hope the United States is looking for the attainment of justice in this case; I trust nothing may be developed in this case looking towards anything else. I trust the government will tread the high and honorable path which leads to the attainment of simple and, I may add, speedy justice. And entertaining this hope, I suggest to your honor, whether it is probable a jury, against whose qualification nothing is alleged, who were summoned without regard to this case, and before it was anticipated it might be tried, are not better fitted to do justice then another summoned in anticipation of the case,--a case not of an ordinary private nature, but one of great public interest, in which, while the United States as a government, I trust, will tread in the highways I have spoken of, there are individuals occupying offices in the government who may be disposed to tread lower paths which we will have to follow.

"May it please your honor, I shall say no more upon this motion than to add that after the most careful examination I have been able to give to it, the honest conclusion to which I have come is, that the ground, probably, upon which the motion rests, is to be found in the act of 1853, page 160, 10 Statutes at Large, which act provides that where a criminal case is on trial in this court and a jury has been impanelled, and another term begins during the progress of the trial, the cause shall continue; but leaves it exceedingly questionable whether unless the jury is fully impanelled before the end of the term, the cause can be tried. That other term begins Monday next, and unless a jury in this case is impanelled before Saturday night it is questionable whether this case will be tried for many days or many years."

To this sly insinuation that the government felt that it had an elephant on its hands, and that the motion was a dilatory one thus made so early in the case to influence both the jury and public opinion, Judge Pierrepont replied as follows: "They will discover before we proceed much further, that the United States are as zealous, as earnest, and as eager to try this cause as the other side, and they will discover before it is through that the public mind will be set right with regard to a great many subjects about which there have been active, numerous, and unfounded reports. Since I have been here in this city for these past few days, it has been circulated in nearly all the journals of this country that the United States dared not bring forward the diary found upon the murderer of the President, because that diary would prove things they did not want to have known. All these things will be proved to be false, and all the papers, about the suppression of which so much has been said, will be exhibited here on the trial of this case. We are anxious that it should be proceeded with at once. It has likewise been circulated through all the public journals that after the former convictions, when an effort was made to go to the President for pardon, men active here at the seat of government prevented any attempt being made, or the President even being reached for the purpose of seeing whether he would not exercise clemency; whereas, the truth, and the truth of record, which will be presented in this court, is that all this matter was brought before the President and presented to a full cabinet meeting, where it was thoroughly discussed; and after such discussion, condemnation, and execution, received not only the sanction of the President, but that of every member of his cabinet. This, and a thousand other of these false stories, will be all set at rest forever in the progress of this trial; and the gentlemen may feel assured that not only are we ready but that we are desirous of proceeding at once with the case." The insinuation of Mr. Merrick, having been thus bravely and fully met, the defense felt it necessary to shift its ground, and so Mr. Bradley, in the course of his argument, found another reason for the motion of the prosecution to quash the panel, which he artfully put forth in the form of an insinuation as follows: "I think I can see where this thing is drifting. It is not delay that is sought, but they have another motive more powerful than delay. It is to get another jury in the place of this honest jury already summoned. Why, sir, the gentleman talks about the misgivings in the public prints. I do not know that he has seen what I hold in my hand,--an article from this place denouncing this jury because sixteen of them are Catholics, as they say, but there it is--such an article has been written and published in the New York _Herald_. I know, too, that the same article, published yesterday morning, foreshadows the fact that these gentlemen were to come into court on the day they did, and make the identical motion that they have submitted here."

_Mr. Merrick._ "And states the ground of the motion?"

_Mr. Bradley._ "Yes Sir, states the ground of the motion. It looks to me as though it came from very near home."

_Mr. Pierrepont._ "What does it state as the ground of the motion?"

_Mr. Bradley._ "There it is, just the same ground precisely as was stated here that it was not a lawful panel."

_Mr. Pierrepont._ "Oh!" (laughingly.)

Thus we get a glimpse at the outside pressure that was brought to bear on this trial by a constant fusilade of falsehoods couched in cunningly-devised paragraphs that they might gain a general circulation through the press of the country for the purpose not only of influencing the jury in this case, but also of misleading and perverting public opinion.

The fact brought out in this paragraph is somewhat remarkable. It might have been a mere chance that sixteen out of the twenty-six drawn for the jury happened to be Catholics, but we cannot help feeling a suspicion that had the law been a little more closely followed it might have been otherwise.

To the insinuation of Mr. Bradley, the District Attorney replied as follows: "I do not rise for the purpose of arguing the motion before the court, but with the permission of your honor, and my learned friend, simply to say a word or two in regard to a certain statement in one of the newspapers of the day to which my attention has just been called. It is an item in the New York _Herald_, purporting to be telegraphed from this city.

The article is not very complimentary to myself, but as my friend is spoken of in very high terms, I am not disposed to quarrel with the writer, for, as a generous-hearted man, I am more anxious for the reputation of my friend than I am for my own. What is intimated in it, I would not think of sufficient importance to be called to the attention of the court, were it not that allusion has been made to it here by the learned counsel who last addressed your honor.

He stated that there was some reason not made known for this motion which we have submitted. I deem it due to myself to say--"

_Mr. Bradley._ "I beg your pardon if I have said anything wrong. I thought it was a fair retort on what was said by Judge Pierrepont."

_The District Attorney._ "Notwithstanding the disclaimer of the gentleman to impute any wrong motive to us in submitting the motion now before your honor, I think, inasmuch as public reference has been made to it here, it is due to my position before the country to say a word. I will here say, then, that there is no one who would more earnestly and sincerely deprecate any appeal to religious prejudices than myself. Politicians may speak, think, and act as they please, but for my part I would drive from the halls of justice the demon of party spirit and religious fanaticism. I trust in God the day will never come when a judge, or a jury, will be influenced in the discharge of the most solemn duty that can possibly be devolved upon human beings by political or religious considerations."

At the assembling of the court on the morning of the 13th, Judge Fisher delivered an exhaustive opinion on the motion before him. As it is somewhat lengthy I shall only give its concluding paragraph. "Believing, therefore, that the substantial requirements of the act of Congress in this case providing for the selection of a fair and impartial jury, have not been complied with, but entirely set at naught, and that there has been grave default on the part of the officers whom that act has substituted in the place of the marshal, for the purpose of having them exercise a united judgment in the selection of all the persons whose names are to go in the jury box, I am constrained to allow the motion of challenge in this case. I do not consider the fact that the present panel were improperly drawn by the clerk of Georgetown, who had no right to put his hand into the box, because the objection which I have allowed lies even deeper than that. It is, therefore, ordered by the Court that the present panel be set aside, and that the Marshal of the District of Columbia do now proceed to summon a jury of talesmen."

Judge Fisher subsequently said: "My order is that the Marshal summon twenty-six talesmen." The process of securing a jury from talesmen occupied the next four days, and about two hundred talesmen were summoned before a panel could be secured.

Many of those summoned by the marshal were excused on showing sufficient grounds; a very large number were found disqualified on their _voire dire_; and perhaps all of the challenges, or nearly so, to which the parties were entitled, were exhausted, and it was not until the evening session of the 16th of June, that the jury was impaneled to try the case.

When a panel of twenty-six jurors had been secured, counsel for the prisoner, through Mr. Merrick, said: "If your honor please, we are now ready to proceed to empanel the jury. Before doing so, however, we think it our duty, in behalf of the prisoner, to file our challenge to the present array. Your honor has virtually decided the question, and we do not desire to take up any time in its argument. We simply wish that it may be filed so that it can be passed upon."

The challenge in word and form is as follows:--

IN THE SUPREME COURT OF THE DISTRICT OF COLUMBIA.

THE UNITED STATES VS. JOHN H. SURRATT.

In the Criminal Court, March Term, 1867.

And the said Marshal of the District of Columbia, in obedience to the order of the Court, made in this case on the 12th of June instant, this day makes return that he hath summoned, and now hath in court here twenty-six jurors, talesmen, as a panel from which to form a jury to try the said cause, and the names of the twenty-six jurors so returned being called by the clerk of said court, and they having answered to their names as they were called, the said John H. Surratt, by his attorneys, doth challenge the array of the said panel, because he saith it doth plainly appear by the records and proceedings of the Court in this cause that no jurors have ever been summoned according to law to serve during the present term of this Court, and no names of jurors, duly and lawfully summoned, have been placed in the box provided for in the fourth section of the act of Congress, entitled, "An Act providing for the Selection of Jurors to serve in the Several Courts of the District," approved 16th of June, 1862, on or before the 1st day of February, 1867, to serve for the ensuing year, wherefore he prays judgment that the panel now returned by the said Marshal, and now in court here, be quashed.

MERRICK, BRADLEY & BRADLEY, _Attorneys for Surratt_.

This motion was made as a foundation for carrying the case up on a writ of error in the event of the conviction of the prisoner.

On Monday, the 18th of June, the case was opened by Mr. Nathaniel Wilson, Assistant District Attorney, as follows: "May it please your honor and gentlemen of the jury, you are doubtless aware that it is customary in criminal cases for the prosecution at the beginning of a trial to inform the jury of the nature of the offense to be inquired into, and of the proof that will be offered in support of the charges of the indictment. By making such a statement I hope to aid you in clearly ascertaining the work that is before us, and in apprehending the relevancy and significance of the testimony that will be produced as the case proceeds.

"The grand jury of the District of Columbia have indicted the prisoner at the bar, John H. Surratt, as one of the murderers of Abraham Lincoln. It has become your duty to judge whether he be guilty or innocent of that charge,--a duty than which one more solemn or momentous never was committed to human intelligence. You are to turn back the leaves of history to that red page on which is recorded in letters of blood the awful incidents of that April night on which the assassin's work was done on the body of the Chief Magistrate of the American republic,--a night on which for the first time in our existence as a nation, a blow was struck with the fell purpose not only of destroying human life, but the life of the nation, the life of liberty itself. Though more than two years have passed by since then, you scarcely need witnesses to describe to you the scene in Ford's Theatre as it was visible in the last hour of the President's conscious life. It has been present to your thoughts a thousand times since then. A vast audience were assembled, whose hearts were throbbing with a new joy, born of victory and peace, and above them the object of their gratitude and reverence,--he who had borne the nation's burdens through many and disastrous years,--sat tranquil and at rest at last, a victor indeed, but a victor in whose generous heart triumph awakened no emotions save those of kindliness, of forgiveness, and of charity. To him, in that hour of supreme tranquility, to him in the charmed circle of friendship and affection, there came the form of sudden and terrible death.

"Persons who were then present will tell you that at about twenty minutes past ten o'clock that night, the night of the 14th of April, 1865, John Wilkes Booth, armed with pistol and knife, passed rapidly from the front door of the theatre, ascended to the dress circle, and entered the President's box. By the discharge of a pistol he inflicted a death wound, then leaped upon the stage, and passing rapidly across it, disappeared into the darkness of the night.

"We shall prove to your entire satisfaction, by competent and credible witnesses, that at that time the prisoner at the bar was then present, aiding and abetting that murder; and that at ten minutes past ten o'clock that night he was in front of that theatre in company with Booth. You shall hear what he then said and did. You shall know that his cool and calculating malice was the director of the bullet that pierced the brain of the President and the knife that fell upon the venerable Secretary of State. You shall know that the prisoner at the bar was the contriver of that villainy, and that from the presence of the prisoner, Booth, drunk with theatric passion and traitorous hate, rushed directly to the execution of their mutual will. We shall further prove to you that their companionship upon that occasion was not an accidental or unexpected one, but that the butchery that ensued was the ripe result of a long premeditated plot, in which the prisoner was the chief conspirator. It will be proved to you that he is a traitor to the government that protected him; a spy in the employ of the enemies of his country in the years 1864 and 1865; passed repeatedly from Richmond to Washington, from Washington to Canada, weaving the web of his nefarious scheme, plotting the overthrow of this government, the defeat of its armies, and the slaughter of his countrymen; and as showing the venom of his intent,--as showing a mind insensible to every moral obligation and fatally bent on mischief,--we shall prove his gleeful boasts that during these journeys he had shot down in cold blood, weak and unarmed Union soldiers, fleeing from rebel prisons. It will be proved to you that he made his home in this city the rendezvous for the tools and agents in what he called his "bloody work," and that his hand deposited at Surrattsville, in a convenient place, the very weapons obtained by Booth while escaping, one of which fell or was wrenched from Booth's death grip, at the moment of his capture.

"While in Montreal, Canada, where he had gone from Richmond, on the 10th of April, on the Monday before the assassination, Surratt received a summons from his co-conspirator, Booth, requiring his immediate presence in this city. In obedience to that pre-concerted signal, he at once left Canada, and arrived here on the 14th. By numerous, I had almost said a multitude, of witnesses, we shall make the proof to be as clear as the noonday sun, and as convincing as the axioms of truth, that he was here during the day of that fatal Friday, as well as present at the theatre at night, as I have before stated. We shall show him to you on Pennsylvania Avenue, booted and spurred, awaiting the arrival of the fatal moment.

"We shall show him in conference with Herold in the evening; we shall show him purchasing a contrivance for disguise an hour or two before the murder.

"When the last blow had been struck, when he had done his utmost to bring anarchy and desolation upon his native land, he turned his back upon the abomination he had wrought, he turned his back upon his home and kindred, and commenced his shuddering flight.

"We shall trace that flight, because in law flight is the criminal's inarticulate confession, and because it happened in this case as it always happens, and always must happen, that in some moment of fear or of elation, or of fancied security, he, too, to others, confessed his guilty deeds. He fled to Canada. We will prove to you the hour of his arrival there and the route he took. He there found safe concealment, and remained there several months, voluntarily absenting himself from his mother. In the following September he took his flight. Still in disguise, with painted face, and painted hair, and painted hand, he took ship to cross the Atlantic. In mid-ocean he revealed himself and related his exploits, and spoke freely of his connection with Booth in the conspiracy relating to the President. He rejoiced in the death of the President, he lifted his impious hand to heaven and expressed the wish that he might live to return to America and serve Andrew Johnson as Abraham Lincoln had been served. He was hidden for a time in England, and found there sympathy and hospitality; but soon was made again an outcast and a wanderer by his guilty secret. From England he went to Rome, and hid himself in the ranks of the Papal army in the guise of a private soldier. Having placed almost the diameter of the globe between himself and the dead body of his victim, he might well fancy that pursuit was baffled, but by the happening of one of those events which we sometimes call accidents, but which are indeed the mysterious means by which Omnicient and Omnipotent justice reveals and punishes the doers of evil, he was discovered by an acquaintance of his boyhood. When denial would not avail he admitted his identity, and avowed his guilt in these memorable words: 'I have done the Yankees as much harm as I could. We have killed Lincoln, the nigger's friend.'

"The man to whom Surratt made this statement, did as it was his high duty to do--he made known his discovery to the American minister. There is no treaty of extradition with the Papal States; but so heinous is the crime with which Surratt is charged, such bad notoriety had his name obtained, that his Holiness the Pope and Cardinal Antonelli ordered his arrest without waiting for a formal demand from the American government. Having him arrested, he escaped from his guards by a leap down a precipice--a leap impossible to any but one to whom conscience made life valueless. He made his way to Naples, and then took passage in a steamer that carried him across the Mediterranean Sea to Alexandria, in Egypt. He was pursued, not by the 'blood hounds of the law,' that seem to haunt the imagination of the prisoner's counsel [this refers to a remark made by Mr. Merrick when discussing the motion to quash the panel], but by the very elements, by destruction itself, made a slave in the service of justice. The inexorable lightning thrilled along the wires that stretch through the waste of waters that roll between the shores of Italy and the shores of Egypt, and spake in his ear its word of terrible command; and from Alexandria, aghast and manacled, he was made to turn his face towards the land he had polluted by the curse of murder. He is here at last to be tried for his crime.

And when the facts which I have stated have been proved, as proved they assuredly will be, if anything is ever proved by human testimony, and when all the subterfuges of the defense have been disproved, as disproved they assuredly will be, we, having done our duty in furnishing you with that proof of the prisoner's guilt, in the name of the civilization he has dishonored, in the name of the country he has betrayed and disgraced, in the name of the law he has violated and defied, shall demand of you that retribution, though tardily, shall yet surely be done, upon the shedder of innocent and precious blood."

Before the hearing of evidence was entered upon, the prisoner presented the following petition to the Court:--

"_To the Honorable, the Justices of the Supreme Court of the District of Columbia, holding the Criminal Court in March Term, 1867._

"The petition of John H. Surratt shows that he has been put upon his trial in a capital case in this court; that he has exhausted all his means, and such further means as have been furnished him by the liberality of his friends, in preparing for his defense, and he is now unable to procure the attendance of his witnesses. He therefore prays your honor for an order that process may issue to summon his witnesses, and to compel their attendance at the cost of the government of the United States, according to the statute in such cases made and provided."

This petition was signed, sworn to in open court, and attested by the clerk according to law, and was granted by the court.

The government introduced eighty-five witnesses in chief to sustain the various counts in the indictment, and ninety-six in rebuttal. The defense introduced ninety-eight witnesses to overthrow the testimony of the witnesses in chief on the part of the government, and twenty-three in surrebuttal, making in all three hundred and two witnesses that were examined during the trial. The examination of these witnesses occupied the period of thirty-nine days. The hearing of the evidence commenced on the 17th of June, and was concluded on the 26th of July. The arguments in the case were concluded on the 7th of August, and on that day Judge Fisher delivered his charge to the jury and gave them the case. On Saturday, the 10th day of August, just two months from the commencement of the trial, the jury reported that they stood about equally divided in favor of conviction and acquittal, and that there was no prospect of their being able to agree.

The Court inquired whether anything was to be said why the jury should not now be discharged. Mr. Bradley said: "The prisoner gave no consent to any discharge of the jury. If they were to be discharged he wants it understood that it was against his will and protest."

The District Attorney, on behalf of the government, left the whole matter with the Court.

The Court remarked that this was the third communication of a similar tenor he had received from the jury. If he thought there was any possibility of their coming to an agreement as to the guilt or innocence of the prisoner, he would have no objections to keeping them out longer, but supposing from the statement made by them, no such result could be expected, he directed the jury now to be discharged. The prisoner was then remanded to the custody of the Marshal.

A second indictment was found against him for the murder of Abraham Lincoln, and the District Attorney entered a _nolle prosequi_ on this. Thus the prisoner was set at large.

The result of this trial by a civil court made it clear that no verdict could be expected from any jury that could be obtained under the law, and so the case was not further prosecuted. It does not come within the scope of the author's plan to review in detail this great mass of evidence. Neither is it necessary. It is sufficient for him to say that the charges contained in the indictment were fully proven by the testimony in chief of the witnesses for the government, and that this testimony was not impaired in any essential point by the efforts of the counsel for the defense in their cross-examination of these witnesses, nor yet by the testimony offered by the defense. It will be found upon a careful and candid scrutiny to fully sustain the statements herein-before given as to the conduct of Surratt in his relations to the transaction. No one can carefully read the masterly summing up of the evidence, and the fair and honest interpretation of it by Judge Pierrepont in his concluding argument, without being thoroughly convinced that Surratt was a prominent and active member of the conspiracy, and that he took an active hand through a period of more than three months in preparing for the execution of its purposes, as also in its final accomplishment. The evidence was shown to prove conclusively the fact that from the time of his introduction to Booth, on the 23d of December, 1864, to the time of the assassination, their associations were of the most intimate and confidential character; that they were much together, and co-operated in bringing together in Washington City the other members of the conspiracy, on whom they relied for important parts in the final act. It was shown that the house of Mrs. Surratt, the mother of the prisoner, was the place of rendezvous for Booth, Atzerodt, and Payne, and that her house at Surrattsville, occupied by her tenant, Lloyd, was made the place of deposit for arms to be used by Booth and Herold in their flight after the murder; that these were placed there by Surratt, and that his mother also had knowledge, not only of this fact, but of the purpose for which they had been provided, and of the time they would be called for, and was used by the conspirators to convey to her tenant, Lloyd, the notification to have them ready, as they would be called for that night.[29]

It was here, on this civil trial, that "the scales of justice fell," and not, as alleged by the prisoner's counsel, at the trial before the Military Commission.

The District Attorney and His able assistant, Judge Pierrepont, had both expressed their confidence in the ability of the civil courts to compass the ends of justice; but the result of this trial showed that in a crime committed to further political party interests, no jury could be expected to find a verdict; and so the government refused to prosecute the case any further. The prisoner was set at large.

At the conclusion of the trial, on Aug. 10th, 1867, Surratt was remanded to prison, and on May 12th, 1868, he asked to be released on bail, but was refused. On June 22d, 1868, he was released from custody. On the 22d of September, 1868, a _nolle prosequi_ was entered.

Another indictment was found against him for engaging in rebellion. Upon this he was ordered to be admitted to bail in a bond of $20,000. He first pleaded not guilty, and then asked to withdraw this plea, and to file a special plea, which was granted. The government demurred to the plea on Sept. 22d, 1869. The demurrer was overruled, and he was finally discharged.