CHAPTER III.

TREATMENT OF WITNESSES AND EVIDENCE BY THE COUNSEL FOR THE DEFENSE AND THEIR ANIMUS TOWARD THE GOVERNMENT AND APPEALS TO THE POLITICAL PREJUDICES OF JURORS.

The conduct of this trial on the part of the defense toward the witnesses for the prosecution was most remarkable. The law prescribes the methods by which testimony is to be discredited, and the eminent lawyers who defended the prisoner were of course well acquainted with the legal methods of impeaching testimony. That they did not confine themselves to these was not only unprofessional, but was calculated to create a suspicion that they had an intuitive perception of the fact that the methods known to the law would not avail them in this case. Hence from the first they attempted to influence the jury by treating the government witnesses with supercillious contempt, and even scorn.

They did not, however, stop here, but whenever they could find or make an occasion they would throw out insinuations against the witnesses _en masse_ by side remarks intended for the ears of the jury.

They spoke of the witnesses who were kept together in a room, to be called as they were needed, as being in the "penitentiary," and added to this that "they would soon be in another penitentiary."

On the examination of Dr. McMillen, the surgeon of the ocean steamer "Peruvian," in whose charge Father La Pierre had placed Surratt under the name of McCarthy, and to whom Surratt had made confessions during his voyage across the Atlantic that were conclusive of his guilt, the counsel for Surratt made themselves so offensive that the witness was provoked to a retort in self-defense.

This witness was intolerable to them because of the directness and force of his testimony. In self-defense the Doctor was provoked into making the following remark: He said he would tell the counsel (Mr. Merrick), and if he was not deaf, he could hear, and repeated his answer, adding that Mr. Merrick had insulted witness the other day, and that it was the act of a coward and a sneak. The Court here cautioned the witness that such language was not becoming, but also remarked "that it was not becoming in counsel to try to worry witness into bad temper."

Witness stated "that Mr. Merrick had remarked the other day that all the witnesses in the adjoining room ought to go to the penitentiary, or something to that effect; that he was just as good as Merrick."

On the following day, at the opening of the court, Mr. Bradley said: "If your honor please, before we proceed with the trial of this case, I beg leave to call the attention of the Court to an incident which occurred just before the adjournment yesterday, and to ask that the notes of the reporter may be read. Your honor was very much occupied at the time, and I desire that the record may be read in order that you may see what passed, and what led to the attack made by the witness upon the stand upon the counsel with whom I am associated, your honor, without having heard what passed at that time, if not in precise words yet in substance, censured the counsel to whom these observations were addressed. I think, in looking at it, your honor will see that there was no provocation given; and that if there was, it is due to the dignity of this court, and to the protection of the members of the bar, to which they are entitled at the hands of the Court, that some notice should be taken of what then passed." After the reading of so much of the report as related to the matter, the Court spoke as follows: "I did not hear what was said by the witness in regard to the gunboats, for the reason that I was at the time occupied in preparing some passes for a friend. When my attention was called to the remark made use of by the witness towards the counsel, I was under the impression that he had been provoked to it by something that had been said by the counsel. I cannot, however, perceive in the record which has been read anything which ought to have called forth, or which justifies, the expression of the witness. I will say now to the witness, that although Mr. Merrick did say a few days ago, in regard to the witnesses who were in the adjoining room (which Mr. Bradley had called a penitentiary) that they (the witnesses) would soon be in another penitentiary, or words to that effect, it is not the privilege of a witness to take exception in the way he did to any remarks made in the court room. He may appeal to the Court to protect him if he is aggrieved." [Turning to witness] "You must not, hereafter, in your examination, make use of any expressions to counsel which are at all insulting in their character, however much you may feel yourself aggrieved by remarks which they may have made in reference to witnesses generally, or in reference to yourself before your examination.

"In this connection it may not be improper to observe that I have never, in all my judicial experience, seen a case in which there has been so much trouble with regard to the examination of witnesses and so much bitterness of feeling displayed.

"It may be all right, but I confess I see no reason why it should be so. I cannot, of course, enter into the feelings of counsel, and it is possible they may feel themselves aggrieved, and therefore regard themselves as justified in exhibiting this spirit. I will say, further, that I have never seen witnesses cross-examined with so much asperity as I have in the case now pending. It does not appear to me, therefore, as at all strange that witnesses should be worried into such remarks as this witness has uttered, especially when intimations are publicly thrown out by counsel as to their fitness for the penitentiary, and that, too, when some of the most respectable persons in the land, such, for instance, as General Grant and Assistant Secretary Seward, are among the number. And not even was the effect of the remark allowed to stop with the intimation, but when attention was called to it by the District Attorney, in the hope, I presume, that it would be recalled, it was repeated, and with the additional observation that the propriety of the remark could be shown. When such things occur it is not at all surprising that witnesses should come here prepared to avenge themselves by making insulting replies to the counsel. I deeply deplore it, and will endeavor, by most carefully observing all that transpires, to prevent a similar recurrence on the part of either counsel or witnesses; but however watchful the Court may be, such things will occasionally break forth at times and under circumstances when, from not expecting it, it is impossible for the Court to check them." [Again addressing himself to the witness.] "Dr. McMillen, you are highly reprehensible for having made such remarks as that to which exception has been taken. It was altogether out of place. If you felt yourself aggrieved by any remark, you should have called on the Court for protection. You will now proceed to give your evidence, and in a manner respectful to the counsel. If the counsel on either side shall treat you with what you conceive to be disrespect, you will appeal to the Court, and the Court will intervene for your protection. I would, however, suggest to gentlemen on both sides that in the examination of witnesses, if they will consult Quintilion and Allison in regard to their duty in this respect (and no doubt they have read the remarks of both these authors on the subject), they will find that those writers say nothing is to by gained by a bitterness of manner toward witnesses either on examination in chief or cross-examination, but that everything may possibly be gained by kindness and conciliatory manners; and I think it would be a decided improvement in this case if their suggestions were accepted. In the course of the five years that I was engaged in prosecuting criminal cases, I do not recollect ever to have had an unkind word with a witness on the one side or the other, and never in a civil case except on one occasion, when a witness of my own turned against me. Then I was led away by a natural quickness of temper. I advise that we should all, to the best of our ability, endeavor to control our tempers in conducting this case; and then there will be no fear of a repetition of the unpleasant occurrences that have happened during its progress."

To this Mr. Merrick replied: "I feel it incumbent upon me to say, after what has fallen from the Court, especially as your honor seems to have the impression that I intended my remarks to apply to all the witnesses, including Secretary Seward and General Grant, that while your honor misunderstood me in this regard, I do not believe I was misunderstood by some others outside, in supposing I intended to embrace all the witnesses in that remark. I will here say that I have the greatest respect for General Grant and Mr. Seward, and I apprehend that among the witnesses in the case it is perfectly well understood to whom I referred and to whom I did not refer. I apprehend that no sane man can suppose that I meant any such reference to General Grant, Mr. Seward, or Mrs. Seward, and that class of witnesses. I will only say, in conclusion, that I think, without any further explanation, or more direct pointing of the remark at present, it is perfectly well understood among the witnesses to whom the remark referred."

To this the Court replied: "I do not know whether it is understood or not. I cannot understand it, because I am bound not to know the witnesses, either as regards their own private character, or the character of their testimony, and I enter into the trial of this case knowing nothing, as it were, about either, scarcely ever having glanced at the testimony, and of course, therefore, I cannot enter into the feelings of counsel on the subject. I do not know to what witnesses these remarks may be directed, but this I do know, that there are certain legal methods pointed out in the text books of the law by which we are to be guided in undertaking to discredit the testimony of witnesses. One method is the discrediting of the witness by himself; by his own contradictions, and by his mode and manner of testifying. Another is by proving the witness to be utterly devoid of reputation for truth and veracity, and not to be believed on his oath. Another is by contradicting him by the conflicting testimony of other witnesses. These are the legal modes that are pointed out in the law books, and any side remarks that are made by way of prejudicing a jury, any acting in the case, the casting of sinister looks at the jury, are departures from the rules laid down.

"The examination of a witness ought to be conducted by the witness standing up and the counsel standing up, and looking each other in the face, without the counsel directing his remarks to the jury by turning towards them instead of turning towards the witness. That is the proper way to conduct either an examination in chief or a cross-examination."

The fact that the Court deemed it necessary to deliver such a lecture as this to counsel, who were men of age and experience in their profession, and who from their reading ought to have been as well informed as the Court on the proper treatment of a witness and the legal methods of discrediting testimony, indicates that he had found in their conduct such flagrant departures from the requirements of law and professional conduct a necessity for such criticism and such admonitions. The opinion of the Court as thus expressed fully justifies me in the charges I have made against the conduct of the defense and their unprofessional efforts to discredit testimony. I am still further justified in it by the remark of Mr. Merrick that they (the counsel for the defense) "had laid at the feet of the attorneys a mass of the most corrupt battalion that was ever summoned to support a cause in a criminal court."

Here Mr. Merrick attempts to set aside all of the testimony that had been offered by the government proving the guilt of the prisoner, by denouncing it as corrupt throughout, and unworthy of the slightest consideration. This would certainly be as easy a method as it would be novel to throw out testimony _en masse_ upon the mere _ipse dixit_ of counsel, and in consequence of the legal standing and weight of character claimed by them with such manifest self complacency, but when we consider the fact that upon a candid and careful scrutiny of all the testimony in the case, it could be set aside in no other way, we could not perhaps reasonably expect them to refrain from trying to get the benefit of all the method that was left them.

The most important witnesses introduced by the government and those who most unequivocally proved the existence of a conspiracy and the connection of the prisoner with it, as also his participancy in its accomplishment, and also the fact that his mother belonged to it and performed a part in preparing for its accomplishment, had stood every test that ingenuity could devise to discredit their testimony. Some of them had been kept on the stand under cross examination for nearly two days, and could not be made to discredit their own testimony, either by contradictions or mode of answering. Neither had they been discredited by proving that they were utterly devoid of character for truth and veracity, and not to be believed on oath. The attempts at their contradiction by the conflicting testimony of other witnessess had all proven miserable failures, and so the counsel for the defense attempted to have their client declared innocent by scouting all of the evidence in the case and offering their own convictions of his entire innocence, and referring the jury to their weight of character and legal standing to enforce their opinions on the jury as grounds for a favorable verdict for their client. Never did able lawyers deal more unfairly with witnesses nor with evidence, nor more wantonly set at naught the established rules of evidence, not only in the respects referred to, but also in the efforts that they made to introduce testimony which they must have known to be inadmissible under the rules of evidence, as already shown in the number of exceptions which they not only took to the rulings of the court, but kept count of and paraded before the jury. Their animus toward the government was also shown in this matter of testimony, as also in other ways to be hereafter noticed. They charged the government with presenting testimony on this trial that it knew to be false, and withholding testimony from the military commission that would have proven the innocence of Mrs. Surratt. To sustain the first charge, they asserted in regard to the handkerchief found by Blinn at the Burlington depot, that it had been dropped by a government detective, and not lost by Surratt. Blinn, however, was positive in his testimony that he found the handkerchief on the morning of the 18th, but the handkerchief which Hallohan, the detective, claimed to have lost, was lost at Burlington on the morning of the 20th of April. He did not discover its loss, however, until he got to Essex Junction, and did not know where he had lost it. The handkerchief found by Blinn on the morning of the 18th, and put in evidence by the government, could not therefore have been the handkerchief that Hallohan claimed to have lost. There was also too heavy a cloud of uncertainty hanging over his (Hallohan's) testimony after his cross-examination, to have warranted the counsel in making so serious a charge against the government as that it knew that Hallohan, and not Surratt, lost the handkerchief.

In further proof of the charge that they disregarded and set at naught the rules of evidence, they tried to get in a statement by John Matthews of the contents of an article put into his hands by Booth on the afternoon of the 14th of April, with a request that if he (Booth) did not see him before 10 o'clock on the following morning he should hand it to the _National Intelligencer_ for publication, and which Matthews, after the assassination, had burned, thinking it would put him in danger to have such a thing found in his possession. They proposed to prove by this witness that neither the prisoner nor his mother were in the conspiracy. Of course they knew that they could not prove the contents of a paper that would have been inadmissible even if it had been presented. But if they had had the paper in their possession they could not have proven anything by it, as it was represented to be a paper prepared by Booth to justify himself in the crime he had in contemplation, and would have been no more admissible as evidence than the diary which Booth kept during his flight, every entry in it having been made in view of his probable failure to make his escape, and with the intention of palliating his crime. It was of no more value as evidence than was his assertion of the entire innocence of his companion, Herold, just a few minutes before he was shot. Yet they censured the government for not putting this diary in evidence before the Commission, asserting that its reason for withholding it was that it would have proven the innocence of Mrs. Surratt, thus by implication asserting that the government was thirsting for her blood, and was determined that she must be convicted right or wrong.

This position was boldly taken by them in their arguments, as we shall hereafter see, in the face not only of the evidence on which she was declared guilty by the Commission, but also in the face of that presented on this trial, which much more clearly and fully established her guilt. I have thus been careful to show from the record that I am justified in the strictures I am making on the course of the defense. I would be sorry to do any injustice to these men if they were here to answer for themselves, much more so now that the two senior members, Mr. Bradley and Mr. Merrick, are numbered with the dead. My charitable conclusion in their behalf is that their political opposition to the government so prejudiced their minds that they could not bring themselves into a judicial frame for the trial of this case. Their religious sympathies with Mrs. Surratt, and their ready acceptance of the assertion of Father Walter that she was "as innocent as the newborn babe," so influenced their minds that they would reject as false any testimony whatever that went to establish her guilt. Their sympathies then would naturally lead them to conduct the defense of her son in the same spirit of determination to hold him innocent in spite of all adverse testimony. The prisoner found his counsel in a state of mind to readily accept the ingenuous fabrication which he had had two years to get into form, as also no doubt the able assistance of the Reverend Fathers who so sedulously watched for his return to Canada after the murder of the President, and who at once took him under their protection on his return to Montreal, and kept him secreted for five months, until they could get him landed in the Pope's dominions; and then when he was brought back and put upon his trial, stood by him from day to day with unfaltering fidelity, until he was set at liberty.

The story which Surratt gives in his Rockville, Md., lecture, which bears throughout the marks of the "fine Italian hand" of the Jesuit, and which is contradicted in all of its most important points by the whole run of the testimony in the two trials, had no doubt been accepted by his counsel as true, and hence they would hear no testimony that conflicted with it; but were ready to accept any evidence whatever, without regard to the character of the witnesses, that corroborated it. This, in the opinion of the author, is the most charitable construction that can be put upon their conduct in the management of their case. Their eyes were blinded by their all controlling prejudices, and bitter opposition to the course of the government in sending Surratt's co-conspirators before a military commission for trial. We shall now proceed to give the evidence of their feelings toward the government in this matter. They could apparently find no words bitter enough to express their abhorrence of the trial by a commission.

As John H. Surratt and his mother were bound up in the same bundle by all the testimony in the case, and his mother had been found guilty upon this testimony by the court before which she was tried, his counsel seemed to feel the necessity of getting rid of the effect of this fact, in its bearing on their case. That I may not be accused of doing them injustice in presenting their mode of doing this, I will let them speak for themselves.

In the examination of jurors on their _voire dire_, Mr. Pierrepont asked the question: "Have you formed any opinion in regard to the guilt or innocence of the other conspirators?" The question was objected to by the counsel for the defense, and Mr. Merrick, to sustain his objection, said, among other things: "I presume there is scarcely a gentleman in the United States who has not formed and expressed the opinion that Booth shot Lincoln. I apprehend there are very few who have not formed and expressed an opinion that the mother of the prisoner at the bar suffered death without competent testimony to convict her, and so we might go through in an inquiry in relation to all the others." In replying, Mr. Pierrepont said: "The reason urged by my learned friend against it is, that he believes, I do not know but that he asserts, that there are very few in the United States who do not believe that Mrs. Surratt was illegally executed. Therefore we could not get a jury competent to try the prisoner at the bar if this question is allowed to be put."

_Mr. Merrick_ [interrupting]. "My brother will allow me to say that he did not state my entire proposition. I said there were few intelligent persons in the United States who had not formed an opinion upon the question of Booth's participation in the killing of Lincoln; and there were also, I presumed, but few persons who had not formed an opinion that Mrs. Surratt had been executed upon insufficient evidence."

_Mr. Pierrepont._ "Precisely; that is the very statement, except that my friend has made it a little stronger than I did.

"I did not intend to overstate it, as there is nothing gained by overstatement, but it seems I did not come up to the mark."...

In his opening for the defense, Mr. Joseph H. Bradley, Jr., said: "We have at last arrived at that stage of this case when an opportunity is afforded the prisoner for saying something by way of defense, not only of his own character, his own reputation, his life and his honor, but also as it shall rise incidentally in this discussion of this evidence before you, something in the way of vindicating the pure fame of his departed mother." Again. "As to Mrs. Surratt we hope to satisfy you that a grave error has been made in her case." Again Mr. Merrick, in his argument on the motion to strike out certain testimony, said: "The counsel had said, if it was anything favorable, the defense would insist on it; if anything unfavorable, they would not desire it. All he had to say in reply was, that he would insist on the free confession of all who had testified in the case, if he could get it. He would like to have had the privilege of putting in whatever this poor boy's butchered mother said, but had not. When he offered what she said, counsel on the other side said, 'No, you cannot prove that. We can prove what she said that will benefit the state, but you shall not throw the mantle of a mother's declarations over the child standing in the prisoner's dock.' Had we been allowed, we would have proved her declarations--proved them when tottering from the dungeon to the scaffold, with the world behind her, and nothing in the front but that God before whom she was shortly to appear, and before whom she solemnly asseverated that she was innocent of the crime for which she was being killed."

To all these charges and assumptions the District Attorney, in his argument upon the evidence, replied as follows: "Well, I do most kindly but most respectfully and emphatically repudiate the unjust imputation that Mary E. Surratt has been murdered, as was alleged by one of the counsel, and butchered as alleged by another. Where is the evidence to justify it? If they have a right to make this accusation, have we not a right to reply to it? For what purpose was it introduced before this jury? Is it to appeal to your prejudices? I make no such accusation against the gentlemen; they charge it home upon us when they say a murdered and a butchered woman. I deny it, and I undertake to prove to the contrary."

Mr. Bradley, interrupting, said "he supposed this threw the whole subject open for discussion." The District Attorney rejoined: "It had been introduced by the learned gentlemen on the other side." Mr. Bradley replied "that he was not aware what evidence there was on which this question could be discussed. But if it was understood that the whole subject was open, and that the counsel for the prisoner could not be interrupted in their discussion of it, he was satisfied."

_The District Attorney._ "Then why make allusion to it in the first instance? Who cast the first stone in the presence of this jury?

"I regret that it should have been necessary for an American woman to be executed by the judgment of an American tribunal. That verdict has been rendered by an American tribunal, and the consequence of it was the execution of an American woman. I know the character of the American people. I know that imagination revolts at the execution of one of the tender sex. But when the daughter of Herodias murdered John the Baptist, she deserved death. When Lucretia Borgia darkened the history of her country by her horrid crimes, she deserved death. And when Mary E. Surratt murdered Abraham Lincoln, the great moral hero of the age in which he lived, the patriot and philanthropist of the nineteenth century, she deserved death. There is no man who has a heart more capable of love for woman than myself. But when she unsexes herself, when she conceives, when she encourages, when she urges on, and is instrumental in committing the crime of murder, she places herself beyond the pale of protection. The best wife who ever lived, according to Milton, our great mother Eve, is thus represented as speaking to her husband:--

"'What thou biddest, Unargued I obey; so God ordains: God is thy law, thou mine.'

"I believe in submission on the part of women; submission to her God, to the laws of her country and to her husband. But when a woman opens her house to murderers and conspirators, infuses the poison of her own malice into their hearts, and urges them to the crime of murder and treason, I say boldly, as an American officer, public safety, public duty, requires that an example be made of her conduct. Murder! gentlemen of the jury. Who composed that military commission? They are no better men than you are, but you will not be offended with me if I say they are as good men as you are, or I, or any of us." Naming over the officers who constituted the tribunal by which Mrs. Surratt was tried, he continued: "I say, gentlemen of the jury, that they are good men, holding commissions under the government of the United States, and they are presumed to be honorable men. The law declares that every private citizen, and every public officer who is a servant of the American people, is presumed to be honorable until the contrary is proved.

"Your officers, your men, your representatives in the American army, in an accusation which will travel upon the telegraph wires perhaps to the four quarters of the world have been denounced, if not expressly, by implication, as murderers and butchers who took the life of an innocent woman. If so, when you come to try them, and you believe it, say it, but it is not the question submitted to you now. She may be innocent and the prisoner at the bar be guilty; the subject was introduced collaterally by the learned counsel, for what purpose I know not, except for effect. Before you brand these gentlemen with the character of murderers, see that you have relevant grounds to act upon. Take care, or you may be placed in the same situation; I have not charged it, and I do not think my friends would, upon reflection, charge men who are placed in such a solemn obligation with such a dereliction of duty. It has been said that this has been pronounced by the Supreme Court of the United States an illegal tribunal. What has that to do with the action of these officers? What has that to do with your action? What pertinency can it have to the issue now submitted to you for your decision? But, gentlemen of the jury, let us first consider the character of this crime, and then I will consider briefly the connection of Mrs. Surratt with it. I do not desire to say much about her; she has gone to her grave, and her spirit has passed before her Eternal Judge."

After recounting the character of the crime, the District Attorney thus refers to Mrs. Surratt's connection with it: "Now, gentlemen of the jury, let us view the connection of Mrs. Mary E. Surratt with this assassination. I feel the delicacy of the ground upon which I stand. I know the situation. I know that you dislike to consider this question, which has been forced upon you. I do not want to do it. My duty is to prosecute the prisoner, but one of the counsel has said she was murdered, and another that she was butchered, and it therefore becomes my duty to trace her connection with this crime, and then leave it to you to say whether she was guilty (though not relevant to this case), of the crime for which she suffered. First, I call your attention to a fact to which we have already adverted; that her house, 541, was the rendezvous for these conspirators. Now, gentlemen, will you pause for a moment, and let me ask you how you can reconcile it with innocence? You remember the law, that it is not how much a party did, but whether she had anything to do with it. Can you, I say, reconcile it with innocence that this woman's house should have been the rendezvous of John Wilkes Booth, Lewis Payne, Atzerodt, Herold, and John H. Surratt? Would you not know by intuition? Would you not know by their conversation? Would not your judgment and your hearts tell you who they were and what they contemplated?

That is the great central truth, which I defy the learned counsel for the defense successfully to assail. Secondly, who furnished the arms with which the bloody deed was done?... The woman who puts an arm into the hand of her lover, her son, her brother, or her husband, who urges him on to the deed, by the law of God and of man is equally guilty with the one who with his own hand perpetrates the crime. According to the testimony of John M. Lloyd this is shown. Do you believe him or disbelieve him? My friend, Mr. Bradley, who opened this case said he was a common drunkard; but mark you, he was an attendant and friend of Mrs. Surratt."

_Mr. Bradley._ "Who says so?"

_The District Attorney._ "I will prove it. When I was examining that witness, and proposed to ask him certain questions in reference to Mrs. Mary E. Surratt, he said, 'Mr. Carrington,' for he knew me personally, 'I don't wish to speak about Mrs. Surratt, for she is not on trial.' I said 'Go on, Mr. Lloyd.' He declined. I applied to the Court, and the Court said that it was his duty to answer. He saw her continually. He lived in her house; he drank her liquor. Why, this evidence shows that John H. Surratt, Herold, and John M. Lloyd played cards and drank together.... But says the friend and companion of the prisoner at the bar,--the confiding and confidential agent of his mother, unwilling to testify against her when put on the solemn sanction of an oath, but when required to do so he speaks out,--he says certain arms were furnished him by the prisoner at the bar; that he concealed them, the prisoner showing him where they could be safely concealed, he protesting at the time against it, protesting that it might get him into some personal difficulty. The mother knew of the transaction, for on the 11th of April we have Lloyd's own testimony; she asked him where those shooting-irons were, and said they might soon be needed, or words to that effect. But I am going too fast, for I do not desire to speak to confuse you. I say, first, that her house is the rendezvous; and that, secondly, she furnishes arms, or knows of their being furnished. On the night of the 14th of April, Booth and Herold returned, and are leaving the city of Washington in flight for their lives. At Surrattsville they called for whiskey from the agent and friend of the prisoner and his mother. She gives them a home, gives them arms, gives them whiskey, not to nerve them but to refresh them after the commission of their horrid crime.

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

"It is necessary that he should secrete himself as he traveled through the country, and that he should see persons approaching him from an immense distance, he needs a field-glass, and has it delivered to him by his friend and agent, Mrs. Surratt." With the defense no witness told the truth whose testimony went to convict their client, whilst the stories of the most infamous men, self-confessed scoundrels and accomplices after the fact, if not before, such as Father Boucher, and Reverend Cameron, must be taken as gospel truth.[30] In the face of all this testimony the counsel for the defense again bring their false accusations against the government. Mr. Merrick in the course of his argument, said: "Does the Attorney General feel that public justice demands that he should employ assistant counsel in this case, or is there somebody else behind?"... "Are there any other officers of the federal government that have purposes to accomplish in this case? Says the learned attorney on the other side (Mr. Pierrepont) in a speech delivered I think before you were impaneled:--

"'It has likewise been circulated through all the public journals that after the former convictions, when an effort was made to go to the President for pardon, men, active here at the seat of government, prevented any attempt being made, or the President even being reached for the purpose of seeing whether he would not exercise clemency; whereas the truth, and the truth of record, which will be presented in this court is, that all this matter was brought before the President, and presented to a full cabinet meeting, where it was thoroughly discussed, and, after such discussion, condemnation, and execution received not only the sanction of the President, but that of every member of his cabinet. This and a thousand others of these false stories will be all set at rest forever in the progress of this trail; and the gentlemen may feel assured that not only are we ready, but that we are desirous of proceeding at once with the case.' Now if this declaration of my learned brother on the other side is correct, this trial was not entered upon for the purpose alone of inquiring into the guilt or innocence of the prisoner at the bar. It was not entered upon because public justice demanded his arraignment, before you, gentlemen, but in order that a thousand false stories about men high in office might be settled at his expense.

"Then, although my learned brother is here under appointment by the Attorney General of the United States, yet it is an appointment which probably had its origin in the stimulus of some private feeling lying behind. He comes here, not to try this case alone, but he comes here to set at rest certain false stories. Has he done it?"... "Where is your record? Why didn't you bring it in? Did you find at the end of the record a recommendation to mercy in the case of Mrs. Surratt that the President never saw? You had the record here in court."

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

_Mr. Merrick._ "Yes, sir, offered it and then withdrew it. Did you find anything at the close of it that you did not like? Why didn't you put that record in evidence, and let us have it here? We were not going to quarrel about it; we would like to know all we can about the dark secrets of those chambers whose doors are closed, but from which light enough creeps to make us anxious to look within. We only know enough to make us curious; but that is enough to make us _feel_. You were going to show, too, that nobody prevented access to the President on the part of those who waited to get a pardon. Why didn't you do it? Gentlemen of the jury, I should have been glad to have heard that proof. They have brought these charges into the case and I must meet them as part of the case. I should have been glad to have heard that proof. Who of you who was in the city of Washington, will ever forget that fatal day when the tolling of the bells reminded you of the sad fact that the hour had come when those people were to be hung? Your honor (referring to Justice Wylie, who was at the time sitting beside Judge Fisher on the bench), in your praise be it said, raised your judicial hand to prevent that murder, but it was too weak. The storm beat against your arm, and it fell powerless in the tempest. You remember that day, gentlemen. Twenty-four hours for preparation. The echoes of the announcement of impending death, scarcely dying away before the tramp of the approaching guard was heard leading to the gallows. Priest, friend, philanthropist, and clergyman went to the Executive Mansion to get access to the President, to implore for that poor woman three days respite to prepare her soul to meet her God, but got no access. The heart-broken child--the poor daughter--went there crazed, and, stretched upon the steps that lead to the Executive chamber, she raised her hands in agony and prayed to every one that came, 'O God! let me have access, that I may ask for but one day for my poor mother--just one day.' Did she get there? No. And yet, says the counsel, there was no one to prevent access being had. Why don't you prove it? O, God! if such a thing could have been proved, how would I not have rejoiced in that fact; for when reflecting upon that sad, unfortunate, wretched hour in the history of my country--an hour when I feel she was so much degraded, I could weep until the paper be worn away with the continual dropping of my tears. Who stood between her and the seat of mercy? Has conscience lashed the chief of the Bureau of Military Justice? [Gen. Joseph Holt.] Does memory haunt the Secretary of War? Or is it true that one who stood between her and Executive clemency now sleeps in the dark waters of the Hudson, while another died by his own violent hand in Kansas?

"The learned gentleman is right. He did come here to put these things at rest, or to endeavor to put them at rest; but he could not do it. What else is there in this case to show a feeling behind, besides public justice impelling to conviction? Gentlemen of the jury, as the counsel has stated in his speech, public rumors had gone abroad, and certain grave charges had been made. You know that political accusations had been brought against Judge Holt, Mr. Bingham, and the Secretary of War, in the House of Representatives, and that it had become a political matter." (Mr. Merrick here referred to an effort that had been made by rebel sympathizers in Congress to make political capital out of this transaction.) "There were parts of those accusations that the learned counsel was going to put at rest. Where is the proof? The proof is in this; follow me for a moment.

"I said I would show there was a conspiracy on conspiracy. What has the chief of the Bureau of Military Justice got to do with this case? Does not your honor hold an independent court? Is not the judicial tribunal of the land separate from the executive? Is it not a fundamental principle of American constitutional law that the executive and judicial departments shall be distinct and separate? The Bureau of Military Justice is a part of the executive department. What has he to do with this case? Nothing, says the counsel. Is he counsel? we ask. No, say they. Why, then, is he manipulating their witnesses in this case? Smoot, one of their witnesses, tells you that he is called up before Judge Holt, with ten others, examined, and his examination was taken down in writing. The day after giving his testimony he comes back and says that it was not Judge Holt that examined him, but was somebody else.

"I pressed him, pressed him hard, as to the place and time. He then recollected it was in the Winder Building, opposite the War Department; and when I pressed him still further, he had to say that the office he was in had written over the door 'Judge Advocate General's office.' Again I ask what had the Judge Advocate General to do with this case? Not only was Smoot there, but Norton was there, and God only knows how many more. It is apparent, then, that he has taken a deep interest in this case. Why is he taking such an interest? It is certainly indiscreet. He has lost his prudence and he has lost his discretion; he has lost his judgment thus to expose himself and his office in a criminal prosecution.

"Mr. District Attorney, gird on your loins and answer me. Whose discretion is broken down? Whose prudence is betrayed? Is there anybody else's heart at which the vulture gnaws? Is there any high and great man who is forgetting the dignity of his office and the duties of a moral creature so far as to descend to the preparation of witnesses with which he has nothing to do to satiate his hunger with the blood of an innocent being?... But I am now speaking of the Bureau of Military Justice. He you know has furnished the evidence in this case."

Mr. Merrick then went on to charge the government with preparing and presenting evidence against Surratt that it knew to be false, and then proceeded as follows: "No matter whether they knew the truth in this case or not, prudence has been betrayed; discretion has been broken down; courage has been conquered. Following on Judge Pierrepont's declaration, which I have read to you, and these circumstances, comes Mr. Carrington, breaking the cerements of the tomb, and demanding your verdict against Mrs. Surratt. In God's name isn't it enough to try the living? Will you play the gnome, and bring her from the cold, cold earth and hang her corpse? Bring her in; but there is no occasion for doing so; she is here already. We have felt our blood run cold as the rustling of the garments from the grave swept by us. Her spirit moves about, and the Judge Advocate General and all these men may understand that it is the eternal law of God, though, so far as men are concerned, fresh and innocent blood may apparently vindicate innocent blood previously shed, yet the spirit will still walk beside them.

"He may shudder before her, because she is with him by day and by night; and he may say--

"'Avaunt and quit my sight! Let the earth hide thee; Thy bones are marrowless; thy blood is cold.'

But the cold blood and marrowless bones are still beside him, and her whisperings are presaging that great judgment day when all men shall stand equal before the throne of God, and when Mrs. Surratt is called to testify against Joseph Holt, what will he in vindication say?...

"Mr. Carrington, your honor, has gone outside of this record, and I must follow him to some extent, at least. He has gone outside of it in speaking of the military commission, defending the major generals and others. I am glad I recurred to it, for it reminds me of a statement of his that I desire to correct. He says we accused those honorable men of murder. No, sir; I refrain from any expression of opinion on that subject. It is true the most exalted judicial tribunal in the world, vindicating the liberty of American citizens and their constitutional rights against military authority, and maintaining the supremacy of the courts over military law, have pronounced that, and all other commissions similarly constituted, to be illegal; but what I denounce here is not the men who in judgment sat there, but the men conducting the trial, and who with this diary of Booth in their hands could have proved Mrs. Surratt's innocence by showing this conspiracy to have been organized on the 14th day of April, but who, though producing the toothpick and the penknife found on Booth, yet never so much as disclosed the fact that such a diary existed.

"They never made it known to those men or to the country. Do they not deserve to be denounced? Now that it has become known to the country, they come in before this jury to get them, with the diary in evidence before them, to find the same verdict that the military commission found.

"I put a question to a witness on that stand (referring to Father Walter) and asked him, 'Did you administer the consolations of religion to Mrs. Surratt?' 'I did. I gave her communion on Friday, and prepared her for death.' I asked him, 'Did she tell you as she was marching to the scaffold that she was an innocent woman?' I told him not to answer the question before I directed him to. He nodded his head, but he did not answer the question, because he had no right to, as the other side objected. If you are going to try that woman, and she being dead is unable to be here to defend herself, can you not at least have charity enough to let her last words come in in her defence? Will you try one who is not only absent from the court, but is dead? While trying one that is dead, will you deny to her the poor privilege of having the last word she uttered on earth spoken in her vindication? Were you afraid of it? Did you feel that the words would sink deep into the hearts of everybody that was here in this room, and in the United States, and cause to well up from that heart a fountain of mercy, rich and pure as the fountain that sprang from the rock at the bidding of the sacred rod? Shame on you! Prepared for the world to come, and marching to the scaffold, with her God before her and the world behind her, and a load of sin laid at the feet of Almighty God, and no hope but in that eternal mercy upon which we must all rely, I ask whether she cannot at such an hour speak for herself? No! you answer. Why not? is it likely she would lie? No, gentlemen, they will not say that. Then why is it? They did not want to hear it. Oh, they must indeed be hardened of heart, reckless of guilt, and indifferent to justice. But although they had no desire to hear it, they do hear it, and you hear it, for as that voice spoke then, it speaks now, and will continue to speak until justice is meted out. It whispers and is heard. It descends upon the head of that boy, and breathes on each of your hearts. Yes, gentlemen, that woman in the nameless grave in yonder arsenal yard, the cerements of which have been broken by the government, comes here to vindicate her child. 'A nameless grave' did I say? Yes, alas! too true. Aye, sir, it would seem as if the ordinary feelings of humanity and common respect for the dead, to say nothing of regard for the honor of our country and sympathy for the sufferings of a distracted and loving daughter, would suggest to those pressing the prosecution (and who have charge of the matter) to allow this poor girl the privilege of paying a simple tribute to a mother's love by having her remains removed from a felon's grave. Yes! there that mother lies in a nameless grave, on which no flower is allowed to be strewn by that heart-broken daughter, who for the past two years has been earnestly pleading that she might have the privilege of placing those last sad, and to her, sacred relics, where filial love might weep the tear, and a filial hand plant a flower on the tomb."

Mr. Merrick then went on to meet the argument that Surratt had confessed his guilt by flight by declaring that the mad passions of the hour, and tyrannical usurpations of the government in its method of dealing with those charged with this crime, by sending them before a military commission instead of a civil court for trial, justified him in his flight.

He then went on to vindicate the Catholic Church, which he claimed had been assailed in this matter. The only reference to the Catholic Church in connection with this trial had been made in the public press. The prosecution had carefully abstained from any assault on that church, and had tried to exclude religious prejudices from the minds of the jurors.

Mr. Merrick, however, seized the occasion to pass an eulogium on that church, in which he showed as much disregard for the facts of history as he did for the proven facts in this case. Perhaps he felt this vindication to be called for from the fact that most of the conspirators were Catholics in religion, and the further fact that the friends who waited and watched for the return of his client to Montreal after the assassination, and who, on his return, spirited him away and kept him secreted for five months and then helped him off to Italy, where he was found in the ranks of the Pope's army, and who voluntarily came before the court on his trial to testify, and to procure testimony in his behalf, were priests of that church. In his eulogium on that church he forgot to mention the fact that the Pope at an early period of the war acknowledged the Southern Confederacy and wrote a sympathizing letter to Jefferson Davis, in which he called him his dear son and denounced President Lincoln as a tyrant. He could scarcely have forgotten that the Pope of Rome had sought to take advantage of the arduous struggle in which our government was engaged for the preservation of its life, to establish a Catholic Empire in Mexico, and had sent Maximillian, a Catholic prince, to reign over that, at that time, unhappy people, under the protection of the arms of France, lent to the furtherance of his unholy purpose by the last loyal son of the church that ever occupied a throne in Europe. Perhaps he did not realize that it was God who frustrated that last grasp of the drowning man at a straw that eluded his grasp, by preparing for his holiness, the Pope, and for Louis Napoleon just at that moment the Franco-Prussian war, which resulted in the final loss of his temporal power to the Pope and with it his grip on the world, and of his empire and crown to the last servile supporter of his temporal pretensions. To claim for that church, as Mr. Merrick did, friendship to civil liberty, respect for the rights of conscience and of private judgment, and love for our republican institutions, is to ignore, or set at naught, all the dogmas of that church on the above questions and all the claims of the Papacy. Mr. Merrick manifestly thought that the attitude of the Catholic clergy toward the assassination of the President could be hidden from public view by his fulsome eulogy.

The appeals made by the eminent counsel for the prisoner to the political and religious prejudices of jurors was ably seconded all through the trial by the Jesuit priesthood of Washington City and the vicinity. It will be recalled by scores of people who attended the trial that not a day passed but that some of these were in the court-room as the most interested of spectators. That they were not idle spectators may be inferred from the fact that whenever it seemed necessary to the prisoner's counsel to find witnesses to contradict any testimony that was particularly damaging to their cause they were always promptly found, and were almost uniformly Catholics in religion, as shown by their own testimony on their cross-examination. It was a remarkable fact, also, that these witnesses were scarcely ever able to come from under the fire of Judge Pierrepont's searching cross-examinations uncrippled, and also that when they took the risk of bringing two witnesses in rebuttal of the same testimony their witnesses uniformly killed each other off before they got through the ordeal that tests the truthfulness of witnesses--the cross-examination. Other outside influences were brought to bear on jurors, such as these: Father John B. Menu, from St. Charles College, spent a day in the court-room, sitting beside the prisoner all day, thus saying to the jury, "You see which side I am on." A great many of the students from the same college also visited the trial, it being vacation, and they uniformly took great pains to show their sympathy with the prisoner by shaking hands with him. The press also was prostituted almost daily by publishing cunningly devised paragraphs impugning the motives of the government in the prosecution and management of the case. Thus were the prejudices of jurors appealed to and efforts also made to pervert public opinion.

I have quoted thus at length from Mr. Merrick's argument to show, first the animus of the defense toward the government, and especially toward the Judge Advocate General, Joseph Holt, and the Secretary of War at time of the assassination, Edwin M. Stanton. These two officers of the government need no vindication at my hands before the loyal people of this country, as they were never denounced by any but rebels, whose especial venom against them would be the strongest presumptive evidence of their virtue and efficiency. A purer man, a truer patriot, a braver, more intelligent and able officer than Gen. Joseph Holt never will grace the pages of American history. He was only hated and denounced by rebels because of his faithfulness to duty and efficiency in its performance. Of Edwin M. Stanton, also, it is needless for me to say a word. His place is fixed in history, and his record cannot be blurred by the false and vile charges or insinuations of his enemies, for his enemies were only found amongst the enemies of his country, and precisely for the same reason that they were enemies of the Judge Advocate General. The charges here so boldly made that they stood between Mrs. Surratt and an appeal to the Executive for clemency, was shown to be false by Judge Pierrepont, who produced the official record of the trial of the conspirators, together with a paper signed by some members of the court recommending commutation of the sentence of Mrs. Surratt to imprisonment for life on account of her age and sex, and showed that this whole record had been laid before the President and a full cabinet, and that after mature discussion and consideration it had received their unanimous approval, with the exception of the request for the commutation of Mrs. Surratt's sentence which, though not a part of the record, was presented with it; and that the President's order for the execution of the sentence of the court had been written on the back of this very record.

These papers containing this whole record were handed to Mr. Merrick, who tossed them from him indignantly, afterwards assigning as his reason for doing so that he had learned to distrust everything that came from the Bureau of Military Justice. His real reason was that he did not desire to be estopped from reiterating the falsehoods he had so boldly proclaimed.

His denunciation of the Judge Advocate General for assisting the prosecution by furnishing them with witnesses, to prove facts found on his records, if he did indeed thus assist, is unmerited; as it is not only the duty of every private citizen, but of every public officer as well, to assist, if it be in his power to do so, in securing the ends of justice where crimes have been committed, and the safety, peace, and welfare of society put in jeopardy. His deliberate false assumption that the prosecution had put Mrs. Surratt on trial is worthy of note, as he himself dragged her case in even before a jury was impaneled; and his colleague, Mr. Jos. H. Bradley, Jr., in his opening speech, had also brought it up in such a way that the District Attorney was forced to notice it. It was evidently a premeditated scheme of the defense, and was done for the purpose of appealing to the prejudices of jurors, and of making political capital.

Mr. Merrick's portrayal of the scenes incident to the execution of Mrs. Surratt was a fine piece of eloquent and pathetic declamation. We cannot but deplore, however, that the fine sensibilities of the counsel had not found occasion for their display in the case of the widow and orphan child of the martyred President, rather than in the person of one proven guilty of complicity in his assassination, and of being so actively engaged in that tragedy that she had traveled twenty miles on that fatal Friday afternoon to carry, at Booth's request, a field glass which he had delivered to her for the purpose, to Surrattsville, to be deposited and delivered by Lloyd, at her request, along with the carbines and the whiskey, to the assassins on that night, when fleeing from the seat of their crime, and from offended justice. It is to be deplored that he had no tears for the crazed widow and orphan child of the murdered President, when he could find such a generous fountain for his murderers. Such, however, is the deplorable effect of political and religious prejudice on frail human nature, that it perverts our moral sensibilities and warps our judgment. Mr. Merrick could see nothing but innocence in the prisoner and his mother, although the proof of their guilt was piled mountain high. It will have been noticed that he unequivocally asserts that the Supreme Court of the United States had decided that the commission that tried the assassins was an illegal tribunal. We shall have occasion hereafter to show that this is untrue.

If the counsel for the defense was not aware of this fact, it was because they had failed to grasp the meaning of the decision to which they referred, and on which they relied.

It was neither fair nor honest in them, after dragging into the trial the question of Mrs. Surratt's guilt or innocence, and that for the purpose we have above indicated, to endeavor, in the face of the facts, to shift the burden of the responsibility for this on to the prosecution. It was equally dishonest to insinuate that the prosecution of John H. Surratt was not entered upon alone for the purpose of ascertaining his guilt or innocence, but in order that the false stories that had been published in regard to the course of the government in executing Mrs. Surratt might be set at rest. The most eloquent counsel for the defence, ably assisted by his colleagues, endeavored to put the government, and not the prisoner, on trial before the jury, and before the country. They uniformly and boldly asserted his innocence, whilst they arraigned the government for having murdered, according to one, and butchered according to another, an innocent woman; and also of being in this trial engaged in an endeavor to cover up the guilt of shedding her innocent blood, by shedding the blood of her innocent son. To cap the climax of their audacity Mr. Bradley, after reiterating the charges made by Mr. Merrick and Joseph H. Bradley, Jr., asked the jury, in making up their verdict, to make a written statement at the same time of their belief that Mrs. Surratt had been unjustly condemned, and found guilty upon insufficient evidence.

They charged the government with dishonesty in withholding Booth's diary from the commission; claiming that it would have proven Mrs. Surratt's innocence. They could not have failed to know, as able lawyers, that this diary was of no account whatever as evidence. It was no more admissible than was Atzerodt's confession, as every entry that was made in it was made with the almost certainty of his capture in view, and for the purpose of concealing the greatness of the conspiracy and its personnel. It was of no more value than was his declaration in favor of his fellow-conspirator, Herold, that he was an innocent man, made a few moments before he was shot.

In his argument on the defense of an _alibi_ set up by the prisoner, Mr. Merrick makes great account of the evidence of the detectives who visited and searched Mrs. Surratt's house at two o'clock on the morning of the 15th of April, that Mrs. Surratt declared that John was not there, and that she had not seen him for two weeks.

She claimed that he was in Montreal, and that she had received a letter from him on the day previous. They well knew that her declarations had no value as testimony, and that there was evidence flatly contradicting her statements.

That she had received the letter as claimed, was true; but that that letter had been written for the very purpose of being used in the defence of an _alibi_ is evident from its contents, when considered in connection with the evidence in the case. It will be remembered that Wiechmann, who was a boarder in the house, answered the door-bell, when the detectives rang it for the purpose of demanding admittance, that they might search the house. He rapped at Mrs. Surratt's door and informed her as to who was at the door and what they had come for. Her answer was, "For God's sake, let them come in; I have been expecting them."[31] When they inquired for her son she said, "He is not here; I have not seen him for two weeks." This was a sufficient answer, but her guilty conscience would not let her stop here, she had to add, "There are a great many mothers who do not know where their sons are." Let us ask ourselves at this point, how many mothers in Washington City at that hour of that eventful night were lying awake expecting their houses to be searched by detectives? Our inner consciousness will unerringly dictate the answer, "Not one who was innocent of crime." It is only necessary to say, further, in regard to this defense set up, of an _alibi_, that although there is no more common defense resorted to by criminals, because there is none more easy of establishment, there was never perhaps in all the history of jurisprudence a weaker and more unsuccessful effort made to establish it than in this defense. The effort made by the prisoner to establish an _alibi_ showed plainly that he had endeavored to prepare for it, in anticipation for his defense, and that, in this preparation he had had able help. There is good reason to conclude that he and a half dozen other of his friends in Canada had found an opportunity to visit Canandaigua in disguise, for the purpose of doctoring up a hotel register to be used in evidence. The effort after all, proved a miserable failure.

That he went from Montreal to Elmira, N.Y., leaving the former place at two o'clock on the morning of the 12th of April, was admitted. There was evidence that he was in Elmira on the morning of the 13th, and two or three credible witnesses were found who swore that they saw him there either on the 13th or 14th. They were willing to conclude that it might have been on the 14th; but would not positively swear that it was. On the other hand the government produced two witnesses who identified him as a man whom they saw on the road making his way towards Baltimore, on the 13th, one of whom ferried him over the Susquehanna river, and stopped mid-stream to collect his fare, and so talked with him and had a good look at him. It was then proven by nearly a dozen witnesses that they saw him in Washington City on the 14th. So that the great preponderance of evidence was against the _alibi_; and so it legally failed. The defense was lame and weak at every point in the light of the evidence, which all tended to show the prisoner's guilt. It was only strong in the bold efforts of his counsel to scout all the testimony against him, and to have the jury accept their assertions of his innocence, backed by their weight of character as lawyers, in lieu of evidence, to establish his innocence, and in contumning and rejecting that which established his guilt.

They also made great complaint that they were not allowed to prove by John Matthews, the contents of the paper which he alleged was put into his hand by Booth, a few hours before the commission of his crime, with the request that he would, on the following day, upon certain contingencies, give it to the editor of the _National Intelligencer_ for publication, and which Matthews claimed to have destroyed. Of course they knew that nothing could be proven by this paper, much less by evidence as to its contents, yet, when it was not admitted by the court, they reserved an exception, and then in argument claimed that had they been allowed the benefit of this, they could have shown that the purpose of assassination was not formed until that day, and that neither the prisoner nor his mother was in it.

Matthews afterwards published what he said he desired to testify to, but was not permitted to do so by the Court. The statement that he claimed to be of Booth in this paper, gave the lie to Atzerodt's confession. These able lawyers knew full well that culprits, anticipating arrest and trial, could not be permitted to manufacture evidence in their own favor in advance. Yet they did not scruple to use, in an indirect way, in argument before the jury, this very testimony that had been excluded. Booth's diary, Booth's statement for publication, Atzerodt's confession, and the lecture of John H. Surratt, in which he makes his confession and statement of the affair, are all of a piece, and alike unworthy of credit, because they are all contradicted by sufficient and reliable testimony in every important particular. The eloquence of counsel in regard to the grave of Mrs. Surratt, who was buried in the grounds of the old arsenal, being a nameless grave, is wasted eloquence in the mind of every loyal man and woman in the country, as the heniousness of the crime of which she was convicted, made it fitting that she should sleep in a nameless grave, and that the spot of her resting-place be unknown, as an admonition to all traitors to their country, and its free institutions of government, and whose disloyalty fits them for the highest crimes that man can commit, of the infamy that awaits them in the just verdict of an outraged people. Mrs. Surratt's remains were given up to her daughter two years later, in 1869.

We will now give a few of the opening paragraphs of Judge Pierrepont's argument for the prosecution, in which he disposes of the outside and irrelevant matter that had been lugged into the defense, and out of which they had endeavored to make so much capital.

"May it please your honor, and gentlemen of the jury, I have not, in the progress of this long and tedious cause, had the opportunity as yet of addressing to you one word. My time has now arrived, 'Yea, all that a man hath will he give for his life.' When the book of Job was written, this was true, and it is just as true to-day. A man, in order to save his life, will give his property, will give his liberty, will sacrifice his good name, and will desert his father, his brother, his mother and his sister. He will lift up his hand before Almighty God and swear that he is innocent of the crime with which he is charged. He will bring perjury upon his soul, giving all that he hath in the world, and be ready to take the chances and jump the life to come; and so far as counsel place themselves in the situation of their client, and just to the degree that they absorb his feelings, his terror, and his purposes, just so far will counsel do the same.

"I am well aware, gentlemen, of the difficulties under which I labor in addressing you. The other counsel have all told you that they know you and that you know them. They know you in social life, and they know you in political affairs. They know your sympathies, your habits, your modes of thought, your prejudices even. They know how to address you, and how to awaken your sympathies, whilst I come before you a total stranger. There is not a face in those seats that I have ever beheld until this trial commenced, and yet I have a kind of feeling pervading me that we are not strangers.

"I feel as though we had a common origin, a common country, and a common religion, and that, on many grounds, we must have a common sympathy. I feel as though, if hereafter I should meet you in my native city, or in a foreign land, I should meet you, not as strangers, but as friends. It was not a pleasant thing for me to come into this case. I was called into it at a time ill-suited in every respect. I had just taken my seat in the convention called for the purpose of forming a new constitution for my State, and I was a member of the judiciary committee. The convention is now sitting, and I am now absent where I ought to be present. I feel, however, that I had no right to shirk this duty.

"The counsel asked whether I represented the Attorney General in this case. They had, perhaps, the right to ask, and so asking I give you the answer. There surely is no mystery about the matter. The District Attorney, feeling the magnitude of this case, felt that he ought to apply to the Attorney General for assistance in the prosecution of it, and he accordingly made the application. I have known the Attorney General for more than twenty years. Our relations have been most friendly, both in a social and professional point of view. The Attorney General conferred with the Secretary of State, who is, as you know, from my own State, and they determined to ask me to assist in the prosecution of this cause. On receiving a letter from the Secretary of State, I came to Washington, when I met him and the Attorney General. This is the way I happened to be here engaged in this case; and I may say that I am assured that there was no member of the cabinet but those two who ever heard or knew of my retainer until after my arrival here. I have simply tried to perform my duty as I best could, but I have, no doubt, failed to a great extent. A trial, protracted as this has been, and in such oppressive weather, is indeed a trial. It is a trial to the court, it is a trial to you, it is a trial to the counsel, it is a trial to health, it is a trial to patience, and it is a trial to temper.

"When the President of the United States was assassinated, I was one of a committee sent on by the citizens of New York to attend his funeral. When standing, as I did stand, in the east room by the side of that coffin, if some citizen sympathizing with the enemies of my country had, because my tears were falling in sorrow over the murder of the President, there insulted me, and I had at that time repelled the insult with insult, I think my fellow-citizens would have said to me that my act was deserving of condemnation; that I had no right, in that solemn hour, to let my petty passions or my personal resentments disturb the sanctity of the scene. To my mind the sanctity of this trial is far above that funeral occasion, solemn and holy as it was, and I should forever deem myself disgraced if I should ever allow any passion pf mine or personal resentment of any kind to bring me here into any petty quarrel over the murder of the President of the United States. I have tried to refrain from anything like that, and God helping me, I shall so endeavor to the end.

"To me, gentlemen, this prisoner at the bar is a pure abstraction. I have no feeling toward him whatever. I never saw him until I saw him in this room, and then it was under circumstances calculated to awaken only my sympathy. I never knew one of his kindred, and never expect to know one of them. To me he is a stranger. Toward him I have no hostility, and I shall not utter any word of vituperation against him. I came to try one of the assassins of the President of the United States, as indicted before you. I laid personal considerations aside, and I hope I shall succeed in keeping them from this cause, so far as I am concerned. I believe, gentlemen, that what you wish to know in this case is the truth. I believe it is your honest desire to find out whether the accused was engaged in this plot to overthrow this government and assassinate the President of the United States. My duty is to try to aid you in coming to a just conclusion. When this evidence is reviewed, and when it is honestly and fairly presented, when passions are laid aside, and when other people who have nothing to do with the trial are kept out of the case, you will discover that in the whole history of jurisprudence no murder was ever proved with the demonstration with which this has been proven before you. The facts, the proofs, the circumstances all tend to one point, and all prove the case, not only beyond a reasonable, but beyond any doubt.

"This has been, as I have already stated, a very protracted case. The evidence is scattered. It has come in link by link, and as we could not have witnesses here in their order when you might have seen it in its logical bearings, we were obliged to take it as it came; and now it becomes my duty to put it together and show you what it is. I shall not attempt, gentlemen, to convince you by bold assertions of my own. I fancy I could make them as loudly and as confidently as the counsel on the other side, but I am not here for that purpose. The counsel are not witnesses in the cause. We have come here for the purpose of ascertaining whether under the law and on the evidence presented, this man arraigned before you is guilty as charged. I do not think it proper that I should tell you what I think about everything that may arise in the case, or that I should tell you that I know that this thing is so, and that the other is another way. My business is to prove to you from this evidence that the prisoner is guilty. If I do that I shall ask your verdict. If I do not do that, I shall neither expect nor hope for it."

"I listened, gentlemen, to the two counsel who have addressed you for several days, without one word of interruption. I listened to them respectfully and attentively. I knew their earnestness, and I know the poetry that was brought into the case, and the feeling and the passion that was attempted to be excited in your breasts, by bringing before you the ghost trailing her calico dress and making it rustle against these chairs. I have none of these powers which the gentlemen seem to possess, nor shall I attempt to invoke them. I have come to you for the purpose of proving that this party accused here was engaged in this conspiracy to overthrow this government, which conspiracy resulted in the death of Abraham Lincoln, by a shot from a pistol in the hands of John Wilkes Booth. That is all there is to be proven in this case.

"I have not come here for the purpose of proving that Mrs. Surratt was guilty or that she was innocent, and I do not understand why that subject was lugged into this case in the mode that it has been; nor do I understand why the counsel denounced the military commission who tried her, and thus indirectly censured, in the severest manner, the President of the United States. The counsel certainly knew when they were talking about that tribunal, and when they were thus denouncing it, that President Johnson, President of the United States, ordered it with his own hand; that President Johnson, President of the United States, signed the warrant that directed the execution; that President Johnson, President of the United States, when that record was presented to him, laid it before his cabinet, and that every single member voted to confirm the sentence, and that the President with his own hand, wrote his confirmation of it, and with his own hand signed the warrant. I hold in my hand the original record, and no other man, as it appears from that paper, ordered it. No other one touched this paper; and when it was suggested by some of the members of the commission that in consequence of the age and the sex of Mrs. Surratt it might possibly be well to change her sentence to imprisonment for life, he signed the warrant for her death with the paper right before his eyes--and there it is (handing the paper to Mr. Merrick). My friend can read it for himself.

"My friends on the other side have undertaken to arraign the government of the United States against the prisoner. They have talked very loudly and eloquently about this great government of twenty-five or thirty millions of people being engaged in trying to bring to conviction one poor young man, and have treated it as though it was a hostile act, as though two parties were litigants before you, the one trying to beat the other. Is it possible that it has come to this, that, in the city of Washington, where the President has been murdered, that when under the form of law, and before a court and jury of twelve men, an investigation is made to ascertain whether the prisoner is guilty of this great crime, that the government are to be charged as seeking his blood, and its officers as lapping their tongues in the blood of the innocent? I quote the language exactly. It is a shocking thing to hear. What is the purpose of a government? What is the business of a government? According to the gentleman's notion, when a murder is committed the government should not do anything towards ascertaining who perpetrated that murder; and if the government did undertake to investigate the matter and endeavor to find out whether the man charged with the crime is guilty or not guilty the government and all connected with it must be expected to be assailed as 'blood hounds of the law,' and as seeking 'to lap their tongues in the blood of the innocent.' Is that the business of government, and is it the business of counsel under any circumstances thus to charge the government? What is government for? It is instituted for your protection, for my protection, for the protection of us all. What could we do without it? Tell me, my learned and eloquent counsel on the other side, what would you do without a government? What would you do in this city? Suppose, for instance, a set of young men, who choose to lead an idle life, say to themselves that it is not right that some rich man living here should be enjoying his hoarded wealth, and they break into his house at night and steal therefrom. My learned friend would say, when you came to prosecute them for that robbery, 'What! would you have this great and generous government of twenty-five or thirty millions of people pursue these poor young men, who merely tried to break into the house of one of your citizens and steal his money? Should not this government be generous and let them go? Oh, yes! Let them off. Well, they are let off, and a few days afterward they break into the house of my friend, Mr. Merrick, for the purpose of stealing his money, when he, a brave man, undertakes to resist them, and in doing so they strike him down in death. Oh, generous government! with twenty-five or thirty millions of people, let the young men off. Why should a great and generous government with all its powers be pursuing the young men who thus murdered Mr. Merrick while attempting to prevent a robbery at his house?

"Why should the officers of the government be 'lapping their tongues in the blood of the innocent?' Suppose this view as to the duty of a government were universally entertained, what would be the result? How long would your government last? How long would you hold a dollar of property? How long would the safety of your daughters be secure? How long would the life of your sons, who stand in resistance to lust and rapine, be safe? I have never heard such shocking sentiments uttered in relation to the duty of government from any human lips, or from any writer on the face of the earth. We have been told here that our government has nothing of divinity that hedges it about; that it is only the government of man's making. The Bible tells us that all government is of God; that the powers that be are ordained of God; and I can tell you, gentlemen, if such are the sentiments of this country that there is no divinity and no power of God that hedges about this government, its days are numbered, its condemnation is already written, and it will lie in the dust before many years have rolled by. No government that is not of God will last. It will soon come to naught. No other government ever did long exist. No other government can exist. Every government which is a government of the people is of God, and the powers that be are ordained of God. When you come together to the polls, and you elect as the ruler of this great nation a President, he is made so by the sanction of your votes, and in that act the voice of the people becomes the voice of God. I repeat, a government which is thus instituted is ordained of God, and it is as much hedged about as that of any king that ever reigned on England's throne. Is it possible that our countrymen will say that the government which we thus have made, which our fathers established, and which we are thus cherishing, has nothing of divinity hedging it about?

"Does it rest alone on human whim, without having anything sacred about it, and without any protection of the Almighty over it? If so, let me again repeat, its days are numbered; it will soon pass away. Once there was an empire in Rome. It was an empire which was in its day the greatest which the human mind had ever reared; but it did not believe, or rather ceased to believe, that there was a God who ruled; that government was of God; and they ceased to punish great crimes, such as treason, rapine, and murder, and it happened a very short time after they ceased to inflict punishment for such crimes--ceased to exercise the powers which belong to government--that the Roman empire tumbled into ruins.

"It was trampled down by the barbarians, and now not a son of the Cæsars lives on the face of the earth, and not a descendant of a Roman matron exists anywhere in this wide universe. The empire perished, and crumbled into dust; nothing but its ashes remain. And thus will it ever be whenever a people cease to obey God, and cease to think that government is of God. Let us see what the Bible says on this subject; what views were entertained in the Old Testament, and what in the New." Mr. Pierrepont then read from 1st Samuel, chapter xv, as follows:--

"'Samuel also said unto Saul, the Lord sent me to anoint thee to be king over his people, over Israel; now therefore hearken thou unto the voice of the words of the Lord.

"'Thus saith the Lord of hosts, I remember that which Amalek did to Israel, how he laid wait for him in the way, when he came up from Egypt.

"'Now go and smite Amalek, and utterly destroy all that they have, and spare them not; but slay both man and woman, infant and suckling, ox and sheep, camel and ass.

"'And Saul gathered the people together, and numbered them in Telaim, two hundred thousand foot-men, and ten thousand men of Judah.

"'And Saul came to a city of Amalek, and laid wait in the valley.

"'And Saul said unto the Kenites, go, depart, get you down from among the Amalekites, lest I destroy you with them; for ye showed kindness to all the children of Israel, when they came up out of Egypt. So the Kenites departed from among the Amalekites.

"'And Saul smote the Amalekites, from Havilah _until_ thou comest to Shur, that is over against Egypt.

"'And he took Agag, the king of the Amalekites, alive, and utterly destroyed all the people with the edge of the sword.

"'But Saul and the people spared Agag, and the best of the sheep, and of the oxen, and of the fatlings, and of the lambs, and all _that was_ good, and would not utterly destroy them; but every thing _that was_ vile and refuse, that they destroyed utterly.

"'Then came the word of the Lord unto Samuel, saying, It repenteth me that I have set up Saul _to be_ king; for he is turned back from following me, and hath not performed my commandments. And it grieved Samuel, and he cried unto the Lord all night.

"'And when Samuel rose early to meet Saul in the morning, it was told Samuel, saying, Saul came to Carmel, and behold, he set him up a place, and is gone about, and passed on, and gone down to Gilgal.

"'And Samuel came to Saul, and Saul said unto him, blessed be thou of the Lord; I have performed the commandment of the Lord.

"'And Samuel said, what meaneth then this bleating of sheep in mine ears, and the lowing of the oxen which I hear?

"'And Saul said, they have brought them from the Amalekites; for the people spared the best of the sheep, and of the oxen, to sacrifice unto the Lord thy God, and the rest we have utterly destroyed.

"'Then Samuel said unto Saul, stay, and I will tell thee what the Lord hath said to me this night. And he said unto him say on.

"'And Samuel said, when thou _wast_ little in thine own sight, _wast_ thou not _made_ the head of the tribes of Israel, and the Lord anointed thee king over Israel?

"'And the Lord sent thee on a journey, and said, go and utterly destroy the sinners of the Amalekites, and fight against them until they be consumed.

"'Wherefore then didst thou not obey the voice of the Lord, but didst fly upon the spoil, and didst evil in the sight of the Lord.

"'And Saul said unto Samuel, yea, I have obeyed the voice of the Lord, and have gone the way which the Lord sent me, and have brought Agag, the king of Amalek, and have utterly destroyed the Amalekites.

"'But the people took of the spoil, sheep and oxen, the chief of the things, which should have been utterly destroyed to sacrifice to the Lord thy God in Gilgal.

"'And Samuel said, hath the Lord as great delight in burnt offerings and sacrifices as in obeying the voice of the Lord? Behold to obey is better than sacrifice, and to hearken than the fat of rams.

"'For rebellion _is as_ the sin of witchcraft, and stubbornness is as iniquity and idolatry; because thou hast rejected the word of the Lord, he hath also rejected thee from being king.

"'And Saul said unto Samuel, I have sinned, for I have transgressed the commandment of the Lord, and thy words; because I feared the people, and obeyed their voice.

"'Now, therefore, I prayed thee, pardon my sin, and turn again with me that I may worship the Lord.

"'And Samuel said unto Saul, I will not return with thee; for thou hast rejected the word of the Lord, and the Lord hath rejected thee from being king over Israel.

"'And as Samuel turned about to go away, he laid hold upon the skirt of his mantle, and it rent.

"'And Samuel said unto him, the Lord hath rent the kingdom of Israel from thee this day, and hath given it to a neighbor of thine, _that is_ better than thou.

"'And also the strength of Israel will not lie nor repent; for he is not a man that he should repent.

"'Then he said, I have sinned; _yet_ honor me now, I pray thee, before the elders of my people, and before Israel, and turn again with me, that I may worship the Lord thy God.

"'So Samuel turned again after Saul, and Saul worshiped the Lord.

"'Then said Samuel, bring ye hither to me Agag, the king of the Amalekites. And Agag came unto him delicately. And Agag said, surely the bitterness of death is past.

"'And Samuel said, as thy sword has made women childless, so shall thy mother be childless among women. And Samuel hewed Agag in pieces before the Lord in Gilgal.

"'Then Samuel went to Ramah; and Saul went up to his house to Gibeah of Saul.

"'And Samuel came no more to see Saul until the day of his death; nevertheless, Samuel mourned for Saul; and the Lord repented that he had made Saul king over Israel.'"

Mr. Pierrepont then read from the eighteenth chapter of St. Matthew as follows:--

"'Woe unto the world because of offences, for it must needs be that offences come; but woe unto that man by whom the offence cometh.... It were better for him that a millstone were hanged about his neck, and that he were drowned in the depth of the sea.'

"Such was the order in the times of this Book. All government is of God. The powers that be are ordained of God. Now, from whom come those words? Not from the Old Testament, but they come from the meek and lowly Jesus, the Saviour of the world, who died for you, for me, for all. It is true as the counsel have said, that God is a God of mercy; but he says: 'Though I am a God of mercy, I will by no means clear the guilty.' Now the counsel who has addressed you, you will remember, said in his speech, with great earnestness: 'We have had blood enough; let us have peace.' The question before you, gentlemen, is not about blood. The question is not about peace. The question before you is whether you have not had murder enough, and assassination enough, and crime enough, to enable us to have at least once before a civil tribunal in this land a trial and a verdict. Not a single one of all those engaged in the conspiracy has been tried before a civil tribunal; and the question now is, have you not had enough of this murder, enough of this assassination, to have at least one jury of the country say so, and to say that we will stop it? You and I have nothing to do with the consequences. All we have to do is to do our duty, and ascertain whether the man is guilty. You do not punish the man; I do not punish the man. I have not a feeling toward him of punishment, and you have no such feeling. The duty does not lie with you, nor with me; we have nothing to do with that. The question for us is to see whether this man is guilty of this violation of the law of the land as charged; and if so, to so declare; and then, if for any cause, the Executive sees fit to show leniency, he will show it. If he does not, he will not. It is not for you or for me to have to say what the leniency should be. It is not for you or for me to have anything to say upon that question. Our business is, I repeat, to ascertain whether he is guilty of this violation of the law, and if he is guilty, so to say, and then afterward to say whatever we thought fit to be said with regard to any leniency. Our duty is, and the duty of the court is, to find out that one fact, and to have you pronounce your verdict, under your oath, according to the facts as you find them.

"There are one or two other things that I must notice before I come to the main question. One of these is in regard to the attacks which were made by counsel yesterday upon the learned District Attorney and myself. Have you seen anything in the conduct of the District Attorney in this case that was improper? Have you seen anything but an earnest desire to discharge his duty? If I understood the counsel aright yesterday, he said that if he should stand in the place and should have done as the District Attorney had, he would expect the women, as they passed him, to gather their skirts and pull them aside, lest they be contaminated by the touch. I did not at that time know why there was so much bitterness of feeling thus expressed, but I have been shown since last night this record called the 'Rebellion Record,' and I find in it that on the 5th of January, 1861, Edward C. Carrington, now District Attorney, issued to the public a stirring letter calling out the militia of this District for the purpose of aiding in the protection of the government of the United States; calling upon them to rally; and they did rally at his call. The fact of this native born citizen of Virginia, one of your own number and living in your midst, having thus early and practically taken the side in favor of the government, when even his own State had deserted him, of course would be likely to call down the greatest bitterness and hatred against this loyal and noble citizen on the part of a certain class. We have been told, gentlemen, by the counsel upon the other side, that the Judge Advocate General had done a great many wrong things in his life. We have been told that the military commission which Mr. Johnson had established, and he alone, had done wrong things in their prosecution; and we have been told, likewise, that the Supreme Court of the United States had decided that this commission was illegal. Now you would hardly expect an eminent lawyer to make such a statement unless he believed it. But he is wholly mistaken. No court in the United States has declared this commission to have been illegal. There is no such decision on record--not any.

"Some of these very persons are now in confinement, and if the Supreme Court of the United States had declared the commission that tried them illegal, why should they now, in a time of profound peace, be kept in prison? If such were the case would not an application have been immediately made by my learned brother for a writ of _habeas corpus_ to release them? But nothing of the kind is done. And why? Because no such decision has ever been pronounced. No court has, and in my judgment no court will, pronounce this commission, thus formed by the President of the United States, to have been illegal."

As this is a question of the gravest importance we all ought to know whether, as claimed twice in the arguments of defendant's counsel, the military commission which tried the conspirators and assassins has been decided by the Supreme Court of the United States to have been an illegal tribunal. Judge Pierrepont, as we have seen, asserts boldly that in his judgment no such decision had ever been given by that tribunal, or ever would be. That the counsel for the defense did not really so understand it he clearly shows by the fact that they had never asked for a writ of _habeas corpus_ in behalf of those who were working out the sentence of the commission. To his opinion I will now add that of Judge Fisher as given in his charge to the jury. It is as follows:--

"You have been told, gentlemen, in the argument of this case, that those who were tried before that military commission, and hung upon its findings, were themselves the victims of a base and disgraceful conspiracy to murder. Brave, gallant, and honest soldiers of their country have been held up before you as inhuman butchers of innocent men. It has been said in support of this denunciation, that the Supreme Court of the United States have, in the case of Milligan, declared that the military court which tried Herold and others for the murder of Abraham Lincoln was an illegal tribunal, organized without law, without right, and without warrant in the Constitution--a mere convocation of military men, having no right to try the cause committed to them by President Johnson; and it has been said that it was convoked not to try but to condemn.

"In my humble judgment the Supreme Court has made no such decision. If so, why have not the prisoners now confined upon the Dry Tortugas for complicity in the greatest crime of the age been released from their confinement? They have sympathizing friends enough to have applied any such decision in the direction of their deliverance, and they would not have remained there a week after the decision had been made to the effect that they were unlawfully restrained of their liberty. If I understand the decision in Milligan's case aright, it went upon the ground that the commission which tried Milligan was not organized in obedience to the act of Congress providing for the punishment of such crimes as he was charged with committing, and the opinion of the majority of the court went upon the additional ground that no hostile foot had ever pressed the soil of Indiana at the time when he was arraigned before a military tribunal there, and that, therefore, that tribunal which condemned him for acts of treason committed in that State had no authority to try him, notwithstanding the whole nation was involved in the most terrible struggle for its life. The majority opinion being thus predicated upon a misapprehension of historic truth, we could not, perhaps, have looked for a more rightful deduction.

"Unprepared, however, as all loyal hearts were for such an announcement, the American people would be even yet more astounded to have it declared by any court in this country that the commander-in-chief of the army and navy, the President of the United States, has not the power in time of war to institute a military commission for the purpose of trying a gang of spies and traitors who have found their way within the intrenched encampments of the nation's capital to take the life of the chief of the army and navy, to assassinate all the heads of the executive departments, in the interest of the pretended government with which the federal government was engaged in war. They who maintain such a doctrine profess to defend it upon the ground that no such power is delegated by the constitution, as _they_ did who could find no warrant there to coerce seceding States into submission to the federal authority; but the day has passed by when honest statesmen will longer, if they ever did, regard the sovereignty of the federal Union as possessing no powers save those expressly enumerated in the Constitution.

"The government of the United States was doubtless created by the adoption of the Constitution. But when it had once been spoken into being it stood upon the same level with other nations, and was clothed with all the powers incident to an independent sovereignty under the laws of nature and of nations, and among these was the power, in time of war or great public emergency, to arrest and inflict upon spies and traitors the most summary punishment, whenever and wherever the strong hand of military justice can be laid upon them. It is a power incident to the right and duty of self preservation, and ought to be exercised, just as the individual owes it to himself to strike down the assassin who is feeling for his heartstrings, without waiting to lose his own life, in order that the courts of justice may, at their leisure, proceed to try the felon according to the formularies of the law and the Constitution. The right of self-defense needs not to be inscribed upon parchment, either for individuals or for sovereign states. The Almighty impressed this right and duty upon the hearts and minds of men long before he wrote the decalogue upon the tables of stone. To say that this government has not the power in time of war to exercise this great duty of self-preservation, for want of warrant in the Constitution, is to condemn the action of the government in acquiring from France and Spain and Mexico and Russia territory lying far beyond the limits of the original thirteen States, because such power of acquisition and growth is not provided for by the Constitution. Both these powers are but the incidents of sovereignty, requiring no warrant in written governmental charter; they are derived from the common law of nations, and are co-existent with sovereignty.

"But with this military commission, gentlemen, you have no concern at this time; whether it was a legal or illegal tribunal, is not the matter on which you are now called to decide. The oath that you have taken requires that you shall 'well and truly try, and true deliverance make between the United States of America and John H. Surratt, the prisoner at the bar, whom you have in charge, and a true verdict give according to your evidence.' The prisoner stands before you indicted for the murder of Abraham Lincoln on the 14th day of April, 1865, in this city. About the time and place and manner of the death of your late President no controversy has been made in the case. If there had been your recollection of a nation in tears, and of a whole civilized world in mourning would have revived your memory of the sad and terrible fact. The only question, therefore, for you to determine is, whether the prisoner at the bar participated with John Wilkes Booth and the others named in the indictment, or either or any of them, in the diabolical crime. If, from all the evidence in the case, your minds shall be convinced beyond a reasonable doubt growing out of that evidence that the prisoner did co-operate with them; if that shall have produced a moral conviction in your minds that the prisoner did participate in the conspiracy to murder, or in a plot to do some unlawful act which resulted in this foul murder, no consideration as to the legality or illegality of the tribunal which tried the prisoner's mother; no feelings of sympathy for other members of the family; no consideration of his youth, or that other lives have already been forfeited for the crime, should for a single moment, tempt you to step aside from the plain pathway of duty."

The last paragraph quoted is directed to some of the many artful appeals made to the political prejudices or to the feelings of the jury to swerve them from the duty devolved upon them by their oath. The former paragraphs may well be said to set at rest forever the question of the right of a government to defend its life when the occasion requires it by sending offenders against its life before a military commission for trial. This question may be taken as settled, as is the question of the right of the federal government to coerce into submission a refractory State. The opportunity thus sought by the prisoner's counsel to foist upon the public mind the assertion that the Supreme Court of the United States had made a decision denying to the government this right, thus gave occasion not only for denying that such opinion had ever been delivered, but also for showing that it never could be.

It will be remembered that for reasons heretofore given the crime charged in the indictment was simply that of murder--the murder of Abraham Lincoln.

The fact of his being, at the time of his murder, the President of the United States was not mentioned. The treasonable purpose of that murder was also omitted no reference being made to the political reasons that moved the conspirators to the commission of the crime. The counsel for the defense contended most earnestly that because of these omissions the fact of the official position of Abraham Lincoln and of the political motives that inspired the crime could not be taken into consideration in the trial of the prisoner. They argued that it must be regarded in law simply as the murder of a man, and as a crime no more henious in character than the murder of the humblest citizen. Had the crime of treason been alleged in the indictment the defense would have been entitled to have a list of the witnesses by whom the government expected to prove the crime in advance of the trial; and it would have taken two witnesses to have established an overt act. The defense contended that because they were not entitled to these advantages under this indictment the prosecution could derive no advantages from the consideration of these facts; and that the case must be treated simply as a case of murder. The spirit of their argument would rather indicate that they really regarded it in the same light that Miss Anna Surratt did, as "nothing more than the death of the meanest nigger in the Union army."[32] The following is Mr. Pierrepont's reply to their argument on this point:--

"Our learned friends on the other side have told us, in the progress of their argument, that they could not subscribe in the least degree to the doctrine that it was a higher crime to conspire against the government of the United States, and through that conspiracy commit a murder upon the Chief Magistrate, than it was to murder the humblest vagabond in the streets, or words to that effect. Now that is not the doctrine of a statesman; it is not the doctrine of the Bible; it is not the doctrine of the law. It is a far more heinous crime to conspire against the government of the United States and to murder its President for the purpose of bringing anarchy and confusion on the land, than to murder a single individual. It is because its consequences are so much more terrible. It is because it is involving the lives of hundreds and of thousands. It is because it is involving considerations affecting the stability, the protection, the life, and the liberty, it may be, of a nation. The law of England, which I have cited, but which it would seem, my friends have not read, lays it down, and without a statute, but as the common law, that it is a crime of such heniousness as to admit of no accessories.

"They, however, undertake to say that the crime of the murder of the President of the United States in time of war or great civil commotion, is not as henious a crime as it would be in England to murder the Chief of their country; and that there is no divinity about our government. What is its origin? All government is either of God or the devil, and they will have to take their choice. I say that the government is of God, and that no other government will stand. What says the civilized world upon this subject? I wrote a note to the Secretary of State two days ago, asking him to send me the letters that were transmitted from the different governments of the civilized world upon the subject of this murder, and what do you think he sent me? He sent me the note I hold in my hand and with it this large printed volume. It takes every line and word of that book, a book of 717 pages, closely printed, to contain the letters of condolence that were written to this government from the foreign governments of the world. Entire Christendom wrote, entire Christendom looked upon it as one of the most horrible of crimes--one that required every nation, even to the Turk, to write for the purpose of expressing their abhorrence of the crime. And, gentlemen, I hold in my hand the original paper sent by some 13,000 rebel prisoners, and our prisoners, at Point Lookout. Here is the paper in which these rebel prisoners, met together, passed their resolutions of condemnation, and their curse upon this crime. I would try this case before any twelve of those rebel prisoners, and feel certain of a verdict, and yet the gentlemen tell us this murder is like that of the commonest vagabond that ever walked the streets, and the crime no higher. Not so thought the rebels; not so thought any honorable man in arms against us; not so thinks any right-minded man upon the face of the earth."

The judge in giving his charge to the jury, addressing himself to this point, spoke as follows:--

"Historians and text writers on the law may treat of the heinousness of the crime of imagining the death of a weak or a wicked king or of a wise or benignant monarch, but you know, gentlemen, as well as you know that you exist, that to murder the duly elected President of the most powerful people on earth, is not less atrocious in its character than to compass the death of a king, or an emperor, albeit he may have sprang from the loins of the people, who have made him their representative head, and may have no royal blood coursing through his veins. You may be told that it is a crime surpassingly heinous to take or compass the life of him who has occupied a throne simply because he may be the king of an enslaved people, but that to take the life of the President of a free republic is an offense of no greater magnitude than to murder the 'veriest vagabond that walks your streets'; but an American jury will only believe this doctrine when the people have become so demoralized and corrupt, so devoid of the love of liberty and patriotic feeling, as to prefer to have a king and ruler foisted upon them by the accident of birth or fortunate adventure, rather than have the making of their own selection of him who is to execute their laws, and, for the time being, to stand as the representative head of their collective sovereignty.

"It is a mistake to suppose that a free people in any country will ever consider it a more henious crime to kill a king, or even to desire his death, than it is to assassinate a President. It is of no avail to tell you that to surround the life of a President of a republic with safeguards as sacred and powerful as those which, in monarchies, are thrown about a king, as you have been told in the argument, is a modern idea, 'entertained only by those whose eyes have been dazzled by visions of stars and garters, and who are desirous of changing our free institutions for a monarchical form of government.'

"On the contrary, they can only be opposed to guarding with sacred vigilance the life of the President of a free people who are themselves prepared to submit to the rule of a despot. Why should the people be less proud or less regardful of the life of a ruler selected by themselves, from among themselves, than they would be of the life of him who claimed to rule over them of his own right? When this question can be sensibly answered, I shall be willing to admit that the life of a President is less worth preserving than that of a king, and that to destroy the life of a President is a crime of less atrocity than to merely desire the death of a prince; but not till then; nor do I believe you will."

The practical legal bearing of this question on the trial was as to whether the prisoner, being proven to have been a member of the conspiracy which resulted in the death of President Lincoln by the hands of a fellow-conspirator, should be held as a principal in the crime, or only an accessory before the fact. In other words whether the court and jury could take cognizance of the official position of Abraham Lincoln without its being alleged in the indictment. If he could be regarded as a principal and not as an accessory he could be held equally guilty with Booth although he might not have been present and assisting in the assassination.

Practically, however, this was not a matter of any consequence in this trial, because it was proven beyond a doubt that the prisoner was actually present, acting a conspicuous part in the execution of the plot. It was also proven by the testimony of one witness whose testimony was in no way impeached that it was he, and not Spangler, who prepared and fitted the bar to the door to prevent Booth being followed into the box at the theatre. The summing up of the evidence by Judge Pierrepont in his concluding speech is one of the most admirable and masterly efforts that can be anywhere found. In the first place it is a model of judicial fairness and honesty. To him the prisoner was evidently a pure abstraction toward whom he had no feelings. His only effort was to weigh impartially the evidence in the case, and to give to it a fair and common sense interpretation. He brushed away all side issues and every effort of the prisoner's counsel to bring the trial under the influence of political and of religious prejudices, and held them strictly to the question of the guilt or innocence of the prisoner, as shown by the evidence. Again it was a model effort in its logical ability in bringing the evidence before the jury. He had so completely analyzed the testimony that he was able to present it in its logical connection as to time, purpose, and circumstances; tracing the plot through the evidence before him, from its incipiency to its completion, step by step, showing the bearing and relation that one thing sustained to another in a most conclusive and unanswerable way.

He had systematically and logically arranged the testimony, which had necessarily been presented in a most desultory and unsatisfactory way, from the fact that the evidence had to be taken just as witnesses were found to be present. By great care and labor the judge had arranged the evidence just in the order in which he would have chosen to introduce it had the witnesses all been at his command at the moment he would have chosen to use them. Having thus arranged the testimony, he simply read it to the jury, stopping when necessary to comment on it and interpret it. His fair, natural, common sense interpretation of the facts proven could not fail to bring conviction to every intelligent, and candid mind. That the proof before him had brought to the mind of this eminent and experienced advocate and jurist the most complete conviction of the prisoner's guilt, is shown throughout his argument. He did not, however, leave the matter of his own convictions to be the subject merely of inference, but left himself on record on this point as follows:--

"In this case I feel justified in saying, that the prisoner is proved to be guilty, and in as overwhelming a manner as any man was ever proven guilty in the history of jurisprudence. I appeal to any judge, any lawyer, any man who has had experience, if there was ever a case where the guilt of the party, was more clearly demonstrated. He is proven guilty not only beyond a reasonable doubt, but beyond the possibility of any doubt. There is not a man of you who can doubt it. It has been a strange case. It was a strange providence that brought the man back here to be tried. And now that he is here, you, the twelve men who in the providence of God have been selected to try the case, are to say whether what he has done is right or not right; whether he is guilty or not guilty.

"That is for you to say, not for me. I know he is proved guilty. About that there can be no doubt. I do not believe that any of you have any doubt whatever on that subject."

That the purpose of this conspiracy was to assassinate the heads of the government from its very first inception, is made clear by the whole run of the evidence brought out on the two trials. Atzerodt, in his confession, which he had gotten up to be used in his defence, claims that he was a member of a conspiracy to kidnap the President, and carry him to Richmond. John H. Surratt, in his Rockville lecture, claims the same thing. They both claim that when Booth laid aside this plan as impracticable, and proposed to change it to a conspiracy to assassinate, that they withdrew, and would have nothing further to do with it. It is evident that the statements of both are false, both as regards the original purpose of the conspiracy, and also their abandonment of it. Surratt in his confessions to McMillen stated that he received a letter from Booth in Montreal on the 10th of April. This letter was written from New York, and summoned him to Washington at once, as it had become necessary for them to change their plans and to act quickly.

He left Montreal in obedience to this summons on the 12th of April, and was in Elmira on the morning of the 13th. In his defense of an _alibi_, he tried to prove that he remained at Elmira until after the 15th, and then returned to Montreal, where he arrived on the 18th.

His counsel argued that the plan up to that time had been to capture, and that it was then for the first time that Booth had determined to assassinate; that this was the change of plan referred to in his letter, and that, as Surratt, according to their plea, never saw him after this change of plan had been determined upon, he knew nothing about it, and was never a member of a conspiracy to assassinate. He admitted that he left Montreal in response to Booth's letter, but claimed that he did not go any further than Elmira, in his defense.

This, also, is his story in his Rockville lecture, in which he admits that he was a member of the conspiracy to capture the President, but asserts that he was never a member of the conspiracy to assassinate him. Why did he obey Booth's summons which required him to come at once to Washington? Why did he come by way of Elmira? He says in his lecture that he went to Elmira in the interest of a plan to liberate the rebel prisoners that were held at that place. He had just been to Richmond, carrying dispatches from Davis and Benjamin to their agents in Canada. Active measures were at once resorted to to accomplish the assassinations that had been planned without delay, and had the scheme been fully realized it was no doubt a part of this plan to bring into active service at once all the secret treasonable military organizations throughout the North, liberate all the rebel prisoners held in Northern prisons, and inaugurate a new rebellion in the North, in aid of the existing rebellion in the South. Surratt admits that he went to Elmira on this business. He went there no doubt to arrange with other conspirators there for carrying out this purpose when notified of the success of the assassination plot. No doubt similar arrangements had been made at Chicago to liberate the prisoners at Camp Douglass; and perhaps at other places. The partial failure of the assassination plot, and the signal triumph of our arms, admonished these Northern traitors that they had better not enter the arena of actual war, and frustrated all the plans of Jefferson Davis and his Canada Cabinet. Surratt's admissions are right in the line of our theory, and tend to prove its correctness; but his claim that he was only a member of a conspiracy to capture is manifestly untrue. Let us hear the conclusion of that eminent jurist, Judge Pierrepont, founded on a careful consideration of all the evidence on this point. "Now you see gentlemen, what is meant by a change of plan. In the spring of 1864 the plan was to murder Mr. Lincoln. They laid various plans for its accomplishment. They thought to do it as he went to the Soldiers' Home, by the telescopic rifle, and they did not intend, in the event of concluding to carry out that plan, to let his wife or his child stand in their way. They then thought to do it by having Payne call upon Mr. Lincoln, get into conversation with him, listen to his stories, seem to be interested in them, and then, at that moment, to strike the knife home, deep into his heart. They at another time thought to poison him, and for this purpose tried the cup; but it seemed that that failed them once, and, as Booth said, might fail them again. They finally concluded they would try to kill him in the theatre, instead of on his way to the Soldiers' Home, and have Payne kill Secretary Seward at his house. That plan they carried out. But, gentlemen, notwithstanding this change of plan, never was there for more than a year any other purpose than to murder. They had long since abandoned the idea of kidnapping, for that required too much machinery, too many men, and subjected them to too much danger; and the changes in plan that had taken place recently were simply as to the mode of killing, and the men who should strike the fatal blow." Here we have the mature opinion of an eminent jurist, founded on a thorough and careful examination of all the evidence, and we feel confident that no candid, intelligent man who studies all the evidence with care can come to any other.

Having had occasion to follow the history of this sad affair from its incipiency to its conclusion, as revealed by the evidence produced before the commission, and that brought out on the civil trial, my purpose in writing this book has been fulfilled. It was, first, to correct many grave errors in public opinion that have grown out of a wilful and ingenious suppression of the truth and an unblushing publication of falsehoods, in order to cover up from view the fact that the assassination of President Lincoln was the result of a deep-laid political scheme to subvert the government of the United States in aid of the rebellion; that it was not merely the rash act of Booth and his co-conspirators, to whom the work was intrusted; but that behind these stood Jefferson Davis and his Canada cabinet; that it was the work of a great conspiracy.

The second object of the author was to vindicate the government in its method of dealing with the assassins, and to show that the decisions of the commission were founded on adequate testimony. And, lastly, to so gather up and present the truth, as shown by the evidence, that his work might be of some service to the future historian. He feels that he has kept faithful to his purpose to present nothing but the truth. He feels that by this he has not only vindicated the government, but that also in doing this he has vindicated the commission. He has shown that a military commission was the only tribunal before which the conspirators and assassins could properly be tried; that the right of the government to try offenses of this character is a power inherent in sovereignty as is the right of personal self-defence a right that inheres to the individual; that the laws of war recognize this right and justify its exercise. The wisdom of the government in dealing thus summarily with these offenders was seen in its effect on the Canada conspirators, who at first were swearing that "they were not done yet," but who were driven to their holes by the prompt and wise action of the government in dealing thus summarily with their hired assassins as fast as they were caught. The government thus compelled its enemies to respect its authority.

And, finally, the result of the trial of one of the conspirators before a civil court, more than anything else, vindicates its wisdom in sending these prisoners before a military tribunal for trial.

_Side Lights on the Conspiracy._

John Matthews gives us the substance of a paper put into his hands by Booth on the afternoon of the assassination, which closed as follows: "Men who love their country better than their lives--Booth, Payne, Atzerodt, and Herold."[33] It will be observed that Booth here identifies Atzerodt with the conspiracy and the evidence shows that he relied on Atzerodt at that time to perform the part he assigned to him: to assassinate Vice-President Johnson. He had transferred Atzerodt from the Pennsylvania House, where he had been boarding, to the Kirkwood House on the morning of that day, having engaged his room but for one day, and paying for it in advance. This change was made because the Vice-President was stopping at the Kirkwood.

That Booth had visited Atzerodt at his room during the day was shown by the fact that his coat, containing his bank book and handkerchiefs marked in his name, was found in Atzerodt's room where he had hung it up and then forgotten to take it again when he left. That the purpose was a murderous purpose was shown by the fact that a pistol, loaded and capped, together with a large dagger, were found hid away in the bed. Booth had been there schooling Atzerodt in his part, and had had such assurances from Atzerodt that he felt safe in coupling his name with his own and those of Payne and Herold in the paper referred to. Matthews stated that whilst he was in conversation with Booth, General Grant passed rapidly down the Avenue in an open carriage, having his baggage along with him; that he called Booth's attention to this fact, when Booth left him abruptly and galloped down the avenue after General Grant. Why did he do this? What did this mean? When Atzerodt had made his way into the country, and was eating his dinner on Sabbath, the 16th, at the house of Hezekiah Metz, he was asked if it was true, as had been reported, that General Grant had been killed, answered, "If the man who was to follow him had done so, it was likely to be true." This explains Booth's purpose in galloping after General Grant when he saw that he was about to leave the city. He hurried to inform O'Laughlin of the fact and to have him follow the General and assassinate him on the road or at the end of his journey, and had told Atzerodt of this arrangement. We can in this way account for the fact that Atzerodt knew that a man had had orders to follow him. The fact that Booth, in the paper referred to, coupled Atzerodt's name with his own and those of Payne and Herold as "men who loved their country better than their lives" shows that he fully expected Atzerodt to perform the part he had assigned him in the tragedy. O'Laughlin was no doubt the man who had orders to follow the General, but upon reflection, wisely declined to do so.

Dr. Mudd voluntarily confessed to Captain Dutton, who had charge of the convicts who were sent to the Dry Tortugas, whilst on their voyage thither, that he knew Booth when he came to his house on the morning of the 15th of April; and said that he denied it because he was afraid of endangering his own life, and the lives of his family. He also admitted that he went to Washington by appointment to introduce Booth to Surratt, and that Wiechmann's testimony on this point was true. Why, if innocent, should he have been afraid to let it be known that Booth and Herold called at his house on that morning, and what he had done for them? This fear could only have come from a consciousness of guilt, and shows that he not only knew what they had done, but, also, that he was implicated in their guilt by his previous knowledge of what they were going to do. John H. Surratt, after he had been set at liberty, delivered a lecture at Rockville, Maryland, in which he denied that he ever knew of the plot to assassinate, but admitted that he was a member of a conspiracy to capture President Lincoln and carry him a prisoner to Richmond. He asserts that this was Booth's purpose whilst he was co-operating with him, and that they had spent a great deal of money ($10,000) in preparations to effect their object. He claims that neither the Richmond government, nor its agents in Canada, knew anything about their scheme, and that they alone were responsible for it. Where then did they get their $10,000 to spend on it? They were both without means of their own, and without employment. The Rockville lecture is simply a plausible tissue of falsehoods, well put together, but altogether inconsistent with the whole tenure of the evidence in the case. It is contradicted at almost every point by the testimony we have had under review. Yet its admissions are important, as they establish the theory of the conspiracy which we have maintained. He admits that he was engaged in the secret service of the Confederate government almost constantly from the time he left college in the summer of 1861, and that he enjoyed that service greatly, and was very active in it. He claims that he was entrusted with dispatches for the agents of that government in Canada, and that he passed from the one place to the other frequently. He admits that he reached Montreal on the 6th of April with dispatches from Davis and Benjamin to Thompson. Of course he does not say that he also carried Bills of Exchange on Liverpool at the same time for $70,000, or that he carried funds at any time; but we have had the proof of this fact. He admits that he went from Montreal on the 12th of April, to Elmira, New York, and claims that he remained there until after the assassination.

This we have seen was proven to be a falsehood, yet his purpose in going to Elmira, as claimed by himself, confirms our theory that the plan of the conspirators was in connection with the assassinations which they had planned to get up a Northern rebellion in aid of that of the South, through the agency of the secret disloyal organizations with whom they were in correspondence throughout the Northwestern and Middle States, and to liberate all the rebel prisoners held in Northern prisons to augment their forces, and in the state of anarchy and confusion, consequent upon the deprivation of the government of a civil head, and the army of a lawful commander, they thus intended inaugurating a reign of terror throughout the North that would make a further prosecution of the war impossible, and by this means establish the Southern Confederacy. Surratt says in his lecture that he went to Elmira for the purpose of preparing for the release of the more than five thousand rebel prisoners that were held at that place. The author, after a very careful scrutiny of all the evidence relating to the question of Surratt's presence in Washington on the night of the assassination, and of his participation in it, has not hesitated to express the opinion that this was proven. By all legal rules the plea of an _alibi_ failed as the vast preponderance of evidence went to prove his presence as charged. But even if we admit that he was at Elmira, as claimed, on the night of the assassination, and that he remained there until the 16th of April, he is not by this admission disconnected with the conspiracy, but was by his own admission acting there in the interest of its purposes by setting at large the five thousand rebel prisoners held there by the government. The effort to aid the rebellion by this step was contingent upon the accomplishment of all of the assassinations that had been planned. The failure to do this rendered his mission there useless. If he was there, he was there in the interest of the conspiracy. That he had all of its guilt upon his conscience is shown by the facts of his flight and concealment.

Thompson and his gang claimed, in the fall of 1864, it will be remembered, that they had eight hundred men hid away in Chicago for the purpose of liberating the rebel prisoners held in Camp Douglass. They were only waiting for a safe opportunity, for which they were planning to secure an opportune moment. Why did Vallandigham break his parole in the summer of 1864 and return to Ohio to become a candidate for the governorship of that state? It was no doubt in the interest of this new rebellion that had been planned, and that he might be in a position to carry out the details of these nefarious schemes. It will be remembered that he had been elected Supreme Commander of the order of American Knights at their annual meeting in February, 1863. During Vallandigham's enforced absence, Robert Holloway acted as Lieutenant-General, or Deputy Supreme Commander, and Doctor Massey of Ohio was Secretary of State. The organization was a military one, of which Vallandigham was recognized as General, and had a complete army organization, and was, in 1864, arming, drilling, and preparing for a Northern rebellion, and the accomplishment of the assassinations that were planned and arranged for was no doubt to have been the signal for a general uprising. It may be asked, why, if this theory be correct, was not this purpose carried out? We answer simply because that God who planted, and has hitherto watched over our nation, frustrated the scheme. He so ordered the events of his providence that the carrying out of this wicked scheme became manifestly impossible. The plan to deprive the government of a civil head and the army of a lawful commander failed. The collapse of the rebellion was precipitated so rapidly that it was manifestly useless to attempt to give it aid. The valor, prowess, skill, and loyalty of our victorious legions was a menace to copperheadism. This secret army concluded that discretion was the better part of valor, and sought safely in seclusion, but not quite in silence. They still continued to hiss.

To God's over-ruling and protecting care we owe our thanks for the preservation of our government, and for the peace and prosperity with which we have been blessed, and it is in Him alone that we can found our hopes for the future. Let us reverently study and learn the lessons of our great civil war, that we may learn to avert future judgments by putting away all our idols, and all the abominations of our national life, remembering that it is righteousness alone that exalteth a nation, and gives to it peace and prosperity, and that sin is not only a reproach to any people, but that national sins, if persisted in, justified and incorporated into national policy, will inevitably call down the judgments of a holy, righteous, and just God.

APPENDIX.

PREFACE TO APPENDIX.

In presenting the great argument of the Hon. John A. Bingham, Assistant Judge-Advocate, on the trial of the assassins, the author feels that he does not need to offer an apology to his readers, notwithstanding its length.

In addition to what he has already said by way of commending it to the careful perusal of his readers, he will add by way of preface, the following extracts from Barnes's 40th Congress, Vol. 1, showing the light in which that great effort was viewed by competent judges at the time; and also giving extracts from his great argument before the United States Senate on the articles of impeachment found against Andrew Johnson, President of the United States, for high crimes and misdemeanors, in vindication of the high encomiums bestowed by him on this distinguished statesman and advocate.

EXTRACTS FROM "THE FORTIETH CONGRESS OF THE UNITED STATES."

BY WILLIAM H. BARNES:--1ST VOL., 40TH CONGRESS.

Mr. Bingham served as Special Judge Advocate in the great trial of the conspirators, who were tried for the assassination of Abraham Lincoln, etc. Immense labor devolved upon him during this difficult and protracted trial, and for eight weeks his arduous duties allowed him but brief intervals of rest. He occupied nine hours in the delivery of the closing arguments, in which he ably elucidated the law and the testimony in the case, and conclusively proved the guilt of the conspirators. Mr. Bingham's success in this great trial attracted general attention, and awakened a wide-spread curiosity to know his history. Soon after the close of the trial, a correspondent of the _Philadelphia Press_, having expressed the deep interest he had felt in arriving at a well founded conclusion as to "the guilt of the conspirators and the constitutionality of the court," wrote as follows:--

"Grant me space in your columns to give expression to my most unqualified admiration of the great arguments, on these two main points, presented to the court by the Special Judge Advocate, Gen. John A. Bingham. In the entire range of my reading, I have known of no productions that have so literally led me captive. For careful analysis, logical argumentation, profound and most extensive research; for overwhelming unravelment of complications that would have involved an ordinary mind only with inextricable bewilderment, and for a literal rending to tatters of all the metaphysical subtleties of the array of legal talent engaged on the other side, I know of no two productions in the English language superior to these. They are literally as the spear of Ithuriel, dissolving the hardest substances at their touch; as the thread of Dædalus, leading out of the labyrinths of error, no matter how thick and mazy. Not Locke or Bacon were more profound; not Daniel Webster was clearer and more penetrating; not Chillingworth was more logical. I feel sure that the author of these two unrivalled papers must possess a legal mind unrivalled in America, and must be, too, one of our rising statesmen. But who is John A. Bingham, who by his industry and learning displayed on this wonderful trial, has placed the country under such a heavy debt of obligation? He may be well known to others moving in a public sphere, like yourself, but to me, so absorbed in a different line of duty, he has appeared so suddenly, and yet with such vividness, that I long to know some, at least, of his antecedents."

Upon which the editor remarked:--

"The question of our esteemed correspondent is natural to one who has not, probably, watched the individual actors on the great stage of public affairs with the interest of the historical and political student. We are not surprised that the arguments of Mr. Bingham before the military commission should have filled him with delight. It was worthy of the great subject confided to that accomplished statesman by the Government, and of his own fame. When the assassins of Mr. Lincoln were sent for trial before the military court by President Johnson, the Government wisely left the whole management to Judge Holt and his eloquent associate, Mr. Bingham, and to the latter was committed the stupendous labor of sifting the mass of evidence, of replying to the corps of lawyers for the defence, of setting forth the guilt of the accused and of vindicating the policy and the duty of the executive in an exigency so novel and so full of tragic solemnity. The crime was so enormous, and the trial of those who committed it so important in all its issues, immediate, contingent and remote, as to awaken an excitement that embraced all nations. The murder itself was almost forgotten by those who wished to screen the murderers, and the most wicked theories were broached and sown broadcast by men, who, under cloak of reverence for what they called the law, toiled with herculean energy to weaken the arm of the Government, extended in time of war to save the servants of the people from being slaughtered by assassins in public places, and tracked even to their firesides by the agents and friends of slavery. These poisons of plausibility, blunting the sharpest horrors of any age, and sanctifying the most hellish offenses, required an antidote as swift to cure. Mr. Bingham's two great arguments, alluded to by our correspondent, have supplied the remedy. They are monuments of reflection, research, and argumentation; and they are presented in the language of a scholar and with the fervor of an orator. In the great volume of proof and counter-proof, rhetoric, and controversy that forever preserves the record of this great trial, the efforts of Mr. Bingham will ever remain to be first studied with an eager and admiring interest. That they came, after all that has and can be said against the Government, is rather an inducement to their more satisfactory and critical consideration. For from that study the American student and citizen must, more than ever, realize how irresistible is Truth when in conflict with Falsehood, and how poor and puerile are all the professional tricks of the lawyer when opposed to the moral power of the patriot."

In Congress Mr. Bingham has had a distinguished career, marked by important services to the country. In the XXXVIIth Congress he was earnest and successful in advocating many important measures to promote the vigorous prosecution of the war, which had just begun. Returning to Congress in 1865, after an absence of two years, he at once took a prominent position. Upon the formation of the joint committee on Reconstruction, December 14th, 1865, he was appointed one of the nine members on the part of the House. He was active in advocating the great measures of Reconstruction, which were proposed and passed in the XXXIXth and XLth Congresses. The House of Representatives having resolved that Andrew Johnson should be impeached for "high crimes and misdemeanors," Mr. Bingham was appointed on the committee to which was intrusted the important duty of drawing up the Articles of Impeachment. This work having been done to the satisfaction of the House, Mr. Bingham was elected chairman of the managers to conduct the impeachment of the President before the Senate.

On him devolved the duty of making the closing argument. His speech on this occasion ranks among the greatest forensic efforts of any age. He began the delivery of his argument on Monday, May 4th, and occupied the attention of the Senate, and a vast auditory on the floor and in the galleries, during three successive days. At the close of his argument, the immense audience in the galleries, wrought up to the highest pitch of enthusiasm, gave vent to such an unanimous and continued outburst of applause as has never before been heard in the Capitol. Ladies and gentlemen, who could not have been induced deliberately to trespass on the decorum of the Senate, by whose courtesy they were admitted to the galleries, overcome by their feelings, joined in the utterance of applause, knowing that for so doing the Sergeant-at-arms would be required to expel them from the galleries. The history of the country records no similar tribute to the oratorial efforts of the ablest advocates or statesmen. From so long and so well-sustained an argument, it is impossible to select particular passages which would give an adequate idea of the whole. The following historical argument for the supremacy of the law will always be read with interest, whether as an extract, or in its original setting:--

"Is it not in vain, I ask you, Senators, that the people have thus vindicated by battle the supremacy of their own Constitution and laws, if, after all, their President is permitted to suspend their laws and dispense with the execution thereof at pleasure, and defy the power of the people to bring him to trial and judgment before the only tribunal authorized by the Constitution to try him? That is the issue that is presented before the Senate for decision by these articles of impeachment. By such acts of usurpation on the part of the ruler of a people, I need not say to the Senate, the peace of nations is broken, as it is only by obedience to law that the peace of nations is maintained, and their existence perpetuated. Law is the voice of God and the harmony of the world:--

"'It doth preserve the stars from wrong, Through it the eternal heavens are fresh and strong.'

"All history is but philosophy, teaching by example. God is in history, and through it teaches to men and nations the profoundest lessons which they learn. It does not surprise me, Senators, that the learned counsel for the accused asked the Senate, in the consideration of this question, to close that volume of instruction, not to look into the past, and not to listen to its voices. Senators, from that day when the inscription was written upon the graves of the heroes of Thermopylæ, 'Stranger, go tell the Lacedemonians that we lie here in obedience to their laws,' to this hour, no profounder lesson than this has come down to us: that through obedience to law comes the strength of nations and the safety of men.

"No more fatal provision ever found its way into the Constitutions of States than that contended for in this defense which recognizes the right of a single despot or of the many to discriminate in the administration of justice between the ruler and the citizen, between the strong and the weak. It was by this unjust discrimination that Aristides was banished because he was just. It was by this unjust discrimination that Socrates, the wonder of the Pagan world, was doomed to drink the hemlock because of his transcendant virtues. It was in honorable protest against this unjust discriminati that the great Roman Senator, father of his country, declared that the force of the law consists in its being made for the whole community. Senators, it is the pride and boast of that great people from whom we are descended, as it is the pride and boast of every American, that the law is the supreme power of the State, that it is for the protection of each, by the combined power of all. By the Constitution of England the hereditary monarch is no more above the law than the humblest subject; and by the Constitution of the United States, the President is no more above the law than the poorest and most friendless beggar in your streets. The usurpations of Charles I. inflicted untold injuries upon the people of England, and finally cost the usurper his life. The subsequent usurpations of James II., and I only refer to it because there is between his official conduct and that of this accused President, the most remarkable parallel that I have ever read in history, filled the heart and brain of England with conviction that new securities must be taken to restrain the prerogatives asserted by the crown, if they would maintain their ancient Constitution and perpetuate their liberties. It is well said by Hallam that the usurpations of James swept away the solemn ordinances of the legislature. Out of those usurpations came the great revolution of 1688, which resulted in the dethronement and banishment of James, in the elevation of William and Mary, and in the immortal Declaration of Rights.

"I ask the Senate to notice that these charges against James are substantially the charges presented against this accused President, and confessed here of record, that he has suspended the laws, and dispensed with the execution of laws, and in order to do this has usurped authority as the executive of the nation, declaring himself entitled under the Constitution to suspend the laws and dispense with their execution. He has further, like James, attempted to control the appropriated money of the people contrary to law. And he has further, like James, although it is not alleged against him in the Articles of Impeachment, it is confessed in his answer, and attempted to cause the question of his responsibility to the people to be tried, not in the King's Bench, but in the Supreme Court, when that question is alone cognizable in the Senate of the United States. Surely, Senators, if these usurpations, if these endeavors on the part of James thus to subvert the liberties of the people of England, cost him his crown and kingdom, the like offenses committed by Andrew Johnson ought to cost him his office, and to subject him to that perpetual disability pronounced by the people through the Constitution upon him for his high crimes and misdemeanors.

"I ask you, Senators, how long men would deliberate upon the question whether a private citizen arraigned at the bar of one of your tribunals of justice for a criminal violation of the law, should be permitted to interpose a plea in justification of his criminal act, that his only purpose was to interpret the Constitution and laws for himself, that he violated the law in the exercise of his prerogative to test its validity hereafter at such a day as might suit his own convenience in the courts of justice. Surely it is as competent for the private citizen to interpose such justification in answer to crime in one of your tribunals of justice, as it is for the President to interpose it, and for the simple reason that the Constitution is no respecter of persons, and rests neither in the private citizen judicial power.

"Can it be that by your decree you are at last to make this discrimination between the ruler of the people and the private citizen, and to allow him to interpose his assumed right to interpret judicially your Constitution and laws? Are you to solemnly proclaim by your decree:--

"'Plate sin with gold, And the strong lance of justice heartless breaks; Arm it in rags and a pigmy's straw doth pierce it?'

"I put away the possibility that the Senate of the United States, equal in dignity to any tribunal in the world, is capable of recording any such decision even upon the petition and prayer of the accused and guilty President. Can it be that by reason of his great office the President is to be protected in his high crimes and misdemeanors, violative alike of his oath, of the Constitution and of the express letter of your written law, enacted by the legislative department of the government?

"I ask you, Senators, to consider that I speak before you this day in behalf of the violated law of a free people, who commission me. I ask you to remember this, that I speak this day under the obligations of this my oath. I ask you to consider that I am not insensible to the significance of the words of which mention was made by the learned counsel from New York; justice, duty, law, oath. I ask you to remember that the great principles of constitutional liberty for which I speak this day, have been taught to men and nations by all the trials and triumphs, by all the agonies and martyrdoms of the past; that they are the wisdom of the centuries uttered by the elect of the human race.

"I ask you to consider that we stand this day pleading for the violated majesty of the law, by the graves of half a million of martyred hero-patriots who sacrificed themselves for their country, the Constitution, and the laws, and who by their sublime examples have taught us that all must obey the law; that none are above the law; that no man lives for himself alone, but each for all, that some must die that the State may live; that the citizen is but for to-day, that the commonwealth is for all time, and that position, however high, patronage however powerful, cannot be permitted to shelter crime to the peril of the Republic."

ARGUMENT OF JOHN A. BINGHAM,

SPECIAL JUDGE ADVOCATE,

IN REPLY TO THE SEVERAL ARGUMENTS IN DEFENCE OF MARY E. SURRATT AND OTHERS, CHARGED WITH CONSPIRACY AND THE MURDER OF ABRAHAM LINCOLN, LATE PRESIDENT OF THE UNITED STATES, ETC.

MAY IT PLEASE THE COURT: The conspiracy here charged and specified, and the acts alleged to have been committed in pursuance thereof, and with the intent laid, constitute a crime the atrocity of which has sent a shudder through the civilized world. All that was agreed upon and attempted by the alleged inciters and instigators of this crime constitutes a combination of atrocities with scarcely a parallel in the annals of the human race. Whether the prisoners at your bar are guilty of the conspiracy and the acts alleged to have been done in pursuance thereof, as set forth in the charge and specification, is a question the determination of which rests solely with this honorable court, and in passing upon which this court are the sole judges of the law and the fact.

In presenting my views upon the questions of law raised by the several counsel for the defence, and also on the testimony adduced for and against the accused, I desire to be just to them, just to you, just to my country, and just to my own convictions. The issue joined involves the highest interests of the accused, and, in my judgment, the highest interests of the whole people of the United States.

It is a matter of great moment to all the people of this country that the prisoners at your bar be lawfully tried and lawfully convicted or acquitted. A wrongful and illegal conviction or a wrongful and illegal acquittal upon this dread issue would impair somewhat the security of every man's life, and shake the stability of the republic.

The crime charged and specified upon your record is not simply the crime of murdering a human being, but it is the crime of killing and murdering on the 14th day of April, A. D. 1865, within the military department of Washington and the intrenched lines thereof, Abraham Lincoln, then President of the United States, and Commander-in-Chief of the army and navy thereof; and then and there assaulting, with intent to kill and murder, William H. Seward, then Secretary of State of the United States; and then and there lying in wait to kill and murder Andrew Johnson, then Vice-President of the United States, and Ulysses S. Grant, then lieutenant-general and in command of the armies of the United States, in pursuance of a treasonable conspiracy entered into by the accused with one John Wilkes Booth, and John H. Surratt, upon the instigation of Jefferson Davis, Jacob Thompson, and George N. Sanders and others, with intent thereby to aid the existing rebellion and subvert the Constitution and laws of the United States.

The rebellion, in aid of which this conspiracy was formed and this great public crime committed, was prosecuted for the vindication of no right, for the redress of no wrong, but was itself simply a criminal conspiracy and gigantic assassination. In resisting and crushing this rebellion the American people take no step backward and cast no reproach upon their past history. That people now, as ever, proclaim the self-evident truth that whenever government becomes subversive of the ends of its creation, it is the right and duty of the people to alter or abolish it; but during these four years of conflict they have as clearly proclaimed, as was their right and duty, both by law and by arms, that the government of their own choice, humanely and wisely administered, oppressive of none and just to all, shall not be overthrown by privy conspiracy or armed rebellion.

What wrong had this government or any of its duly constituted agents done to any of the guilty actors in this atrocious rebellion? They themselves being witnesses, the government which they assailed had done no act, and attempted no act, injurious to them, or in any sense violative of their rights as citizens and men; and yet for four years, without cause of complaint or colorable excuse, the inciters and instigators of the conspiracy charged upon your record have, by armed rebellion, resisted the lawful authority of the government, and attempted by force of arms to blot the republic from the map of nations. Now that their battalions of treason are broken and flying before the victorious legions of the republic, the chief traitors in this great crime against your government secretly conspire with their hired confederates to achieve by assassination, if possible, what they have in vain attempted by wager of battle--the overthrow of the government of the United States and the subversion of its Constitution and laws. It is for this secret conspiracy in the interest of the rebellion, formed at the instigation of the chiefs in that rebellion, and in pursuance of which the acts charged and specified are alleged to have been done and with the intent laid, that the accused are upon trial.

The government, in preferring this charge, does not indict the whole people of any State or section, but only the alleged parties to this unnatural and atrocious conspiracy and crime. The President of the United States, in the discharge of his duty as Commander-in-Chief of the army, and by virtue of the power vested in him by the Constitution and laws of the United States, has constituted you a military court, to hear and determine the issue joined against the accused, and has constituted you a court for no other purpose whatever. To this charge and specification the defendants have pleaded, first, that this court has no jurisdiction in the premises; and, second, not guilty. As the court has already overruled the plea to the jurisdiction, it would be passed over in silence by me but for the fact that a grave and elaborate argument has been made by counsel for the accused not only to show the want of jurisdiction, but to arraign the President of the United States before the country and the world as a usurper of power over the lives and the liberties of the prisoners. Denying the authority of the President to constitute this commission is an averment that this tribunal is not a court of justice, has no legal existence, and therefore no power to hear and determine the issue joined. The learned counsel for the accused, when they make this averment by way of argument, owe it to themselves and to their country to show how the President could otherwise lawfully and efficiently discharge the duty enjoined upon him by his oath to protect, preserve, and defend the Constitution of the United States, and to take care that the laws be faithfully executed.

An existing rebellion is alleged and not denied. It is charged that in aid of this existing rebellion a conspiracy was entered into by the accused, incited and instigated thereto by the chiefs of this rebellion, to kill and murder the executive officers of the government and the commander of the armies of the United States, and that this conspiracy was partly executed by the murder of Abraham Lincoln, and by a murderous assault upon the Secretary of State; and counsel reply, by elaborate argument, that although the facts be as charged, though the conspirators be numerous and at large, able and eager to complete the horrid work of assassination already begun within your military encampment, yet the successor of your murdered President is a usurper if he attempts by military force and martial law, as Commander-in-Chief, to prevent the consummation of this traitorous conspiracy in aid of this treasonable rebellion. The civil courts, say the counsel, are open in the District. I answer, they are closed throughout half the republic, and were only open in this District on the day of this confederation and conspiracy, on the day of the traitorous assassination of your President, and are only open at this hour by force of the bayonet. Does any man suppose that if the military forces which garrison the intrenchments of your capital, fifty thousand strong, were all withdrawn, the rebel bands who this day infest the mountain passes in your vicinity would allow this court, or any court, to remain open in this District for the trial of these their confederates, or would permit your executive officers to discharge the trust committed to them, for twenty-four hours?

At the time this conspiracy was entered into, and when this court was convened and entered upon this trial, the country was in a state of civil war. An army of insurrectionists have, since this trial begun, shed the blood of Union soldiers in battle. The conspirator, by whose hand his co-conspirators, whether present or absent, jointly murdered the President on the 14th of last April, could not be and was not arrested upon civil process, but was pursued by the military power of the government, captured, and slain. Was this an act of usurpation?--a violation of the right guaranteed to that fleeing assassin by the very Constitution against which and for the subversion of which he had conspired and murdered the President? Who in all this land is bold enough or base enough to assert it?

I would be glad to know by what law the President, by a military force, acting only upon his military orders, is justified in pursuing, arresting, and killing one of these conspirators, and is condemned for arresting in like manner, and by his order subjecting to trial, according to the laws of war, any or all of the other parties to this same damnable conspiracy and crime, by a military tribunal of justice--a tribunal, I may be pardoned for saying, whose integrity and impartiality are above suspicion, and pass unchallenged even by the accused themselves.

The argument against the jurisdiction of this court rests upon the assumption that even in time of insurrection and civil war no crimes are cognizable and punishable by military commission or court-martial, save crimes committed in the military or naval service of the United States, or in the militia of the several states when called into the actual service of the United States. But that is not all the argument: it affirms that under this plea to the jurisdiction the accused have the right to demand that this court shall decide that it is not a judicial tribunal and has no legal existence.

This is a most extraordinary proposition--that the President, under the Constitution and laws of the United States, was not only not authorized, but absolutely forbidden, to constitute this court for the trial of the accused, and, therefore, the act of the President is void, and the gentlemen who compose the tribunal without judicial authority or power, and are not in fact or in law a court.

That I do not misstate what is claimed and attempted to be established on behalf of the accused, I ask the attention of the court to the following as the gentleman's (Mr. Johnson's) propositions:--

That Congress has not authorized, and, under the Constitution, cannot authorize the appointment of this commission.

That this commission has, "as a court, no legal existence or authority," because the President, who alone appointed the commission, has no such power.

That his act "is a mere nullity--the usurpation of a power not vested in the Executive, and conferring no authority upon you."

We have had no common exhibition of law learning in this defence, prepared by a Senator of the United States; but with all his experience, and all his learning and acknowledged ability, he has failed, utterly failed, to show how a tribunal constituted and sworn, as this has been, to duly try and determine the charge and specification against the accused, and by its commission not authorized to hear or determine any other issues whatever, can rightfully entertain, or can by any possibility pass upon, the proposition presented by this argument of the gentleman for its consideration.

The members of this court are officers in the army of the United States, and by order of the President, as Commander-in-Chief, are required to discharge this duty, and are authorized in this capacity to discharge no other duty, to exercise no other judicial power. Of course, if the commission of the President constitutes this a court for the trial of this case only, as such court it is competent to decide all questions of law and fact arising in the trial of the case. But this court has no power, as a court, to declare the authority by which it was constituted null and void, and the act of the President a mere nullity, a usurpation. Has it been shown by the learned gentleman, who demands that this court shall so decide, that officers of the army may lawfully and constitutionally question in this manner the orders of their Commander-in-Chief, disobey, set them aside, and declare them a nullity and a usurpation? Even if it be conceded that the officers thus detailed by order of the Commander-in-Chief may question and utterly disregard his order and set aside his authority, is it possible, in the nature of things, that any body of men, constituted and qualified as a tribunal of justice, can sit in judgment upon the proposition that they are not a court for any purpose, and finally decide judicially, as a court, that the government which appointed them was without authority? Why not crown the absurdity of this proposition by asking the several members of this court to determine that they are not men--living, intelligent, responsible men? This would be no more irrational than the question upon which they are asked to pass. How can any sensible man entertain it? Before he begins to reason upon the proposition he must take for granted, and therefore decide in advance, the very question in dispute, to wit, his actual existence.

So with the question presented in this remarkable argument for the defence: before this court can enter upon the inquiry of the want of authority in the President to constitute them a court, they must take for granted and decide the very point in issue, that the President had the authority, and that they are in law and in fact a judicial tribunal; and having assumed this, they are gravely asked, as such judicial tribunal, to finally and solemnly decide and declare that they are not in fact or in law a judicial tribunal, but a mere nullity and nonentity. A most lame and impotent conclusion!

As the learned counsel seems to have great reverence for judicial authority, and requires precedent for every opinion, I may be pardoned for saying that the objection which I urge against the possibility of any judicial tribunal, after being officially qualified as such, entertaining, much less judicially deciding, the proposition that it has no legal existence as a court, and that the appointment was a usurpation and without authority of law, has been solemnly ruled by the Supreme Court of the United States.

That court says: "The acceptance of the judicial office is a recognition of the _authority_ from which it is derived. If a court should enter upon the inquiry (whether the _authority_ of the government which established it existed), and should come to the conclusion that the government under which it acted had been put aside, it would cease to be a court and be _incapable_ of pronouncing a judicial decision upon the question it undertook to try. If it decides at all as a court, it necessarily affirms the existence and _authority_ of the government under which it is exercising judicial power."--(Luther _vs._ Borden, 7 Howard, 40.)

That is the very question raised by the learned gentleman in his argument--that there was no _authority_ in the President, by whose act alone this tribunal was constituted, to vest it with judicial power to try this issue; and by the order upon your record, as has already been shown, if you have no power to try this issue for want of authority in the Commander-in-Chief to constitute you a court, you are no court, and have no power to try any issue, because his order limits you to this issue, and this alone.

It requires no very profound legal attainments to apply the ruling of the highest judicial tribunal of this country, just cited, to the point raised, not by the pleadings, but by the argument. This court exists as a judicial tribunal by authority only of the President of the United States; the acceptance of the office is an acknowledgment of the validity of the authority conferring it, and if the President had no authority to order, direct, and constitute this court to try the accused, and, as is claimed, did, in so constituting it, perform an unconstitutional and illegal act, it necessarily results that the order of the President is void and of no effect; that the order did not and could not constitute this a tribunal of justice, and therefore its members are incapable of pronouncing a judicial decision upon the question presented.

There is a marked distinction between the question here presented and that raised by a plea to the jurisdiction of a tribunal whose existence as a court is neither questioned nor denied. Here it is argued, through many pages, by a learned Senator, and a distinguished lawyer, that the order of the President, by whose authority alone this court is constituted a tribunal of military justice, is unlawful; if unlawful it is void and of no effect, and has created no court; therefore this body, not being a court, can have no more power as a court to decide any question whatever than have its individual members power to decide that they as men do not in fact exist.

It is a maxim of the common law--the perfection of human reason--that what is impossible the law requires of no man.

How can it be possible that a judicial tribunal can decide the question that it does not exist, any more than that a rational man can decide that he does not exist?

The absurdity of the proposition so elaborately urged upon the consideration of this court cannot be saved from the ridicule and contempt of sensible men by the pretence that the court is not asked judicially to decide that it is not a court, but only that it has no jurisdiction; for it is a fact not to be denied that the whole argument for the defence on this point is that the President had not the lawful authority to issue the order by which alone this court is constituted, and that the order for its creation is null and void.

Gentlemen might as well ask the Supreme Court of the United States upon a plea to the jurisdiction to decide, as a court, that the President had no lawful authority to nominate the judges thereof severally to the Senate, and that the Senate had no lawful authority to advise and consent to their appointment, as to ask this court to decide, as a court, that the order of the President of the United States, constituting it a tribunal for the sole purpose of this trial, was not only without authority of law, but against and in violation of law. If this court is not a lawful tribunal, it has no existence, and can no more speak as a court than the dead, much less pronounce the judgment required at his hands--that it is not a court, and that the President of the United States, in constituting it such to try the question upon the charge and specification preferred, has transcended his authority, and violated his oath of office.

Before passing from the consideration of the proposition of the learned senator, that this is not a court, it is fit that I should notice that another of the counsel for the accused (Mr. Ewing) has also advanced the same opinion, certainly with more directness and candor, and without any qualification. His statement is, "You," gentlemen, "are no court under the Constitution." This remark of the gentleman cannot fail to excite surprise, when it is remembered that the gentleman, not many months since, was a general in the service of the country, and as such in his department in the West proclaimed and enforced martial law by the constitution of military tribunals for the trial of citizens not in the land or naval forces, but who were guilty of military offences, for which he deemed them justly punishable before military courts, and accordingly he punished them. Is the gentleman quite sure, when that account comes to be rendered for these alleged unconstitutional assumptions of power, that he will not have to answer for more of these alleged violations of the rights of citizens by illegal arrests, convictions, and executions, than any of the members of this court? In support of his opinion that this is no court, the gentleman cites the 3d article of the Constitution, which provides "that the judicial power of the United States shall be vested in one supreme court, and such inferior courts as Congress may establish," the judges whereof "shall hold their offices during good behavior."

It is a sufficient answer to say to the gentleman, that the power of this government to try and punish military offences by military tribunals is no part of the "judicial power of the United States," under the 3d article of the Constitution, but a power conferred by the 8th section of the 1st article, and so it has been ruled by the Supreme Court in Dyres _vs._ Hoover, 20 Howard, 78. If this power is so conferred by the 8th section, a military court authorized by Congress, and constituted as this has been, to try all persons for military crimes in time of war, though not exercising "the judicial power" provided for in the 3d article, is nevertheless a court as constitutional as the Supreme Court itself. The gentleman admits this to the extent of the trial by courts-martial of persons in the military or naval service, and by admitting it he gives up the point. There is no _express_ grant for any such tribunal, and the power to establish such a court, therefore, is _implied_ from the provisions of the 8th section, 1st article, that "Congress shall have power to provide and maintain a navy," and also "to make rules for the government of the land and naval forces." From these grants the Supreme Court infer the power to establish courts-martial, and from the grants in the same 8th section, as I shall notice hereafter, that "Congress shall have power to declare war," and "to pass all laws necessary and proper to carry this and all other powers into effect," it is necessarily implied that in time of war Congress may authorize military commissions, to try all crimes committed in aid of the public enemy, as such tribunals are _necessary_ to give effect to the power to make war and suppress insurrection.

Inasmuch as the gentleman (General Ewing), for whom, personally, I have a high regard as the military commander of a Western department, made a liberal exercise, under the order of the Commander-in-Chief of the army, of this power to arrest and try military offenders not in the land or naval forces of the United States, and inflicted upon them, as I am informed, the extreme penalty of the law, by virtue of his military jurisdiction, I wish to know whether he proposes, by his proclamation of the personal responsibility awaiting all such usurpations of judicial authority, that he himself shall be subjected to the same stern judgment which he invokes against others--that, in short, he shall be drawn and quartered for inflicting the extreme penalties of the law upon citizens of the United States in violation of the Constitution and laws of his country? I trust that his error of judgment in pronouncing this military jurisdiction a usurpation and violation of the Constitution may not rise up in judgment to condemn him, and that he may never be subjected to pains and penalties for having done his duty heretofore in exercising this rightful authority, and in bringing to judgment those who conspired against the lives and liberties of the people.

Here I might leave this question, committing it to the charitable speeches of men, but for the fact that the learned counsel has been more careful in his extraordinary argument to denounce the President as a usurper than to show how the court could possibly decide that it has no judicial existence, and yet that it has judicial existence.

A representative of the people and of the rights of the people before this court, by the appointment of the President, and which appointment was neither sought by me nor desired, I cannot allow all that has been here said by way of denunciation of the murdered President and his successor to pass unnoticed. This has been made the occasion by the learned counsel, Mr. Johnson, to volunteer, not to defend the accused, Mary E. Surratt, not to make a judicial argument in her behalf, but to make a political harangue, a partisan speech against his government and country, and thereby swell the cry of the armed legions of sedition and rebellion that but yesterday shook the heavens with their infernal enginery of treason, and filled the habitations of the people with death. As the law forbids a senator of the United States to receive compensation or fee for defending, in cases before civil or military commissions, the gentleman volunteers to make a speech before this court, in which he denounces the action of the Executive Department in proclaiming and executing martial law against rebels in arms, their aiders and abettors, as a usurpation and a tyranny. I deem it my duty to reply to this denunciation, not for the purpose of presenting thereby any question for the decision of this court, for I have shown that the argument of the gentleman presents no question for its decision as a court, but to repel, as far as I may be able, the unjust aspersion attempted to be cast upon the memory of our dead President, and upon the official conduct of his successor.

I propose now to answer fully all that the gentleman (Mr. Johnson) has said of the want of jurisdiction in this court, and of the alleged usurpation and tyranny of the Executive, that the enlightened public opinion to which he appeals may decide whether all this denunciation is just--whether indeed conspiring against the whole people, and confederation and agreement, in aid of insurrection to murder all the executive officers of the government, cannot be checked or arrested by the Executive power. Let the people decide this question; and in doing so, let them pass upon the action of the senator as well as upon the action of those whom he so arrogantly arraigns. His plea in behalf of an expiring and shattered rebellion is a fit subject for public consideration and for public condemnation.

Let that people also note that, while the learned gentleman (Mr. Johnson), as a volunteer, without pay, thus condemns as a usurpation the means employed so effectually to suppress this gigantic insurrection, the New York _News_, whose proprietor, Benjamin Wood, is shown by the testimony upon your record to have received from the agents of the rebellion twenty-five thousand dollars, rushes into the lists to champion the cause of the rebellion, its aiders and abettors, by following to the letter his colleague (Mr. Johnson), and with greater plainness of speech, and a fervor intensified, doubtless, by the twenty-five thousand dollars received, and the hope of more, denounces the court as a usurpation and threatens the members with the consequences!

The argument of the gentleman, to which the court has listened so patiently and so long, is but an attempt to show that it is unconstitutional for the government of the United States to arrest upon military order and try before military tribunals and punish upon conviction, in accordance with the laws of war and the usages of nations, all criminal offenders acting in aid of the existing rebellion. It does seem to me that the speech in its tone and temper is the same as that which the country has heard for the last four years uttered by the armed rebels themselves and by their apologists, averring that it was unconstitutional for the government of the United States to defend by arms its own rightful authority and the supremacy of its laws.

It is as clearly the right of the republic to live and to defend its life until it forfeits that right by crime, as it is the right of the individual to live so long as God gives him life, unless he forfeits that right by crime. I make no argument to support this proposition. Who is there here or elsewhere to cast the reproach upon my country that for her crimes she must die? Youngest born of the nations! is she not immortal by all the dread memories of the past--by that sublime and voluntary sacrifice of the present, in which the bravest and noblest of her sons have laid down their lives that she might live, giving their serene brows to the dust of the grave, and lifting their hands for the last time amidst the consuming fires of battle? I assume, for the purposes of this argument, that self-defence is as clearly the right of nations as it is the acknowledged right of men, and that the American people may do in the defence and maintenance of their own rightful authority against organized armed rebels, their aiders and abettors, whatever free and independent nations anywhere upon this globe, in time of war, may of right do.

All this is substantially denied by the gentleman in the remarkable argument which he has here made. There is nothing further from my purpose than to do injustice to the learned gentleman or to his elaborate and ingenious argument. To justify what I have already said, I may be permitted here to remind the court that nothing is said by the counsel touching the conduct of the accused, Mary E. Surratt, as shown by the testimony; that he makes confession at the end of his arraignment of the government and country, that he has not made such argument, and that he leaves it to be made by her other counsel. He does take care, however, to arraign the country and the government for conducting a trial with closed doors and before a secret tribunal, and compares the proceedings of this court to the Spanish Inquisition, using the strongest words at his command to intensify the horror which he supposes his announcement will excite throughout the civilized world.

Was this dealing fairly by this government? Was there anything in the conduct of the proceedings here that justified any such remark? Has this been a secret trial? Has it not been conducted in open day in the presence of the accused, and in the presence of seven gentlemen learned in the law, who appeared from day to day as their counsel? Were they not informed of the accusation against them? Were they deprived of the right of challenge? Was it not secured to them by law, and were they not asked to exercise it? Has any part of the evidence been suppressed? Have not all the proceedings been published to the world? What, then, was done, or intended to be done, by the government, which justifies this clamor about a Spanish Inquisition?

That a people assailed by organized treason over an extent of territory half as large as the continent of Europe, and assailed in their very capital by secret assassins banded together and hired to do the work of murder by the instigation of these conspirators, may not be permitted to make inquiry, even with closed doors, touching the nature and extent of the organization, ought not to be asserted by any gentleman who makes the least pretensions to any knowledge of the law, either common, civil, or military. Who does not know that at the common law all inquisition touching crimes and misdemeanors, preparatory to indictment by the grand inquest of the state, is made with closed doors?

In this trial no parties accused, nor their counsel, nor the reporters of this court, were at any time excluded from its deliberations when any testimony was being taken; nor has there been any testimony taken in the case with closed doors, save that of a few witnesses, who testified, not in regard to the accused or either of them, but in respect to the traitors and conspirators not on trial, who were alleged to have incited this crime. Who is there to say that the American people, in time of armed rebellion and civil war, have not the right to make such an examination as secretly as they may deem necessary, either in a military or civil court?

I have said this, not by way of apology for anything the government has done or attempted to do in the progress of this trial, but to expose the animus of the argument, and to repel the accusation against my country sent out to the world by the counsel. From anything that he has said, I have yet to learn that the American people have not the right to make their inquiries secretly, touching a general conspiracy in aid of an existing rebellion, which involves their nationality and the peace and security of all.

The gentleman then enters into a learned argument for the purpose of showing that, by the Constitution, the people of the United States cannot, in war or in peace, subject any person to trial before a military tribunal, whatever may be his crime or offence, unless such person be in the military or naval service of the United States. The conduct of this argument is as remarkable as its assaults upon the government are unwarranted, and its insinuations about the revival of the Inquisition and secret trials are inexcusable. The court will notice that the argument, from the beginning almost to its conclusion, insists that no person is liable to be tried by military or martial law before a military tribunal, save those in the land and naval service of the United States. I repeat, the conduct of this argument of the gentleman is remarkable. As an instance, I ask the attention not only of this court, but of that public whom he has ventured to address in this tone and temper, to the authority of the distinguished Chancellor Kent, whose great name the counsel has endeavored to press into his service in support of his general proposition, that no person save those in the military or naval service of the United States is liable to be tried for any crime whatever, either in peace or in war, before a military tribunal.

The language of the gentleman, after citing the provision of the Constitution, "that no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces or in the militia, when in actual service in time of war or public danger," is, "that this exception is designed to leave in force, not to enlarge, the power vested in Congress by the original Constitution to make rules for the government and regulation of the land and naval forces; that the land or naval forces are the terms used in both, have the same meaning, and until lately have been supposed by every commentator and judge to exclude from military jurisdiction offences committed by citizens not belonging to such forces." The learned gentleman then adds: "Kent, in a note to his 1st Commentaries, 341, states, and with accuracy, that 'military and naval crimes and offences committed while the party is attached to and under the immediate authority of the army and navy of the United States and in actual service, are not cognizable under the common-law jurisdiction of the courts of the United States.'" I ask this court to bear in mind that this is the only passage which he quotes from this note of Kent in his argument, and that no man possessed of common sense, however destitute he may be of the exact and varied learning in the law to which the gentleman may rightfully lay claim, can for a moment entertain the opinion that the distinguished chancellor of New York, in the passage just cited, intimates any such thing as the counsel asserts, that the Constitution excludes from military jurisdiction offences committed by citizens not belonging to the land or naval forces.

Who can fail to see that Chancellor Kent, by the passage cited, only decides that military and naval crimes and offences committed by a party attached to and under the immediate authority of the army and navy of the United States, and in actual service, are not cognizable under the common-law jurisdiction of the courts of the United States? He only says they are not cognizable under its common-law jurisdiction; but by that he does not say or intimate what is attempted to be said by the counsel for him, that "all crimes committed by citizens are by the Constitution excluded from military jurisdiction," and that the perpetrators of them can under no circumstances be tried before military tribunals. Yet the counsel ventures to proceed, standing upon this passage quoted from Kent, to say that, "according to _this_ great authority, every other class of persons and every other species of offences are within the jurisdiction of the civil courts, and entitled to the protection of the proceeding by presentment or indictment and the public trial in such a court."

Whatever that great authority may have said elsewhere, it is very doubtful whether any candid man in America will be able to come to the very learned and astute conclusion that Chancellor Kent has so stated in the note or any part of the note which the gentleman has just cited. If he has said it elsewhere, it is for the gentleman, if he relies upon Kent for authority, to produce the passage. But was it fair treatment of this "great authority": was it not taking an unwarrantable privilege with the distinguished chancellor and his great work, the enduring monument of his learning and genius, to so mutilate the note referred to as might leave the gentleman at liberty to make his deductions and assertions under cover of the great name of the New York chancellor, to suit the emergency of his case by omitting the following passage, which occurs in the same note, and absolutely excludes the conclusion so defiantly put forth by the counsel to support his argument? In that note Chancellor Kent says:--

"_Military_ law is a system of regulations for the government of the armies in the service of the United States, authorized by the act of Congress of April 10, 1806, known as the Articles of War, and _naval_ law is a similar system for the government of the navy, under the act of Congress of April 23, 1800. But _martial_ law is quite a distinct thing, and is founded upon paramount necessity and proclaimed by a _military chief_."

However unsuccessful, after this exposure, the gentleman appears in maintaining his monstrous proposition, that the American people are by their own Constitution forbidden to try the aiders and abettors of armed traitors and rebellion before military tribunals, and subject them, according to the laws of war and the usages of nations, to just punishment for their great crimes, it has been made clear from what I have already stated that he has been eminently successful in mutilating this beautiful production of that great mind; which act of mutilation every one knows is violative alike of the laws of peace and war. Even in war the divine creations of art and the immortal productions of genius and learning are spared.

In the same spirit, and it seems to me with the same unfairness as that just noted, the learned gentleman has very adroitly pressed into his service by an extract from the autobiography of the war-worn veteran and hero, General Scott, the names of the late secretary of war, Mr. Marcy, and the learned ex-attorney general, Mr. Cushing. This adroit performance is achieved in this way: after stating the fact that General Scott in Mexico proclaimed martial law for the trial and punishment by military tribunals of persons guilty of "assassination, murder, and poisoning," the gentleman proceeds to quote from the autobiography, "that this order when handed to the then secretary of war (Mr. Marcy) for his approval, 'a startle at the title (martial law order) was the only comment he then or ever made on the subject,' and that it was 'soon silently returned as too explosive for safe handling.' 'A little later (he adds) the attorney general (Mr. Cushing) called and asked for a copy, and the law officer of the government, whose business it is to speak on all such matters, was stricken with _legal dumbness_.'" Thereupon the learned gentleman proceeds to say: "How much more startled and more paralyzed would these great men have been had they been consulted on such a commission as this! A commission, not to sit in another country, and to try offences not provided for in any law of the United States, civil or military, then in force, but in their own country, and in a part of it where there are laws providing for their trial and punishment, and civil courts clothed with ample powers for both, and in the daily and undisturbed exercise of their jurisdiction."

I think I may safely say, without stopping to make any special references, that the official career of the late secretary of war (Mr. Marcy) gave no indication that he ever doubted or denied the constitutional power of the American people, acting through their duly constituted agents, to do any act justified by the laws of war for the suppression of a rebellion or to repel invasion. Certainly there is nothing in this extract from the autobiography which justifies any such conclusion. He was startled we are told. It may have been as much the admiration he had for the boldness and wisdom of the conqueror of Mexico as any abhorrence he had for the trial and punishment of "assassins, poisoners, and murderers," according to the laws and usages of war.

But the official utterances of the ex-attorney general, Cushing, with which the gentleman doubtless was familiar when he prepared this argument, by no means justify the attempt here made to quote him as authority against the proclamation and enforcement of martial law in time of rebellion and civil war. That distinguished man, not second in legal attainments to any who have held that position, has left an official opinion of record touching this subject. Referring to what is said by Sir Mathew Hale, in his "History of the Common Law," concerning martial law, wherein he limits it, as the gentleman has seemed by the whole drift of his argument desirous of doing, and says that it is "not in truth and in reality law, but something indulged rather than allowed as a law--the necessity of government, order, and discipline in an army," Mr. Cushing makes this just criticism: "This proposition is a mere composite blunder, a total misapprehension of the matter. It confounds _martial law_ and _law military_; it ascribes to the former the uses of the latter; it erroneously assumes that the government of a body of troops is a necessity more than of a body of civilians or citizens. It confounds and confuses all the relations of the subject, and is an apt illustration of the incompleteness of the notions of the common-law jurists of England in regard to matters not comprehended in that limited branch of legal science.... Military law, it is now perfectly understood in England, is a branch of the law of the land, applicable only to certain acts of a particular class of persons and administered by special tribunals; but neither in that nor in any other respect essentially differing as to foundation in constitutional reason from admiralty, ecclesiastical, or indeed chancery and common law.... It is the system of rules for the government of the army and navy established by successive acts of Parliament.... Martial law, as exercised in any country by the commander of a foreign army, is an element of the _jus belli_.

"It is incidental to the state of solemn war, and appertains to the law of nations.... Thus, while the armies of the United States occupied different provinces of the Mexican republic, the respective commanders were not limited in authority by any local law. They allowed, or rather required, the magistrates of the country, municipal or judicial, to continue to administer the laws of the country among their countrymen; but in subjection always to the military power, which acted summarily and according to discretion, when the belligerent interests of the conqueror required it, and which exercised jurisdiction, either summarily or by means of military commissions for the protection or the punishment of citizens of the United States in Mexico."--_Opinions of Attorneys General_, vol. viii., 366-69.

Mr. Cushing says, "That, it would seem, was one of the forms of martial law"; but he adds that such an example of martial law administered by a foreign army in the enemy's country "does not enlighten us in regard to the question of martial law in one's own country, and as administered by its military commanders. That is a case which the law of nations does not reach. Its regulation is of the domestic resort of the organic laws of the country itself, and regarding which, as it happens, there is no definite or explicit legislation in the United States, as there is none in England.

"Accordingly, in England, as we have seen, Earl Grey assumes that when martial law exists it has no legal origin, but is a mere fact of necessity to be legalized afterwards by a bill of indemnity if there be occasion. I am not prepared to say that, under existing laws, such may not also be the case in the United States."--_Ibid._, 370.

After such a statement, wherein ex-Attorney General Cushing very clearly recognizes the right of this government, as also of England, to employ martial law as a means of defence in a time of war, whether domestic or foreign, he will be as much surprised when he reads the argument of the learned gentleman, wherein he is described as being struck with _legal dumbness_ at the mere mention of proclaiming martial law and its enforcement by the commander of our army in Mexico, as the late secretary of war was startled with even the mention of its title.

Even some of the reasons given, and certainly the power exercised by the veteran hero himself, would seem to be in direct conflict with the propositions of the learned gentleman.

The lieutenant-general says he "excludes from his order cases already cognizable by court-martial, and limits it to cases not provided for in the act of Congress establishing rules and articles for the government of the armies of the United States." Has not the gentleman who attempts to press General Scott into his service argued and insisted upon it that the commander of the army cannot subject the soldiers under his command to any control or punishment whatever, save that which is provided for in the articles?

It will not do, in order to sustain the gentleman's hypothesis, to say that these provisions of the Constitution, by which he attempts to fetter the power of the people to punish such offences in time of war within the territory of the United States, may be disregarded by an officer of the United States in command of its armies, in the trial and punishment of its soldiers in a foreign war. The law of the United States for the government of its own armies follows the flag upon every sea and in every land.

The truth is, that the right of the people to proclaim and execute martial law is a necessary incident of war, and this was the right exercised, and rightfully exercised, by Lieutenant-General Scott in Mexico. It was what Earl Grey has justly said was a "fact of necessity," and I may add, an act as clearly authorized as was the act of fighting the enemy when they appeared before him.

In making this exception, the lieutenant-general followed the rule recognized by the American authorities on military law, in which it is declared that "many crimes committed even by military officers, enlisted men, or camp-retainers, cannot be tried under the rules and articles of war. Military commissions must be resorted to for such cases, and these commissions should be ordered by the same authority, be constituted in a similar manner, and their proceedings be conducted according to the same general rules as general courts-martial."--_Benet_, 15.

There remain for me to notice, at present, two other points in this extraordinary speech: first, that martial law does not warrant a military commission for the trial of military offences--that is, offences committed in time of war in the interests of the public enemy and by concert and agreement with the enemy; and second, that martial law does not prevail in the United States, and has never been declared by any competent authority.

It is not necessary, as the gentleman himself has declined to argue the first point,--whether martial law authorizes the organization of military commissions by order of the commander-in-chief to try such offences,--that I should say more than that the authority just cited by me shows that such commissions are authorized under martial law, and are created by the commander for the trial of all such offences when their punishment by court-martial is not provided for by the express statute law of the country.

The second point,--that martial law has not been declared by any competent authority,--is an arraignment of the late murdered President of the United States for his proclamation of September 24, 1862, declaring martial law throughout the United States, and of which, in Lawrence's edition of Wheaton on International Law, p. 522, it is said, "Whatever may be the inference to be deduced either from constitutional or international law, or from the usages of European governments, as to the legitimate depository of the power of suspending the writ of _habeas corpus_, the virtual abrogation of the judiciary in cases affecting individual liberty, and the establishment as _matter of fact_ in the United States, by the Executive alone, of martial law, not merely in the insurrectionary districts or in cases of military occupancy, but throughout the entire Union, and not temporarily, but as an institution as permanent as the insurrection on which it professes to be based, and capable on the same principle of being revived in all cases of foreign as well as civil war, are placed beyond question by the President's proclamation of September 24, 1862." That proclamation is as follows:--

"BY THE PRESIDENT OF THE UNITED STATES OF AMERICA.

"A PROCLAMATION.

"Whereas it has become necessary to call into service not only volunteers, but also portions of the militia of the states, by a draft, in order to suppress the insurrection existing in the United States, and disloyal persons are not adequately restrained by the ordinary processes of law from hindering this measure and from giving aid and comfort in various ways to the insurrection: Now, therefore, be it ordered that, during the existing insurrection, and as a necessary means for suppressing the same, all rebels and insurgents, their aiders and abettors, within the United States, and all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice affording aid and comfort to rebels, against the authority of the United States, shall be subject to martial law and liable to trial and punishment by courts-martial or military commission.

"Second. That the writ of _habeas corpus_ is suspended in respect to all persons arrested, or who are now, or hereafter during the rebellion shall be, imprisoned in any fort, camp, arsenal, military prison, or other place of confinement, by any military authority or by the sentence of any court-martial or military commission.

"In witness whereof, I have hereunto set my hand and caused the seal of the United States to be affixed.

"Done at the city of Washington, this 24th day of September, A.D. 1862, and of the independence of the United States the eighty-seventh.

"ABRAHAM LINCOLN.

"By the President: "WILLIAM H. SEWARD, "_Secretary of State_." */

This proclamation is duly certified from the War Department to be in full force and not revoked, and is evidence of record in this case; and but a few days since a proclamation of the President, of which this court will take notice, declares that the same remains in full force.

It has been said by another of the counsel for the accused (Mr. Stone) in his argument, that, admitting its validity, the proclamation ceases to have effect with the insurrection, and is terminated by it. It is true the proclamation of martial law only continues during the insurrection; but inasmuch as the question of the existence of an insurrection is a political question, the decision of which belongs exclusively to the political department of the government, that department alone can declare its existence, and that department alone can declare its termination, and by the action of the political department of the government every judicial tribunal in the land is concluded and bound. That question has been settled for fifty years in this country by the Supreme Court of the United States: First, in the case of Brown _vs._ The United States (8 Cranch); also in the prize cases (2 Black, 641). Nothing more, therefore, need be said upon this question of an _existing_ insurrection than this: The political department of the government has heretofore proclaimed an insurrection; that department has not yet declared the insurrection ended, and the event on the 14th of April, which robbed the people of their chosen Executive, and clothed this land in mourning, bore sad but overwhelming witness to the fact that the rebellion is not ended. The fact of the insurrection is not an open question to be tried or settled by parol, either in a military tribunal or in a civil court.

The declaration of the learned gentleman who opened the defence (Mr. Johnson), that martial law has never been declared by any competent authority, as I have already said, arraigns Mr. Lincoln for a usurpation of power. Does the gentleman mean to say that, until Congress authorizes it, the President cannot proclaim and enforce martial law in the suppression of armed and organized rebellion? Or does he only affirm that this act of the late President is a usurpation?

The proclamation of martial law in 1862 a usurpation! though it armed the people in that dark hour of trial with the means of defence against traitorous and secret enemies in every state and district of the country; though by its use some of the guilty were brought to swift and just judgment, and others deterred from crime or driven to flight; though by this means the innocent and defenceless were protected; though by this means the city of the gentleman's residence was saved from the violence and pillage of the mob and the torch of the incendiary. But, says the gentleman, it was a usurpation, forbidden by the laws of the land!

The same was said of the proclamations of blockade issued April 19 and 27, 1861, which declared a blockade of the ports of the insurgent states, and that all vessels violating the same were subjects of capture, and, together with the cargo, to be condemned as prize. Inasmuch as Congress had not then recognized the fact of civil war, these proclamations were denounced as void. The Supreme Court decided otherwise, and affirmed the power of the Executive thus to subject property on the seas to seizure and condemnation. I read from that decision:--

"The Constitution confers upon the President the whole executive power, he is bound to take care that the laws be faithfully executed; he is Commander-in-Chief of the army and navy of the United States, and of the militia of the several states when called into the actual service of the United States.... Whether the President, in fulfilling his duties as Commander-in-Chief in suppressing an insurrection, has met with such armed hostile resistance and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents, is a question to be decided _by him_, and this court must be governed by the decisions and acts of the political department of the government to which this power was intrusted. He must determine what degree of force the crisis demands.

"The proclamation of blockade is itself official and conclusive evidence to the court that a state of war existed which demanded and authorized a recourse to such a measure under the circumstances peculiar to the case." (2 Black, 670.)

It has been solemnly ruled by the same tribunal, in an earlier case, "that the power is confided to the Executive of the Union to determine when it is necessary to call out the militia of the states to repel invasion," as follows: "That he is necessarily constituted the judge of the existence of the exigency in the first instance, and is bound to act according to his belief of the facts. If he does so act, and decides to call forth the militia, his orders for this purpose are in strict conformity with the provisions of the law; and it would seem to follow as a necessary consequence, that every act done by a subordinate officer in obedience to such orders, is equally justifiable. The law contemplates that, under such circumstances, orders shall be given to carry the power into effect; and it cannot therefore be a correct inference that any other person has a just right to disobey them. The law does not provide for any appeal from the judgment of the President, or for any right in subordinate officers to review his decision, and in effect defeat it. Whenever a statute gives a discretionary power to any person, to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction that the statute constitutes him the sole and exclusive judge of the existence of these facts." (12 Wheaton, 31.)

In the light of these decisions, it must be clear to every mind that the question of the existence of an insurrection, and the necessity of calling into requisition for its suppression both the militia of the states and the army and navy of the United States, and of proclaiming martial law, which is an essential condition of war, whether foreign or domestic, must rest with the officer of the government who is charged by the express terms of the Constitution with the performance of this great duty for the common defence and the execution of the laws of the Union.

But it is further insisted by the gentleman in this argument, that Congress has not authorized the establishment of military commissions, which are essential to the judicial administration of martial law and the punishment of crimes committed during the existence of a civil war, and especially that such commissions are not so authorized to try persons other than those in the military or naval service of the United States, or in the militia of the several States, when in the actual service of the United States. The gentleman's argument assuredly destroys itself, for he insists that the Congress, as the legislative department of the government, can pass no law which, either in peace or war, can constitutionally subject any citizen not in the land or naval forces to trial for crime before a military tribunal, or otherwise than by a jury in the civil courts.

Why does the learned gentleman now tell us that Congress has not authorized this to be done, after declaring just as stoutly that by the fifth and sixth amendments to the Constitution no such military tribunals can be established for the trial of any person not in the military or naval service of the United States, or in the militia when in actual service, for the commission of any crime whatever in time of war or insurrection? It ought to have occurred to the gentleman when commenting upon the exception in the fifth article of the Constitution, that there was a reason for it very different from that which he saw fit to assign, and that reason manifestly upon the face of the Constitution itself, was, that by the eighth section of the first article, it is expressly provided that Congress shall have power to make rules for the government of the land and naval forces, and to provide for organizing, arming, and disciplining the militia, and for _governing_ such part of them as may be employed in the service of the United States, and that, inasmuch as military discipline and order are as essential in an army in time of peace as in time of war, if the Constitution would leave this power to Congress in peace, it must make the exception, so that rules and regulations for the government of the army and navy should be operative in time of peace as well as in time of war; because the provisions of the Constitution give the right of trial by jury IN TIME OF PEACE, in all criminal prosecutions by indictment, in terms embracing every human being that may be held to answer for crime in the United States; and therefore if the eighth section of the first article was to remain in full force IN TIME OF PEACE, the exception must be made; and, accordingly, the exception was made. But by the argument we have listened to, this court is told, and the country is told, that IN TIME OF WAR--a war which involves in its dread issue the lives and interests of us all--the guarantees of the Constitution are in full force for the benefit of those who conspire with the enemy, creep into your camps, murder in cold blood, in the interest of the invader or insurgent, the Commander-in-Chief of your army, and secure to him the slow and weak provisions of the civil law, while the soldier, who may, when overcome by the demands of exhausted nature which cannot be resisted, have slept at his post, is subject to be tried upon the spot by a military tribunal and shot. The argument amounts to this: that as military courts and military trials of civilians in time of war are a usurpation and tyranny, and as soldiers are liable to such arrests and trial, Sergeant Corbett, who shot Booth, should be tried and executed by sentence of a military court; while Booth's co-conspirators and aiders should be saved from any such indignity as a military trial! I confess that I am too dull to comprehend the logic, the reason, or the sense of such a conclusion! If there is any one _entitled_ to this privilege of a civil trial at a remote period, and by a jury of the district, IN TIME OF CIVIL WAR, when the foundations of the republic are rocking beneath the earthquake tread of armed rebellion, that man is the defender of the republic. It will never do to say, as has been said in this argument, that the soldier is not liable to be tried in time of war by a military tribunal for any other offence than those prescribed in the rules and articles of war. To my mind, nothing can be clearer than that citizen and soldier alike, in time of civil or foreign war, after a proclamation of martial law, are triable by military tribunals for all offences of which they may be guilty, in the interests of, or in concert with the enemy.

These provisions, therefore, of your Constitution for indictment and trial by jury in civil courts of _all crimes_ are, as I shall hereafter show, silent and inoperative in time of war when the public safety requires it.

The argument to which I have thus been replying, as the court will not fail to perceive, nor that public to which the argument is addressed, is a labored attempt to establish the proposition, that, by the Constitution of the United States, the American people cannot, even in a civil war the greatest the world has ever seen, employ martial law and military tribunals as a means of successfully asserting their authority, preserving their nationality, and securing protection to the lives and property of all, and especially to the persons of those to whom they have committed, officially, the great trust of maintaining the national authority. The gentleman says, with an air of perfect confidence, that he denies the jurisdiction of military tribunals for the trial of civilians in time of war, because neither the Constitution nor laws justify, but on the contrary repudiate them, and that all the experience of the past is against it. I might content myself with saying that the practice of all nations is against the gentleman's conclusion. The struggle for our national independence was aided and prosecuted by military tribunals and martial law, as well as by arms. The contest for American nationality began with the establishment, very soon after the firing of the first gun at Lexington on the 19th day of April, 1775, of military tribunals and martial law. On the 30th of June, 1775, the Continental Congress provided that "whosoever, _belonging to the continental army_, shall be convicted of holding correspondence with, or giving intelligence to the enemy, either indirectly or directly, shall suffer such punishment as by a court-martial shall be ordered." This was found not sufficient, inasmuch as it did not reach those _civilians_ who, like certain civilians of our day, claim the protection of the civil law in time of war against military arrests and military trials for military crimes. Therefore the same Congress, on the 7th of November, 1775, amended this provision by striking out the words "belonging to the continental army," and adopting the article as follows:--

"_All persons_ convicted of holding a treacherous correspondence with, or giving intelligence to the enemy, shall suffer death or such other punishment as a general court-martial shall think proper."

And on the 17th of June, 1776, the Congress added an additional rule--

"That all persons not members of, nor owing allegiance to, any of the United States of America, who should be found lurking as spies in or about the fortifications or encampments of the armies of the United States, or any of them, shall suffer death, according to the law and usage of nations, by the sentence of a court-martial or such other punishment as a court-martial shall direct."

Comprehensive as was this legislation, embracing as it did soldiers, citizens, and aliens, subjecting all alike to trial for their military tribunals of justice, according to the law and the usage of nations, it was found to be insufficient to meet that most dangerous of all crimes committed in the interests of the enemy by citizens in time of war--the crime of conspiring together to assassinate or seize and carry away the soldiers and citizens who were loyal to the cause of the country. Therefore, on the 27th of February, 1778, the Congress adopted the following resolution:--

"_Resolved_, That whatever inhabitant of these states shall kill, or seize, or take any loyal citizen or citizens thereof and convey him, her, or them to any place within the power of the enemy, or shall ENTER INTO ANY COMBINATION for such purpose, or attempt to carry the same into execution, or hath assisted or shall assist therein; or shall, by giving intelligence, acting as a guide, or in any manner whatever, aid the enemy in the perpetration thereof, he shall suffer death by the judgment of a court-martial as a traitor, assassin, or spy, if the offence be committed within seventy miles of the headquarters of the grand or other armies of these states where a general officer commands."--_Journals of Congress_, vol. ii, pp. 459, 460.

So stood the law until the adoption of the Constitution of the United States. Every well-informed man knows that at the time of the passage of these acts the courts of justice, having cognizance of all crimes against persons, were open in many of the states, and that by their several constitutions and charters, which were then the supreme law for the punishment of crimes committed within their respective territorial limits, no man was liable to conviction but by the verdict of a jury. Take, for example, the provisions of the constitution of North Carolina, adopted on the 10th of November, 1776, and in full force at the time of the passage of the last resolution by Congress above cited, which provisions are as follows:--

"That no freeman shall be put to answer any criminal charge but by indictment, presentment or impeachment."

"That no freeman shall be convicted of any crime but by the unanimous verdict of a jury of good and lawful men in open court, as heretofore used."

This was the law in 1778 in all the states, and the provision for a trial by jury every one knows meant a jury of twelve men, impanelled and qualified to try the issue in a civil court. The conclusion is not to be avoided, that these enactments of the Congress under the Confederation set aside the trial by jury within the several states, and expressly provided for the trial by court-martial of "any of the inhabitants" who, during the revolution, might, contrary to the provisions of said law, and in aid of the public enemy, give them intelligence, or kill any loyal citizens of the United States, or enter into any combination to kill or carry them away. How comes it, if the argument of the counsel be true, that this enactment was passed by the Congress of 1778, when the constitutions of the several states at that day as fully guaranteed trial by jury to every person held to answer for a crime as does the Constitution of the United States at this hour? Notwithstanding this fact, I have yet to learn that any loyal man ever challenged, during all the period of our conflict for independence and nationality, the validity of that law for the trial, for military offences, by military tribunals, of all offenders, as the law, not of peace, but of war, and absolutely essential to the prosecution of war. I may be pardoned for saying that it is the accepted common law of nations, that martial law is, at all times and everywhere, essential to the successful prosecution of war, whether it be a civil or a foreign war. The validity of these acts of the Continental and Confederate Congress I know was challenged, but only by men charged with the guilt of their country's blood.

Washington, the peerless, the stainless, and the just, with whom God walked through the night of that great trial, enforced this just and wise enactment upon all occasions. On the 30th of September, 1780, Joshua H. Smith, by the order of General Washington, was put upon his trial before a court-martial, convened in the State of New York, on the charge of there aiding and assisting Benedict Arnold, in a combination with the enemy, to _take_, _kill_, and _seize_ such loyal citizens or soldiers of the United States as were in garrison at West Point. Smith objected to the jurisdiction, averring that he was a private citizen, not in the military or naval service, and therefore was only amenable to the civil authority of the State, whose constitution had guaranteed the right of trial by jury to all persons held to answer for crime. ("Chandler's Criminal Trials," vol. 2, p. 187.) The constitution of New York then in force had so provided; but, notwithstanding that, the court overruled the plea, held him to answer, and tried him. I repeat, that when Smith was thus tried by court-martial the constitution of New York as fully guaranteed trial by jury in the civil courts to all civilians charged and held to answer for crimes within the limits of that State as does the Constitution of the United States guarantee such trial within the limits of the District of Columbia. By the second of the Articles of Confederation each State retained "its sovereignty," and every power, jurisdiction, and right not _expressly_ delegated to the United States in Congress assembled. By those articles there was no express delegation of judicial power; therefore the States retained it fully.

If the military courts, constituted by the commander of the army of the United States under the Confederation, who was appointed only by a resolution of the Congress, without any _express_ grant of power to authorize it--his office not being created by the act of the people in their fundamental law--had jurisdiction in every State to try and put to death "any inhabitant" thereof who should _kill_ any loyal citizen or enter into "any combination" for any such purpose therein in time of war, notwithstanding the provisions of the constitution and laws of such States, how can any man conceive that under the Constitution of the United States, which is the supreme law over every State, anything in the constitution and laws of such State to the contrary notwithstanding, and the supreme law over every territory of the republic as well, the Commander-in-Chief of the army of the United States, who is made such by the Constitution, and by its supreme authority clothed with the power and charged with the duty of directing and controlling the whole military power of the United States in time of rebellion or invasion, has not that authority?

I need not remind the court that one of the marked differences between the Articles of Confederation and the Constitution of the United States was, that under the Confederation the Congress was the sole depository of all federal power. The Congress of the Confederation, said Madison, held "the command of the army." (Fed., No. 38.) Has the Constitution, which was ordained by the people the better "to insure domestic tranquillity and to provide for the common defence," so fettered the great power of self-defence against armed insurrection or invasion that martial law, so essential in war, is forbidden by that great instrument? I will yield to no man in reverence for or obedience to the Constitution of my country, esteeming it, as I do, a new evangel to the nations, embodying the democracy of the New Testament--the absolute equality of all men before the law, in respect of those rights of human nature which are the gift of God, and therefore as universal as the material structure of man. Can it be that this Constitution of ours, so divine in its spirit of justice, so beneficent in its results, so full of wisdom and goodness and truth, under which we became one people, a great and powerful nationality, has in terms or by implication denied to this people the power to crush armed rebellion by war, and to arrest and punish, during the existence of such rebellion, according to the laws of war and the usages of nations, secret conspirators who aid and abet the public enemy?

Here is a conspiracy, organized and prosecuted by armed traitors and hired assassins, receiving the moral support of thousands in every State and district, who pronounced the war for the Union a failure, and your now murdered but immortal Commander-in-Chief a tyrant; the object of which conspiracy, as the testimony shows, was to aid the tottering rebellion which struck at the nation's life. It is in evidence that Davis, Thompson, and others, chiefs in this rebellion, in aid of the same, agreed and conspired with others to poison the fountains of water which supply your commercial metropolis, and thereby murder its inhabitants; to secretly deposit in the habitations of the people and in the ships in your harbors inflammable materials, and thereby destroy them by fire; to murder by the slow and consuming torture of famine your soldiers, captive in their hands; to import pestilence in infected clothes to be distributed in your capital and camps, and thereby murder the surviving heroes and defenders of the republic, who, standing by the holy graves of your unreturning brave, proudly and defiantly challenge to honorable combat and open battle all public enemies, that their country may live; and finally, to crown this horrid catalogue of crime, this sum of all human atrocities, conspired, as charged upon your record, with the accused and John Wilkes Booth and John H. Surratt, to kill and murder in your capital the executive officers of your government and the commander of your armies. When this conspiracy, entered into by these traitors, is revealed by its attempted execution, and the foul and brutal murder of your President in the capital, you are told that it is unconstitutional, in order to arrest the further execution of the conspiracy, to interpose the military power of this government for the arrest, without civil process, of any of the parties thereto, and for their trial by a military tribunal of justice. If any such rule had obtained during our struggle for independence we never would have been a nation. If any such rule had been adopted and acted upon now, during the fierce struggle of the past four years no man can say that our nationality would have thus long survived.

The whole people of the United States by their Constitution have created the office of President of the United States and Commander-in-Chief of the army and navy, and have vested, by the terms of that Constitution, in the person of the President and Commander-in-Chief, the power to enforce the execution of the laws, and preserve, protect, and defend the Constitution.

The question may well be asked: If, as Commander-in-Chief, the President may not, in time of insurrection or war, proclaim and execute martial law, according to the usages of nations, how he can successfully perform the duties of his office--execute the laws, preserve the Constitution, suppress insurrection, and repel invasion?

Martial law and military tribunals are as essential to the successful prosecution of war as are men and arms and munitions. The Constitution of the United States has vested the power to declare war and raise armies and navies exclusively in the Congress, and the power to prosecute the war and command the army and navy exclusively in the President of the United States. As, under the Confederation, the commander of the army, appointed only by the Congress, was by the resolution of that Congress empowered to act as he might think proper for the good and welfare of the service, subject only to such restraints or orders as the Congress might give, so, under the Constitution, the President is, by the people who ordained that Constitution and declared him Commander-in-Chief of the army and navy, vested with full power to direct and control the army and navy of the United States, and employ all the forces necessary to preserve, protect, and defend the Constitution and execute the laws, as enjoined by his oath and the very letter of the Constitution, subject to no restriction or direction save such as Congress may from time to time prescribe.

That these powers for the common defence, intrusted by the Constitution exclusively to the Congress and the President, are, in time of civil war or foreign invasion, to be exercised without limitation or restraint, to the extent of the public necessity, and without any intervention of the federal judiciary or of State constitutions or State laws, are facts in our history not open to question.

The position is not to be answered by saying you make the American Congress thereby omnipotent, and clothe the American Executive with the asserted attribute of hereditary monarchy--the king can do no wrong. Let the position be fairly stated--that the Congress and President, in war as in peace, are but the agents of the whole people, and that this unlimited power for the common defence against armed rebellion or foreign invasion is but the power of the people intrusted exclusively to the legislative and executive departments as their agents, for any and every abuse of which these agents are directly responsible to the people--and the demagogue cry of an omnipotent Congress, and an Executive invested with royal prerogatives, vanishes like the baseless fabric of a vision. If the Congress, corruptly or oppressively, or wantonly abuse this great trust, the people, by the irresistible power of the ballot, hurl them from place. If the President so abuse the trust, the people by their Congress withhold supplies, or by impeachment transfer the trust to better hands, strip him of the franchises of citizenship and of office, and declare him forever disqualified to hold any position of honor, trust, or power, under the government of his country.

I can understand very well why men should tremble at the exercise of this great power by a monarch whose person, by the constitution of his realm, is inviolable, but I cannot conceive how any American citizen, who has faith in the capacity of the whole people to govern themselves, should give himself any concern on the subject. Mr. Hallam, the distinguished author of the Constitutional History of England, has said:--

"Kings love to display the divinity with which their flatterers invest them in nothing so much as in the instantaneous execution of their will, and to stand revealed, as it were, in the storm and thunderbolt when their power breaks through the operation of secondary causes and awes a prostate nation without the intervention of law."

How just are such words when applied to an irresponsible monarch! how absurd when applied to a whole people, acting through their duly appointed agents, whose will, thus declared, is the supreme law, to awe into submission and peace and obedience, not a prostrate nation, but a prostrate rebellion! The same great author utters the fact which all history attests, when he says:--

"It has been usual for all governments during actual rebellion to proclaim martial law for the suspension of civil jurisdiction; and this anomaly, I must admit," he adds, "is very far from being less indispensable at such unhappy seasons where the ordinary mode of trial is by jury than where the right of decision resides in the court."--_Const. Hist._, vol. i, ch. 5, p. 326.

That the power to proclaim martial law and fully or partially suspend the civil jurisdiction, federal and state, in time of rebellion or civil war, and punish by military tribunals all offences committed in aid of the public enemy, is conferred upon Congress and the Executive, necessarily results from the unlimited grants of power for the common defence to which I have already briefly referred. I may be pardoned for saying that this position is not assumed by me for the purposes of this occasion, but that early in the first year of this great struggle for our national life I proclaimed it as a representative of the people, under the obligation of my oath, and, as I then believed and still believe, upon the authority of the great men who formed and fashioned the wise and majestic fabric of American government.

Some of the citations which I deemed it my duty at that time to make, and some of which I now reproduce, have, I am pleased to say, found a wider circulation in books that have since been published by others.

When the Constitution was on trial for its deliverance before the people of the several States, its ratification was opposed on the ground that it conferred upon Congress and the Executive unlimited power for the common defence. To all such objectors--and they were numerous in every State--that great man, Alexander Hamilton, whose words will live as long as our language lives, speaking to the listening people of all the States and urging them not to reject that matchless instrument which bore the name of Washington, said:--

"The authorities essential to the care of the common defence are these: To raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; to provide for their support. These powers ought to exist WITHOUT LIMITATION; because it is impossible to foresee or define the extent and variety of national exigencies, and the correspondent extent and variety of the means which may be necessary to satisfy them.

"The circumstances that endanger the safety of nations are infinite; and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed.... This power ought to be under the direction of the same councils which are appointed to preside over the common defence.... It must be admitted, as a necessary consequence, that there can be no limitation of that authority which is to provide for the defence and protection of the community in any manner essential to its efficacy; that is, in any matter essential to the formation, direction, or support of the national forces."

He adds the further remark: "This is one of those truths which, to a correct and unprejudiced mind, carries its own evidence along with it; and may be obscured, but cannot be made plainer by argument or reasoning. It rests upon axioms as simple as they are universal--the _means_ ought to be proportioned to the _end_; the persons from whose agency the attainment of any _end_ is expected ought to possess the means by which it is to be attained."--_Federalist_, No. 23.

In the same great contest for the adoption of the Constitution, Madison, sometimes called the "Father of the Constitution," said:--

"Is the power of declaring war necessary? No man will answer this question in the negative.... Is the power of raising armies and equipping fleets necessary?... It is involved in the power of self-defence.... With what color of propriety could the force necessary for defence be limited by those who cannot limit the force of offence?... The means of security can only be regulated by the means and the danger of attack.... It is in vain to oppose constitutional barriers to the impulse of self-preservation. It is worse than in vain, because it plants in the Constitution itself necessary usurpations of power."--_Federalist_, No. 41.

With this construction, proclaimed both by the advocates and opponents of its ratification, the Constitution of the United States was accepted and adopted, and that construction has been followed and acted upon by every department of the government to this day.

It was as well understood then in theory as it has since been illustrated in practice, that the judicial power, both federal and State, had no voice and could exercise no authority in the conduct and prosecution of a war, except in subordination to the political department of the government. The Constitution contains the significant provision, "The privilege of the writ of _habeas corpus_ shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

What was this but a declaration, that in time of rebellion or invasion the public safety is the highest law?--that so far as necessary the civil courts (of which the Commander-in-Chief, under the direction of Congress, shall be the sole judge) must be silent, and the rights of each citizen, as secured in time of peace, must yield to the wants, interests, and necessities of the nation? Yet we have been gravely told by the gentleman in his argument, that the maxim, _salus populi suprema est lex_, is but fit for a tyrant's use. Those grand men, whom God taught to build the fabric of empire, thought otherwise when they put that maxim into the Constitution of their country. It is very clear that the Constitution recognizes the great principle which underlies the structure of society and of all civil government; that no man lives for himself alone, but each for all; that, if need be, some must die that the State may live, because at test the individual is but for to-day, while the commonwealth is for all time. I agree with the gentleman in the maxim which he borrows from Aristotle, "Let the public weal be under the protection of the law"; but I claim that in war, as in peace, by the very terms of the Constitution of the country, the public safety is under the protection of the law; that the Constitution itself has provided for the declaration of war for the common defense, to suppress rebellion, to repel invasion, and, by express terms, has declared that whatever is necessary to make the prosecution of the war successful, may be done, and ought to be done, and is therefore constitutionally lawful.

Who will dare to say that in time of civil war "no person shall be deprived of life, liberty, and property without due process of law"? This is a provision of your Constitution than which there is none more just or sacred in it; it is, however, only the law of peace, not of war. In peace, that wise provision of the Constitution must be, and is, enforced by the civil courts; in war it must be, and is, to a great extent, inoperative and disregarded. The thousands slain by your armies in battle were deprived of life "without due process of law." All spies arrested, convicted, and executed by your military tribunals in time of war are deprived of liberty and life "without due process of law "; all enemies captured and held as prisoners of war are deprived of liberty "without due process of law"; all owners whose property is forcibly seized and appropriated in war are deprived of their property "without due process of law." The Constitution recognizes the principle of common law, that every man's house is his castle; that his home, the shelter of his wife and children, is his most sacred possession; and has therefore specially provided, "that no soldier shall _in time of peace_ be quartered in any house without the consent of its owner, nor in time of war, but in a manner to be prescribed by law [III Amend.]; thereby declaring that, in time of war, Congress may by law authorize, as it has done, that without the consent and against the consent of the owner, the soldier may be quartered in any man's house and upon any man's hearth. What I have said illustrates the proposition, that in time of war the civil tribunals of justice are wholly or partially silent, as the public safety may require; that the limitations and provisions of the Constitution in favor of life, liberty, and property are therefore wholly or partially suspended. In this I am sustained by an authority second to none with intelligent American citizens. Mr. John Quincy Adams, than whom a purer man or a wiser statesman never ascended the chair of the chief magistracy in America, said in his place in the House of Representatives, in 1836, that:--

"In the authority given to Congress by the Constitution of the United States to declare war, all the powers incident to war are by necessary implication conferred upon the government of the United States. Now the powers incidental to war are derived, not from their internal municipal source, but from the laws and usages of nations. There are, then, in the authority of Congress and the Executive, two classes of powers altogether different in their nature and often incompatible with each other--the war power and the peace power. The peace power is limited by regulations and restricted by provisions prescribed within the Constitution itself. The war power is limited only by the laws and usage of nations. This power is tremendous; it is strictly constitutional, but it breaks down every barrier so anxiously erected for the protection of liberty, of property, and of life."

If this be so, how can there be trial by jury for military offenses in time of civil war? If you cannot, and do not, try the armed enemy before you shoot him, or the captured enemy before you imprison him, why should you be held to open the civil courts and try the spy, the conspirator, and the assassin, in the secret service of the public enemy, by jury, before you convict and punish him? Why not clamor against holding imprisoned the captured armed rebels, deprived of their liberty without due process of law? Are they not citizens? Why not clamor against slaying for their crime of treason, which is cognizable in the civil courts, by your rifled ordnance and the leaden hail of your musketry in battle, these public enemies, without trial by jury? Are they not citizens? Why is the clamor confined exclusively to the trial by military tribunals of justice of traitorous spies, traitorous conspirators, and assassins hired to do secretly what the armed rebel attempts to do openly--murder your nationality by assassinating its defenders and its executive officers? Nothing can be clearer than that the rebel captured prisoner, being a citizen of the republic, is as much entitled to trial by jury before he is committed to prison, as the spy, or the aider and abetter of the treason by conspiracy and assassination, being a citizen, is entitled to such trial by jury, before he is subjected to the just punishment of the law for his great crime. I think that in time of war the remark of Montesquieu, touching the civil judiciary is true: that "it is next to nothing." Hamilton well said, "The Executive holds the sword of the community; the judiciary has no direction of the strength of society; it has neither force nor will; it has judgment alone, and is dependent for the execution of that upon the arm of the Executive." The people of these States so understood the Constitution and adopted it, and intended thereby, without limitation or restraint, to empower their Congress and Executive to authorize by law, and execute by force, whatever the public safety might require to suppress rebellion or repel invasion.

Notwithstanding all that has been said by the counsel for the accused to the contrary, the Constitution has received this construction from the day of its adoption to this hour. The Supreme Court of the United States has solemnly decided that the Constitution has conferred upon the government authority to employ all the means necessary to the faithful execution of all the powers which that Constitution enjoins upon the government of the United States, and upon every department and every officer thereof. Speaking of that provision of the Constitution which provides that "Congress shall have power to make all laws that may be necessary and proper to carry into effect all powers granted to the government of the United States, or to any department or officer thereof," Chief Justice Marshall, in his great decision in the case of McCulloch _vs._ State of Maryland, says:--

"The powers given to the government imply the ordinary means of execution, and the government, in all sound reason and fair interpretation, must have the choice of the means which it deems the most convenient and appropriate to the execution of the power.... The powers of the government were given for the welfare of the nation; they were intended to endure for ages to come, and to be adapted to the various crises in human affairs. To prescribe the specific means by which government should, in all future time, execute its power, and to confine the choice of means to such narrow limits as should not leave it in the power of Congress to adopt any which might be appropriate and conducive to the end, would be most unwise and pernicious."--4 Wheaton, 420.

Words fitly spoken! which illustrated at the time of their utterance the wisdom of the Constitution in providing this general grant of power to meet every possible exigency which the fortunes of war might cast upon the country, and the wisdom of which words, in turn, has been illustrated to-day by the gigantic and triumphant struggle of the people during the last four years for the supremacy of the Constitution, and in exact accordance with its provisions. In the light of these wonderful events, the words of Pinckney, uttered when the illustrious Chief Justice had concluded this opinion, "The Constitution of my country is immortal!" seem to have become words of prophecy. Has not this great tribunal, through the chief of all its judges, by this luminous and profound reasoning, declared that the government may by law authorize the Executive to employ, in the prosecution of war, the ordinary means, and all the means necessary and adapted to the end? And in the other decision before referred to, in the 8th of Cranch, arising during the late war with Great Britain, Mr. Justice Story said:--

"When the legislative authority, to whom the right to declare war is confided, has declared war in its most unlimited manner, the executive authority, to whom the execution of the war is confided, is bound to carry it into effect. He has a discretion vested in him as to the manner and extent, but he cannot lawfully transcend the rules of warfare established among civilized nations. He cannot lawfully exercise powers or authorize proceedings which the civilized world repudiates and disclaims. The sovereignty, as to declaring war and limiting its effects, rests with the legislature. The sovereignty as to its execution rests with the President."--Brown _vs._ United States, 8 Cranch, 153.

Has the Congress, to whom is committed the sovereignty of the whole people to declare war, by legislation restricted the President, or attempted to restrict him, in the prosecution of this war for the Union, from exercising all the "powers" and adopting all the "proceedings" usually approved and employed by the civilized world? He would, in my judgment, be a bold man who asserted that Congress has so legislated; and the Congress which should by law fetter the executive arm when raised for the common defense would, in my opinion, be false to their oath. That Congress may prescribe rules for the government of the army and navy and the militia when in actual service, by articles of war, is an express grant of power in the Constitution which Congress has rightfully exercised, and which the Executive must and does obey. That Congress may aid the Executive by legislation in the prosecution of a war, civil or foreign, is admitted. That Congress may restrain the Executive, and arraign, try, and condemn him for wantonly abusing the great trust, is expressly declared in the Constitution. That Congress shall pass all laws NECESSARY to enable the Executive to execute the laws of the Union, suppress insurrection, and repel invasion, is one of the express requirements of the Constitution, for the performance of which the Congress is bound by an oath.

What was the legislation of Congress when treason fired its first gun on Sumter? By the act of 1795 it is provided that whenever the laws of the United States shall be opposed, or the execution thereof obstructed, in any State, by combinations too powerful to be suppressed by the ordinary course of judicial proceeding or by the powers vested in the marshals, it shall be lawful by this act for the President to call forth the militia of such State, or of any other State or States, as may be necessary to suppress such combinations and to cause the laws to be executed (1st Statutes at Large, 424). By the act of 1807 it is provided that in case of insurrection or obstruction to the laws, either of the United States or of any individual State or territory, where it is lawful for the President of the United States to call forth the militia for the purpose of suppressing such insurrection or of causing the laws to be duly executed, it shall be lawful for him to employ for such purpose such part of the land or naval forces of the United States as shall be judged necessary (2d Statutes at Large, 443).

Can any one doubt that by these acts the President is clothed with full power to determine whether armed insurrection exists in any State or territory of the Union; and if so, to make war upon it with all the force he may deem necessary or be able to command? By the simple exercise of this great power it necessarily results that he may, in the prosecution of the war for the suppression of such insurrection, suspend as far as may be necessary the civil administration of justice by substituting in its stead martial law, which is simply the common law of war. If in such a moment the President may make no arrests without civil warrant, and may inflict no violence or penalties on persons (as is claimed here for the accused), without first obtaining the verdict of juries and the judgment of civil courts, then is this legislation a mockery, and the Constitution, which not only authorized but enjoined its enactment, but a glittering generality and a splendid bauble. Happily, the Supreme Court has settled all controversy on this question. In speaking of the Rhode Island insurrection, the court say:--

"The Constitution of the United States, as far as it has provided for an emergency of this kind and authorized the general government to interfere in the domestic concerns of a State, has treated the subject as political in its nature and placed the power in the hands of that department." ... "By the act of 1795 the power of deciding whether the exigency has arisen upon which the government of the United States is bound to interfere is given to the President."

The court add:--

"When the President has acted and called out the militia, is a circuit court of the United States authorized to inquire whether his decision was right? If it could, then it would become the duty of the court, provided it came to the conclusion that the President had decided incorrectly, to discharge those who were arrested or detained by the troops in the service of the United States." ... "If the judicial power extends so far, the guarantee contained in the Constitution of the United States is a guarantee of anarchy and not of order." ... "Yet if this right does not reside in the courts when the conflict is raging, if the judicial power is at that time bound to follow the decision of the political, it must be equally bound when the contest is over. It cannot, when peace is restored, punish as offenses and crimes the acts which it before recognized and was bound to recognize as lawful."--Luther _vs._ Borden, 7 Howard, 42, 43.

If this be law, what becomes of the volunteer advice of the volunteer counsel, by him given without money and without price, to this court, of their responsibility--their _personal_ responsibility, for obeying the orders of the President of the United States in trying persons accused of the murder of the Chief Magistrate and Commander-in-Chief of the army and navy of the United States in time of rebellion, and in pursuance of a conspiracy entered into with the public enemy? I may be pardoned for asking the attention of the court to a further citation from this important decision, in which the court say, the employment of military power to put down an armed insurrection "is essential to the existence of every government, and is as necessary to the States of this Union as to any other government; and if the government of the State deem the armed opposition so formidable as to require the use of military force and the declaration of MARTIAL LAW, we see no ground upon which this court can question its authority" (_Ibid_). This decision in terms declared that under the act of 1795 the President had power to decide and did decide the question so as to exclude further inquiry whether the State government which thus employed force and proclaimed martial law was the government of the State, and therefore was permitted to act. If a State may do this to put down armed insurrection, may not the federal government as well? The reason of the man who doubts it may justly be questioned. I but quote the language of that tribunal, in another case before cited, when I say the Constitution confers upon the President the whole executive power.

We have seen that the proclamation of blockade made by the President was affirmed by the Supreme Court as a lawful and valid act, although its direct effect was to dispose of the property of whoever violated it, whether citizen or stranger. It is difficult to perceive what course of reasoning can be adopted, in the light of that decision, which will justify any man in saying that the President had not the like power to proclaim martial law in time of insurrection against the United States, and to establish, according to the customs of war among civilized nations, military tribunals of justice for its enforcement and for the punishment of all crimes committed in the interests of the public enemy.

These acts of the President have, however, all been legalized by the subsequent legislation of Congress, although the Supreme Court decided, in relation to the proclamation of blockade, that no such legislation was necessary. By the act of August 6, 1861, ch. 63, sec. 3, it is enacted that--

"All the acts, proclamations, and orders of the President of the United States, after the 4th of March, 1861, respecting the army and navy of the United States, and calling out, or relating to, the militia or volunteers from the States, are hereby approved in all respects, legalized, and made valid to the same extent and with the same effect as if they had been issued and done under the previous express authority and direction of the Congress of the United States."--12 Statutes at Large, 326.

This act legalized, if any such legalization was necessary, all that the President had done from the day of his inauguration to that hour, in the prosecution of the war for the Union. He had suspended the privilege of the writ of _habeas corpus_, and resisted its execution when issued by the Chief Justice of the United States; he had called out and accepted the services of a large body of volunteers for a period not previously authorized by law; he had declared a blockade of the Southern ports; he had declared the Southern States in insurrection; he had ordered the armies to invade them and suppress it; thus exercising, in accordance with the laws of war, power over the life, the liberty, and the property of the citizens. Congress ratified it and affirmed it.

In like manner and by subsequent legislation did the Congress ratify and affirm the proclamation of martial law of September 25, 1862. That proclamation, as the court will have observed, declares that during the existing insurrection all rebels and insurgents, their aiders and abettors within the United States, and all persons guilty of any disloyal practice affording aid and comfort to the rebels against the authority of the United States, shall be subject to martial law and liable to trial and punishment by courts-martial or _military commission_; and second, that the writ of _habeas corpus_ is suspended in respect to all persons arrested, or who are now, or hereafter during the rebellion shall be, imprisoned in any fort, etc., by any military authority, or by the sentence of any court-martial or _military commission_.

One would suppose that it needed no argument to satisfy an intelligent and patriotic citizen of the United States that, by the ruling of the Supreme Court cited, so much of this proclamation as declares that all rebels and insurgents, their aiders and abettors, shall be subject to martial law and be liable to trial and punishment by court-martial or military commission, needed no ratification by Congress. Every step that the President took against rebels and insurgents was taken in pursuance of the rules of war and was an exercise of martial law. Who says that he should not deprive them, by the authority of this law, of life and liberty? Are the aiders and abettors of these insurgents entitled to any higher consideration than the armed insurgents themselves? It is against these that the President proclaimed martial law, and against all others who were guilty of any disloyal practice affording aid and comfort to rebels against the authority of the United States. Against these he suspended the privilege of the writ of _habeas corpus_; and these, and only such as these, were by that proclamation subjected to trial and punishment by court-martial or military commission.

That the Proclamation covers the offense charged here, no man will, or dare, for a moment deny. Was it not a disloyal practice? Was it not aiding and abetting the insurgents and rebels to enter into a conspiracy with them to kill and murder, within your capital and your intrenched camp, the Commander-in-Chief of our army, your Lieutenant General, and the Vice-President, and the Secretary of State, with intent thereby to aid the rebellion, and subvert the Constitution and laws of the United States? But it is said that the President could not establish a court for their trial, and therefore Congress must ratify and affirm this Proclamation. I have said before that such an argument comes with ill grace from the lips of him who declared as solemnly that neither by the Congress nor by the President could either the rebel himself or his aider or abettor be lawfully and constitutionally subjected to trial by any military tribunal, whether court-martial or military commission. But the Congress did ratify, in the exercise of the power vested in them, every part of this Proclamation. I have said, upon the authority of the fathers of the Constitution, and of its judicial interpreters, that Congress has power by legislation to aid the Executive in the suppression of rebellion, in executing the laws of the Union when resisted by armed insurrection, and in repelling invasion.

By the act of March 3, 1863, the Congress of the United States, by the first section thereof, declared that during the present rebellion the President of the United States, whenever in his judgment the public safety may require it, is authorized to suspend the writ of _habeas corpus_ in any case throughout the United States or any part thereof. By the fourth section of the same act it is declared that any order of the President, or under his authority, made at any time during the existence of the present rebellion, shall be a defense in all courts to any action or prosecution, civil or criminal, pending or to be commenced, for any search, seizure, arrest, or imprisonment, made, done, or committed, or acts omitted to be done, under and by virtue of such order. By the fifth section it is provided that, if any suit or prosecution, civil or criminal, has been or shall be commenced in any State court against any officer, civil or military, or against any other person, for any arrest or imprisonment made, or other trespasses or wrongs done or committed, or any act omitted to be done at any time during the present rebellion, by virtue of or under color of any authority derived from or exercised by or under the President of the United States, if the defendant shall, upon appearance in such court, file a petition stating the facts upon affidavit, etc., as aforesaid, for the removal of the cause for trial to the circuit court of the United States, it shall be the duty of the State court, upon his giving security, to proceed no further in the cause or prosecution; thus declaring that all orders of the President, made at any time during the existence of the present rebellion, and all acts done in pursuance thereof, shall be held valid in the courts of justice. Without further inquiry, these provisions of this statute embrace Order 141, which is the proclamation of martial law, and necessarily legalize every act done under it, either before the passage of the act of 1863 or since. Inasmuch as that Proclamation ordered that all rebels, insurgents, their aiders and abettors, and persons guilty of any disloyal practice affording aid and comfort to rebels against the authority of the United States, at any time during the existing insurrection, should be subject to martial law, and liable to trial and punishment by a _military commission_, the sections of the law just cited declaring lawful all acts done in pursuance of such order, including, of course, the trial and punishment by military commission of all such offenders, as directly legalized this order of the President as it is possible for Congress to legalize or authorize any executive act whatever.--12 Statutes at Large, 755, 756.

But after assuming and declaring with great earnestness in his argument that no person could be tried and convicted for such crimes by any military tribunal, whether a court-martial or a military commission, save those in the land or naval service in time of war, the gentleman makes the extraordinary statement that the creation of a military commission must be authorized by the legislative department, and demands, if there be any such legislation, "let the statute be produced." The statute has been produced. The power so to try, says the gentleman, must be authorized by Congress, when the demand is made for such authority. Does not the gentleman thereby give up his argument, and admit, that if the Congress has so authorized the trial of all aiders and abettors of rebels or insurgents for whatever they do in aid of such rebels and insurgents during the insurrection, the statute and proceedings under it are lawful and valid? I have already shown that the Congress have so legislated by expressly legalizing Order No. 141, which directed the trial of all rebels, their aiders and abettors, by military commission. Did not Congress expressly legalize this order by declaring that the order shall be a defense in all courts to any action or prosecution, civil or criminal, for acts done in pursuance of it? No amount of argument could make this point clearer than the language of the statute itself. But, says the gentleman, if there be a statute authorizing trials by military commission, "let it be produced."

By the act of March 3, 1863, it is provided in section thirty that in time of war, insurrection, or rebellion, murder and assault with intent to kill, etc., when committed by persons in the military service, shall be punishable by the sentence of a court-martial or _military commission_, and the punishment of such offenses shall never be less than those inflicted by the laws of the State or district in which they may have been committed. By the thirty-eighth section of the same act it is provided that all persons who, in time of war or rebellion against the United States, shall be found lurking or acting as spies in or about the camps, etc., of the United States, or elsewhere, shall be triable by a _military commission_, and shall, upon conviction, suffer death. Here is a statute which expressly declares that all persons, whether citizens or strangers, who in time of rebellion shall be found acting as spies, shall suffer death upon conviction by a military commission. Why did not the gentleman give us some argument upon this law? We have seen that it was the existing law of the United States under the Confederation. Then, and since, men not in the land or naval forces of the United States have suffered death for this offense upon conviction by courts-martial. If it was competent for Congress to authorize their trial by courts-martial, it was equally competent for Congress to authorize their trial by military commission, and accordingly they have done so. By the same authority the Congress may extend the jurisdiction of military commissions over all military offenses or crimes committed in time of rebellion or war in aid of the public enemy; and it certainly stands with right reason, that if it were just to subject to death, by the sentence of a military commission, all persons who should be guilty merely of lurking as spies in the interests of the public enemy in time of rebellion, though they obtained no information, though they inflicted no personal injury, but were simply overtaken and detected in the endeavor to obtain intelligence for the enemy, those who enter into conspiracy with the enemy, not only to lurk as spies in your camp, but to lurk there as murderers and assassins, and who, in pursuance of that conspiracy, commit assassination and murder upon the Commander-in-Chief of your army within your camp and in aid of rebellion, should be subject in like manner to trial by military commission.--Statutes at Large 12, 736, 737, ch. 8.

Accordingly, the President having so declared, the Congress, as we have stated, have affirmed that his order was valid, and that all persons acting by authority, and consequently as a court pronouncing such sentence upon the offender as the usage of war requires, are justified by the law of the land. With all respect, permit me to say that the learned gentleman has manifested more acumen and ability in his elaborate argument by what he has omitted to say than by anything which he has said. By the act of July 2, 1864, cap. 215, it is provided that the commanding general in the field, or the commander of the department, as the case may be, shall have power to carry into execution all sentences against guerilla marauders for robbery, arson, burglary, etc., and for violation of the laws and customs of war, as well as sentences against spies, mutineers, deserters, and murderers.

From the legislation I have cited, it is apparent that military commissions are expressly recognized by the law-making power; that they are authorized to try capital offenses against citizens not in the service of the United States, and to pronounce the sentence of death upon them; and that the commander of a department, or the commanding general in the field, may carry such sentence into execution. But, says the gentleman, grant all this to be so; Congress has not declared in what manner the court shall be constituted. The answer to that objection has already been anticipated in the citation from Benèt, wherein it appeared to be the rule of the law martial that in the punishment of all military offenses not provided for by the written law of the land, military commissions are constituted for that purpose by the authority of the commanding officer or the Commander-in-Chief, as the case may be, who selects the officers of a court-martial; that they are similarly constituted, and their proceedings conducted according to the same general rules. That is a part of the very law martial which the President proclaimed, and which the Congress has legalized. The Proclamation has declared that all such offenders shall be tried by military commissions. The Congress has legalized the same by the act which I have cited; and by every intendment it must be taken that, as martial law is by the Proclamation declared to be the rule by which they shall be tried, the Congress, in affirming the act of the President, simply declared that they should be tried according to the customs of martial law; that the commission should be constituted by the Commander-in-Chief according to the rule of procedure known as martial law; and that the penalties inflicted should be in accordance with the laws of war and the usages of nations. Legislation no more definite than this has been upon your statute-book since the beginning of the century, and has been held by the Supreme Court of the United States valid for the punishment of offenders.

By the thirty-second article of the act of 23d April, 1800, it is provided that "all crimes committed by persons belonging to the navy which are not specified in the foregoing articles shall be punished according to the laws and customs in such cases at sea." Of this article the Supreme Court of the United States say, that when offences and crimes are not given in terms or by definition, the want of it may be supplied by a comprehensive enactment such as the thirty-second article of the rules for the government of the navy; which means that courts-martial have jurisdiction of such crimes as are not specified, but which have been recognized to be crimes and offenses by the usages in the navies of all nations, and that they shall be punished according to the laws and customs of the sea.--Dynes _vs._ Hoover, 20 Howard, 82.

But it is a fact that must not be omitted in the reply which I make to the gentleman's argument, that an effort was made by himself and others in the Senate of the United States, on the 3d of March last, to condemn the arrests, imprisonments, etc., made by order of the President of the United States in pursuance of his Proclamation, and to reverse, by the judgment of that body, the law which had been before passed affirming his action, which effort most signally failed.

Thus we see that the body which by the Constitution, if the President had been guilty of the misdemeanors alleged against him in this argument of the gentleman, would, upon presentation of such charge in legal form against the President, constitute the high court of impeachment for his trial and condemnation, has decided the question in advance, and declared upon the occasion referred to, as they had before declared by solemn enactment, that this order of the President declaring martial law and the punishment of all rebels and insurgents, their aiders and abettors, by military commission, should be enforced during the insurrection, as the law of the land, and that the offenders should be tried, as directed, by military commission. It may be said that this subsequent legislation of Congress, ratifying and affirming what had been done by the President, can have no validity. Of course it cannot if neither the Congress nor the Executive can authorize the proclamation and enforcement of martial law in the suppression of rebellion for the punishment of all persons committing military offenses in aid of that rebellion. Assuming, however, as the gentleman seemed to assume, by asking for the legislation of Congress, that there is such power in Congress, the Supreme Court of the United States has solemnly affirmed that such ratification is valid.--2 Black, 671.

The gentleman's argument is full of citations of English precedent. There is a late English precedent bearing upon this point--the power of the legislature, by subsequent enactment, to legalize executive orders, arrests, and imprisonment of citizens--that I beg leave to commend to his consideration. I refer to the statute of 11 and 12 Victoria, ch. 35, entitled "An act to empower the lord lieutenant, or other chief governor or governors of Ireland, to apprehend and detain until the first day of March, 1849, such persons as he or they shall _suspect_ of conspiring against her Majesty's person and government," passed July 25, 1848, which statute in terms declares that all and every person and persons who is, are, or shall be, within that period, within that part of the United Kingdom of England and Ireland called Ireland at or on the day the act shall receive her Majesty's royal assent, or after, by warrant for high treason or treasonable practices, or _suspicion_ of high treason or treasonable practices, signed by the lord lieutenant, or other chief governor or governors of Ireland for the time being, or his or their chief secretary, for such causes as aforesaid, may be detained in safe custody without bail or main prize, until the first day of March, 1849; and that no judge or justice shall bail or try any such person or persons so committed, without order from her Majesty's privy council, until the said first day of March, 1849, any law or statute to the contrary notwithstanding. The second section of this act provides that, in cases where any persons have been, _before_ the passing of the act, arrested, committed, or detained for such cause by warrant or warrants signed by the officers aforesaid, or either of them, it may be lawful for the person or persons to whom such warrants have been or shall be directed, to detain such person or persons in his or their custody in any place whatever in Ireland; and that such person or persons to whom such warrants have been or shall be directed shall be deemed and taken, to all intents and purposes, lawfully authorized to take into safe custody and be the lawful jailers and keepers of such persons so arrested, committed, or detained.

Here the power of arrest is given by the act of Parliament to the governor or his secretary; the process of the civil courts was wholly suspended; bail was denied and the parties imprisoned, and this not by process of the courts, but by warrant of a chief governor or his secretary; not for crimes charged to have been committed, but for being _suspected_ of treasonable practices. Magna Charta, it seems, opposes no restraint, notwithstanding the parade that is made about it in this argument, upon the power of the Parliament of England to legalize arrests and imprisonments made before the passage of the act upon an executive order, and without colorable authority of statute law, and to authorize like arrests and imprisonments of so many of six million of people as such executive officers might _suspect_ of treasonable practices.

But, says the gentleman, whatever may be the precedents, English or American, whatever may be the provisions of the Constitution, whatever may be the legislation of Congress, whatever may be the proclamations and orders of the President as Commander-in-Chief, it is a usurpation and a tyranny in time of rebellion and civil war to subject any citizen to trial for any crime before military tribunals, save such citizens as are in the land or naval forces, and against this usurpation, which he asks this court to rebuke by solemn decision, he appeals to public opinion. I trust that I set as high value upon enlightened public opinion as any man. I recognize it as the reserved power of the people which creates and dissolves armies, which creates and dissolves legislative assemblies, which enacts and repeals fundamental laws, the better to provide for personal security by the due administration of justice. To that public opinion upon this very question of the usurpation of authority, of unlawful arrests, and unlawful imprisonments, and unlawful trials, condemnations, and executions by the late President of the United States, an appeal has already been taken. On this very issue the President was tried before the tribunal of the people, that great nation of freemen who cover this continent, looking out upon Europe from their eastern and upon Asia from their western homes. That people came to the consideration of this issue not unmindful of the fact that the first struggle for the establishment of our nationality could not have been, and was not, successfully prosecuted without the proclamation and enforcement of martial law, declaring, as we have seen, that any inhabitant who, during that war, should kill any loyal citizen, or enter into any combination for that purpose, should, upon trial and conviction before a military tribunal, be sentenced as an assassin, traitor, or spy, and should suffer death, and that in this last struggle for the maintenance of American nationality the President but followed the example of the illustrious Father of his Country. Upon that issue the people passed judgment on the 8th day of last November, and declared that the charge of usurpation was false.

From this decision of the people there lies no appeal on this earth. Who can rightfully challenge the authority of the American people to decide such questions for themselves? The voice of the people, thus solemnly proclaimed, by the omnipotence of the ballot in favor of the righteous order of their murdered President, issued by him for the common defense, for the preservation of the Constitution, and for the enforcement of the laws of the Union, ought to be accepted, and will be accepted, I trust, by all just men, as the voice of God.

MAY IT PLEASE THE COURT: I have said thus much touching the right of the people, under their Constitution, in time of civil war and rebellion, to proclaim through their Executive, with the sanction and approval of their Congress, martial law, and enforce the same according to the usage of nations.

I submit that it has been shown that, by the letter and spirit of the Constitution, as well as by its contemporaneous construction, followed and approved by every department of the government, this right is in the people; that it is inseparable from the condition of war, whether civil or foreign, and absolutely essential to its vigorous and successful prosecution; that according to the highest authority upon constitutional law, the proclamation and enforcement of martial law are "usual under all governments in time of rebellion"; that our own highest judicial tribunal has declared this, and solemnly ruled that the question of the necessity for its exercise rests exclusively with Congress and the President; and that the decision of the political departments of the government, that there is an armed rebellion and a necessity for the employment of military force and martial law in its suppression concludes the judiciary.

In submitting what I have said in support of the jurisdiction of this honorable court, and of its constitutional power to hear and determine this issue, I have uttered my own convictions; and for their utterance in defense of my country, and its right to employ all the means necessary for the common defense against armed rebellion and secret treasonable conspiracy in aid of such rebellion, I shall neither ask pardon nor offer apology. I find no words with which more fitly to conclude all I have to say upon the question of the jurisdiction and constitutional authority of this court than those employed by the illustrious Lord Brougham to the House of Peers in the support of the bill before referred to, which empowered the lord lieutenant of Ireland, and his deputies, to apprehend and detain, for the period of seven months or more, all such persons within that island as they should _suspect_ of conspiracy against her Majesty's person and government. Said that illustrious man: "A friend of liberty I have lived, and such will I die; nor care I how soon the latter event may happen, if I cannot be a friend of liberty without being a friend of traitors at the same time--a protector of criminals of the deepest dye--an accomplice of foul rebellion and of its concomitant, civil war, with all its atrocities and all its fearful consequences."--Hansard's Debates, 3d series, vol. 100, p. 635.

MAY IT PLEASE THE COURT: It only remains for me to sum up the evidence and present my views of the law arising upon the facts in the case on trial. The questions of fact involved in the issue are:--

First, did the accused, or any two of them, confederate and conspire together as charged? and--

Second, did the accused, or any of them, in pursuance of such conspiracy, and with the intent alleged, commit either or all of the several acts specified?

If the conspiracy be established, as laid, it results that whatever was said or done by either of the parties thereto, in the furtherance or execution of the common design, is the declaration or act of all the other parties to the conspiracy; and this, whether the other parties, at the time such words were uttered or such acts done by their confederates, were present or absent--here, within the intrenched lines of your capital, or crouching behind the intrenched lines of Richmond, or awaiting the results of their murderous plot against their country, its Constitution and laws, across the border, under the shelter of the British flag.

The declared and accepted rule of law in cases of conspiracy is that--

"In prosecutions for conspiracy it is an established rule that where several persons are proved to have combined together for the same illegal purpose, any act done by one of the party, in pursuance of the original concerted plan, and in reference to the common object, is, in the contemplation of law as well as in sound reason, the act of the whole party; and, therefore, the proof of the act will be evidence against any of the others who were engaged in the same general conspiracy, without regard to the question whether the prisoner is proved to have been concerned in the particular transaction."--Phillips on Evidence, p. 210.

The same rule obtains in cases of treason: "If several persons agree to levy war, some in one place and some in another, and one party do actually appear in arms, this is a levying of war by all, as well those who were not in arms as those who were, if it were done in pursuance of the original concert, for those who made the attempt were emboldened by the confidence inspired by the general concert, and therefore these particular acts are in justice imputable to all the rest."--1 East., Pleas of the Crown, p. 97; Roscoe, 84.

In _Ex parte Bollman and Swartwout_, 4 Cranch, 126, Marshall, Chief Justice, rules: "If war be actually levied,--that is, if a body of men be actually assembled, for the purpose of effecting, by force, a treasonable purpose,--all those who perform any part, _however minute, or however remote from the scene of action_, and who are actually leagued in the general conspiracy, are to be considered as traitors."

In United States _vs._ Cole _et al_, 5 McLean, 601, Mr. Justice McLean says: "A conspiracy is rarely, if ever, proved by positive testimony. When a crime of high magnitude is about to be perpetrated by a combination of individuals, they do not act openly but covertly and secretly. The purpose formed is known only to those who enter into it. Unless one of the original conspirators betray his companions and give evidence against them, their guilt can be proved only by circumstantial evidence.... It is said by some writers on evidence that such circumstances are stronger than positive proof. A witness swearing positively, it is said, may misapprehend the facts or swear falsely, but that circumstances cannot lie.

"The common design is the essence of the charge; and this may be made to appear when the defendants steadily pursue the same object, whether acting separately or together, by common or different means, all leading to the same unlawful result. And where _prima facie_ evidence has been given of a combination, the acts or confessions of one are evidence against all.... It is reasonable that where a body of men assume the attribute of individuality, whether for commercial business or for the commission of a crime, that the association should be bound by the acts of one of its members in carrying out the design."

It is a rule of the law, not to be overlooked in this connection, that the conspiracy or agreement of the parties, or some of them, to act in concert to accomplish the unlawful act charged, may be established either by direct evidence of a meeting or consultation for the illegal purpose charged, or more usually, from the very nature of the case, by circumstantial evidence.--2 Starkie, 232.

Lord Mansfield ruled that it was not necessary to prove the actual fact of a conspiracy, but that it might be collected from collateral circumstances.--Parson's Case, 1 W. Blackstone, 392.

"If," says a great authority on the law of evidence, "on a charge of conspiracy, it appear that two persons by their acts are pursuing the same object, and often by the same means, or one performing part of the act and the other completing it, for the attainment of the same object, the jury may draw the conclusion there is a conspiracy. If a conspiracy be formed, and a person join in it afterwards, he is equally guilty with the original conspirators."--Roscoe, 415.

"The rule of the admissibility of the acts and declarations of any one of the conspirators, said or done in furtherance of the common design, applies in cases as well where only part of the conspirators are indicted or upon trial as where all are indicted and upon trial. Thus, upon an indictment for murder, if it appear that others, together with the prisoner, conspired to commit the crime, the act of one, done in pursuance of that intention, will be evidence against the rest."--2d Starkie, 237.

They are all alike guilty as principals.--Commonwealth _vs._ Knapp, 9 Pickering, 496; 10 Pickering, 477; 6 Term Reports, 528; 11 East., 584.

What is the evidence, direct and circumstantial, that the accused, or either of them, together with John H. Surratt, John Wilkes Booth, Jefferson Davis, George N. Sanders, Beverly Tucker, Jacob Thompson, William C. Cleary, Clement C. Clay, George Harper, and George Young, did combine, confederate, and conspire, in aid of the existing rebellion, as charged, to kill and murder, within the military department of Washington, and within the fortified and intrenched lines thereof, Abraham Lincoln, late, and at the time of the said combining, confederating, and conspiring, President of the United States of America and Commander-in-Chief of the army and navy thereof; Andrew Johnson, Vice-President of the United States; William H. Seward, Secretary of State of the United States; and Ulysses S. Grant, Lieutenant General of the armies thereof, and then in command, under the direction of the President?

The time, as laid in the charge and specification, when this conspiracy was entered into, is immaterial, so that it appear by the evidence that the criminal combination and agreement were formed before the commission of the acts alleged. That Jefferson Davis, one of the conspirators named, was the acknowledged chief and leader of the existing rebellion against the government of the United States, and that Jacob Thompson, George N. Sanders, Clement C. Clay, Beverly Tucker, and others named in the specification, were his duly accredited and authorized agents to act in the interests of said rebellion, are facts established by the testimony in this case beyond all question. That Davis, as the leader of said rebellion, gave to those agents, then in Canada, commissions in blank, bearing the official signature of his war minister, James A. Seddon, to be by them filled up and delivered to such agents as they might employ to act in the interests of the rebellion within the United States, and intended to be a cover and protection for any crimes they might therein commit in the service of the rebellion, is also a fact established here, and which no man can gainsay. Who doubts that Kennedy, whose confession made in view of immediate death, as proved here, was commissioned by those accredited agents of Davis to burn the city of New York?--that he was to have attempted it on the night of the presidential election, and that he did, in combination with his confederates, set fire to four hotels in the city of New York on the night of the 25th of November last? Who doubts that, in like manner, in the interests of the rebellion and by the authority of Davis, these his agents also commissioned Bennett H. Young to commit arson, robbery, and the murder of unarmed citizens, in St. Albans, Vt.? Who doubts, upon the testimony shown, that Davis, by his agents, deliberately adopted the system of starvation for the murder of our captive soldiers in his hands; or that, as shown by the testimony, he sanctioned the burning of hospitals and steamboats, the property of private persons, and paid therefor from his stolen treasure the sum of thirty-five thousand dollars in gold? By the evidence of Joseph Godfrey Hyams it is proved that Thompson, the agent of Jefferson Davis, paid him money for the service he rendered in the infamous and fiendish project of importing pestilence into our camps and cities to destroy the lives of citizens and soldiers alike, and into the house of the President for the purpose of destroying his life. It may be said, and doubtless will be said, by the pensioned advocates of this rebellion, that Hyams, being infamous, is not to be believed. It is admitted that he is infamous, as it must be conceded that any man is infamous who either participates in such a crime or attempts in any wise to extenuate it. But it will be observed that Hyams is supported by the testimony of Mr. Sanford Conover, who heard Blackburn and the other rebel agents in Canada speak of this infernal project, and by the testimony of Mr. Wall, the well-known auctioneer of this city, whose character is unquestioned, that he received this importation of pestilence (of course without any knowledge of the purpose), and that Hyams consigned the goods to him in the name of J. W. Harris, a fact in itself an acknowledgment of guilt; and that he received afterwards a letter from Harris, dated Toronto, Canada West, December 1, 1864, wherein Harris stated that he had not been able to come to the States since his return to Canada, and asked for an account of the sale. He identifies the Godfrey Joseph Hyams who testified in court as the J. W. Harris who imported the pestilence. The very transaction shows that Hyams's statement is truthful. He gives the names of the parties connected with this infamy (Clement C. Clay, Dr. Blackburn, Rev. Dr. Stuart Robinson, J. C. Holcombe--all refugees from the Confederacy in Canada), and states that he gave Thompson a receipt for the fifty dollars paid to him, and that he was by occupation a shoemaker; in none of which facts is there an attempt to discredit him. It is not probable that a man in his position in life would be able to buy five trunks of clothing, ship them all the way from Halifax to Washington, and then order them to be sold at auction, without regard to price, solely upon his own account. It is a matter of notoriety that a part of his statement is verified by the results at New Berne, N.C., to which point he says a portion of the infected goods were shipped, through a sutler; the result of which was, that nearly two thousand citizens and soldiers died there about that time with yellow fever.

That the rebel chief, Jefferson Davis, sanctioned these crimes, committed and attempted through the instrumentality of his accredited agents in Canada--Thompson, Clay, Tucker, Sanders, Cleary, etc.,--upon the persons and property of the people of the North, their is positive proof on your record. The letter brought from Richmond, and taken from the archives of his late pretended government there, dated February 11, 1865, and addressed to him by the late rebel senator from Texas, W. S. Oldham, contains the following significant words: "When Senator Johnson, of Missouri, and myself waited on you a few days since, in relation to the project of annoying and harassing the enemy by means of burning their shipping, towns, etc., etc., there were several remarks made by you upon the subject which I was not fully prepared to answer, but which, upon subsequent conference with parties proposing the enterprise, I find cannot apply as objections to the scheme. First, the 'combustible materials' consist of several preparations, and not one alone, and can be used without exposing the party using them to the least danger of detection whatever.... Second, there is no necessity for sending persons in the military service into the enemy's country, but the work may be done by agents.... I have seen enough of the effects that can be produced to satisfy me that in most cases, without any danger to the parties engaged, and in others but very slight, we can, first, burn every vessel that leaves a foreign port for the United States; second, we can burn every transport that leaves the harbor of New York, or other Northern port, with supplies for the armies of the enemy in the South; third, burn every transport and gunboat on the Mississippi River, as well as devastate the country of the enemy and fill his people with terror and consternation.... For the purpose of satisfying your mind upon the subject, I respectfully, but earnestly, request that you will give an interview with General Harris, formerly a member of Congress from Missouri, who, I think, is able, from conclusive proofs, to convince you that what I have suggested is perfectly feasible and practicable."

No one can doubt, from the tenure of this letter, that the rebel Davis only wanted to be satisfied that this system of arson and murder could be carried on by his agents in the North successfully and without detection. With him it was not a crime to do these acts, but only a crime to be detected in them. But Davis, by his indorsement on this letter, dated the 20th of February, 1865, bears witness to his own complicity and his own infamy in this proposed work of destruction and crime for the future, as well as to his complicity in what had before been attempted without complete success. Kennedy, with his confederates, had failed to burn the city of New York. "The combustibles" which Kennedy had employed were, it seems, defective. This was "a difficulty to be overcome." Neither had he been able to consummate the dreadful work without subjecting himself _to detection_. This was another "_difficulty_ to be overcome." Davis, on the 20th of February, 1865, indorsed upon this letter these words: "Secretary of State, at his convenience, see General Harris and learn what plan he has for _overcoming the difficulties heretofore experienced_. _J. D._"

This indorsement is unquestionably proved to be the handwriting of Jefferson Davis, and it bears witness on its face that the monstrous proposition met his approval, and that he desired his rebel Secretary of State, Benjamin, to see General Harris and learn how to overcome _the difficulty heretofore experienced_, to wit: the inefficiency of "the combustible materials" that had been employed, and the liability of his agents to detection. After this, who will doubt that he had endeavored, by the hand of incendiaries, to destroy by fire the property and lives of the people of the North, and thereby "fill them with terror and consternation"; that he knew his agents had been unsuccessful; that he knew his agents had been detected in their villainy and punished for their crime; that he desired through a more perfect "chemical-preparation," by the science and skill of Professor McCulloch, to accomplish successfully what had before been unsuccessfully attempted?

The intercepted letter of his agent, Clement C. Clay, dated St. Catherine's, Canada West, November 1, 1864, is an acknowledgment and confession of what they had attempted, and a suggestion made through J. P. Benjamin, rebel Secretary of State, of what remained to be done in order to make the "chemical preparations" efficient. Speaking of this Bennett H. Young, he says: "You have doubtless learned through the press of the United States of the raid on St. Albans by about twenty-five Confederate soldiers, led by Lieut. Bennett H. Young; of their attempt and failure to burn the town; of their robbery of three banks there of the aggregate amount of about two hundred thousand dollars; of their arrest in Canada by United States forces; of their commitment and the pending preliminary trial." He makes application, in aid of Young and his associates, for additional documents, showing that they acted upon the authority of the Confederate States government, taking care to say, however, that he held such authority at the time, but that it ought to be more explicit so far as regards the particular acts complained of. He states that he met Young at Halifax in May, 1864, who developed his plans for retaliation on the enemy; that he, Clay, recommended him to the rebel Secretary of War; that after this "Young was sent back by the Secretary of War with a commission as second lieutenant to execute his plans and purposes, but to report to Hon. ---- and myself." Young afterwards "proposed passing through New England, burning some towns and robbing them of whatever he could convert to the use of the Confederate government. This I approved as justifiable retaliation. He attempted to burn the town of St. Albans, Vt., and would have succeeded but for the failure of the _chemical preparation_ with which he was armed. He then robbed the banks of funds amounting to over two hundred thousand dollars. That he was not prompted by selfish or mercenary motives I am as well satisfied as I am that he is an honest man. He assured me before going that his effort would be to destroy towns and farm-houses, but not to plunder or rob; but he said if, after firing a town, he saw he could take _funds_ from a bank or any house, and thereby might inflict injury upon the enemy and benefit his own government, he would do so. He added most emphatically, that _whatever_ he took should be turned over to the government or _its representatives in foreign lands_. My instructions to him were to destroy whatever was valuable; not to stop to rob, but if, after firing a town, he could seize and carry off money or treasury or bank notes, he might do so upon condition that they were delivered to the proper authorities of the Confederate States"--that is, to Clay himself.

When he wrote this letter it seems that this accredited agent of Jefferson Davis was as strongly impressed with the _usurpation and despotism_ of Mr. Lincoln's administration as some of _the advocates_ of his aiders and abettors seem to be at this day; and he indulges in the following statement: "All that a large portion of the Northern people, especially in the northwest, want to resist the _oppressions_ of the _despotism_ at Washington is a _leader_. They are ripe for resistance, _and it may come soon after the presidential election_. At all events, it must come if our armies are not overcome, or destroyed, or dispersed. No people of the Anglo-Saxon blood can long endure _the usurpations and tyrannies of Lincoln_." Clay does not sign the despatch, but indorses the bearer of it as a person who can identify him and give his name. The bearer of that letter was the witness Richard Montgomery, who saw Clay write a portion of the letter, and received it from his hands, and subsequently delivered it to the Assistant Secretary of War of the United States, Mr. Dana. That the letter is in Clay's handwriting is clearly proved by those familiar with it. Mr. Montgomery testifies that he was instructed by Clay to deliver this letter to Benjamin, the rebel Secretary of State, if he could get through to Richmond, and to tell him what names to put in the blanks.

This letter leaves no doubt, if any before existed in the mind of any one who had read the letter of Oldham and Davis's indorsement thereon, that "the chemical preparations" and "combustible materials" had been tried and had failed, and it had become a matter of great moment and concern that they should be so prepared as, in the words of Davis, "to overcome the difficulties heretofore experienced"; that is to say, complete the work of destruction, and secure the perpetrators against personal injury or detection in the performance of it.

It only remains to be seen whether Davis, the procurer of arson and of the indiscriminate murder of the innocent and unoffending necessarily resultant therefrom, was capable also of endeavoring to procure, and in fact did procure, the murder, by direct assassination, of the President of the United States and others charged with the duty of maintaining the government of the United States, and of suppressing the rebellion in which this arch-traitor and conspirator was engaged.

The official papers of Davis, captured under the guns of our victorious army in his rebel capital, identified beyond question or shadow of doubt, and placed upon your record, together with the declaration and acts of his co-conspirators and agents, proclaim to all the world that he was capable of attempting to accomplish his treasonable procuration of the murder of the late President, and other chief officers of the United States, by the hands of hired assassins.

In the fall of 1864 Lieutenant W. Alston addresses to "his excellency" a letter now before the court, which contains the following words:--

"I now offer you my services, and if you will favor _me in my designs_ I will proceed, as soon as my health will permit, to rid _my_ country of some of her deadliest enemies, by striking at the very _hearts' blood_ of those who seek to enchain her in slavery. I consider nothing _dishonorable_ having such a tendency. All I ask of you is, to favor me by granting me the necessary papers, etc., to travel on.... _I am perfectly familiar with the North_, and feel confident that I can _execute_ anything I undertake. I was in the raid last June in Kentucky, under General John H. Morgan; ... was taken prisoner; ... escaped from them by dressing myself in the garb of a citizen.... I went through to the Canadas, from whence, by the assistance of _Colonel J. P. Holcomb_, I succeeded in working my way around and through the blockade.... I should like to have a _personal_ interview with you in order to perfect the arrangements before starting."

Is there any room to doubt that this was a proposition to _assassinate_, by the hand of this man and his associates, such persons in the North as he deemed the "deadliest enemies" of the rebellion? The weakness of the man who for a moment can doubt that such was the proposition of the writer of this letter is certainly an object of commiseration. What had Jefferson Davis to say to this proposed assassination of the "deadliest enemies" in the North of his great treason? Did the atrocious suggestion kindle in him indignation against the villain who offered, with his own hand, to strike the blow? Not at all. On the contrary, he ordered his private secretary, on the 29th of November, 1864, to endorse upon the letter these words: "Lieutenant W. Alston; accompanied raid into Kentucky, and was captured, but escaped into _Canada_, from whence he found his way back. Now offers his services to rid the country of some of its _deadliest enemies_; asks for papers, etc. Respectfully referred, by direction of the President, to the honorable Secretary of War." It is also indorsed, for attention, "by order. (Signed) J. A. Campbell, Assistant Secretary of War."

Note the fact in this connection, that Jefferson Davis himself, as well as his subordinates, had, before the date of this indorsement, concluded that Abraham Lincoln was "the deadliest enemy" of the rebellion. You hear it in the rebel camp in Virginia, in 1863, declared by Booth, then and there present, and assented to by rebel officers, that "Abraham Lincoln must be killed." You hear it in that slaughter-pen in Georgia--Andersonville--proclaimed among rebel officers, who, by the slow torture of starvation, inflicted cruel and untimely death on ten thousand of your defenders, captives in their hands--whispering, like demons, their horrid purpose, "Abraham Lincoln must be killed." And in Canada, the accredited agents of Jefferson Davis, as early as October, 1864, and afterwards, declared that "Abraham Lincoln must be killed" if his re-election could not be prevented. These agents in Canada, on the 13th of October, 1864, delivered, in cipher, to be transmitted to Richmond by Richard Montgomery, the witness, whose reputation is unchallenged, the following communication:--

"October 13, 1864.

"We again urge the immense necessity of our gaining immediate advantages. Strain every nerve for victory. We now look upon the re-election of _Lincoln_ in November as almost certain, and we need to whip his hirelings to prevent it. Besides, with _Lincoln_ re-elected, and his armies victorious, we need not hope even for recognition, much less the help mentioned in our last. Holcomb will explain this. Those figures of the Yankee armies are correct to a unit. _Our friends shall be immediately set to work as you direct._"

To which an official reply, in cipher, was delivered to Montgomery by an agent of the state department in Richmond, dated October 19, 1864, as follows:--

"Your letter of the 13th instant is at hand. There is yet time enough to colonize many _voters_ before November. A blow will shortly be stricken here. It is not quite time. General Longstreet is to attack Sheridan without delay, and then move north as far as practicable toward unprotected points. This will be made instead of movement before mentioned. He will endeavor to assist the _republicans in collecting their ballots_. Be watchful and assist him."

On the very day of the date of this Richmond despatch, Sheridan was attacked, with what success history will declare. The court will not fail to notice that the _re-election of Mr. Lincoln_ is to be prevented, if possible, by any and every means. Nor will they fail to notice that _Holcombe_ is to "explain this"--the same person who, in Canada, was the friend and advisor of _Alston_, who proposed to Davis the assassination of the "deadliest enemies" of the rebellion.

In the despatch of the 13th of October, which was borne by Montgomery, and transmitted to Richmond in October last, you will find these words: "Our friends shall be immediately set to work as you direct." Mr. Lincoln is the subject of that despatch. Davis is therein notified that his agents in Canada look upon the re-election of Mr. Lincoln in November as almost certain. In this connection he is assured by those agents that the _friends_ of their cause are to be set to work as Davis _had directed_. The conversations, which are proved by witnesses whose character stands unimpeached, disclose what "work" the "friends" were to do under the _direction_ of Davis himself. Who were these "friends," and what was "the work" which his agents, Thompson, Clay, Tucker, and Sanders, had been directed to set them at? Let Thompson answer for himself. In a conversation with Richard Montgomery in the summer of 1864, Thompson said that he "_had his friends_, confederates, all over the Northern States, who were ready and willing to go any lengths for the good of the cause of the South, and he could at any time have the _tyrant Lincoln_ or _any other of his advisers_ that he chose _put out of his way_; that they would not consider it _a crime_ when done for the cause of the Confederacy." This conversation was repeated by the witness in the summer of 1864, to Clement C. Clay, who immediately stated: "That is so; we are all devoted to our cause and ready to go any length--to do anything under the sun."

At and about the time that these declarations of Clay and Thompson were made, _Alston_, who made the proposition, as we have seen, to Davis to be furnished with papers _to go north_ and rid the Confederacy of some of its "deadliest enemies," was in Canada. He was doubtless one of the "friends" referred to. As appears by the testimony of Montgomery, Payne, the prisoner at your bar, was about that time in Canada, and was seen standing by Thompson's door, engaged in a conversation with Clay, between whom and the witness some words were interchanged, when Clay stated he (Payne) was one of _their friends_--"we trust him." It is proved beyond a shadow of doubt that in October last John Wilkes Booth, the assassin of the President, was also in Canada, and upon intimate terms with Thompson, Clay, Sanders, and other rebel agents. Who can doubt, in the light of the events which have since transpired, that he was one of the "friends" to be "set to work," as Davis had already directed--not, perhaps, as yet to assassinate the President, but to do that other work which is suggested in the letter of Oldham, indorsed by Davis in his own hand, and spread upon your record--the work of a secret incendiary, which was to "fill the people of the North with terror and consternation." The other "work" spoken of by Thompson--putting the _tyrant Lincoln and any of his advisers out of the way_--was work doubtless to be commenced only after the re-election of Mr. Lincoln, which they had already declared in their despatch to their employer, Davis, was with them a foregone conclusion. At all events, it was not until after the presidential election in November that Alston proposed to Davis to go north on the work of assassination; nor was it until after that election that Booth was found in possession of the letter which is in evidence, and which discloses the purpose to assassinate the President. Being assured, however, when Booth was with them in Canada, as they had already declared in their despatch, that the re-election of Mr. Lincoln was certain, in which event there would be no hope for the Confederacy, they doubtless entered into the arrangement with Booth as one of their "friends," that as soon as that fact was determined he should go to "work," and as soon as might be "rid the Confederacy of the tyrant Lincoln and of his advisers."

That these persons named upon your record,--Thompson, Sanders, Clay, Cleary, and Tucker,--were the agents of Jefferson Davis, is another fact established in this case beyond a doubt. They made affidavit of it themselves, of record here, upon the examination of their "friends" charged with the raid upon St. Albans, before Judge Smith, in Canada. It is in evidence also by the letter of Clay, before referred to.

The testimony to which I have thus briefly referred shows, by the letter of his agents of the 13th of October, that Davis had before directed those agents to set his _friends to work_. By the letter of Clay it seems that his direction had been obeyed, and his friends had been set to work in the burning and robbery and murder at St. Albans, in the attempt to burn the city of New York, and in the attempt to introduce pestilence into this capital and into the house of the President. It having appeared, by the letter of Alston, and the indorsement thereon, that Davis had in November entertained the proposition of sending agents, that is to say "friends," to the North to not only "spread terror and consternation among the people" by means of his "chemical preparations," but also, in the words of that letter, to "strike," by the hands of assassins, "at the heart's blood" of the deadliest enemies in the North to the Confederacy of traitors; it has also appeared by the testimony of many respectable witnesses, among others the attorneys who represented the people of the United States and the State of Vermont, in the preliminary trial of the raiders in Canada, that Clay, Thompson, Tucker, Sanders, and Cleary declared themselves the agents of the Confederacy. It also clearly appears by the correspondence referred to, and the letter of Clay, that they were holding, and at any time able to command, blank commissions from Jefferson Davis to authorize _their friends_ to do whatever work they appointed them to do in the interests of the rebellion, by the destruction of life and property in the North.

If a _prima facie_ case justifies, as we have seen by the law of evidence it does, the introduction of all declarations and acts of any of the parties to a conspiracy, uttered or done in the prosecution of the common design, as evidence against all the rest, it results that whatever was said or done in furtherance of the common design, after this month of October, 1864, by either of these agents in Canada, is evidence not only against themselves, but against Davis as well, of his complicity with them in the conspiracy.

Mr. Montgomery testifies that he met Jacob Thompson in January at Montreal, when he said that "a proposition had been made to him to rid the world of the tyrant Lincoln, Stanton, Grant, and some others; that he knew the men who had made the proposition were bold, daring men, able to execute what they undertook; that he himself was in favor of the proposition, but had determined to defer his answer until he had consulted his government at Richmond; that he was then only awaiting their approval." This was about the middle of January, and consequently more than a month after Alston had made his proposition direct to Davis, in writing, to go north and rid their Confederacy of some of its "deadliest enemies." It was at the time of this conversation that. Payne, the prisoner, was seen by the witness standing at Thompson's door in conversation with Clay. This witness also shows the intimacy between Thompson, Clay, Cleary, Tucker, and Sanders.

A few days after the assassination of the President, Beverly Tucker said to this witness "that President Lincoln deserved his death long ago; that it was a pity he didn't have it long ago, and it was too bad that the boys had not been allowed to act when they wanted to."

This remark undoubtedly had reference to the propositions made in the fall to Thompson, and also to Davis, to rid the South of its deadliest enemies by their assassination. Cleary, who was accredited by Thompson as his confidential agent, also stated to this witness that Booth was one of the party to whom Thompson had referred in the conversation in January, in which he said he knew the men who were ready to rid the world of the tyrant Lincoln, and of Stanton and Grant. Cleary also said, speaking of the assassination, "that it was a pity that the whole work had not been done," and added, "they had better look out--we are not done yet"; manifestly referring to the statement made by his employer, Thompson, before in the summer, that not only the tyrant Lincoln, but Stanton and Grant, and others of his advisers, should be put out of the way. Cleary also stated to this witness that Booth had visited Thompson twice in the winter, the last time in December, and had also been there in the summer.

Sanford Conover testified that he had been for some time a clerk in the war department at Richmond; that in Canada he knew Thompson, Sanders, Cleary, Tucker, Clay, and other rebel agents; that he knew John H. Surratt and John Wilkes Booth; that he saw Booth there upon one occasion, and Surratt upon several successive days; that he saw Surratt (whom he describes) in April last in Thompson's room, and also in company with Sanders; that about the 6th or 7th of April, Surratt delivered to Jacob Thompson a despatch brought by him from Benjamin at Richmond, enclosing one in cipher from Davis. Thompson had before this proposed to Conover to engage in a plot to assassinate President Lincoln and his cabinet, and on this occasion he laid his hand upon these despatches and said, "This makes the thing all right," referring to the assent of the rebel authorities, and stated that the rebel authorities had consented to the plot to assassinate Lincoln, Johnson, the Secretary of War, Secretary of State, Judge Chase, and General Grant. Thompson remarked further that the assassination of these parties would leave the government of the United States entirely without a head; that there was no provision in the Constitution of the United States by which they could elect another President if these men were put out of the way.

In speaking of this assassination of the President and others, Thompson said that it was only removing them from office, that the killing of a tyrant was no murder. It seems that he had learned precisely the same lesson that Alston had learned in November, when he communicated with Davis, and said, speaking of the President's assassination, "he did not think anything dishonorable that would serve their cause." Thompson stated at the same time that he had conferred a commission on Booth, and that everybody engaged in the enterprise would be commissioned, and if it succeeded, or failed, and they escaped into Canada, they could not be reclaimed under the extradition treaty. The fact that Thompson and other rebel agents held blank commissions, as I have said, has been proved, and a copy of one of them is of record here.

This witness also testifies to a conversation with William C. Cleary, shortly after the surrender of Lee's army, and on the day before the President's assassination, at the St. Lawrence Hotel, Montreal, when speaking of the rejoicing in the States over the capture of Richmond, Cleary said, "they would put the laugh on the other side of their mouth _in a day or two_." These parties knew that Conover was in the secret of the assassination, and talked with him about it as freely as they would speak of the weather. Before the assassination he had a conversation also with Sanders, who asked him if he knew Booth well, and expressed some apprehension that Booth would "make a failure of it; that he was desperate and reckless, and he was afraid the whole thing would prove a failure."

Dr. James D. Merritt testifies that George Young, one of the parties named in the record, declared in his presence, in Canada, last fall, that Lincoln should never be inaugurated; that they had friends in Washington who, I suppose, were some of the same friends referred to in the despatch of October 13, and which Davis had directed them "to set to work." George N. Sanders also said to him "that Lincoln would keep himself mighty close if he did serve another term"; while Steele and other Confederates declared that the tyrant never should serve another term. He heard the assassination discussed at a meeting of these rebel agents in Montreal in February last. "Sanders said they had _plenty of money_ to accomplish the assassination, and named over a number of persons who were ready and willing to engage in undertaking to remove the President, Vice-President, the cabinet, and some of the leading generals. At this meeting he read a letter which he had received from Davis, which justified him in making any arrangements that he could to accomplish the object." This letter the witness heard read, and it, in substance, declared that if the people in Canada and the Southerners in the States were willing to submit to be governed by such a tyrant as Lincoln, he didn't wish to recognize them as friends. The letter was read openly; it was also handed to Colonel Steele, George Young, Hill, and Scott, to be read. This was about the middle of February last. At this meeting Sanders named over the persons who were willing to accomplish the assassination, and among the persons thus named was Booth, whom the witness had seen in Canada in October; also George Harper, one of the conspirators named on the record, Caldwell, Randall, Harrison, and Surratt.

The witness understood, from the reading of the letter, that if the President, Vice-President, and cabinet could be disposed of it would satisfy the people of the North that the Southerners had _friends_ in the North; that a peace could be obtained on better terms; that the rebels had endeavored to bring about a war between the United States and England, and that Mr. Seward, through his energy and sagacity, had thwarted all their efforts; that was given as a reason for removing him. On the 5th or 6th of last April this witness met George Harper, Caldwell, Randall, and others, who are spoken of in this meeting at Montreal as engaged to assassinate the President and cabinet, when Harper said they were going to the States to make a row such as had never been heard of, and added that "if I (the witness) did not hear of the death of Old Abe, of the Vice-President, and of General Dix in less than ten days I might put him down as a fool. That was on the 6th of April. He mentioned that Booth was in Washington at that time. He said they had plenty of friends in Washington, and that some fifteen or twenty were going."

This witness ascertained, on the 8th of April, that Harper and others had left for the States. The proof is that these parties could come through to Washington from Montreal or Toronto in thirty-six hours. They did come, and within the ten days named by Harper the President was murdered! Some attempts have been made to discredit this witness (Dr. Merritt), not by the examination of witnesses in court, not by any apparent want of truth in the testimony, but by the _ex parte_ statements of these rebel agents in Canada and their hired advocates in the United States. There is a statement upon the record verified by an official communication from the War Department, which shows the truthfulness of this witness, and that is, that before the assassination, learning that Harper and his associates had started for the States, informed as he was of their purpose to assassinate the President, cabinet, and leading generals, Merritt deemed it his duty to call, and did call, on the 10th of April, upon a justice of the peace in Canada, named Davidson, and gave him the information that he might take steps to stop these proceedings. The correspondence on this subject with Davidson has been brought into court. Dr. Merritt testifies further that after this meeting in Montreal he had a conversation with Clement C. Clay, in Toronto, about the letter from Jefferson Davis which Sanders had exhibited, in which conversation Clay gave the witness to understand that he knew the nature of the letter perfectly, and remarked that he thought "the end would justify the means." The witness also testifies to the presence of Booth with Sanders in Montreal last fall, and of Surratt in Toronto in February last.

The court must be satisfied by the manner of this and other witnesses to the transactions in Canada, as well as by the fact that they are wholly uncontradicted in any material matter that they state, that they speak the truth, and that the several parties named on your record--Davis, Thompson, Cleary, Tucker, Clay, Young, Harper, Booth, and John H. Surratt--did combine and conspire together in Canada to kill and murder Abraham Lincoln, Andrew Johnson, William H. Seward, and Ulysses S. Grant. That this agreement was substantially entered into by Booth and the agents of Davis in Canada as early as October there cannot be any doubt. The language of Thompson at that time and before was, that he was in favor of the assassination. His further language was that he knew the men who were ready to do it; and Booth it was shown was there at that time, and, as Thompson's secretary says, was one of the men referred to by Thompson.

The fact that others, besides the parties named on the record, were, by the terms of the conspiracy to be assassinated in no wise affects the case now on trial. If it is true that these parties did conspire to murder other parties, as well as those named upon the record, the substance of the charge is proved.

It is also true that if, in pursuance of that conspiracy, Booth, confederated with Surratt and the accused, killed and murdered Abraham Lincoln, the charge and specification is proved literally as stated on your record, although their conspiracy embraced other persons. In law the case stands, though it may appear that the conspiracy was to kill and murder the parties named in the record and others not named in the record. If the proof is that the accused, with Booth, Surratt, Davis, etc., conspired to kill and murder one or more of the persons named, the charge of the conspiracy is proved.

The declaration of Sanders, as proved, that there was plenty of money to carry out this assassination, is very strongly corroborated by the testimony of Mr. Campbell, cashier of the Ontario Bank, who states that Thompson, during the current year preceding the assassination, had upon deposit in the Montreal branch of the Ontario Bank six hundred and forty-nine thousand dollars, beside large sums to his credit in other banks in the province.

There is a further corroboration of the testimony of Conover as to the meeting of Thompson and Surratt in Montreal, and the delivery of the despatches from Richmond, on the 6th or 7th of April, first, in the fact which is shown by the testimony of Chester, that in the winter or spring Booth said he himself or some other party must go to Richmond, and second, by the letter of Arnold, dated 27th of March last, that he preferred Booth's first query, that he would first go to Richmond and see how they would take it, manifestly alluding to the proposed assassination of the President. It does not follow because Davis had written a letter in February which, in substance, approved the general object, that the parties were fully satisfied with it; because it is clear there was to be some arrangement made about the funds; and it is also clear that Davis had not before as distinctly approved and sanctioned this act as his agents either in Canada or here desired. Booth said to Chester, "We must have money; there is money in this business, and if you will enter into it I will place three thousand dollars at the disposal of your family; but I have no money myself, and must go to Richmond," or one of the parties must go, "to get money to carry out the enterprise." This was one of the arrangements that was to be "made right in Canada." The funds at Thompson's disposal, as the banker testifies, were exclusively raised by drafts of the secretary of the treasury of the Confederate States upon London, deposited in their bank to the credit of Thompson.

Accordingly, about the 27th of March, Surratt did go to Richmond. On the 3rd of April he returned to Washington, and the same day left for Canada. Before leaving, he stated to Wiechmann that when in Richmond he had had a conversation with Davis and with Benjamin. The fact in this connection is not to be overlooked, that on or about the day Surratt arrived in Montreal, April 6, Jacob Thompson, as the cashier of the Ontario bank states, drew of these Confederate funds the sum of one hundred and eighty thousand dollars in the form of certificates, which, as the bank officer testifies, "might be used anywhere."

What more is wanting? Surely no word further need be spoken to show that John Wilkes Booth was in this conspiracy; that John H. Surratt was in this conspiracy; and that Jefferson Davis and his several agents named, in Canada, were in this conspiracy. If any additional evidence is wanting to show the complicity of Davis in it, let the paper found in the possession of his hired assassin, Booth, come to bear witness against him. That paper contained the secret cipher which Davis used in his state department at Richmond which he employed in communicating with his agents in Canada, and which they employed in the letter of October 13, notifying him that "their friends would be set to work as _he had directed_." The letter in cipher found in Booth's possession is translated here by the use of the cipher machine now in court, which, as the testimony of Mr. Dana shows, he brought from the rooms of Davis's state department in Richmond. Who gave Booth this secret cipher? Of what use was it to him if he was not in confederation with Davis?

But there is one other item of testimony that ought, among honest and intelligent people at all conversant with this evidence, to end all further inquiry as to whether Jefferson Davis was one of the parties, with Booth, as charged upon this record, in the conspiracy to assassinate the President and others. That is that on the fifth day after the assassination, in the city of Charlotte, N. C., a telegraphic despatch was received by him, at the house of Mr. Bates, from John C. Breckinridge, his rebel Secretary of War, which despatch is produced here, identified by the telegraph agent, and placed upon your record in the words following:--

"GREENSBORO', April 19, 1865.

"_His Excellency President Davis_:--

"President Lincoln was assassinated in the theatre in Washington on the night of the 14th inst. Seward's house was entered on the same night and he was repeatedly stabbed, and is probably mortally wounded.

"JOHN C. BRECKINRIDGE."

At the time this despatch was handed to him, Davis was addressing a meeting from the steps of Mr. Bates's house, and after reading the despatch to the people, he said: "If it were to be done, it were _better_ it were well done." Shortly afterwards, in the house of the witness, in the same city, Breckinridge, having come to see Davis, stated his regret that the occurrence had happened, because he deemed it unfortunate for the people of the South at that time. Davis replied, referring to the assassination, "Well, general, I don't know; if it were to be done at all, it were _better_ that it were well done; and if the same had been done to Andy Johnson, the beast, and to Secretary Stanton, the job would then be _complete_."

Accomplished as this man was in all the arts of a conspirator, he was not equal to the task--as happily, in the good providence of God, no mortal man is--of concealing, by any form of words, any great crime which he may have meditated or perpetrated either against his government or his fellow-men. It was doubtless furthest from Jefferson Davis's purpose to make confession, and yet he did make a confession. His guilt demanded utterance; that demand he could not resist; therefore his words proclaimed his guilt, in spite of his purpose to conceal it. He said, "if it were to be done, it were _better_ it were _well done_." Would any man ignorant of the conspiracy be able to devise and fashion such a form of speech as that? Had not the President been, murdered? Had he not reason to believe that the Secretary of State had been mortally wounded? Yet he was not satisfied, but was compelled to say, "it were _better_ it were _well done_"--that is to say, all that had been agreed to be done had not been done. Two days afterwards, in his conversation with Breckinridge, he not only repeats the same form of expression, "if it were to be done it were _better_ it were _well done_," but adds these words: "And if the same had been done to Andy Johnson, the beast, and to Secretary Stanton, the _job_ would _then be complete_." He would accept the assassination of the President, the Vice-President, of the Secretary of State, and the Secretary of War, as a complete execution of the "job," which he had given out upon, contract, and which he had "made all right," so far as the pay was concerned, by the despatches he had sent to Thompson by Surratt, one of his hired assassins. Whatever may be the conviction of others, my own conviction is that Jefferson Davis is as clearly proven guilty of this conspiracy as is John Wilkes Booth, by whose hand Jefferson Davis inflicted the mortal wound upon Abraham Lincoln. His words of intense hate and rage and disappointment are not to be overlooked--that the assassins had not done their work _well_; that they had not succeeded in robbing the people altogether of their constitutional Executive and his advisers; and hence he exclaims, "If they had killed Andy Johnson, the beast!" Neither can he conceal his chagrin and disappointment that the war minister of the republic, whose energy, incorruptible integrity, sleepless vigilance, and executive ability had organized day by day, month by month, and year by year, victory for our arms, had escaped the knife of the hired assassins. The job, says this procurer of assassination, was not well done; it had been _better_ if it had been well done! Because Abraham Lincoln had been clear in his great office, and had saved the nation's life by enforcing the nation's laws, this traitor declares he must be murdered; because Mr. Seward, as the foreign secretary of the country, had thwarted the purposes of treason to plunge his country into a war with England, he must be murdered; because, upon the murder of Mr. Lincoln, Andrew Johnson would succeed to the presidency, and because he had been true to the Constitution and government, faithful found among the faithless of his own State, clinging to the falling pillars of the republic when others had fled, he must be murdered; and because the Secretary of War had taken care, by the faithful discharge of his duties, that the republic should live and not die, he must be murdered. Inasmuch as these two faithful officers were not also assassinated, assuming that the Secretary of State was mortally wounded, Davis could not conceal his disappointment and chagrin that the work was not "well done," that "the job was not complete!"

Thus it appears by the testimony that the proposition made to Davis was to kill and murder the deadliest enemies of the Confederacy--not to kidnap them, as is now pretended here; that by the declaration of Sanders, Tucker, Thompson, Clay, Cleary, Harper, and Young, the conspirators in Canada, the agreement and combination among them was to kill and murder Abraham Lincoln, William H. Seward, Andrew Johnson, Ulysses S. Grant, Edwin M. Stanton, and others of his advisors, and not to kidnap them; it appears from every utterance of John Wilkes Booth, as well as from the Charles Selby letter, of which mention will presently be made, that, as early as November, the proposition with him was to kill and murder, not to kidnap.

Since the first examination of Conover, who testified, as the court will remember, to many important facts against these conspirators and agents of Davis in Canada--among others, the terrible and fiendish plot disclosed by Thompson, Pallen, and others, that they had ascertained the volume of water in the reservoir supplying New York City, estimated the quantity of poison required to render it deadly, and intended thus to poison a whole city--Conover returned to Canada, by direction of this court, for the purpose of obtaining certain documentary evidence. There, about the 9th of June, he met Beverley Tucker, Sanders, and other conspirators, and conversed with them. Tucker declared that Secretary Stanton, whom he denounced as "a scoundrel," and Judge Holt, whom he called "a bloodthirsty villain," "could protect themselves as long as they remained in office by a guard, but that would not always be the case, and, by the Eternal, he had a large account to settle with them." After this, the evidence of Conover here having been published, these parties called upon him and asked him whether he had been to Washington and had testified before this court. Conover denied it; they insisted, and took him to a room where, with drawn pistols, they compelled him to consent to make an affidavit that he had been falsely personated here by another, and that he would make that affidavit before a Mr. Kerr, who would witness it. They then called in Mr. Kerr to certify to the public that Conover had made such a denial. They also compelled this witness to furnish for publication an advertisement offering a reward of five hundred dollars for the arrest of the "infamous and perjured scoundrel" who had recently personated James W. Wallace under the name of Sanford Conover, and testified to a tissue of falsehoods before the military commission at Washington, which advertisement was published in the papers.

To these facts Mr. Conover now testifies, and also discloses the fact that these same men published, in the report of the proceedings before Judge Smith, an affidavit purporting to be his, but which he never made. The affidavit which he in fact made, and which was published in a newspaper at that time, produced here, is set out substantially upon your record, and agrees with the testimony upon the same point given by him in this court.

To suppose that Conover ever made such an affidavit voluntarily as the one wrung from him as stated is impossible. Would he advertise for his own arrest and charge himself with falsely personating himself? But the fact cannot evade observation, that when these guilty conspirators saw Conover's testimony before this court in the public prints, revealing to the world the atrocious plots of these felon conspirators, conscious of the truthfulness of his statements, they cast about at once for some defense before the public, and devised the foolish and stupid invention of compelling him to make an affidavit that he was not Sanford Conover, was not in this court, never gave this testimony, but was a practicing lawyer in Montreal! This infamous proceeding, coupled with the evidence before detailed, stamps these ruffian plotters with the guilt of this conspiracy.

John Wilkes Booth having entered into this conspiracy in Canada, as has been shown, as early as October, he is next found in the city of New York on the 11th day, as I claim, of November, in disguise, in conversation with another, the conversation disclosing to the witness, Mrs. Hudspeth, that they had some matter of personal interest between them; that upon one of them the lot had fallen to go to Washington--upon the other to go to New Berne. This witness, upon being shown the photograph of Booth, swears "that the face is the same" as that of one of those men, who, she says, was a young man of education and culture, as appeared by his conversation, and who had a scar like a bite near the jaw-bone. It is a fact proved here by the Surgeon General that Booth had such a scar on the side of his neck. Mrs. Hudspeth heard him say he would leave for Washington the day after to-morrow. His companion appeared angry because it had not fallen on him to go to Washington. This took place after the presidential election in November. She cannot fix the precise date, but says she was told that General Butler left New York on that day. The testimony discloses that General Butler's army was on the 11th of November leaving New York. The register of the National Hotel shows that Booth left Washington on the early morning train, November 11, and that he returned to this city on the 14th. Chester testifies positively to Booth's presence in New York early in November. This testimony shows most conclusively that Booth was in New York on the 11th of November. The early morning train on which he left Washington would reach New York early in the afternoon of that day. Chester saw him there early in November, and Mrs. Hudspeth not only identifies his picture, but describes his person. The scar upon his neck near his jaw was peculiar and is well described by the witness as like a bite. On that day Booth had a letter in his possession which he accidentally dropped in a street car in the presence of Mrs. Hudspeth, the witness, who delivered it to Major General Dix the same day, and by whom, as his letter on file before this court shows, the same was transmitted to the War Department, November 17, 1864. That letter contains these words:--

"DEAR LOUIS:--The time has at last come that we have all so wished for, and upon you everything depends. As it was decided, before you left, we were to cast lots, we accordingly did so, and you are to be the Charlotte Corday of the nineteenth century. When you remember the fearful, solemn vow that was taken by us, you will feel there is no drawback. _Abe_ must _die_, and _now_. You can choose your weapons--_the cup_, _the knife_, _the bullet_. The cup failed us once, and might again. Johnson, who will give _this_, has been like an enraged demon since the meeting, because it has not fallen upon him to rid the world of the monster.... You know where _to find your friends_. Your _disguises_ are so perfect and complete that without _one_ knew your _face_ no police telegraphic despatch would catch you. The English gentleman, _Harcourt_, must not act hastily. Remember, he has ten days. _Strike for your home, strike for your country; bide your time, but strike sure._ Get introduced; congratulate him; listen to his stories (not many more will the brute tell to earthly friends); do anything but fail, and meet us at the appointed place within the fortnight. You will probably hear from me in Washington. Sanders is doing us no good in Canada.

"CHAS. SELBY."

The learned gentleman (Mr. Cox), in his very able and carefully considered argument in defense of O'Laughlin and Arnold, attached importance to this letter, and doubtless very clearly saw its bearing upon the case, and therefore undertook to show that the witness, Mrs. Hudspeth, must be mistaken as to the person of Booth. The gentleman assumes that the letter of General Dix, of the 17th of November last, transmitting this letter to the War Department, reads that the party who dropped the letter was heard to say that he would start to Washington on Friday night next, although the word "next" is not in the letter, neither is it in the quotation which the gentleman makes, for he quotes it fairly; yet he concludes that this would be the 18th of November.

Now the fact is, the 11th of November last was Friday, and the register of the National Hotel bears witness that Mrs. Hudspeth is not mistaken; because her language is, that Booth said he would leave for Washington day after to-morrow, which would be Sunday, the 13th, and if in the evening, would bring him to Washington on Monday, the 14th of November, the day on which, the register shows, he did return to the National Hotel. As to the improbability which the gentleman raises, on the conversation happening in a street car, crowded with people, there was nothing that transpired, although the conversation was earnest, which enabled the witness, or could have enabled any one, in the absence of this letter or of the subsequent conduct of Booth, to form the least idea of the subject-matter of their conversation. The gentleman does not deal altogether fairly in his remarks touching the letter of General Dix, because, upon a careful examination of the letter, it will be found that he did not form any such judgment as that it was a hoax for the _Sunday Mercury_; but he took care to forward it to the Department, and asked attention to it, when, as appears by the testimony of the Assistant Secretary of War, Mr. Dana, the letter was delivered to Mr. Lincoln, who considered it important enough to indorse it with the word "Assassination," and file it in his office, where it was found after the commission of this crime, and brought into this court to bear witness against his assassins.

Although this letter would imply that the assassination spoken of was to take place speedily, yet the party was _to bide his time_. Though he had entered into the preliminary arrangements in Canada, although conspirators had doubtless agreed to co-operate with him in the commission of the crime, and lots had been cast for the chief part in the bloody drama, yet it remained for him, as the leader and principal of the hired assassins, by whose hand their employers were to strike the murderous blow, to collect about him and bring to Washington such persons as would be willing to lend themselves for a price to the horrid crime, and likely to give the necessary aid and support in its consummation. The letter declares that Abraham Lincoln must die, and _now_, meaning as soon as the agents can be employed and the work done. To that end you will _bide your time_. But, says the gentleman, it could not have been the same conspiracy charged here to which this letter refers. Why not? It is charged here that Booth, with the accused and others, conspired to kill and murder Abraham Lincoln; that is precisely the conspiracy disclosed in the letter. Granted that the parties on trial had not then entered into the combination; if they at any time afterward entered into it they became parties to it, and the conspiracy was still the same. But, says the gentleman, the words of the letter imply that the conspiracy was to be executed within the fortnight. Booth is directed, by the name of Louis, to meet the writer within the fortnight. It by no means follows that he was to strike within the fortnight, because he was to meet his co-conspirator within that time, and any such conclusion is excluded by the words, "Bide your time." Even if the conspiracy was to be executed within the fortnight, and was not so executed, and the same party, Booth, afterwards by concert and agreement with the accused and others, did execute it by "striking sure" and killing the President, that act, whenever done, would be but the execution of the same conspiracy. The letter is conclusive evidence of so much of this conspiracy as relates to the murder of President Lincoln. As Booth was to do anything but fail, he immediately thereafter sought out the agents to enable him to strike sure and execute all that he had agreed with Davis and his co-confederates in Canada to do--to murder the President, the Secretary of State, the Vice-President, General Grant, and Secretary Stanton.

Even Booth's co-conspirator, Payne, now on his trial, by his defense admits all this, and says Booth had just been to Canada, "was filled with a mighty scheme, and was lying in wait for agents." Booth asked the co-operation of the prisoner, Payne, and said: "I will give you as much money as you want; but first you must swear to stick by me. It is in the oil business." This you are told by the accused was early in March last. Thus guilt bears witness against itself.

We find Booth in New York in November, December, and January, urging Chester to enter into this combination, assuring him that there was _money_ in it; that they had "friends on the other side"; that if he would only participate in it he would never want for money while he lived, and all that was asked of him was to stand at and open _the back door of Ford's Theatre_. Booth, in his interviews with Chester, confesses that _he is without money himself_, and allows Chester to reimburse him the fifty dollars which he (Booth) had transmitted to him in a letter for the purpose of paying his expenses to Washington as one of the parties to this conspiracy. Booth told him, although he himself was penniless, "_there is money in this_--we have friends on the other side"; and if you will but engage, I will have three thousand dollars deposited at once for the use of your family.

Failing to secure the services of Chester, because his soul recoiled with abhorrence from the foul work of assassination and murder, he found more willing instruments in others whom he gathered about him. Men to commit the assassinations, horses to secure speedy and certain escape, were to be provided, and to this end Booth, with an energy worthy of a better cause, applies himself. For this latter purpose he told Chester he had already expended five thousand dollars. In the latter part of November, 1864, he visits Charles County, Md., and is in company with one of the prisoners, Dr. Samuel A. Mudd, with whom he lodged over night, and through whom he procures of Gardner one of the several horses which were at his disposal and used by him and his co-conspirators in Washington on the night of the assassination.

Some time in January last, it is in testimony that the prisoner Mudd introduced Booth to John H. Surratt and the witness Wiechmann; that Booth invited them to the National Hotel; that when there, in the room to which Booth took them, Mudd went out into the passage, called Booth out and had a private conversation with him, leaving the witness and Surratt in the room. Upon their return to the room, Booth went out with Surratt, and upon their coming in, all three--Booth, Surratt, and Samuel A. Mudd--went out together and had a conversation in the passage, leaving the witness alone. Up to the time of this interview it seems that neither the witness nor Surratt had any knowledge of Booth, as they were then introduced to him by Dr. Mudd. Whether Surratt had in fact previously known Booth it is not important to inquire. Mudd deemed it necessary, perhaps a wise precaution, to introduce Surratt to Booth; he also deemed it necessary to have a private conversation with Booth shortly afterwards, and directly upon that to have a conversation together with Booth and Surratt alone. Had this conversation, no part of which was heard by the witness, been perfectly innocent, it is not to be presumed that Dr. Mudd, who was an entire stranger to Wiechmann, would have deemed it necessary to hold the conversation secretly, nor to have volunteered to tell the witness, or rather pretend to tell him, what the conversation was; yet he did say to the witness, upon their return to the room, by way of apology, I suppose, for the privacy of the conversation, that Booth had some private business with him and wished to purchase his farm. This silly device, as is often the case in attempts at deception, failed in the execution; for it remains to be shown how the fact that Mudd had private business with Booth, and that Booth wished to purchase his farm, made it at all necessary, or even proper, that they should both volunteer to call out Surratt, who, up to that moment, was a stranger to Booth. What had Surratt to do with Booth's purchase of Mudd's farm? And if it was necessary to withdraw and talk by themselves secretly about the sale of the farm, why should they disclose the fact to the very man from whom they had concealed it?

Upon the return of these three parties to the room, they seated themselves at a table, and upon the back of an envelope Booth traced lines with a pencil, indicating, as the witness states, the direction of roads. Why was this done? As Booth had been previously in that section of country, as the prisoner in his defense has taken great pains to show, it was certainly not necessary to anything connected with the purchase of Mudd's farm that at that time he should be indicating the direction of roads to or from it; nor is it made to appear, by anything in this testimony, how it comes that Surratt, as the witness testifies, seemed to be as much interested in the marking out of these roads as Mudd or Booth. It does not appear that Surratt was in any wise connected with or interested in the sale of Mudd's farm. From all that has transpired since this meeting at the hotel, it would seem that this plotting the roads was intended, not so much to show the road to Mudd's farm, as to point out the shortest and safest route for flight from the capital, by the houses of all the parties to this conspiracy, to their "friends on the other side."

But, says the learned gentleman (Mr. Ewing), in his very able argument in defense of this prisoner, why should Booth determine that his flight should be through Charles County? The answer must be obvious, upon a moment's reflection, to every man, and could not possibly have escaped the notice of the counsel himself, but for the reason that his zeal for his client constrained him to overlook it. It was absolutely essential that this murderer should have his co-conspirators at convenient points along his route, and it does not appear in evidence that by the route to his friends, who had then fled from Richmond, which the gentleman (Mr. Ewing) indicates as the more direct, but of which there is not the slightest evidence whatever, Booth had co-conspirators at an equal distance from Washington. The testimony discloses, further, that on the route selected by him for his flight there is a large population that would be most likely to favor and aid him in the execution of his wicked purpose and in making his escape. But it is a sufficient answer to the gentleman's question that Booth's co-conspirator, Mudd, lived in Charles County.

To return to the meeting at the hotel. In the light of other facts in this case, it must become clear to the court that this secret meeting between Booth, Surratt, and Mudd was a conference looking to the execution of this conspiracy. It so impressed the prisoner--it so impressed his counsel, that they deemed it necessary and absolutely essential to their defense to attempt to destroy the credibility of the witness Wiechmann.

I may say here, in passing, that they have not attempted to impeach his general reputation for truth by the testimony of a single witness, nor have they impeached his testimony by calling a single witness to discredit one material fact to which he has testified in this issue. Failing to find a breath of suspicion against Wiechmann's character, or to contradict a single fact to which he testified, the accused had to fly to the last resort, an _alibi_, and very earnestly did the learned counsel devote himself to the task.

It is not material whether this meeting in the hotel took place on the 23d of December or in January. But, says the counsel, it was after the commencement or close of the Congressional holiday. That is not material; but the concurrent resolution of Congress shows that the holiday commenced on the 22d of December, the day before the accused spent the evening in Washington. The witness is not certain about the date of this meeting. The material fact is, did this meeting take place--either on the 23d of December or in January last? Were the private interviews there held, and was the apology made, as detailed, by Mudd and Booth, after the secret conference, to the witness? That the meeting did take place, and that Mudd did explain that these secret interviews, with Booth first, and with Booth and Surratt directly afterward, had relation to the sale of his farm, is confessedly admitted by the endeavor of the prisoner, through his counsel, to show that negotiations had been going on between Booth and Mudd for the sale of Mudd's farm. If no such meeting was held, if no such explanation was made by Mudd to Wiechmann, can any man for a moment believe that a witness would have been called here to give any testimony about Booth having negotiated for Mudd's farm? What conceivable connection has it with this case, except to show that Mudd's explanation to Wiechmann for his extraordinary conduct was in exact accordance with the fact? Or was this testimony about the negotiations for Mudd's farm intended to show so close an intimacy and intercourse with Booth that Mudd could not fail to recognize him when he came flying for aid to his house from the work of assassination? It would be injustice to the able counsel to suppose that.

I have said that it was wholly immaterial whether this conversation took place on the 23d of December or in January; it is in evidence that in both these months Booth was at the National Hotel; that he occupied a room there; that he arrived there on the 22d and was there on the 23d of December last, and also on the 12th day of January. The testimony of the witness is, that Booth said he had just come in. Suppose this conversation took place in December, on the evening of the 23d, the time when it is proved by J. T. Mudd, the witness for the accused, that he, in company with Samuel A. Mudd, spent the night in Washington City. Is there anything in the testimony of that or any other witness to show that the accused did not have and could not have had an interview with Booth on that evening? J. T. Mudd testifies that he separated from the prisoner, Samuel A. Mudd, at the National Hotel early in the evening of that day, and did not meet him again until the accused came in for the night at the Pennsylvania House, where he stopped. Where was Dr. Samuel A. Mudd during this interval? What does his witness know about him during that time? How can he say that Dr. Mudd did not go up on Seventh Street in company with Booth, then at the National; that he did not on Seventh Street meet Surratt and Wiechmann; that he did not return to the National Hotel; that he did not have this interview, and afterwards meet him, the witness, as he testifies, at the Pennsylvania House? Who knows that the Congressional holiday had not in fact commenced on that day? What witness has been called to prove that Booth did not on either of those occasions occupy the room that had formerly been occupied by a member of Congress, who had temporarily vacated it, leaving his books there? Wiechmann, I repeat, is not positive as to the date, he is only positive as to the fact; and he disclosed voluntarily to this court that the date could probably be fixed by a reference to the register of the Pennsylvania House; that register cannot, of course, be conclusive of whether Mudd was there in January or not, for the very good reason that the proprietor admits that he did not know Samuel A. Mudd, therefore Mudd might have registered by any other name. Wiechmann does not pretend to know that Mudd had registered at all. If Mudd was here in January, as a party to this conspiracy, it is not at all unlikely that, if he did register at that time in the presence of a man to whom he was wholly unknown, his kinsman not then being with him, he would register by a false name. But if the interview took place in December, the testimony of Wiechmann bears as strongly against the accused as if it had happened in January. Wiechmann says he does not know what time was occupied in this interview at the National Hotel; that it probably lasted twenty minutes; that, after the private interviews between Mudd and Surratt and Booth, which were not of very long duration, had terminated, the parties went to the Pennsylvania House, where Dr. Mudd had rooms, and after sitting together in the common sitting-room of the hotel, they left Dr. Mudd there about ten o'clock P.M., who remained during the night. Wiechmann's testimony leaves no doubt that this meeting on Seventh Street and interview at the National took place after dark, and terminated before or about ten o'clock P.M. His own witness, J. T. Mudd, after stating that he separated from the accused at the National Hotel, says after he had got through a conversation with a gentleman of his acquaintance, he walked down the Avenue, went to several clothing stores, and "after a while" walked round to the Pennsylvania House, and "very soon after" he got there Dr. Mudd came in, and they went to bed shortly afterwards. What time he spent in his "walk alone" on the Avenue, looking at clothing; what period he embraces in the terms "after a while," when he returned to the Pennsylvania House, and "soon after" which Dr. Mudd got there, the witness does not disclose. Neither does he intimate, much less testify, that he saw Dr. Mudd when he first entered the Pennsylvania House on that night after their separation. How does he know that Booth and Surratt and Wiechmann did not accompany Samuel A. Mudd to that house that evening? How does he know that the prisoner and those persons did not converse together some time in the sitting-room of the Pennsylvania Hotel? Jeremiah Mudd has not testified that he met Dr. Mudd in that room, or that he was in it himself. He has, however, sworn to the fact, which is disproved by no one, that the prisoner was separated from him long enough that evening to have had the meeting with Booth, Surratt, and Wiechmann, and the interviews in the National Hotel, and at the Pennsylvania House, to which Wiechmann has testified? Who is there to disprove it? Of what importance is it whether it was on the 23d day of December or in January? How does that affect the credibility of Wiechmann? He is a man, as I have before said, against whose reputation for truth and good conduct they have not been able to bring one witness. If this meeting did by possibility take place that night, is there anything to render it improbable that Booth and Mudd and Surratt did have the conversation at the National Hotel to which Wiechmann testifies? Of what avail, therefore, is the attempt to prove that Mudd was not here during January, if it was clear that he was here on the 23d of December, 1864, and had this conversation with Booth? That this attempt to prove an _alibi_ during January has failed, is quite as clear as is the proof of the fact that the prisoner was here on the evening of the 23d of December, and present in the National Hotel, where Booth stopped. The fact that the prisoner, Samuel A. Mudd, went with J. T. Mudd on that evening to the National Hotel, and there separated from him, is proved by his own witness, J. T. Mudd; and that he did not rejoin him until they retired to bed in the Pennsylvania House is proved by the same witness and contradicted by nobody. Does any one suppose there would have been such assiduous care to prove that the prisoner was with his kinsman all the time on the 23d of December, in Washington, if they had not known that Booth was then at the National Hotel, and that a meeting of the prisoner with Booth, Surratt, and Wiechmann on that day would corroborate and confirm Wiechmann's testimony in every material statement he made concerning that meeting?

The accused having signally failed to account for his absence after he separated from his witness, J. T. Mudd, early in the evening of the 23d of December, at the National Hotel, until they had again met at the Pennsylvania House, when they retired to rest, he now attempts to prove an _alibi_ as to the month of January. In this he has failed, as he failed in the attempt to show that he could not have met Booth, Surratt, and Wiechmann on the 23d of December.

For this purpose the accused calls Betty Washington. She had been at Mudd's house every night since the Monday after Christmas last, except when here at court, and says that the prisoner, Mudd, has only been away from home three nights during that time. This witness forgets that Mudd has not been at home any night or day since this court assembled. Neither does she account for the three nights in which she swears to his absence from home. First, she says he went to Gardner's party; second, he went to Giesboro, then to Washington. She does not know in what month he was away, the second time, all night. She only knows where he went from what he and his wife said, which is not evidence; but she does testify that when he left home and was absent over night the second time, it was about two or three weeks after she came to his house, which would, if it were three weeks, make it just about the 15th of January, 1865; because she swears she came to his house on the first Monday after Christmas last, which was the 26th day of December; so that the 15th of January would be three weeks, less one day, from that time; and it might have been a week earlier according to her testimony, as, also, it might have been a week earlier, or more, by Wiechmann's testimony, for he is not positive as to the time. What I have said of the register of the Pennsylvania House, the headquarters of Mudd and Atzerodt, I need not here repeat. That record proves nothing, save that Dr. Mudd was there on the 23d of December, which, as we have seen, is a fact, along with others, to show that the meeting at the National then took place. I have also called the attention of the court to the fact that if Mudd was at that house again in January, and did not register his name, that fact proves nothing; or, if he did, the register only proves that he registered falsely; either of which facts might have happened without the knowledge of the witness called by the accused from that house, who does not know Samuel A. Mudd personally.

The testimony of Henry L. Mudd, his brother, in support of this _alibi_, is, that the prisoner was in Washington on the 23d of March, and on the 10th of April, four days before the murder! But he does not account for the absent night in January, about which Betty Washington testifies. Thomas Davis was called for the same purpose, but stated that he was himself absent one night in January, after the 9th of that month, and he could not say whether Mudd was there on that night or not. He does testify to Mudd's absence over night three times, and fixes one occasion on the night of the 26th of January. In consequence of his own absence one night in January, this witness cannot account for the absence of Mudd on the night referred to by Betty Washington.

This matter is entitled to no further attention. It can satisfy no one, and the burden of proof is upon the prisoner to prove that he was not in Washington in January last. How can such testimony convince any rational man that Mudd was not here in January, against the evidence of an unimpeached witness, who swears that Samuel A. Mudd was in Washington in the month of January? Who that has been examined here as a witness knows that he was not?

The Rev. Mr. Evans swears that he saw him in Washington last winter, and that at the same time he saw Jarboe, the one coming out of, and the other going into, a house on H Street, which he was informed on inquiry was the house of Mrs. Surratt. Jarboe is the only witness called to contradict Mr. Evans, and he leaves it in extreme doubt whether he does not corroborate him, as he swears that he was here himself last winter or fall, but cannot state exactly the time. Jarboe's silence on questions touching his own credibility leaves no room for any one to say that his testimony could impeach Mr. Evans, whatever he might swear.

Miss Anna H. Surratt is also called for the purpose of impeaching Mr. Evans. It is sufficient to say of her testimony on that point that she swears negatively only--that she does not see either of the persons named at her mother's house. This testimony neither disproves, nor does it even tend to disprove, the fact put in issue by Mr. Evans. No one will pretend, whatever the form of her expression in giving her testimony, that she could say more than that she did not know the fact, as it was impossible that she could know who was, or who was not, at her mother's house, casually, at a period so remote. It is not my purpose, neither is it needful here, to question in any way the integrity of this young woman.

It is further in testimony that Samuel A. Mudd was here on the 3d day of March last, the day preceding the inauguration, when Booth was to strike the traitorous blow; and it was, doubtless, only by the interposition of that God who stands within the shadow and keeps watch above his own, that the victim of this conspiracy was spared that day from the assassin's hand that he might complete his work and see the salvation of his country in the fall of Richmond and the surrender of its great army. Dr. Mudd was here on that day (the 3d of March) to abet, to encourage, to nerve his co-conspirator for the commission of this great crime. He was carried away by the awful purpose which possessed him, and rushed into the room of Mr. Norton, at the National Hotel, in search of Booth, exclaiming excitedly: "I'm mistaken; I thought this was Mr. Booth's room." He is told Mr. Booth is above, on the next floor. He is followed by Mr. Norton, because of his rude and excited behavior, and being followed, conscious of his guilty errand, he turns away, afraid of himself and afraid to be found in concert with his fellow confederate. Mr. Norton identifies the prisoner, and has no doubt that Samuel A. Mudd is the man.

The Rev. Mr. Evans also swears that, after the 1st and before the 4th day of March last, he is certain that within that time, and on the 2d or 3d of March, he saw Dr. Mudd drive into Washington City. The endeavor is made by the accused in order to break down this witness, by proving another _alibi_. The sister of the accused, Miss Fanny Mudd, is called. She testifies that she saw the prisoner at breakfast in her father's house, on the 2d of March, about five o'clock in the morning, and not again until the 3d of March at noon. Mrs. Emily Mudd swears substantially to the same statement. Betty Washington, called for the accused, swears that he was at home all day at work with her on the 2d of March, and took breakfast at home. Frank Washington swears that Mudd was at home all day; that he saw him when he first came out in the morning about sunrise from his own house, and knows that he was there all day with them. Which is correct, the testimony of his sisters or the testimony of his servants? The sisters say that he was at their father's house for breakfast on the morning of the 2d of March; the servants say he was at home for breakfast with them on that day. If this testimony is followed, it proves one _alibi_ too much. It is impossible, in the nature of things, that the testimony of all these four witnesses can be true.

Seeing this weakness in the testimony brought to prove this second _alibi_, the endeavor is next made to discredit Mr. Norton for truth; and two witnesses, not more, are called, who testify that his reputation for truth has suffered by contested litigation between one of the impeaching witnesses and others. Four witnesses are called, who testify that Mr. Norton's reputation for truth is very good; that he is a man of high character for truth, and entitled to be believed whether he speaks under the obligation of an oath or not. The late Postmaster General, Hon. Horatio King, not only sustains Mr. Norton as a man of good reputation for truth, but expressly corroborates his testimony, by stating that in March last, about the 4th of March, Mr. Norton told him the same fact to which he swears here: that a man came into his room under excitement, alarmed his sister, was followed out by himself, and went down stairs instead of going up; and that Mr. Norton told him this before the assassination, and about the time of the inauguration. What motive had Mr. Norton at that time to fabricate this statement? It detracts nothing from his testimony that he did not at that time mention the name of this man to his friend, Mr. King; because it appears from his testimony--and there is none to question the truthfulness of his statement--that at that time he did not know his name. Neither does it take from the force of this testimony, that Mr. Norton did not, in communicating this matter to Mr. King, make mention of Booth's name; because there was nothing in the transaction, at the time, he being ignorant of the name of Mudd, and equally ignorant of the conspiracy between Mudd and Booth, to give the least occasion for any mention of Booth or of the transaction further than as he detailed it. With such corroboration, who can doubt the fact that Mudd did enter the room of Mr. Norton, and was followed by him, on the 3d of March last? Can he be mistaken in the man? Whoever looks at the prisoner carefully once will be sure to recognize him again.

For the present I pass from the consideration of the testimony showing Dr. Mudd's connection with Booth in this conspiracy, with the remark that it is in evidence, and I think established, both by the testimony adduced by the prosecution and that by the prisoner, that since the commencement of this rebellion, John H. Surratt visited the prisoner's house; that he concealed Surratt and other rebels and traitors in the woods near his house, where for several days he furnished them with food and bedding; that the shelter of the woods by night and by day was the only shelter that the prisoner dare furnish _these friends_ of his; that in November, Booth visited him and remained over night; that he accompanied Booth at that time to Gardner's, from whom he purchased one of the horses used on the night of the assassination to aid the escape of one of his confederates; that the prisoner had secret interviews with Booth and Surratt, as sworn to by the witness Wiechmann, in the National Hotel, whether on the 23d of December or in January is a matter of entire indifference; that he rushed into Mr. Norton's room on the 3d of March in search of Booth; and that he was here again on the 10th of April, four days before the murder of the President. Of his conduct after the assassination of the President, which is confirmatory of all this--his conspiring with Booth and his sheltering, concealing, and aiding the flight of his co-conspirator, this felon assassin--I shall speak hereafter, leaving him for the present with the remark that the attempt to prove his character has resulted in showing him in sympathy with the rebellion, so cruel that he shot one of his slaves and declared his purpose to send several of them to work on the rebel batteries in Richmond.

What others, besides Samuel A. Mudd and John H. Surratt and Lewis Payne, did Booth, after his return from Canada, induce to join him in this conspiracy to murder the President, the Vice-President, the Secretary of State, and the Lieutenant General, with the intent thereby to aid the rebellion and overthrow the government and laws of the United States?

On the 10th of February the prisoners Arnold and O'Laughlin came to Washington and took rooms in the house of Mrs. Vantyne; were armed; were then visited frequently by John Wilkes Booth, and alone; were occasionally absent when Booth called, who seemed anxious for their return--would sometimes leave notes for them, and sometimes a request that when they came in they should be told to come to the stable. On the 18th of March last, when Booth played in "The Apostate," the witness, Mrs. Vantyne, received from O'Laughlin complimentary tickets. These persons remained there until the 20th of March. They were visited, so far as the witness knows, during their stay at her house only by Booth, save that on a single occasion an unknown man came to see them, and remained with them over night. They told the witness they were in the "oil business." With Mudd, the guilty purpose was sought to be concealed by declaring that he was in the "land business"; with O'Laughlin and Arnold it was attempted to be concealed by the pretence that they were in the "oil business." Booth, it is proved, had closed up all connection with oil business last September. There is not a word of testimony to show that the accused, O'Laughlin and Arnold, ever invested or sought to invest, in any way or to any amount, in the oil business; their silly words betray them; they forgot when they uttered that false statement that truth is strong, next to the Almighty, and that their crime must find them out was the irrevocable and irresistible law of nature and of nature's God.

One of their co-conspirators, known as yet only to the guilty parties to this damnable plot and to the Infinite, who will unmask and avenge all blood-guiltiness, comes to bear witness, unwittingly, against them. This unknown conspirator, who dates his letter at South Branch Bridge, April 6, 1865, mailed and postmarked Cumberland, Md., and addressed to John Wilkes Booth, by his initials, "J. W. B., National Hotel, Washington, D.C.," was also in the "oil speculation." In that letter he says:--

"FRIEND WILKES:--I received yours of March 12th, and reply as soon as practicable. I saw French, Brady, and others about the oil speculation. The subscription to the stock amounts to eight thousand dollars, and I add one thousand myself, which is about all I can stand. Now, when you sink your well, go _deep enough; don't fail_; everything depends upon you and your _helpers_. If you cannot get through on _your trip_ after you strike oil, strike through Thornton gap and across by Capon, Romney, and down the Branch. I can keep you _safe_ from all hardships for a year. I am clear of all surveillance now that infernal Purdy is beat....

"I send this by Tom, and if he don't get drunk you will get it the 9th. At all events, it cannot be _understood_ if lost....

"No more, only _Jake_ will be at Green's _with the funds_.

(Signed) "LON."

That this letter is not a fabrication is made apparent by the testimony of Purdy, whose name occurs in the letter. He testified that he had been a detective in the government service, and that he had been falsely accused, as the letter recites, and put under arrest; that there was a noted rebel, by the name of Green, living at Thornton gap; that there was a servant, who drank, known as "Tom," in the neighborhood of South Branch Bridge; that there is an obscure route through the gap, and as described in the letter; and that a man commonly called "Lon" lives at South Branch Bridge. If the court are satisfied--and it is for them to judge--that this letter was written before the assassination, as it purports to have been, and on the day of its date, there can be no question with any one who reads it that the writer was in the conspiracy, and knew that the time of its execution drew nigh. If a conspirator, every word of its contents is evidence against every other party to this conspiracy.

Who can fail to understand this letter? His words, "go deep enough," "don't fail," "everything depends on you and your helpers," "if you can't get through on your _trip_ after you _strike oil_, strike through Thornton gap," etc., and "I can keep you safe from all hardships for a year," necessarily imply that when he "_strikes oil_" there will be an occasion for a _flight_; that a _trip_, or route, has already been determined upon; that he may not be able to go through by that route; in which event he is to strike for Thornton gap, and across by Capon and Romney, and down the branch, for the shelter which his co-conspirator offers him. "I am clear of all surveillance now"--does any one doubt that the man who wrote those words wished to assure Booth that he was no longer watched, and that Booth could safely hide with him from his pursuers? Does any one doubt, from the further expression in this letter, "Jake will be at Green's with the funds," that this was a part of the price of blood, or that the eight thousand dollars subscribed by others, and the one thousand additional, subscribed by the writer, were also a part of the price to be paid?

"The oil business," which was the declared business of O'Laughlin and Arnold, was the declared business of the infamous writer of this letter; was the declared business of John H. Surratt; was the declared business of Booth himself, as explained to Chester and Payne; was "_the business_" referred to in his telegrams to O'Laughlin, and meant the murder of the President, of his cabinet, and of General Grant. The first of these telegrams is dated Washington, 13th March, and is addressed to M. O'Laughlin, No. 57 North Exeter Street, Baltimore, Md., and is as follows: "Don't you fear to neglect your business; you had better come on at once. J. Booth." The telegraphic operator, Hoffman, who sent this despatch from Washington, swears that John Wilkes Booth delivered it to him in person on the day of its date; and the handwriting of the original telegram is established beyond question to be that of Booth. The other telegram is dated Washington, March 27, addressed, "M. O'Laughlin, Esq., 57 North Exeter Street, Baltimore, Md.," and is as follows: "Get word to Sam. Come on with or without him on Wednesday morning. We sell that day sure; don't fail. J. Wilkes Booth." The original of this telegram is also proved to be in the handwriting of Booth. The sale referred to in this last telegram was doubtless the murder of the President and others--the "oil speculation," in which the writer of the letter from South Branch Bridge, dated April 6, had taken a thousand dollars, and in which Booth said there was money, and Sanders said there was money, and Atzerodt said there was money. The words of this telegram, "get word to Sam," mean Samuel Arnold, his co-conspirator, who had been with him during all his stay in Washington, at Mrs. Vantyne's. These parties to this conspiracy, after they had gone to Baltimore, had additional correspondence with Booth, which the court must infer had relation to carrying out the purposes of their confederation and agreement. The colored witness, Williams, testifies that John Wilkes Booth handed him a letter for Michael O'Laughlin, and another for Samuel Arnold, in Baltimore, some time in March last; one of which he delivered to O'Laughlin at the theatre in Baltimore, and the other to a lady at the door where Arnold boarded in Baltimore.

Their agreement and co-operation in the common object having been thus established, the letter written to Booth by the prisoner Arnold, dated March 27, 1865, the handwriting of which is proved before the court, and which was found in Booth's possession after the assassination, becomes testimony against O'Laughlin, as well as against the writer Arnold, because it is an act done in furtherance of their combination. That letter is as follows:--

"DEAR JOHN:--Was business so important that you could not remain in Baltimore till I saw you? I came in as soon as I could, but found you had gone to Washington. I called also, to see _Mike_, but learned from his mother he had gone out with you and had not returned. I concluded, therefore, he had gone with you. How inconsiderate you have been! When I left you, you stated that _we would not meet_ in a month or so, and therefore I made application for employment, an answer to which I shall receive during the week. I told my parents I had ceased with you. Can I, then, under existing circumstances, act as you request? You know full well that the government suspicions something is going on there, therefore the _undertaking_ is becoming more complicated. Why not, _for the present_, desist?--for various reasons, which, if you look into, you can readily see without my making any mention thereof. You, nor any one, can censure me for my present course. You have been its cause, for how can I now come after telling them I had left you? Suspicion rests upon me now from my whole family, and even parties in the country. I will be compelled to leave home any how, and how soon I care not. None, no, not one, were more in favor of the enterprise than myself, and to-day would be there had you not done as you have. By this I mean manner of proceeding. I am, as you well know, in _need_. I am, you may say, in rags, whereas, to-day, I ought to be _well clothed_. I do not feel right stalking about with _means_, and more from appearances a beggar. I feel my dependence. But even all this would have been, and was, forgotten, for I _was one with you_. Time more _propitious_ will arrive yet. Do not act rashly or in haste. I would prefer your first query, 'Go and see how it will be taken in Richmond,' and _ere long_ I shall be better prepared _to again be with you_. I dislike writing. Would sooner verbally make known my views. Yet your now waiting causes me thus to proceed. Do not in anger peruse this. Weigh all I have said, and, as a rational man and a _friend_, you cannot censure or upbraid my conduct. I sincerely trust this, nor aught else that shall or may occur, will ever be an obstacle to obliterate our former friendship and attachment. Write me to Baltimore, as I expect to be in about Wednesday or Thursday; or, if you can possibly come on, I will Tuesday meet you at Baltimore at B.

"Ever I subscribe myself, your friend, "SAM."

Here is the confession of the prisoner Arnold, that he was one with Booth in this conspiracy; the further confession that they are suspected by the government of their country, and the acknowledgment that _since they parted_ Booth had communicated, among other things, a suggestion which leads to the remark in this letter, "I would prefer your first query, 'Go and see how it will be taken at Richmond,' and _ere long_ I shall be better prepared _to again be with you_." This is a declaration that affects Arnold, Booth, and O'Laughlin alike, if the court are satisfied, and it is difficult to see how they can have doubt on the subject, that the matter to be referred to Richmond is the matter of the assassination of the President and others, to effect which these parties had previously agreed and conspired together. It is a matter in testimony, by the declaration of John H. Surratt, who is as clearly proved to have been in this conspiracy and murder as Booth himself, that about the very date of this letter, the 27th of March, upon the suggestion of Booth, and with his knowledge and consent, he went to Richmond, not only to see "how it would be taken there," but to get funds with which to carry out the enterprise, as Booth had already declared to Chester in one of his last interviews, when he said that he or "some one of the party" would be constrained to go to Richmond for funds to carry out the conspiracy. Surratt returned from Richmond, bringing with him some part of the money for which he went, and was then going to Canada, and, as the testimony discloses, bringing with him the despatches from Jefferson Davis to his chief agents in Canada, which, as Thompson declared to Conover, made the proposed assassination "all right." Surratt, after seeing the parties here, left immediately for Canada and delivered his despatches to Jacob Thompson, the agent of Jefferson Davis. This was done by Surratt upon the suggestion, or in exact accordance with the suggestion, of Arnold, made on the 27th of March in his letter to Booth just read, and yet you are gravely told that four weeks before the 27th of March Arnold had abandoned the conspiracy.

Surratt reached Canada with these despatches, as we have seen, about the 6th or 7th of April last, when the witness Conover saw them delivered to Jacob Thompson and heard their contents stated by Thompson, and the declaration from him that these despatches made it "all right." That Surratt was at that time in Canada is not only established by the testimony of Conover, but it is also in evidence that he told Wiechmann on the 3d of April that he was going to Canada, and on that day left for Canada, and afterwards, two letters addressed by Surratt over the _fictitious_ signature of John Harrison, to his mother and to Miss Ward; dated at Montreal, were received by them on the 14th of April, as testified by Wiechmann and by Miss Ward, a witness called for the defense. Thus it appears that the condition named by Arnold in his letter had been complied with. Booth had "gone to Richmond," in the person of Surratt, "to see how it would be taken." The rebel authorities at Richmond had approved it, the agent had returned; and Arnold was, in his own words, thereby the better prepared to rejoin Booth in the prosecution of this conspiracy.

To this end Arnold went to Fortress Monroe. As his letter expressly declares, Booth said when they parted, "we would not meet in a month or so, and _therefore_ I made application for employment--an answer to which I shall receive during the week." He did receive the answer that week from Fortress Monroe, and went there to await the "more propitious time," bearing with him the weapon of death which Booth had provided, and ready to obey his call, as the act had been approved at Richmond and been made "all right." Acting upon the same fact that the conspiracy had been approved in Richmond and the _funds_ provided, O'Laughlin came to Washington to identify General Grant, the person who was to become the victim of his violence in the final consummation of this crime--General Grant, whom, as is averred in the specification, it had become the part of O'Laughlin by his agreement in this conspiracy to kill and murder. On the evening preceding the assassination--the 13th of April--by the testimony of three reputable witnesses, against whose truthfulness not one word is uttered here or elsewhere, O'Laughlin went into the house of the Secretary of War, where General Grant then was, and placed himself in position in the hall where he could see him, having declared before he reached that point, to one of these witnesses, that he wished to see General Grant. The house was brilliantly illuminated at the time; two, at least, of the witnesses conversed with the accused and the other stood very near to him, took special notice of his conduct, called attention to it, and suggested that he be put out of the house, and he was accordingly put out by one of the witnesses. These witnesses are confident, and have no doubt, and so swear upon their oaths, that Michael O'Laughlin is the man who was present on that occasion. There is no denial on the part of the accused that he was in Washington during the day and during the night of April 13, and also during the day and during the night of the 14th; and yet, to get rid of this testimony, recourse is had to that common device--an _alibi_; a device never, I may say, more frequently resorted to than in this trial. But what an _alibi_! Nobody is called to prove it, save some men who, by their own testimony, were engaged in a drunken debauch through the evening. A reasonable man who reads their evidence can hardly be expected to allow it to outweigh the united testimony of three unimpeached and unimpeachable witnesses who were clear in their statements, who entertain no doubt of the truth of what they say, whose opportunities to know were full and complete, and who were constrained to take special notice of the prisoner by means of his extraordinary conduct.

These witnesses describe accurately the appearance, stature, and complexion of the accused, but because they describe his clothing as dark or black, it is urged that as part of his clothing, although dark, was not black, the witnesses are mistaken. O'Laughlin and his drunken companions (one of whom swears that he drank ten times that evening) were strolling in the streets and in the direction of the house of the Secretary of War, up the Avenue; but you are asked to believe that these witnesses could not be mistaken in saying they were not off the Avenue above Seventh Street, or on K Street. I venture to say that no man who reads their testimony can determine satisfactorily all the places that were visited by O'Laughlin and his drunken associates that evening from seven to eleven o'clock P.M. All this time, from seven to eleven o'clock P.M., must be accounted for satisfactorily before the _alibi_ can be established. O'Laughlin does not account for all the time, for he left O'Laughlin after seven o'clock, and rejoined him, as he says, "I suppose about eight o'clock." Grillet did not meet him until _half-past ten_, and then only casually saw him in passing the hotel. May not Grillet have been mistaken as to the fact, although he did meet O'Laughlin after eleven o'clock the same evening, as he swears?

Purdy swears to seeing him in the bar with Grillet about half-past ten, but, as we have seen by Grillet's testimony, it must have been after eleven o'clock. Murphy contradicts _as to time_ both Grillet and Purdy, for he says it was half-past eleven or twelve o'clock when he and O'Laughlin returned to Rullman's from Platz's, and Early swears the accused went from Rullman's to Second Street to a dance about a quarter-past eleven o'clock, when O'Laughlin took the lead in the dance and stayed about one hour. I follow these witnesses no further. They contradict each other, and do not account for O'Laughlin all the time from seven to eleven o'clock. I repeat that no man can read their testimony without finding contradictions most material _as to time_, and coming to the conviction that they utterly fail to account for O'Laughlin's whereabouts on that evening. To establish an _alibi_ the witnesses _must know the fact_ and _testify_ to it. Laughlan, Grillet, Purdy, Murphy, and Early utterly fail to prove it, and only succeed in showing that they did not know where O'Laughlin was all this time, and that some of them were grossly mistaken in what they testified, both as to _time and place_. The testimony of James B. Henderson is equally unsatisfactory. He is contradicted by other testimony of the accused as _to place_. He says O'Laughlin went up the Avenue above Seventh Street, but that he did not go to Ninth Street. The other witnesses swear he went to Ninth Street. He swears he went to Canterbury about nine o'clock, after going back from Seventh Street to Rullman's. Laughlan swears that O'Laughlin was with him at the corner of the Avenue and Ninth Street at nine o'clock, and went from there to Canterbury, while Early swears that O'Laughlin went up as far as Eleventh Street and returned with him and took supper at Welcker's about eight o'clock. If these witnesses prove an _alibi_, it is really against each other. It is folly to pretend that they prove facts which make it impossible that O'Laughlin could have been at the house of Secretary Stanton, as three witnesses swear he was, on the evening of the 13th of April, looking for General Grant.

Has it not, by the testimony thus reviewed, been established _prima facie_ that in the months of February, March, and April, O'Laughlin had combined, confederated, and agreed with John Wilkes Booth and Samuel Arnold to kill and murder Abraham Lincoln, William H. Seward, Andrew Johnson, and Ulysses S. Grant? It is not established, beyond a shadow of doubt, that Booth had so conspired with the rebel agents in Canada as early as October last; that he was in search of agents to do the work _on pay_, in the interests of the rebellion, and that in this speculation Arnold and O'Laughlin had joined as early as February; that then, and after, with Booth and Surratt, they were in the "oil business," which was the business of assassination by contract as a speculation? If this conspiracy on the part of O'Laughlin with Arnold is established even _prima facie_, the declarations and acts of Arnold and Booth, the other conspirators, in furtherance of the common design, is evidence against O'Laughlin as well as against Arnold himself or the other parties. The rule of law is, that the act or declaration of one conspirator, done in pursuance or furtherance of the common design, is the act or declaration of all the conspirators.--_1 Wharton, 706._

The letter, therefore, of his co-conspirator, Arnold, is evidence against O'Laughlin, because it is an act in the prosecution of the common conspiracy, suggesting what should be done in order to make it effective, and which suggestion, as has been stated, was followed out. The defense has attempted to avoid the force of this letter by reciting the statement of Arnold, made to Homer at the time he was arrested, in which he declared, among other things, that the purpose was to abduct President Lincoln and take him South; that it was to be done at the theatre by throwing the President out of the box upon the floor of the stage, when the accused was to catch him. The very announcement of this testimony excited derision that such a tragedy meant only to take the President and carry him gently away! This pigmy to catch the giant as the assassins hurled him to the floor from an elevation of twelve feet! The court has viewed the theatre, and must be satisfied that Booth, in leaping from the President's box, broke his limb. The court cannot fail to conclude that this statement of Arnold was but another silly device, like that of the "oil business," which, for the time being, he employed to hide from the knowledge of his captor the fact that the purpose was to murder the President. No man can, for a moment, believe that any one of these conspirators hoped or desired, by such a proceeding as that stated by this prisoner, to take the President alive in the presence of thousands assembled in the theatre after he had been thus thrown upon the floor of the stage, much less to carry him through the city, through the lines of your army, and deliver him into the hands of the rebels. No such purpose was expressed or hinted by the conspirators in Canada, who commissioned Booth to let these assassinations on contract. I shall waste not a moment more in combatting such an absurdity.

Arnold does confess that he was a conspirator with Booth in this purposed, murder; that Booth had a letter of introduction to Dr. Mudd; that Booth, O'Laughlin, Atzerodt, Surratt, a man with an _alias_ "Mosby," and another whom he does not know, and himself, were parties to this conspiracy, and that Booth had furnished them all with arms. He concludes this remarkable statement to Horner with the declaration that at that time, to wit, the first week of March, or four weeks before he went to Fortress Monroe, he left the conspiracy, and that Booth told him to sell his arms if he chose. This is sufficiently answered by the fact that, four weeks _afterwards_, he wrote his letter to Booth, which was found in Booth's possession after the assassination, suggesting to him what to do in order to make the conspiracy a success, and by the further fact that at the very moment he uttered these declarations part of his arms were found upon his person, and the rest not disposed of, but at his father's house.

A party to a treasonable and murderous conspiracy against the government of his country cannot be held to have abandoned it because he makes such a declaration as this, when he is in the hands of the officer of the law, arrested for his crime, and especially when his declaration is in conflict with and expressly contradicted by his written acts, and unsupported by any conduct of his which becomes a citizen and a man.

If he abandoned the conspiracy, why did he not make known the fact to Abraham Lincoln and his constitutional advisers that these men, armed with the weapons of assassination, were daily lying in wait for their lives? To pretend that a man who thus conducts himself for weeks after the pretended abandonment, volunteering advice for the successful prosecution of the conspiracy, the evidence of which is in writing, and about which there can be no mistake, has, in fact, abandoned it, is to insult the common understanding of men. O'Laughlin having conspired with Arnold to do this murder, is, therefore, as much concluded by the letter of Arnold of the 27th of March as is Arnold himself. The further testimony touching O'Laughlin, that of Streett, establishes the fact that about the 1st of April he saw him in confidential conversation with J. Wilkes Booth, in this city, on the Avenue. Another man, whom the witness does not know, was in conversation. O'Laughlin called Streett to one side, and told him Booth was busily engaged with his friend--was _talking privately_ to his friend. This remark of O'Laughlin is attempted to be accounted for, but the attempt failed; his counsel taking the pains to ask what induced O'Laughlin to make the remark, received the fit reply: "I did not see the interior of Mr. O'Laughlin's mind; I cannot tell." It is the province of this court to infer why that remark was made and what it signified.

That John H. Surratt, George A. Atzerodt, Mary E. Surratt, David E. Herold, and Louis Payne entered into this conspiracy with Booth, is so very clear upon the testimony that little time need be occupied in bringing again before the court the evidence which establishes it. By the testimony of Wiechmann, we find Atzerodt in February at the house of the prisoner, Mrs. Surratt. He inquired for her or for John when he came and remained over night. After this and before the assassination he visited there frequently, and at that house bore the name of "Port Tobacco," the name by which he was known in Canada among the conspirators there. The same witness testifies that he met him on the street, when he said he was going to visit Payne at the Herndon House, and also accompanied him, along with Herold and John H. Surratt, to the theatre in March to hear Booth play in "The Apostate." At the Pennsylvania House, one or two weeks previous to the assassination, Atzerodt made the statement to Lieutenant Keim, when asking for his knife which he had left in his room, a knife corresponding in size with the one exhibited in court, "I want that; if one fails I want the other," wearing at the same time his revolver at his belt. He also stated to Greenawalt, of the Pennsylvania House, in March, that he was nearly broke, but had friends enough to give him as much money as _would see him through_, adding, "I am going away some of these days, but will return with as much gold as will keep me all my lifetime." Mr. Greenawalt also says that Booth had frequent interviews with Atzerodt, sometimes in the room, and at other times Booth would walk in and immediately go out, Atzerodt following.

John M. Lloyd testifies that some six weeks before the assassination, Herold, Atzerodt, and John H. Surratt came to his house at Surrattsville, bringing with them two Spencer carbines with ammunition, also a rope and wrench. Surratt asked the witness to take care of them and to conceal the carbines. Surratt took him into a room in the house, it being his mother's house, and showed the witness where to put the carbines, between the joists on the second floor. The carbines were put there, according to his directions, and concealed. Marcus P. Norton saw Atzerodt in conversation with Booth at the National Hotel about the 2d or 3d of March; the conversation was confidential, and the witness accidentally heard them talking in regard to President Johnson, and say that "the class of witnesses would be of that character that there could be little proven by them." This conversation may throw some light on the fact that Atzerodt was found in possession of Booth's bank book!

Colonel Nevens testifies that on the 12th of April last he saw Atzerodt at the Kirkwood House; that Atzerodt there asked him, a stranger, if he knew where Vice-President Johnson was, and where Mr. Johnson's _room was_. Colonel Nevens showed him where the room of the Vice-President was, and told him that the Vice-President was then at dinner. Atzerodt then looked into the dining-room where Vice-President Johnson was dining alone. Robert R. Jones, the clerk at the Kirkwood House, states that on the 14th, the day of the murder, two days after this, Atzerodt registered his name at the hotel, G. A. Atzerodt, and took No. 126, retaining the room that day, and carrying away the key. In this room, after the assassination, were found the knife and revolver with which he intended to murder the Vice-President.

The testimony of all these witnesses leaves no doubt that the prisoner, George A. Atzerodt, entered into this conspiracy with Booth; that he expected to receive a large compensation for the service that he would render in its execution; that he had undertaken the assassination of the Vice-President for a price; that he, with Surratt and Herold, rendered the important service of depositing the arms and ammunition to be used by Booth and his confederates as a protection in their flight after the conspiracy had been executed; and that he was careful to have his intended victim pointed out to him, and the room he occupied in the hotel, so that when he came to perform his horrid work he would know precisely where to go and whom to strike.

I take no further notice now of the preparation which this prisoner made for the successful execution of this part of the traitorous and murderous design. The question is, did he enter into this conspiracy? His language overheard by Mr. Norton excludes every other conclusion. Vice-President Johnson's name was mentioned in that secret conversation with Booth, and the very suggestive expression was made between them that "little could be proved by the witnesses." His confession in his defense is conclusive of his guilt.

That Payne was in this conspiracy is confessed in the defense made by his counsel, and is also evident, from the facts proved, that when the conspiracy was being organized in Canada by Thompson, Sanders, Tucker, Cleary, and Clay, this man Payne stood at the door of Thompson, was recommended and indorsed by Clay with the words, "We trust him"; that after coming hither he first reported himself at the house of Mrs. Mary E. Surratt, inquired for her and for John H. Surratt, remained there for four days, having conversation with both of them; having provided himself with means of disguise, was also supplied with pistols and a knife, such as he afterwards used, and spurs, preparatory to his flight; was seen with John H. Surratt, practicing with knives such as those employed in this deed of assassination and now before the court; was afterwards provided with lodging at the Herndon House, at the instance of Surratt; was visited there by Atzerodt, and attended Booth and Surratt to Ford's Theatre, occupying with those parties the box, as I believe and which we may readily infer, in which the President was afterwards murdered.

If further testimony be wanting that he had entered into the conspiracy, it may be found in the fact sworn to by Wiechmann, whose testimony no candid man will discredit, that about the 20th of March, Mrs. Surratt, in great excitement and weeping, said that her son John had gone away not to return, when, about three hours subsequently, in the afternoon of the same day, John H. Surratt reappeared, came rushing in a state of frenzy into the room, in his mother's house, armed, declaring he would shoot whoever came into the room, and proclaiming that his prospects were blasted and his hopes gone; that soon Payne came into the same room, also armed and under great excitement, and was immediately followed by Booth, with his riding-whip in his hand, who walked rapidly across the floor from side to side, so much excited that for some time he did not notice the presence of the witness. Observing Wiechmann, the parties then withdrew, upon a suggestion from Booth, to an upper room, and there had a private interview. From all that transpired on that occasion, it is apparent that when these parties left the house that day it was with the full purpose of completing some act essential to the final execution of the work of assassination, in conformity with their previous confederation and agreement. They returned foiled--from what cause is unknown--dejected, angry, and covered with confusion.

It is almost imposing upon the patience of the court to consume time in demonstrating the fact which none conversant with the testimony of this case can for a moment doubt, that John H. Surratt and Mary E. Surratt were as surely in the conspiracy to murder the President as was John Wilkes Booth himself. You have the frequent interviews between John H. Surratt and Booth, his intimate relations with Payne, his visits from Atzerodt and Herold, his deposit of the arms to cover their flight after the conspiracy should have been executed; his own declared visit to Richmond to do what Booth himself said to Chester must be done, to wit, that he or some of the party must go to Richmond in order to get funds to carry out the conspiracy; that he brought back with him gold, the price of blood, confessing himself that he was there; that he immediately went to Canada, delivered despatches in cipher to Jacob Thompson from Jefferson Davis, which were interpreted and read by Thompson in the presence of the witness Conover, and in which the conspiracy was approved, and, in the language of Thompson, the proposed assassination was "made all right."

One other fact, if any other fact be needed, and I have done with the evidence which proves that John H. Surratt entered into this combination; that is, that it appears by the testimony of the witness, the cashier of the Ontario Bank, Montreal, that Jacob Thompson, about the day that these despatches were delivered, and while Surratt was then present in Canada, drew from that bank of the rebel funds there on deposit the sum of one hundred and eighty thousand dollars. This being done, Surratt, finding it safer, doubtless, to go to Canada for the great bulk of funds which were to be distributed amongst these hired assassins than to attempt to carry it through our lines direct from Richmond, immediately returned to Washington and was present in this city, as is proven by the testimony of Mr. Reid, _on the afternoon of the 14th of April_, the day of the assassination, booted and spurred, ready for the flight whenever the fatal blow should have been struck. If he was not a conspirator and a party to this great crime, how comes it that from that hour to this no man has seen him in the capital, nor has he been reported anywhere outside of Canada, having arrived at Montreal, as the testimony shows, on the 18th of April, four days after the murder? Nothing but his conscious coward guilt could possibly induce him to absent himself from his mother, as he does, upon her trial. Being one of these conspirators, as charged, every act of his in the prosecution of this crime is evidence against the other parties to the conspiracy.

That Mary E. Surratt is as guilty as her son of having thus conspired, combined, and confederated to do this murder, in aid of this rebellion, is clear. First, her house was the headquarters of Booth, John H. Surratt, Atzerodt, Payne, and Herold. She is inquired for by Atzerodt; she is inquired for by Payne; and she is visited by Booth, and holds private conversations with him. His picture, together with that of the chief conspirator, Jefferson Davis, is found in her house. She sends to Booth for a carriage to take her, on the 11th of April, to Surrattsville for the purpose of perfecting the arrangement deemed necessary to the successful execution of the conspiracy, and especially to facilitate and protect the conspirators in their escape from justice. On that occasion Booth, having disposed of his carriage, gives to the agent she employed ten dollars with which to hire a conveyance for that purpose. And yet the pretence is made that Mrs. Surratt went on the 11th to Surrattsville exclusively upon her own private and lawful business. Can any one tell, if that be so, how it comes that she should apply _to Booth_ for a conveyance, and how it comes that he of his own accord, having no conveyance to furnish her, should send her ten dollars with which to procure it? There is not the slightest indication that Booth was under any obligation to her, or that she had any claim upon him, either for a conveyance or for the means with which to procure one, except that he was bound to contribute, being the agent of the conspirators in Canada and Richmond, whatever money might be necessary to the consummation of this infernal plot. On that day, the 11th of April, John H. Surratt had not returned from Canada with the funds furnished by Thompson!

Upon that journey of the 11th the accused, Mary E. Surratt, met the witness John M. Lloyd at Uniontown. She called him; he got out of his carriage and came to her, and she whispered to him in so low a tone that her attendant could not hear her words, though Lloyd, to whom they were spoken, did distinctly hear them, and testifies that she told him he should have those "shooting-irons" ready, meaning the carbines which her son and Herold and Atzerodt had deposited with him, and added the reason, "for they would soon be called for." On the day of the assassination she again sent for Booth, had an interview with him in her own house, and immediately went again to Surrattsville, and then, at about six o'clock in the afternoon, she delivered to Lloyd a field-glass, and told him "to have two bottles of whiskey and the carbines ready, as they would be called for that night." Having thus perfected the arrangement she returned to Washington to her own house, at about half-past eight o'clock in the evening, to await the final result. How could this woman anticipate on Friday afternoon, at six o'clock, that these arms would be called for and would be needed that night unless she was in the conspiracy and knew the blow was to be struck, and the flight of the assassins attempted and by that route? Was not the private conversation which Booth held with her in her parlor on the afternoon of the 14th of April, just before she left on this business, in relation to the orders she should give to have the arms ready?

An endeavor is made to impeach Lloyd. But the court will observe that no witness has been called who contradicts Lloyd's statement in any material matter; neither has his general character for truth been assailed. How, then, is he impeached? Is it claimed that his testimony shows that he was a party to the conspiracy? Then it is conceded by those who set up any such pretence that there was a conspiracy. A conspiracy between whom? There can be no conspiracy without the co-operation or agreement of two or more persons. Who were the other parties to it? Was it Mary E. Surratt? Was it John H. Surratt, George A. Atzerodt, David E. Herold? Those are the only persons, so far as his own testimony or the testimony of any other witness discloses, with whom he had any communication whatever on any subject immediately or remotely touching this conspiracy before the assassination. His receipt and concealment of the arms are, unexplained, evidence that he was in the conspiracy.

The explanation is that he was dependent upon Mary E. Surratt; was her tenant; and his declaration, given in evidence by the accused herself, is that "she had ruined him and brought this trouble upon him." But because he was weak enough, or wicked enough, to become the guilty depository of these arms, and to deliver them on the order of Mary E. Surratt to the assassins, it does not follow that he is not to be believed on oath. It is said that he concealed the facts that the arms had been left and called for. He so testifies himself, but he gives the reason that he did it only from apprehension of danger to his life. If he were in the conspiracy, his general credit being unchallenged, his testimony being uncontradicted in any material matter, he is to be believed, and cannot be disbelieved if his testimony is substantially corroborated by other reliable witnesses. Is he not corroborated touching the deposit of arms by the fact that the arms are produced in court, one of which was found upon the person of Booth at the time he was overtaken and slain, and which is identified as the same which had been left with Lloyd by Herold, Surratt, and Atzerodt? Is he not corroborated in the fact of the first interview with Mrs. Surratt by the joint testimony of Mrs. Offut and Lewis J. Wiechmann, each of whom testified (and they are contradicted by no one), that on Tuesday, the 11th day of April, at Uniontown, Mrs. Surratt called Mr. Lloyd to come to her, which he did, and she held a _secret_ conversation with him? Is he not corroborated as to the last conversation on the 14th of April by the testimony of Mrs. Offut, who swears that upon the evening of the 14th of April she saw the prisoner, Mary E. Surratt, at Lloyd's house, approach and hold conversation with him? Is he not corroborated in the fact, to which he swears, that Mrs. Surratt delivered to him at that time the field-glass wrapped in paper, by the sworn statement of Wiechmann that Mrs. Surratt took with her on that occasion two packages, both of which were wrapped in paper, and one of which he describes as a small package about six inches in diameter? The attempt was made by calling Mrs. Offut to prove that no such package was delivered, but it failed; she merely states that Mrs. Surratt delivered a package wrapped in paper to her after her arrival there, and before Lloyd came in, which was laid down in the room. But whether it was _the_ package about which Lloyd testifies, or the other package of the _two_ about which Wiechmann testifies, as having been carried there that day by Mrs. Surratt, does not appear. Neither does this witness pretend to say that Mrs. Surratt, after she had delivered it to her, and the witness had laid it down in the room, did not again take it up, if it were the same, and put it in the hands of Lloyd. She only knows that she did not see that done; but she did see Lloyd with a package like the one she received in the room before Mrs. Surratt left. How it came into his possession she is not able to state; nor what the package was that Mrs. Surratt first handed her; nor which of the packages it was she afterwards saw in the hands of Lloyd.

But there is one other fact in this case that puts forever at rest the question of the guilty participation of the prisoner, Mrs. Surratt, in this conspiracy and murder; and that is that Payne, who had lodged four days in her house--who during all that time had sat at her table, and who had often conversed with her--when the guilt of his great crime was upon him, and he knew not where else he could so safely go to find a co-conspirator, and he could trust none that was not like himself, guilty, with even the knowledge of his presence--under cover of darkness, after wandering for three days and nights, skulking before the pursuing officers of justice, at the hour of midnight found his way to the door of Mrs. Surratt, rang the bell, was admitted, and upon being asked, "Whom do you want to see?" replied, "Mrs. Surratt." He was then asked by the officer, Morgan, what he came at that time of night for, to which he replied, "to dig a gutter in the morning; Mrs. Surratt had sent for him." Afterwards he said "Mrs. Surratt knew he was a poor man and _came to him_." Being asked where he last worked, he replied, "sometimes on 'I' street"; and where he boarded, he replied, "he had no boarding-house, and was a poor man who got his living with the pick," which he bore upon his shoulder, having stolen it from the intrenchments of the capital. Upon being pressed again why he came there at that time of night to go to work, he answered that he simply called to see what time he should go to work in the morning. Upon being told by the officer, who fortunately had preceded him to this house, that he would have to go to the provost marshal's office, he moved and did not answer, whereupon Mrs. Surratt was asked to step into the hall and state whether she knew this man. Raising her right hand, she exclaimed, "Before God, sir, I have not seen that man before; I have not hired him; I do not know anything about him." The hall was brilliantly lighted.

If not one word had been said, the mere act of Payne in flying to her house for shelter would have borne witness against her, strong as proofs from Holy Writ. But when she denies, after hearing his declarations, that she had sent for him, or that she had gone to him and hired him, and calls her God to witness that she had never seen him, and knew nothing of him, when, in point of fact, she had seen him for four successive days in her own house, in the same clothing which he then wore, who can resist for a moment the conclusion that these parties were alike guilty?

The testimony of Spangler's complicity is conclusive and brief. It was impossible to hope for escape after assassinating the President, and such others as might attend him in Ford's Theatre, without arrangements being first made to aid the flight of the assassin and to some extent prevent immediate pursuit.

A stable was to be provided close to Ford's Theatre, in which the horses could be concealed and kept ready for the assassin's use whenever the murderous blow was struck. Accordingly, Booth secretly, through Maddox, hired a stable in rear of the theatre and connecting with it by an alley, as early as the 1st of January last; showing that at that time he had concluded, notwithstanding all that has been said to the contrary, to murder the President in Ford's Theatre and provide the means for immediate and successful flight. Conscious of his guilt, he paid the rent for this stable through Maddox, month by month, giving him the money. He employed Spangler, doubtless for the reason that he could trust him with the secret, as a carpenter to fit up this shed, so that it would furnish room for two horses, and provide the door with lock and key. Spangler did this work for him. Then, it was necessary that a carpenter having access to the theatre should be employed by the assassin to provide a bar for the outer door of the passage leading to the President's box, so that when he entered upon his work of assassination he would be secure from interruption from the rear. By the evidence, it is shown that Spangler was in the box in which the President was murdered on the afternoon of the 14th of April, and when there damned the President and General Grant, and said the President ought to be cursed, he had got so many good men killed; showing not only his hostility to the President, but the cause of it--that he had been faithful to his oath and had resisted that great rebellion in the interest of which his life was about to be sacrificed by this man and his co-conspirators. In performing the work which had doubtless been intrusted to him by Booth, a mortise was cut in the wall. A wooden bar was prepared, one end of which could be readily inserted in the mortise and the other pressed against the edge of the door on the inside so as to prevent its being opened. Spangler had the skill and the opportunity to do that work and all the additional work which was done.

It is in evidence that the screws in "the keepers" to the locks on each of the inner doors of the box occupied by the President were drawn. The attempt has been made, on behalf of the prisoner, to show that this was done some time before, accidentally, and with no bad design, and had not been repaired by reason of inadvertence; but that attempt has utterly failed, because the testimony adduced for that purpose relates exclusively to but one of the two inner doors, while the fact is, that the screws were drawn in _both_, and the additional precaution taken to cut a small hole through one of these doors through which the party approaching and while in the private passage would be enabled to look into the box and examine the exact posture of the President before entering. It was also deemed essential, in the execution of this plot, that some one should watch at the outer door, in the rear of the theatre, by which alone the assassin could hope for escape. It was for this work Booth sought to employ Chester in January, offering three thousand dollars down of the money of his employers, and the assurance that he should never want. What Chester refused to do Spangler undertook and promised to do. When Booth brought his horse to the rear door of the theatre, on the evening of the murder, he called for Spangler, who went to him, when Booth was heard to say to him, "Ned, you'll help me all you can, won't you?" To which Spangler replied, "Oh, yes."

When Booth made his escape, it is testified by Colonel Stewart, who pursued him across the stage and out through the same door, that as he approached it some one slammed it shut. Ritterspaugh, who was standing behind the scenes when Booth fired the pistol and fled, saw Booth run down the passage toward the back door, and pursued him; but Booth drew his knife upon him and passed out, slamming the door after him. Ritterspaugh opened it and went through, leaving it _open_ behind him, leaving Spangler inside, and in a position from which he readily could have reached the door. Ritterspaugh also states that very quickly after he had passed through this door he was followed by a large man, the first who followed him, and who was, doubtless, Colonel Stewart. Stewart is very positive that he saw this door slammed; that he himself was constrained to open it, and had some difficulty in opening it. He also testifies that as he approached the door a man stood near enough to have thrown it to with his hand, and this man, the witness believes, was the prisoner Spangler. Ritterspaugh has sworn that he left the door open behind him when he went out, and that he was first followed by the large man, Colonel Stewart. Who slammed that door behind Ritterspaugh? It was not Ritterspaugh; it could not have been Booth, for Ritterspaugh swears that Booth was mounting his horse at the time; and Stewart swears that Booth was upon his horse when he came out. That it was Spangler who slammed the door after Ritterspaugh may not only be inferred from Stewart's testimony, but it is made very clear by his own conduct afterwards upon the return of Ritterspaugh to the stage. The door being then open, and Ritterspaugh being asked which way Booth went, had answered. Ritterspaugh says: "Then I came back on the stage, where I had left Edward Spangler; he hit me on the face with his hand and said, 'Don't say which way he went.' I asked him what he meant by slapping me in the mouth? He said, 'For God's sake, shut up.'"

The testimony of Withers is adroitly handled to throw doubt upon these facts. It cannot avail, for Withers says he was knocked in the scene by Booth, and when he "come to" he got a side view of him. A man knocked down and senseless, on "coming to" might mistake anybody by a side view for Booth.

An attempt has been made by the defense to discredit this testimony of Ritterspaugh, by showing his contradictory statements to Gifford, Garlan, and Lamb, neither of whom do in fact contradict him, but substantially sustain him. None but a guilty man would have met the witness with a blow for stating which way the assassin had gone. A like confession of guilt was made by Spangler when the witness Miles, the same evening, and directly after the assassination, came to the back door, where Spangler was standing with others, and asked Spangler who it was that held the horse, to which Spangler replied: "Hush; don't say anything about it." He confessed his guilt again when he denied to Mary Anderson the fact, proved here beyond all question, that Booth had called him when he came to that door with his horse, using the emphatic words, "No, he did not; he did not call me." The rope comes to bear witness against him, as did the rope which Atzerodt and Herold and John H. Surratt had carried to Surrattsville and deposed there with the carbines.

It is only surprising that the ingenious counsel did not attempt to explain the deposit of the rope at Surrattsville by the same method that he adopted in explanation of the deposit of this rope, some sixty feet long, found in the carpet-sack of Spangler, unaccounted for save by some evidence which tends to show that he may have carried it away from the theatre.

It is not needful to take time in the recapitulation of the evidence, which shows conclusively that David E. Herold was one of these conspirators. His continued association with Booth, with Atzerodt, his visits to Mrs. Surratt's, his attendance at the theatre with Payne, Surratt, and Atzerodt, his connection with Atzerodt on the evening of the murder, riding with him on the street in the direction of and near to the theatre at the hour appointed for the work of assassination, and his final flight and arrest, show that he, in common with all the other parties on trial, and all the parties named upon your record not upon trial, and combined and confederated to kill and murder in the interests of the rebellion, as charged and specified against them.

That this conspiracy was entered into by all these parties, both present and absent, is thus proved by the acts, meetings, declarations, and correspondence of all the parties, beyond any doubt whatever. True it is circumstantial evidence, but the court will remember the rule before recited, that circumstances cannot lie; that they are held sufficient in every court where justice is judicially administered to establish the fact of a conspiracy. I shall take no further notice of the remark made by the learned counsel who opens for the defense, and which has been followed by several of his associates, that under the Constitution it requires two witnesses to prove the overt act of high treason, than to say, this is not a charge of high treason, but of a treasonable conspiracy, in aid of a rebellion, with intent to kill and murder the executive officer of the United States, and commander of its armies, and of the murder of the President in pursuance of that conspiracy, and with the intent laid, etc. Neither by the Constitution, nor by the rules of the common law, is any fact connected with this allegation required to be established by the testimony of more than one witness. I might say, however, that every substantive averment against each of the parties named upon this record has been established by the testimony of more than one witness.

That the several accused did enter into this conspiracy with John Wilkes Booth and John H. Surratt to murder the officers of this government named upon the record, in pursuance of the wishes of their employers and instigators in Richmond and Canada, and with intent thereby to aid the existing rebellion and subvert the Constitution and laws of the United States, as alleged, is no longer an open question.

The intent as laid was expressly declared by Sanders in the meeting of the conspirators at Montreal in February last, by Booth in Virginia and New York, and by Thompson to Conover and Montgomery; but if there were no testimony directly upon this point, the law would presume the intent, for the reason that such was the natural and necessary tendency and manifest design of the act itself.

The learned gentleman (Mr. Johnson) says the government has survived the assassination of the President, and thereby would have you infer that this conspiracy was not entered into and attempted to be executed with the intent laid. With as much show of reason it might be said that because the government of the United States has survived this unmatched rebellion, it therefore results that the rebel conspirators waged war upon the government with no purpose or intent thereby to subvert it. By the law we have seen that, without any direct evidence of previous combination and agreement between these parties, the conspiracy might be established by evidence of the acts of the prisoners, or of any others with whom they co-operated, concurring in the execution of the common design.--_Roscoe, 416._

Was there co-operation between the several accused in the execution of this conspiracy? That there was is as clearly established by the testimony as is the fact that Abraham Lincoln was killed and murdered by John Wilkes Booth. The evidence shows that all of the accused, save Mudd and Arnold, were in Washington on the 14th of April, the day of the assassination, together with John Wilkes Booth and John H. Surratt; that on that day Booth had a secret interview with the prisoner, Mary E. Surratt; that immediately thereafter she went to Surrattsville to perform her part of the preparation necessary to the successful execution of the conspiracy, and did make that preparation; that John H. Surratt had arrived here from Canada, notifying the parties that the price to be paid for this great crime had been provided for, at least in part, by the deposit receipts of April 6th for $180,000, procured by Thompson of the Ontario Bank, Montreal, Canada; that he was also prepared to keep watch, or strike a blow, and ready for the contemplated flight; that Atzerodt, on the afternoon of that day, was seeking to obtain a horse, the better to secure his own safety by flight, after he should have performed the task which he had voluntarily undertaken by contract in the conspiracy--the murder of Andrew Johnson, then Vice-President of the United States; that he did procure a horse for that purpose at Naylor's, and was seen about nine o'clock in the evening to ride to the Kirkwood House, where the Vice-President then was, dismount and enter. At a previous hour Booth was in the Kirkwood House, and left his card, now in evidence, doubtless intended to be sent to the room of the Vice-President, and which was in these words: "Don't wish to disturb you. Are you at home? J. Wilkes Booth." Atzerodt, when he made application at Brooks's in the afternoon for the horse, said to Wiechmann, who was there, he was going to ride in the country, and that "he was going to get a horse and send for Payne." He did get a horse for Payne, as well as for himself; for it is proven that on the 12th he was seen in Washington riding the horse which had been procured by Booth, in company with Mudd, last November, from Gardner. A similar horse was tied before the door of Mr. Seward on the night of the murder, was captured after the flight of Payne, who was seen to ride away, and which horse is now identified as the Gardner horse. Booth also procured a horse on the same day, took it to his stable in the rear of the theatre, where he had an interview with Spangler, and where he concealed it. Herold, too, obtained a horse in the afternoon, and was seen between nine and ten o'clock riding with Atzerodt down the Avenue from the Treasury, then up Fourteenth and down F Street, passing close by Ford's Theatre.

O'Laughlin had come to Washington the day before, had sought out his victim (General Grant) at the house of the Secretary of War, that he might be able with certainty to identify him, and at the very hour when these preparations were going on was lying in wait at Rullman's on the Avenue, keeping watch, and declaring, as he did, at about ten o'clock P.M., when told that the fatal blow had been struck by Booth, "I don't believe Booth did it." During the day, and the night before, he had been visiting Booth, and doubtless encouraging him, and at that very hour was in position, at a convenient distance, to aid and protect him in his flight, as well as to execute his own part of the conspiracy by inflicting death upon General Grant, who, happily, was not at the theatre nor in the city, having left the city that day. Who doubts that Booth, having ascertained in the course of the day that General Grant would not be present at the theatre, O'Laughlin, who was to murder General Grant, instead of entering the box with Booth, was detailed to lie in wait, and watch and support him.

His declarations of his reasons for changing his lodgings here and in Baltimore, after the murder, so ably and so ingeniously presented in the argument of his learned counsel (Mr. Cox), avail nothing before the blasting fact that he did change his lodgings, and declared "he knew nothing of the affair whatever." O'Laughlin, who lurked here, conspiring daily with Booth and Arnold for six weeks to do this murder, declares "he knew nothing of the affair." O'Laughlin, who said he was "in the oil business," which Booth and Surratt and Payne and Arnold have all declared meant this conspiracy, says he "knew nothing of the affair." O'Laughlin, to whom Booth sent the despatches of the 13th and 27th of March--O'Laughlin, who is named in Arnold's letter as one of the conspirators, and who searched for General Grant on Thursday night, laid in wait for him on Friday, was defeated by that Providence "which shapes our ends," and laid in wait to aid Booth and Payne, declares "he knows nothing of the matter." Such a denial is as false and inexcusable as Peter's denial of our Lord.

Mrs. Surratt had arrived at home, from the completion of her part in the plot, about half past eight o'clock in the evening. A few moments afterwards she was called to the parlor and there had a private interview with some one unseen, but whose retreating footsteps were heard by the witness Wiechmann. This was doubtless the secret and last visit of John H. Surratt to his mother, who had instigated and encouraged him to strike this traitorous and murderous blow against his country.

While all these preparations were going on, Mudd was awaiting the execution of the plot, ready to faithfully perform his part in securing the safe escape of the murderers. Arnold was at his post at Fortress Monroe, awaiting the meeting referred to in his letter of March 27th, wherein he says they were not "to meet for a month or so," which month had more than expired on the day of the murder, for his letter and the testimony disclose that this month of suspension began to run from about the first week in March. He stood ready with the arms which Booth had furnished him to aid the escape of the murderers by _that route_, and secure their communication with their employers. He had given the assurance in that letter to Booth, that although the government "suspicioned them," and the undertaking was "becoming complicated," yet "a time more propitious would arrive" for the consummation of this conspiracy in which he "was one" with Booth, and when he would "be better prepared to again be with him."

Such were the preparations. The horses were in readiness for the flight; the ropes were procured, doubtless for the purpose of tying the horses at whatever point they might be constrained to delay and to secure their boats to their moorings in making their way across the Potomac. The five murderous camp knives, the two carbines, the eight revolvers, the derringer, in court and identified, all were ready for the work of death. The part that each had played has already been in part stated in this argument, and needs no repetition.

Booth proceeded to the theatre about nine o'clock in the evening, at the same time that Atzerodt and Payne and Herold were riding the streets, while Surratt, having parted with his mother at the brief interview in her parlor, from which his retreating steps were heard, was walking the Avenue, booted and spurred, and doubtless consulting with O'Laughlin. When Booth reached the rear of the theatre, he called Spangler to him (whose denial of that fact, when charged with it, as proven by three witnesses is very significant) and received from Spangler his pledge to help him all he could, when with Booth he entered the theatre by the stage-door, doubtless to see that the way was clear from the box to the rear door of the theatre, and look upon their victim, whose exact position they could study from the stage. After this view, Booth passes to the street in front of the theatre, where, on the pavement with other conspirators yet unknown, among them one described as a low-browed villain, he awaits the appointed moment. Booth himself, impatient, enters the vestibule of the theatre from the front and asks the time. He is referred to the clock, and returns. Presently, as the hour of ten o'clock approached, one of his guilty associates called the time; they wait; again, as the moments elapsed, this conspirator upon watch called the time; again, as the appointed hour draws nigh, he calls the time; and finally, when the fatal moment arrives, he repeats in a louder tone, "Ten minutes past ten o'clock!" Ten minutes past ten o'clock! The hour has come when the red right hand of these murderous conspirators should strike, and the dreadful deed of assassination be done.

Booth, at the appointed moment, entered the theatre, ascended to the dress-circle, passed to the right, paused a moment, looking down, doubtless to see if Spangler was at his post, and approached the outer door of the close passage leading to the box occupied by the President, pressed it open, passed in, and closed the passage door behind him. Spangler's bar was in its place, and was readily adjusted by Booth in the mortise, and pressed against the inner side of the door, so that he was secure from interruption from without. He passes on to the next door, immediately behind the President, and there stopping, looks through the aperture in the door into the President's box, and deliberately observes the precise position of his victim, seated in the chair which had been prepared by the conspirators as the altar for the sacrifice, looking calmly and quietly down upon the glad and grateful people whom by his fidelity he had saved from the peril which had threatened the destruction of their government, and all they held dear this side of the grave, and whom he had come upon invitation to greet with his presence, with the words still lingering upon his lips which he had uttered with uncovered head and uplifted hand before God and his country, when on the 4th of last March he took again the oath to preserve, protect, and defend the Constitution, declaring that he entered upon the duties of his great office "with malice toward none--with charity for all." In a moment more, strengthened by the knowledge that his co-conspirators were all at their posts, seven at least of them present in the city, two of them, Mudd and Arnold, at their appointed places, watching for his coming, this hired assassin moves stealthily through the door, the fastenings of which had been removed to facilitate his entrance, fires upon his victim, and the martyr spirit of Abraham Lincoln ascends to God.

"Treason has done his worst; nor steel, nor poison, Malice domestic, foreign levy, nothing Can touch him further."

At the same hour, when these accused and their co-conspirators in Richmond and Canada, by the hand of John Wilkes Booth, inflicted this mortal wound which deprived the republic of its defender, and filled this land from ocean to ocean with a strange, great sorrow, Payne, a very demon in human form, with the words of falsehood upon his lips, that he was the bearer of a message from the physician of the venerable Secretary of State, sweeps by his servant, encounters his son, who protests that the assassin shall not disturb his father, prostrate on a bed of sickness, and receives for answer the assassin's blow from the revolver in his hand, repeated again and again, rushes into the room, is encountered by Major Seward, inflicts wound after wound upon him with his murderous knife, is encountered by Hansell and Robinson, each of whom he also wounds, springs upon the defenseless and feeble Secretary of State, stabs first on one side of his throat, then on the other, again in the face, and is only prevented from literally hacking out his life by the persistence and courage of the attendant Robinson. He turns to flee, and, his giant arm and murderous hand for a moment paralyzed by the consciousness of guilt, he drops his weapons of death, one in the house, the other at the door, where they were taken up, and are here now to bear witness against him. He attempts escape on the horse which Booth and Mudd had procured of Gardner, with what success has already been stated.

Atzerodt, near midnight, returns to the stable of Naylor the horse which he had procured for this work of murder, having been interrupted in the execution of the part assigned him at the Kirkwood House by the timely coming of citizens to the defense of the Vice-President, and creeps into the Pennsylvania House at two o'clock in the morning with another of the conspirators, yet unknown. There he remained until about five o'clock, when he left, found his way to Georgetown, pawned one of his revolvers, now in court, and fled northward into Maryland.

He is traced to Montgomery County, to the house of Mr. Metz, on the Sunday succeeding the murder, where, as is proved by the testimony of three witnesses, he said that if the man that was to follow General Grant _had_ followed him, it was likely that Grant was shot. To one of these witnesses (Mr. Layman) he said he did not think Grant had been killed; or if he had been killed he was killed by a man who got on the cars at the same time that Grant did; thus disclosing most clearly that one of his co-conspirators was assigned the task of killing and murdering General Grant, and that Atzerodt knew that General Grant had left the city of Washington, a fact which is not disputed, on the Friday evening of the murder, by the evening train. Thus this intended victim of the conspiracy escaped, for that night, the knives and revolvers of Atzerodt and O'Laughlin and Payne and Herold and Booth and John H. Surratt and, perchance, Harper and Caldwell, and twenty others, who were then here lying in wait for his life.

In the mean time Booth and Herold, taking the route before agreed upon, make directly after the assassination for the Anacostia bridge. Booth crosses first, gives his name, passes the guard, and is speedily followed by Herold. They make their way directly to Surrattsville, where Herold calls to Lloyd, "Bring out those things," showing that there had been communication between them and Mrs. Surratt after her return. Both the carbines being in readiness, according to Mary E. Surratt's directions, both were brought out. They took but one. Booth declined to carry the other, saying that his limb was broken. They then declared that they had murdered the President and the Secretary of State. They then make their way directly to the house of the prisoner Mudd, assured of safety and security. They arrived early in the morning before day, and no man knows at what hour they left. Herold rode towards Bryantown with Mudd about three o'clock that afternoon, in the vicinity of which place he parted with him, remaining in the swamp, and was afterwards seen returning the same afternoon in the direction of Mudd's house, about which time, a little before sundown, Mudd returned from Bryantown towards his home. This village at the time Mudd was in it was thronged with soldiers in pursuit of the murderers of the President, and although great care has been taken by the defense to deny that any one said in the presence of Dr. Mudd, either there or elsewhere on that day, who had committed this crime, yet it is in evidence by two witnesses, whose truthfulness no man questions, that upon Mudd's return to his own house that afternoon, he stated that Booth was the murderer of the President, and Boyle the murderer of Secretary Seward, but took care to make the further remark that Booth had brothers, and he did not know which of them had done the act. When did Dr. Mudd learn that Booth had brothers? And what is still more pertinent to this inquiry, from whom did he learn that either John Wilkes Booth or any of his brothers had murdered the President? It is clear that Booth remained in his house until some time in the afternoon of Saturday; that Herold left the house alone, as one of the witnesses states, being seen to pass the window; that he alone of these two assassins was in the company of Dr. Mudd on his way to Bryantown. It does not appear when Herold returned to Mudd's house. It is a confession of Dr. Mudd himself, proven by one of the witnesses, that Booth left his house on crutches and went in the direction of the swamp. How long he remained there, and what became of the horses which Booth and Herold rode to his house and which were put into his stable, are facts nowhere disclosed by the evidence. The owners testify that they have never seen the horses since. The accused give no explanation of the matter, and when Herold and Booth were captured they had not these horses in their possession. How comes it that, on Mudd's return from Bryantown, on the evening of Saturday, in his conversation with Mr. Hardy and Mr. Farrell, the witnesses before referred to, he gave the name of Booth as the murderer of the President, and that of Boyle as the murderer of Secretary Seward and his son, and carefully avoided intimating to either that Booth had come to his house early that day and had remained there until the afternoon; that he left him in his house and had furnished him a razor with which Booth attempted to disguise himself by shaving off his moustache? How comes it, also, that, upon being asked by those two witnesses whether the Booth who killed the President was the one who had been there last fall, he answered that he did not know whether it was that man or one of his brothers, but he understood he had some brothers, and added, that if it was the Booth who was there last fall, _he knew that one_, but concealed the fact that this man had been at his house on that day and was then at his house, and had attempted in his presence to disguise his person? He was sorry, very sorry, that the thing had occurred, but not so sorry as to be willing to give any evidence to these two neighbors, who were manifestly honest and upright men, that the murderer had been harbored in his house all day, and was probably at that moment, as his own subsequent confession shows, lying concealed in his house or near by, subject to his call. This is the man who undertakes to show by his own declaration, offered in evidence against my protest, of what he said afterwards, on Sunday afternoon, the 16th, to his kinsman, Dr. George D. Mudd, to whom he then stated that the assassination of the President was a most damnable act--a conclusion in which most men will agree with him, and to establish which his testimony was not needed. But it is to be remarked that this accused did not intimate that the man whom he knew the evening before was the murderer had found refuge in his house, had disguised his person, and sought concealment in the swamp upon the crutches which he had provided for him. Why did he conceal this fact from his kinsman? After the church services were over, however, in another conversation on their way home, he did tell Dr. George Mudd that two suspicious persons had been at his house, who had come there a little before daybreak on Saturday morning; that one of them had a broken leg, which he bandaged; that they got something to eat at his house; that they seemed to be laboring under more excitement than probably would result from the injury; that they said they came from Bryantown, and inquired the way to Parson Wilmer's; that while at his house one of them called for a razor and shaved himself. The witness says, "I do not remember whether he said that this party shaved off his whiskers or his moustache, but he altered somewhat, or probably materially, his features." Finally, the prisoner, Dr. Mudd, told this witness that he, in company with the younger of the two men, went down the road towards Bryantown in search of a vehicle to take the wounded man away from his house. How comes it that he concealed in this conversation the fact proved, that he went with Herold towards Bryantown and left Herold outside of the town? How comes it that in this second conversation, on Sunday, insisted upon here with such pertinacity as evidence for the defense, but which had never been called for by the prosecution, he concealed from his kinsman the fact which he had disclosed the day before to Hardy and Farrell, that it was Booth who assassinated the President, and the fact which is now disclosed by his other confessions given in evidence for the prosecution, that it was Booth whom he had sheltered, concealed in his house, and aided to his hiding place in the swamp? He volunteers as evidence his further statement, however, to this witness, that on Sunday evening he requested the witness to state to the military authorities that two suspicious persons had been at his house, and see if anything could be made of it. He did not tell the witness what became of Herold, and where he parted with him on the way to Bryantown. How comes it that when he was in Bryantown on the Saturday evening before, when he knew that Booth was then at his house, and that Booth was the murderer of the President, he did not himself state it to the military authorities then in that village, as he well knew? It is difficult to see what kindled his suspicions on Sunday, if none were in his mind on Saturday, when he was in possession of the fact that Booth had murdered the President and was then secreting and disguising himself in the prisoner's own house.

His conversation with Gardner on the same Sunday at the church is also introduced here to relieve him from the overwhelming evidences of his guilt. He communicates nothing to Gardner of the fact that Booth had been in his house; nothing of the fact that he knew the day before that Booth had murdered the President; nothing of the fact that Booth had disguised or attempted to disguise himself; nothing of the fact that he had gone with Booth's associate, Herold, in search of a vehicle, the more speedily to expedite their flight; nothing of the fact that Booth had found concealment in the woods and swamp near his house upon the crutches which he had furnished him. He contents himself with merely stating "that we ought to raise immediately a home guard to hunt up all suspicious persons passing through our section of country and arrest them, for there were two suspicious persons at my house yesterday morning."

It would have looked more like aiding justice and arresting felons if he had put in execution his project of a home guard on Saturday, and made it effective by the arrest of the man then in his house who had lodged with him last fall, with whom he had gone to purchase one of the very horses employed in this flight after the assassination, whom he had visited last winter in Washington, and to whom he had pointed out the very _route_ by which he had escaped by way of his house, whom he had again visited on the 3d of last March, preparatory to the commission of this great crime, and who he knew, when he sheltered and concealed him in the woods on Saturday, was not merely a suspicious person, but was, in fact, the murderer and assassin of Abraham Lincoln. While I deem it my duty to say here, as I said before, when these declarations uttered by the accused on Sunday, the 16th, to Gardner and George D. Mudd, were attempted to be offered on the part of the accused, that they are in no sense evidence, and by the law were wholly inadmissible, yet I state it as my conviction that, being upon the record upon motion of the accused himself, so far as these declarations to Gardner and George D. Mudd go, they are additional indications of the guilt of the accused in this, that they are manifestly suppressions of the truth and suggestions of falsehood and deception; they are but the utterances and confessions of guilt.

To Lieutenant Lovett, Joshua Lloyd, and Simon Gavican, who, in pursuit of the murderer, visited his house on the 18th of April, the Tuesday after the murder, he denied positively, upon inquiry, that two men had passed his house, or had come to his house on the morning after the assassination. Two of these witnesses swear positively to his having made the denial, and the other says he hesitated to answer the question he put to him; all of them agree that he afterwards admitted that two men had been there, one of whom had a broken limb, which he had set; and when asked by this witness who that man was, he said he did not know--that the man was a stranger to him, and that the two had been there but a short time. Lloyd asked him if he had ever seen any of the parties--Booth, Herold, and Surratt,--and he said he had never seen them; while it is positively proved that he was acquainted with John H. Surratt, who had been in his house; that he knew Booth, and had introduced Booth to Surratt last winter. Afterwards, on Friday, the 21st, he admitted to Lloyd that he had been introduced to Booth last fall, and that this man who came to his house on Saturday, the 15th, remained there from about four o'clock in the morning until about four in the afternoon; that one of them left his house on horseback, and the other walking. In the first conversation he denied ever having seen these men.

Colonel Wells also testifies that, in his conversation with Dr. Mudd on Friday the 21st, the prisoner said that he had gone to Bryantown, or near Bryantown, to see some friends on Saturday, and that as he came back to his own house he saw the person he afterwards supposed to be Herold passing to the left of his house toward the barn, but that he did not see the other person at all after he left him in his own house about one o'clock. If this statement be true, how did Dr. Mudd see the same person leave his house on crutches? He further stated to this witness that he returned to his own house about four o'clock in the afternoon; that he did not know this wounded man; said he could not recognize him from the photograph which is of record here, but admitted that he had met Booth some time in November, when he had some conversation with him _about lands_ and horses; that Booth had remained with him that night in November, and on the next day had purchased a horse. He said he had not again seen Booth from the time of the introduction in November up to his arrival at his house on the Saturday morning after the assassination. Is not this a confession that he did see John Wilkes Booth on that morning at his house and knew it was Booth? If he did not know him, how came he to make this statement to the witness: that "he had not seen Booth _after_ November _prior_ to his arrival there on the Saturday morning"?

He had said before to the same witness he did not know the wounded man. He said further to Colonel Wells, that when he went upstairs after their arrival he noticed that the person he _supposed_ to be Booth had shaved off his moustache. Is it not inferable from this declaration that he _then_ supposed him to be Booth? Yet he declared the same afternoon, and while Booth was in his own house, that Booth was the murderer of the President. One of the most remarkable statements made to this witness by the prisoner was that he heard for the first time on Sunday morning, or late in the evening of Saturday, that the President had been murdered! From whom did he hear it? The witness (Colonel Wells) volunteers his "impression" that Dr. Mudd had said he had heard it after the persons had left his house. If the "impression" of the witness thus volunteered is to be taken as evidence--and the counsel for the accused, judging from their manner, seem to think it ought to be--let this question be answered: how could Dr. Mudd have made that impression upon anybody truthfully, when it is proved by Farrell and Hardy that on his return from Bryantown, on Saturday afternoon, he not only stated that the President, Mr. Seward, and his son had been assassinated, but that Boyle had assassinated Mr. Seward, and Booth had assassinated the President? Add to this the fact that he said to this witness that he left his own house at one o'clock and when he returned the men were gone, yet it is in evidence, by his own declarations, that Booth left his house at four o'clock on crutches, and he must have been there to have seen it or he could not have known the fact.

Mr. Williams testifies that he was at Mudd's house on Tuesday, the 18th of April, when he said that strangers had _not_ been that way, and also declared that he heard, _for the first time_, of the assassination of the President on Sunday morning at church. Afterwards, on Friday, the 21st, Mr. Williams asked him concerning the men who had been at his house, one of whom had a broken limb, and he confessed they had been there. Upon being asked if they were Booth and Herold, he said they were not--_that he knew Booth_. I think it is fair to conclude that he did know Booth when we consider the testimony of Wiechmann, of Norton, of Evans, and all the testimony just referred to, wherein he declares, himself, that he not only knew him, but that he had lodged with him, and that he had himself gone with him when he purchased his horse from Gardner last fall, for the very purpose of aiding the flight of himself or some of his confederates.

All these circumstances taken together, which, as we have seen upon high authority, are stronger as evidences of guilt than even direct testimony, leave no further room for argument and no rational doubt that Doctor Samuel A. Mudd was as certainly in this conspiracy as were Booth and Herold, whom he sheltered and entertained; receiving them under cover of darkness on the morning after the assassination, concealing them throughout that day from the hand of offended justice, and aiding them, by every endeavor, to pursue their way successfully to their co-conspirator, Arnold, at Fortress Monroe, and in which direction they fled until overtaken and Booth was slain.

We next find Herold and his confederate Booth, after their departure from the house of Mudd, across the Potomac in the neighborhood of Port Conway, on Monday, the 24th of April, conveyed in a wagon. There Herold, in order to obtain the aid of Captain Jett, Ruggles, and Bainbridge, of the confederate army, said to Jett, "We are the assassinators of the President"; that this was his brother with him, who, with himself, belonged to A. P. Hill's corps; that his brother had been wounded at Petersburg; that their names were Boyd. He requested Jett and his rebel companions to take them out of the lines. After this Booth joined these parties, was placed on Ruggles's horse, and crossed the Rappahannock River. They then proceeded to the house of Garrett, in the neighborhood of Port Royal, and nearly midway between Washington City and Fortress Monroe, where they were to have joined Arnold. Before these rebel guides and guards parted with them, Herold confessed they were traveling under assumed names--that his own name was Herold, and that the name of the wounded man was John Wilkes Booth, "who had killed the President." The rebels left Booth at Garrett's, where Herold revisited him from time to time, until they were captured. At two o'clock on Wednesday morning, the 26th, a party of United States officers and soldiers surrounded Garrett's barn where Booth and Herold lay concealed, and demanded their surrender. Booth cursed Herold, calling him a coward, and bade him go, when Herold came out and surrendered himself, was taken into custody, and is now brought into court. The barn was then set on fire, when Booth sprang to his feet, amid the flames that were kindling about him, carbine in hand, and approached the door, seeking, by the flashing light of the fire, to find some new victim for his murderous hand, when he was shot, as he deserved to be, by Sergeant Corbett, in order to save his comrades from wounds or death by the hands of this desperate assassin. Upon his person was found the following bill of exchange:--

"No. 1492. The Ontario Bank, Montreal Branch. Exchange for £61 12_s._ 10_d._ Montreal, 27th October, 1864. Sixty days after sight of this first of exchange, second and third of the same tenor and date, pay to the order of J. Wilkes Booth £61 12_s._ 10_d._ sterling, value received, and charge to the account of this office. H. Stanus, manager. To Messrs. Glynn, Mills & Co., London."

Thus fell, by the hands of one of the defenders of the republic, this hired assassin, who, for a price, murdered Abraham Lincoln, bearing upon his person, as this bill of exchange testifies, additional evidence of the fact that he had undertaken, in aid of the rebellion, this work of assassination by the hands of himself and his confederates, for such sum as the accredited agents of Jefferson Davis might pay him or them, out of the funds of the Confederacy, which, as is in evidence, they had in "any amount" in Canada for the purpose of rewarding conspirators, spies, poisoners, and assassins, who might take service under their false commissions, and do the work of the incendiary and the murderer upon the lawful representatives of the American people, to whom had been entrusted the care of the republic, the maintenance of the Constitution, and the execution of the laws.

The court will remember that it is in the testimony of Merritt and Montgomery and Conover that Thompson and Sanders and Clay and Cleary made their boasts that they had money in Canada for this very purpose. Nor is it to be overlooked or forgotten that the officers of the Ontario Bank at Montreal testify that during the current year of this conspiracy and assassination Jacob Thompson had on deposit in that bank the sum of six hundred and forty-nine thousand dollars, and that these deposits to the credit of Jacob Thompson accrued from the negotiation of bills of exchange drawn by the Secretary of the Treasury of the so-called Confederate States on Frazier, Trenholm, & Co., of Liverpool, who were known to be the financial agents of the Confederate States. With an undrawn deposit in this bank of four hundred and fifty-five dollars, which has remained to his credit since October last, and with an unpaid bill of exchange drawn by the same bank upon London, in his possession and found upon his person, Booth ends his guilty career in this work of conspiracy and blood in April, 1865, as he began it in October, 1864, in combination with Jefferson Davis, Jacob Thompson, George N. Sanders, Clement C. Clay, William C. Cleary, Beverly Tucker, and other co-conspirators, making use of the money of the rebel confederation to aid in the execution and in the flight, bearing at the moment of his death upon his person their money, part of the price which they paid for his great crime, to aid him in its consummation and secure him afterwards from arrest and the just penalty which by the law of God and the law of man is denounced against treasonable conspiracy and murder.

By all the testimony in the case it is, in my judgment, made as clear as any transaction can be shown by human testimony, that John Wilkes Booth and John H. Surratt and the several accused, David E. Herold, George A. Atzerodt, Lewis Payne, Michael O'Laughlin, Edward Spangler, Samuel Arnold, Mary E. Surratt, and Samuel A. Mudd, did, with intent to aid the existing rebellion and to subvert the Constitution and laws of the United States, in the month of October last and thereafter, combine, confederate, and conspire with 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 intrenched fortifications and military lines thereof, Abraham Lincoln, then President of the United States and Commander-in-Chief of the army and navy thereof; Andrew Johnson, Vice-President of the United States; William H. Seward, Secretary of State; and Ulysses S. Grant, lieutenant general in command of the armies of the United States; and that Jefferson Davis, the chief of this rebellion, was the instigator and procurer, through his accredited agents in Canada, of this treasonable conspiracy.

It is also submitted to the court, that it is clearly established by the testimony that John Wilkes Booth, in pursuance of this conspiracy, so entered into by him and the accused, did, on the night of the 14th of April, 1865, within the military department of Washington, and the intrenched fortifications and military lines thereof, and with the intent laid, inflict a mortal wound upon Abraham Lincoln, then President and Commander-in-Chief of the army and navy of the United States, whereof he died; that in pursuance of the same conspiracy and within the said department and intrenched lines, Lewis Payne assaulted, with intent to kill and murder, William H. Seward, then Secretary of State of the United States; that George A. Atzerodt, in pursuance of the same conspiracy, and within the said department, laid in wait, with intent to kill and murder Andrew Johnson, then Vice-President of the United States; that Michael O'Laughlin, within said department, and in pursuance of said conspiracy, laid in wait to kill and murder Ulysses S. Grant, then in command of the armies of the United States; and that Mary E. Surratt, David E. Herold, Samuel Arnold, Samuel A. Mudd, and Edward Spangler did encourage, aid, and abet the commission of said several acts in the prosecution of said conspiracy.

If this treasonable conspiracy has not been wholly executed; if the several executive officers of the United States and the commander of its armies, to kill and murder whom the said several accused thus confederated and conspired, have not each and all fallen by the hands of these conspirators, thereby leaving the people of the United States without a President or Vice-President; without a Secretary of State, who alone is clothed with authority by the law to call an election to fill the vacancy, should any arise, in the offices of President and Vice-President; and without a lawful commander of the armies of the republic, it is only because the conspirators were deterred by the vigilance and fidelity of the executive officers, whose lives were mercifully protected on that night of murder by the care of the Infinite Being who has thus far saved the republic and crowned its arms with victory.

If this conspiracy was thus entered into by the accused; if John Wilkes Booth did kill and murder Abraham Lincoln in pursuance thereof; if Lewis Payne did, in pursuance of said conspiracy, assault with intent to kill and murder William H. Seward, as stated, and if the several parties accused did commit the several acts alleged against them in the prosecution of said conspiracy, then it is the law that all the parties to that conspiracy, whether present at the time of its execution or not, whether on trial before this court or not, are alike guilty of the several acts done by each in the execution of the common design. What these conspirators did in the execution of this conspiracy by the hand of one of their co-conspirators they did themselves; his act, done in the prosecution of the common design, was the act of all the parties to the treasonable combination, because done in execution and furtherance of their guilty and treasonable agreement.

As we have seen, this is the rule, whether all the conspirators are indicted or not; whether they are all on trial or not. "It is not material what the nature of the indictment is, provided the offense involve a conspiracy. Upon indictment for murder, for instance, if it appear that others, together with the prisoner, conspired to perpetrate the crime, the act of one done in pursuance of that intention would be evidence against the rest." (1 Whar. 706.) To the same effect are the words of Chief Justice Marshall, before cited, that whoever leagued in a general conspiracy, performed any part, however MINUTE, or however REMOTE, from the scene of _action_, are guilty as principals. In this treasonable conspiracy to aid the existing armed rebellion by murdering the executive officers of the United States and the commander of its armies, all the parties to it must be held as principals, and the act of one in the prosecution of the common design the act of all.

I leave the decision of this dread issue with the court, to which alone it belongs. It is for you to say, upon your oaths, whether the accused are guilty.

I am not conscious that in this argument I have made any erroneous statement of the evidence, or drawn any erroneous conclusions; yet I pray the court, out of tender regard and jealous care for the rights of the accused, to see that no error of mine, if any there be, shall work them harm. The past services of the members of this honorable court give assurance that, without fear, favor, or affection, they will discharge with fidelity the duty enjoined upon them by their oaths. Whatever else may befall, I trust in God that in this, as in every other American court, the rights of the whole people will be respected, and that the republic in this, its supreme hour of trial, will be true to itself and just to all--ready to protect the rights of the humblest, to redress every wrong, to avenge every crime, to vindicate the majesty of law, and to maintain inviolate the Constitution, whether assailed secretly or openly, by hosts armed with gold, or armed with steel.

THE CONTROVERSY BETWEEN PRESIDENT JOHNSON AND JUDGE HOLT.

_A Paper read by_ GEN. HENRY L. BURNETT, _late U. S. V., at a Meeting of the Commandery, State of New York, Military Order, Loyal Legion, April 3, 1889_.

Perhaps no incident connected with the trial of the assassins of President Lincoln created more general interest--was so much discussed and commented upon by the public press, or aroused deeper feeling of antagonism and bitterness between two public men, than the charge by President Johnson that the Judge Advocate General, Judge Holt, had withheld or suppressed the recommendation to mercy of Mrs. Surratt, signed by five members of the commission, when he represented to him, the President, the record for his official action. While this charge had circulation and was asserted in the press during the time Mr. Johnson was occupying the presidential office, Mr. Johnson never openly made the charge until after his term had expired, some time in 1873.

No graver charge could be made against a public officer than this against Judge Holt, and, if true, no more cruel and treacherous betrayal of a public trust was ever committed by a man in high official position. It would be murderous in intent and effect. This charge rested, so far as human testimony went, upon the solemn assertion alone of President Johnson, and, if untrue, was one of the most cruel wrongs ever perpetrated by one man against another. I propose to give a brief abstract of the testimony produced by Judge Holt to disprove this charge, and also a statement of my connection with, and what little personal knowledge I had of the matter.

In a communication addressed to the Washington _Chronicle_, dated August 25, 1873, Judge Holt gives a copy of a letter addressed by him to the Secretary of War, on the 14th of that month, in which he sets forth evidence tending to disprove the charge originating with Andrew Johnson, of his suppression of the petition, signed by five of the nine members of the commission, recommending, in consideration of her age and sex, a commutation of the death sentence of Mary E. Surratt to imprisonment for life in the penitentiary. The petition read as follows: "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."

In a letter dated February 11, 1873, addressed to Hon. John A. Bingham, one of the special Judge Advocates during the trial, Judge Holt states: "In the discharge of my duty when presenting that record to President Johnson, I drew his attention to that recommendation, and he read it in my presence, and before approving the proceedings and sentence. He and I were together alone when this duty on his part and on mine was performed.... The President and myself having, as already stated, been alone at the time, I have not been able to obtain any positive proof on the point, although I have been able to collect circumstantial evidence enough to satisfy any unbiased mind that the recommendation was seen and considered by the President, when he examined and approved the proceeding and sentence of the court. Still, in a matter so deeply affecting my reputation and official honor, I am naturally desirous of having the testimony in my possession strengthened as far as practicable, and hence it is that I trouble you with this note. While I know that the question of extending to Mrs. Surratt the clemency sought by the petition was considered by the President at the time mentioned, I have, in view of its gravity, been always satisfied that it must have been considered by the Cabinet also; but from the confidential character of Cabinet deliberations I have thus far been denied access to this source of information." He then proceeds to inquire whether or not he (Judge Bingham) had any conversation with Secretary Seward or Mr. Stanton in reference to this petition, and if so to please give him as nearly as he (Judge Bingham) could, all that Secretary Seward or Mr. Stanton had said upon the subject.

Judge Bingham replied under date of February 17, 1873, and among other things said:--

"Before the President had acted upon the case, I deemed it my duty to call the attention of Secretary Stanton to the petition for the commutation of sentence upon Mrs. Surratt, and did call his attention to it, before the final decision of the President. After the execution, the statement which you refer to was made that President Johnson had not seen the petition for the commutation of the death sentence upon Mrs. Surratt. I afterwards called at your office, and, without notice to you of my purpose, asked for the record of the case of the assassins; it was opened and shown me, and there was then attached to it the petition, copied and signed as hereinbefore stated. Soon thereafter I called upon Secretaries Stanton and Seward and asked if this petition had been presented to the President before the death sentence was by him approved, and was answered by each of those gentlemen that the petition was presented to the President, and was duly considered by him and his advisers before the death sentence upon Mrs. Surratt was approved, and that the President and Cabinet, upon such consideration, were a unit in denying the prayer of the petition; Mr. Stanton and Mr. Seward stating that they were present.

* * * * *

"Having ascertained the fact as stated, I then desired to make the same public, and so expressed myself to Mr. Stanton, who advised me not to do so, but to rely upon the final judgement of the people."

In replying to this letter, Judge Holt very justly remarks: "It would have been very fortunate for me indeed could I have had this testimony in my possession years ago. Mr. Stanton's advice to you was, under all the circumstances of the case, most extraordinary.

* * * * *

"The asking you 'to rely upon the final judgment of the people,' and at the same time withholding from them the proof on which the judgment--to be just--must be formed, was a sad, sad mockery."

The next is a letter from ex-Attorney General Speed, dated March 30, 1873, in which he says: "After the finding of the military commission that tried the assassins of Mr. Lincoln and before their execution, I saw the record of the case in the President's office, and attached to it was a paper, signed by some of the members of the commission, recommending that the sentence against Mrs. Surratt be commuted to imprisonment for life; and according to my memory, the recommendation was made because of her sex.

"I do not feel at liberty to speak of what was said at Cabinet meetings. In this I know I differ from other gentlemen, but feel constrained to follow my own sense of propriety."

So that it is most clear from this statement of Attorney General Speed, unless he, without interest or motive, stated a most deliberate falsehood, that Judge Holt did not "withhold" or "suppress" the recommendation to mercy, but carried it with the record and "_attached to it_," as Mr. Speed says, and delivered it in the President's office. Certainly every intelligent mind will concede that this testimony of Mr. Speed utterly disposes of the charge of Andrew Johnson that Judge Holt "suppressed" or "withheld" this recommendation to mercy. If Mr. Johnson did not see it or read it when in his office, that was his neglect, his failure to perform a solemn official duty. But on this question of his having _read_ and _considered_ it, how stands the evidence? Judge Holt states that he drew his attention to it, and that Mr. Johnson read it in his presence. Judge Bingham says both Mr. Stanton and Mr. Seward stated to him that this petition had been presented to the President and was duly considered by him and his advisers before the death sentence upon Mrs. Surratt was approved. Under date of May 27, 1873, James Harlan, a former member of Mr. Johnson's Cabinet, addressed a letter to Judge Holt, in which he said: "After the sentence and before the execution of Mrs. Surratt, I remember distinctly the discussion of the question of the commutation of the sentence of death pronounced on her by the Court to imprisonment for life had by members of the Cabinet in presence of President Johnson. I can not state positively whether this occurred at a regular or a called meeting, or whether it was at an accidental meeting of several members, each calling on the President in relation to the business of his own department. The impression on my mind is, that the only discussion of the subject by members of the Cabinet, which I ever heard, occurred in the last-named mode, there being not more than three or four members present--Mr. Seward, Mr. Stanton, and myself, and probably Attorney General Speed and others--but I distinctly remember only the first two. When I entered the room, one of these was addressing the President in an earnest conversation on the question whether the sentence ought to be modified on account of the sex of the condemned. I can recite the precise thought, if not the very words, used by this eminent statesman, as they were impressed on my mind with great force at the time, and I have often thought of them since, viz.: 'Surely not, Mr. President, for if the death penalty should be commuted in so grave a case as the assassination of the head of a great nation, on account of the sex of the criminal, it would amount to an invitation to assassins hereafter to employ women as their instruments, under the belief that if arrested and condemned, they would be punished less severely than men. An act of executive clemency on such a plea would be disapproved by the government of every civilized nation on earth.'"

Judge Harlan adds that he made inquiry at the time, and "was told that the whole case had been carefully examined by the Attorney General and the Secretary of War; and that the only question raised was whether the punishment shall be reduced on account of the sex of the party condemned. I do not remember that any differences of opinion were expressed on that point."

This is indirect but very conclusive evidence that the petition was attached to the record submitted to the President and examined by the Attorney General and Secretary of War; and that the subject of the mitigation of Mrs. Surratt's sentence was considered by the President and these members of his Cabinet, because in no part of the record was there the slightest allusion to the question of clemency to Mrs. Surratt, or to any of the other convicted persons, except in the petition signed by the five members of the Court.

The next is a letter from the Rev. J. George Butler, pastor of St. Paul's Church, Washington. Under date of December 5, 1868, in describing an interview he had with President Johnson, he says: "The interview occurred during a social call upon the family of the President in the evening, a few hours after the execution.

"I had been summoned by the Government, I then being a hospital chaplain, to attend upon Atzerodt, and was present at the execution.

"Concerning Mrs. Surratt, the remarks of the President, by reason of their point and force, impressed themselves upon my memory. He said, in substance, that very strong appeals had been made for the exercise of executive clemency; that he had been importuned; that telegrams and threats had been used; but he could not be moved, for, in his own significant language, Mrs. Surratt '_kept the nest that hatched the eggs_.'

"The President further stated that no plea had been urged in her behalf, save the fact that she was a _woman_, and his interposition upon that ground would license female crime."

This harmonizes entirely with the "thought" which Secretary Harlan heard uttered with so much force by a member of the Cabinet in Mr. Johnson's presence--either Mr. Stanton or Mr. Seward--and from his language, "this eminent statesman," I take it to have been Mr. Seward.

The Rev. Mr. Butler adds: "I feel it due to a Christian soldier and personal friend (General Eakin) to make this statement, showing clearly that at the time of the execution the President's judgment wholly accorded with the judgment of the military commission; and that no appeals could then change his purpose to make 'treason odious.'"

General R. D. Mussey, under date of August 19, 1873, writes to Judge Holt:--

"In a few days after the assassination I was detailed for duty with Mr. Johnson and acted as one of his secretaries, and was an inmate of his household until some time in the fall of 1865.

"About the time the military court that tried Mrs. Surratt concluded its labors, I was, if I remember aright, for some days the only person acting as private secretary at the White House, my associate being absent on a visit.

"On the Wednesday previous to the execution (which was on Friday, July 7, 1865), as I was sitting at my desk in the morning, Mr. Johnson told me that he was going to look over the findings of the Court with Judge Holt, and should be busy and could see no one. I replied, 'Very well, sir, I will see that you not interrupted,' or something to that effect, and continued my work. I think it was two or three hours after that that Mr. Johnson came out of the room where he had been with you, and said that the papers had been looked over and a decision reached. I asked what it was. He told me, approval of the findings and sentence of the Court; and he then gave me the sentences as near as he remembered them, and said that he had ordered the sentence where it was death to be carried into execution on the Friday following. I remember looking up from my desk with some surprise at the brevity of this interval, and asking him whether the time wasn't rather short. He admitted that it was, but said that they had had ever since the trial began for 'preparation'; and either then or later on in the day spoke of his design in making the time short, so that there might be less opportunity for criticism, remonstrance, etc. I do not pretend to use his precise language as to this, but the purport of it was that 'it was a disagreeable duty, and there would be endeavors to get him not to perform it, and he wished to avoid them as much as possible.' ... I am very confident, though not absolutely assured, that it was at this interview Mr. Johnson told me that the Court had recommended Mrs. Surratt to mercy on the ground of her sex (and age, I believe). But I am certain he did so inform me about that time; and that he said he thought the grounds urged insufficient, and that he had refused to interfere; that if she was guilty at all, her sex did not make her any the less guilty; that he, about the time of her execution, justified it; that he told me there had not been women enough hanged in this war."

This evidence would seem to establish most conclusively that the "petition" was not only attached to the record, and delivered by Judge Holt at the President's office in the Executive Mansion, but that he read the same and afterward considered and discussed it with at least three members of his Cabinet; and intelligent charity can reach no further than to say that President Johnson, when he charged Judge Holt with having withheld this recommendation to mercy when he delivered the record of the trial at the President's Mansion, made a cruel and untruthful charge; and that when he asserted in 1873 that he had not seen, read, or heard of this recommendation to mercy, at the time he approved the sentences on the 5th day of July, 1865, had forgotten the facts--that his "forgettery" was much better than his memory.

One of the main points in President Johnson's response to this evidence was that in the published volume of the record of the trial of the assassins, prepared by Mr. Ben. Pittmann, of Cincinnati, under my official supervision, this recommendation to mercy does not appear. There is no force in this. The petition or recommendation to mercy constituted properly no part of the official record of the trial. Mr. Pittmann, who had his desk and place in my office at the War Department, was one of the official stenographers of the court, and had special charge and custody of the record from day to day. The other reporters sent in to him their portions of the testimony as they were written up, and thereafter he was responsible for them. My recollection is also that as the testimony was written up a press copy was made of it, which he (Mr. Pittmann) took with him to Cincinnati, and used, after he had received permission from the War Department to publish.

The commission met with closed doors at 10 A. M. on the 29th of June to consider its findings, and continued and concluded its labors with closed doors on the 30th. From these meetings all stenographic reporters were excluded. The findings and sentences, when finally made and recorded, were handed to me to be attached to the record, or to go with the record to the Judge Advocate General's office, as was then the course of procedure. By the oath administered, all the members of the commission, as well as the Judge Advocates, were bound not to reveal those findings and sentences. I therefore retained them in my possession, instead of passing them on to the stenographers. When the recommendation to mercy was drawn, and signed by five members of the commission, that was also handed to me to accompany the findings.

Mr. Pittmann never saw, I presume, either the original findings or the recommendation to mercy, and the first knowledge he had of the former doubtless was after they were promulgated by the Adjutant General on the 5th day of July. This is evidenced by the fact that the Adjutant General, in promulgating the proceedings, took Mrs. Surratt's name from the position it occupies in the records, and placed it next that of Payne, evidently for the purpose of grouping together the four persons condemned to death. Mr. Pittmann gives the findings and sentence in the order promulgated by the Adjutant General--that is to say, he places the findings and sentence in Mrs. Surratt's case next after that of Lewis Payne; while the Court, in making up its findings, followed the order named in the charge and specifications, where Mrs. Surratt's name follows that of Samuel Arnold.

When I reached my office at the War Department on the 30th--possibly on the morning of the 1st of July--I attached the petition or recommendation to mercy of Mrs. Surratt to the findings and sentence, and at the end of them, and then directed some one--probably Mr. Pittmann--to carry the record of the evidence to the Judge Advocate-General's office. I carried the findings and sentences and the petition or recommendation and delivered them to the Judge Advocate General in person or to the clerk in charge of court-martial records. Before leaving the War Department I may have attached these findings and sentences and petition to the last few days of testimony, and carried that to the Judge Advocate General's office. I never saw the record again until many years after--I think in 1873 or 1874.

I left Washington several days before, and was not there on the day of the execution. My recollection is, that I left there either on the evening of the 5th or on the morning of the 6th of July. On the 5th day of July, when Judge Holt had his conference with President Johnson over the record and proceedings of the military commission, when the President considered and passed upon the findings and sentences of the accused persons, after that interview Judge Holt came directly to Mr. Stanton's office in the War Department. I happened to be with Mr. Stanton as Judge Holt came in. After greetings, the latter remarked, "I have just come from a conference with the President over the proceedings of the military commission." "Well," said Mr. Stanton, "what has he done?" "He has approved the findings and sentence of the Court," replied Judge Holt.

"What did he say about the recommendation to mercy of Mrs. Surratt?" next inquired Mr. Stanton. "He said," answered Judge Holt, "that she must be punished with the rest; that no reasons were given for his interposition by those asking for clemency, in her case, except age and sex. He said her sex furnished no good ground for his interfering; that women and men should learn that if women committed crimes they would be punished; that if they entered into conspiracies to assassinate, they must suffer the penalty; that were this not so, hereafter conspirators and assassins would use women as their instruments; it would be mercy to womankind to let Mrs. Surratt suffer the penalty of her crime." After some futher conversation, and after making known to Mr. Stanton that the President had fixed Friday, the 7th, as the day of execution, Judge Holt left. In giving the above conversation I cannot say that I have given the exact words; but the substance of what Judge Holt said I know I have given. It is indelibly impressed upon my memory. This conversation, while it does not constitute legal evidence of the fact of President Johnson's consideration of the recommendation to mercy, has always been a circumstance strong and convincing to my mind that President Johnson's charge was totally false. It showed that Mr. Stanton had knowledge of the recommendation--probably had examined the record in the four or five days which had intervened since the trial. As Secretary of War he was at that time daily--almost hourly--in consultation with the President over the disbandment of the military forces; the occupation by the army of the rebel States; the powers and duties of officers there, and the innumerable questions semi-military in character arising out of the chaotic political and social condition of the rebel States; and they could hardly have come together at that time without the question of the conviction and execution of the assassins coming up. The circumstances of the assassination, the plot or conspiracy to assassinate President Lincoln and his Cabinet, the Vice President himself, and General Grant; who were concerned in it; the evidence submitted to the Court, the weight given to it by the Court, and the conclusion reached by the Court, were matters in which the President and the Secretary of War could not fail to take, and, as is well known, did take the deepest possible interest. It is past human credulity to believe that they would thus come together during the time intervening between the conclusion of the trial on the 30th day of June and the execution of the sentences on the 7th of July, and the result of the trial, together with the recommendation to mercy, not be discussed between them. It is inconceivable to me that Judge Holt, even if he were so malicious and murderous in purpose, could be so reckless and foolish in execution of such purpose as to withhold from and try to conceal from President Johnson this recommendation to mercy, when the fact of its existence was known to Mr. Stanton, and was so certain to be made known to the President by him, and its contents discussed between them.

The historian in passing judgment upon this event, and in weighing evidence as to the truth or falsity of this charge made by President Johnson, will take into consideration the mental characteristics and moral fibre of the two men, and what adequate motive there was actuating one occupying the exalted position of President Johnson to make the charge, or of Judge Holt to commit so wicked and cruel a wrong.

Andrew Johnson's mental make-up is well known to the officers of the old Union army, and to the American people. His life, his acts, and his speeches are still remembered, and the public judgment formed and registered. I do not propose here to-night to take your time in going into a statement or discussion of this subject. It is sufficient to say that he was endowed by nature with more than ordinary intellectual abilities, and that he had risen from the lowest walks of life by the vigor of his own will, energy, and mental power, through many intermediate places of honor and trust, to the second place in the gift of the American people--the Vice-Presidency of the United States. He was a man of controlling prejudices and strong personality. He was ambitious, bold, hot-tempered, obstinate, and in the achievement of the ends and aims he sought--right ends and aims he may have thought them--he was unscrupulous in the means he used. This is well illustrated in the instance given by General Sheridan in his memoirs of President Johnson's treatment of him while he was in command of New Orleans in 1866.

You will recall the intense feeling aroused throughout the country by the wanton and bloody massacre of the convention assembled at New Orleans, on the 30th of July, that year, to remodel the constitution of that State. General Sheridan had been absent several days in Texas, and was returning, when the riot occurred. He reached New Orleans August 1st, made an investigation, and on the same day sent the following telegraphic report to General Grant:--

"You, are doubtless aware of the serious riot which occurred in this city on the 30th. A political body styling themselves the 'Convention of 1864,' met on the 30th for, as it alleged, the purpose of remodeling the present constitution of the State. The leaders were political agitators and revolutionary men, and the action of the convention was liable to produce breaches of the public peace. I had made up my mind to arrest the head men if the proceedings of the convention were calculated to disturb the tranquility of the department, but I had no cause for action until they committed some overt act. In the meantime official duty called me to Texas, and the mayor of the city, during my absence, suppressed the convention by the use of the police force, and in so doing attacked the members of the convention and a party of two hundred negroes with fire-arms, clubs, and knives, in a manner so unnecessary and atrocious as to compel me to say that it was murder. About forty whites and blacks were thus killed, and about one hundred and sixty wounded. Everything is now quiet, but I deem it best to maintain a military supremacy in the city for a few days, until the affair is fully investigated. I believe the sentiment of the general community is great regret at this unnecessary cruelty, and that the police could have made any arrest they saw fit without sacrificing lives.

"P. H. SHERIDAN, _Major General commanding_."

General Sheridan adds: "On receiving the telegram, General Grant immediately submitted it to the President. Much clamor being made at the North for the publication of the despatch, President Johnson pretended to give it to the newspapers. It appeared in the issues of August 4th, but with this paragraph omitted, viz.:--

"'I had made up my mind to arrest the head men, if the proceedings were calculated to disturb the tranquilty of the department, but I had no cause for action until they committed some overt act. In the meantime official duty called me to Texas, and the mayor of the city, during my absence, suppressed the convention by the use of the police force, and in so doing attacked the members of the convention and a party of two hundred negroes with fire-arms, clubs, and knives, in a manner so unnecessary and atrocious as to compel me to say it was murder.'"

* * * * *

General Sheridan adds: "Against this garbling of my report, done by the President's own order, I strongly demurred, and this emphatic protest marks the beginning of Mr. Johnson's well-known personal hostility toward me."

It will be observed that the omission of this portion of the despatch--this "garbling," done by President Johnson's own order--changes its whole tenor and meaning; made General Sheridan say exactly contrary to what he did in fact say. Omitting the part struck out, and connecting the two sentences that come together, the President made the despatch read: "The leaders were political agitators and revolutionary men, and the action of the convention was liable to produce breaches of the public peace. About forty whites and blacks were _thus_ killed, and about one hundred and sixty wounded."

Observe--this makes General Sheridan say that the action of the convention was liable to produce breaches of the public peace, and thus,--in this wise,--about forty whites and blacks were killed and about one hundred and sixty wounded. General Sheridan said nothing of the kind--nothing in the whole despatch had any such implication or meaning. What he did say was that the mayor of the city "suppressed the convention by the use of the police force, and in so doing attacked the members of the convention and a party of two hundred negroes with fire-arms, clubs, and knives, in a manner so unnecessary and atrocious as to compel me to say that it was murder"; and "thus" by this means, by this mayor and his police, about forty whites and blacks were killed and about one hundred and sixty wounded.

Is it too much to say that a man who could do this wrong to General Sheridan,--could mutilate and corrupt a despatch so as to cause him to make a false report about a people over whom he was placed in government; to cause him to state falsely the facts and circumstances about an event in which forty persons had lost their lives, and one hundred and sixty had been grievously wounded,--would hesitate to state a falsehood about Judge Holt? Is it too much to say that a man who could do this, and then try to mislead and deceive the people of the United States as to this tragic event, about which they were clamoring to know the truth, perpetrating a lie upon them by mutilating and corrupting a despatch and promulgating it as the true one, would hesitate to deceive the people about the fact as to whether he did or did not see the recommendation to mercy of Mrs. Surratt? Is it not fair to say that he was of such mental structure and moral fibre as to do this wrong?

And now the motive:--

It is known of all men that Andrew Johnson had only fairly settled himself in the presidential chair of the great Lincoln, before he began to dream, to scheme, and to intrigue for an election by the people to that office.

The presidential bee was buzzing under the accidental presidential hat. The Southern leaders, clever diplomats and long-headed politicans as they are, soon took the measure of the man, and began to consider how best they could use him, and his ambition for their own purposes. It was noticed that Andrew Johnson had not been many months in the White House before there was a decided change in the style and type of visitors passing in and out under the great white portico. The men of the North,--the old "Union Republican group" of the House and Senate that were daily visitors there in the days of Lincoln, began to find the atmosphere of the White House less kind and congenial; there was a lack of warmth in the welcome, and a constraint in talk and exchange of ideas, progressing gradually to actual antagonism over the questions of amnesty, reconstruction, and constitutional guarantees to the freedmen. Then the Northern men dropped away; seemed not to go there any more. Men from the South who but lately had borne arms against the government, and who had not yet taken the oath of allegiance, were found plentiful about the White House, and apparently basking in the sunshine of presidential favor, as in the rays of a southern sun. It became the reign of the unreconstructed and unreconciled. Somebody had whispered loud enough for Mr. Johnson to hear,--perhaps the bee buzzed it,--that if the Southern States could be reconstructed previous to the presidential convention of 1868, and he (President Johnson) should be found friendly and faithful to the South in that work, there were fifteen Southern States whose electoral votes might be found solid for him as the Democratic nominee, and he would only need the votes of two or three Northern States in addition to carry off the nomination. You know how the poison took--how from the most radical of Union Republicans he became the most extreme--the leader--of the "strictest sect" of the Democrats; how the words "treason should be made odious," "traitors should take back seats," "a few traitors should be hung," with which his mouth was filled when elected, and were still sounding in the air when he sat down in Lincoln's vacant chair, had hardly died away before he had turned against and upon all those who had upheld the Union cause--all his old Union friends; how he fought the Congress with a bitterness and a boldness unparalleled in history. He took issue with it on every measure by which the Congress sought to fix in statute and in the fundamental law what the sword had achieved, what war had enacted. Thus he stood.

And now turning to Mrs. Surratt and her case. Over her execution a great clamor was raised throughout the country, not only by those who were lately in rebellion, and those in the North who were in sympathy with that rebellion, but almost universally by the Roman Catholics of the country, she being a member of that Church, they believing her innocent and a martyr. Mr. Johnson heard this clamor, and "his startled ambition grew sore afraid." He bethought him of some means to turn this wrath away from himself. The press kept referring to the fact that a recommendation to mercy had been signed by a majority of the Court; and his new friends and allies were calling upon him with a loud voice to know why he had not heeded the appeal for mercy, and saved this hapless woman. His fears whispered that the storm might grow so fierce and strong as to sweep away his carefully constructed political fabric. How could he turn away this wrath and clamor? How turn the fury of the storm? Were here not motive and interest enough? He doubtless remembered that, when he examined the record, he and Judge Holt had been alone. How easy to shift the blame, to turn the storm of wrath and execration upon another head by having it circulated that the recommendation had been suppressed by Judge Holt, and that he had never seen nor heard of it up to the time of the execution! Here was a sufficient motive--the motive of ambition--the motive which, as we have seen, changed the whole nature of the man,--changed his political thought and attitude--spoiled the purpose of his life.

Of Judge Holt's life little need be said. Born and reared in Kentucky, of the best blood of the State, he had achieved fame and stood in the front rank with the great lawyers and orators of that State before the rebellion began, and before he was called to the Cabinet of James Buchanan, first, as Postmaster-General, and afterward as Secretary of War, to fill the place made vacant by the retirement of the traitor John B. Floyd. Judge Holt was a man of collegiate education, a student and a scholar of wide and varied reading, and a rhetorician and logician second to few men in the country. Of the next generation after Henry Clay, he was of the time and type in intellectual grasp and power of the Marshalls, the Breckinridges, and the Crittendens of that State. He breathed in the spirit of loyalty, patriotism, and love of the Union of Clay, and never doubted, never swerved in giving all his powers--in dedicating his life to the work of saving the Union. It is related by the historian that at one of the Cabinet meetings of President Buchanan, when several of the Southern secretaries were still occupying their places and were boldly demanding that the forts at Charlestown should be evacuated, and Mr. Buchanan was too weak to take a position against them, Mr. Stanton, who had been called to fill the office of Attorney General, sprang to his feet and said, "Mr. President, it is my duty, as your legal adviser, to say that you have no right to give up the property of the government, or abandon the soldiers of the United States to its enemies, and the course proposed by the Secretary of the Interior, if followed, is treason, and will involve you and all concerned in treason!" For the first time in this Cabinet treason had been called by its true name. Floyd and Thompson, who had had everything their own way, sprang fiercely to their feet, while Mr. Holt sprang to Mr. Stanton's side, indorsing his utterances, and ready to uphold him in any struggle. Mr. Buchanan begged that there would be no violence, and for the gentlemen to resume their seats. Thus bolstered by Mr. Stanton and Judge Holt, the President determined not to withdraw Major Anderson. Soon after this meeting, Floyd resigned, and Judge Holt was appointed Secretary of War in his place.

Save this charge of Andrew Johnson, no stain or blot, nor the least spot or soilure, has ever rested on the fair name and fame of Joseph Holt. For the last year or two of the war I was brought in close official and personal relations with him. I learned to know him well. He was most refined and sensitive in his nature, gentle and kindly in his intercourse, and in all his relations with those about him, pure in his private life, exalted in his ideas and ideals, dignified, and courtly in his bearing, yet always thoughtful, considerate, and courteous. He had traveled much, read much, and held as his friends, strongly attached to him, the best men of the land. I can now as little associate him in my mind with the commission of a dishonorable action as any man I have ever known.

One of the interesting episodes connected with this charge against Judge Holt is his appeal to Mr. Speed, Mr. Lincoln's Attorney General, to "speak out" and state the fact whether or not the recommendation to mercy was before President Johnson and his Cabinet, and considered by them. The correspondence between Judge Holt and Mr. Speed is published in the _North American Review_ for July, 1888. It will be remembered that Mr. Speed, in his letter to Judge Holt of March 30, 1873, had said:--

"After the finding of the military commission that tried the assassins of Mr. Lincoln, and before their execution, I saw the record of the case in the President's office, and attached to it was a paper, signed by some of the members of the commission, recommending that the sentence against Mrs. Surratt be commuted to imprisonment for life; and according to my memory the recommendation was made because of her sex."

As I have heretofore said, this settled, so far as the testimony of James Speed could settle it, that the charge of Andrew Johnson that Judge Holt had withheld the recommendation to mercy was false. It settled the fact that previous to the execution the recommendation to mercy was in the President's office, and was attached to the record. But in this letter Mr. Speed added: "I do not feel at liberty to speak of what was said at Cabinet meetings. In this case I know I differ from other gentlemen, but feel constrained to follow my own sense of propriety."

Judge Holt had learned, through the statements of Mr. Seward and Mr. Stanton to Judge Bingham, that the recommendation to mercy had been presented to the President, and had been considered by him and members of the Cabinet before the execution. But when this information came to him, both Mr. Seward and Mr. Stanton were dead, and the statement of Judge Bingham of what they told him was secondary evidence; and Judge Holt was anxious, therefore, to get the direct evidence of Mr. Speed that his recommendation was, to his personal knowledge, before Mr. Johnson and his Cabinet, and considered by them. His appeals to Mr. Speed are pathetic in the earnestness and depth of feeling they reveal. What could be more profoundly sorrowful or touching than this, in his letter of April 18, 1883: "Allow me to add that we are now, each of us, far advanced in years, so that whatever is to be done for my relief should be done quickly. While, however, it is sadly apparent that I can remain here but a little while longer, I have not been able to bring myself to the belief that you will suffer the closing hours of my life to be darkened by a consciousness that this cloud, or even a shred of it, is still hanging over me--a cloud which can be dissipated at once and forever by a single word spoken by yourself in defense of the truth and in rebuke of a calumny, the merciless cruelty of which none can better understand than yourself. I make this final appeal to your honor as a man to do me the simple justice, which, under the same circumstances, I would render to you at once and joyfully."

But Mr. Speed would not speak--finally saying, in his letter of October 25, 1883, "After very mature and deliberate consideration, I have come to the conclusion that I cannot say more than I have." Neither would he enter into consideration or discussion of his determination not "to speak of what was said at Cabinet meetings." It seems to me that Judge Holt was right and Mr. Speed was wrong in their relative positions upon this question. In his letter of April 18, 1883, addressed to Mr. Speed, to which I have referred, Judge Holt forcibly presents his view: "You were a member of his (President Johnson's) Cabinet, and I have the strongest reasons for believing that this atrocious accusation is known to you to have been false in its every intendment. It originated with President Johnson, and for years was industriously circulated by his unscrupulous abettors, though he did not dare make open proclamation of it until he felt assured, through your letter of the 30th of March, 1873, that no damaging disclosures were to be apprehended from yourself.... The question whether a President of the United States, as a craven refuge from accountability for official action, did seek to blacken the reputation of a subordinate officer holding a confidential interview with him, is in no just sense a private question; it is essentially a public one, which concerns the whole country, and one of which the country may well expect to speak, seeing that you were a member of that President's Cabinet, at the time of this disgraceful transaction. Your unwillingness thus to speak of it in 1873, seemed to have arisen from an exaggerated estimate of a rule which once prevailed with regard to the inviolability of Cabinet councils and secrets. But whatever may have been, in the remote past, the recognized force of this rule, the frequent and conspicuous disregard of it during the last two decades, by statesmen of the highest probity and rank, leaves the impression that the rule itself has lived its day and is now practically dead and inoperative. Waiving, however, this view, it is clear to me that, were the rule accepted as now binding in its utmost rigor, it could have no application to this case. I can not be misled in supposing that the relations between the President and the Cabinet are relations of honor, and that, therefore, they cannot be held to oblige any member of his Cabinet to protect, by his concealment, and thus become a moral accomplice in it--any criminal or wrongful act into which the President may be drawn by a guilty ambition, or by any other unworthy passion or purpose. In a word, the rule never has been and never should be so construed as to become a shelter for perjury or crime.

"Your associates in the Cabinet,--Messrs Seward and Stanton,--condemning the rule by which I have been so long victimized, declared the truth fully to Judge Bingham, as he has so forcibly set forth in his letter to which you are referred."

But, as I have said, Mr. Speed would not speak. I can only account for it by the life, circumstances, and education of the man. In the old slave States, in the _ante-bellum_ days, there existed many of the ideas, traditions, and rules of personal conduct of the feudal times. Things touching personal honor, or trusted to it, or that partook of the knightly and chivalrous, were esteemed above common right, common honesty, or common sense. Restrained by these limitations of birth and tradition, and controlled by his chivalrous idea of not revealing what he regarded as Cabinet secrets, Mr. Speed would not speak, even to save a public officer from a great wrong, or his personal friend from a calumny which he knew would walk beside him, shadowing and embittering a life, noble and void of wrong, down to its close. In this I think the judgment of mankind will be that he erred. He knew that this charge of Andrew Johnson was a cruel falsehood. Not only what he said, but what he refused to say, proves this. His letter of March 30, 1873, states that he saw the record, with the recommendation attached to it, in the President's office before the execution. Judge Holt did not, therefore, "withhold," as the President alleged. But, stronger than this, and conclusive, I believe, in the mind of every honest and unprejudiced man, were Mr. Speed's utterances, less than two years ago, at a meeting of the Loyal Legion at Cincinnati. Mr. Speed read a paper at the meeting of this society, held there on the 4th of May, 1887, in which he said:--

"Only the group of fiends who stilled the pulsations of Lincoln's great heart, paid the penalty of the crime. A maudlin sentiment has sought to cast blame on the officials who dealt out justice to these. One in particular is my distinguished friend, the then Judge Advocate General of the army. Judge Holt performed his duty kindly and considerately. In every particular he was just and fair. This I know; but Judge Holt needs no vindication from me nor any one else. I only speak because I know reflections have been made, and because my position enabled me to know the facts, and because I know the perfect purity and uprightness of his conduct." Could any words say in stronger form, he knew that in this matter Judge Holt did his whole duty, and that President's Johnson's charges were false? Could he have said, "In every particular he was just and fair, this I know," if he did not _know_ and intended to say that he knew Judge Holt did his whole duty and had presented this recommendation to mercy to President Johnson? But what he refused to say is as strongly convincing to my mind of the fact that the recommendation to mercy was, to his knowledge, duly brought to the President's attention, and was read and considered by him and members of his Cabinet, as anything he has affirmatively stated.

He was asked by Judge Holt to state whether this paper was or was not before President Johnson and his Cabinet. He refused to answer "because he did not feel at liberty to speak of what was said at Cabinet meetings." If nothing was said about the recommendation, if no such paper ever came before the Cabinet, might he not have so stated; might he not have said, "No such matter ever came before the Cabinet?" This would not reveal any Cabinet secret, would come nowhere near the limitations he had prescribed for himself "not to speak of what was said at Cabinet meetings."

Is it not the inevitable logical conclusion that it was because of this knowledge that this recommendation had been before, and had been discussed by, the President and his Cabinet, and his determination "not to speak of what was said at Cabinet meetings," that he would not speak?

But, finally, my friends, has not the faith of Judge Holt been realized? Has not time caused the truth to shine forth and his innocence to appear? In 1873, he said: "An abiding faith, however, remains with me that the public will do these witnesses justice, and myself, also; and that if truth has power to disarm the cloud of calumny of its lightnings, that then, standing in their presence and under their shelter, I may well feel that for the future this cloud can have no terrors for me."

Saith an old poet:--

"... I have ever thought Nature doth nothing so great for great men As when she's pleased to make them lords of truth. Integrity of life is fame's best friend, Which nobly beyond death shall crown the end."

FOOTNOTES:

[1] "Life of Lincoln," by Nicolay and Hay, _Century Magazine_, pp. 431-32.

[2] The evidence before the Commission left Booth and Herold, from the time they left Dr. Mudd's until they arrived at Port Conway, unaccounted for. I am indebted to articles in the _Century Magazine_, by George A. Townsend, Major Ruggles, and Lieutenant Bainbridge, for the ability to fill up this interval, and to General Baker's "History of the Secret Service," for facts connected with the capture, death, and burial of Booth.--AUTHOR.

[3] Conspiracy Trial, pp. 29, 30, testimony of Conover; also p. 36, testimony of Dr. Merritt; also p. 25, testimony of Montgomery.

[4] The archives of the rebel war department reveal the fact that the powder was placed under the Libby Prison by order of Davis and Seddon, sanctioned by a committee of the rebel congress.

[5] The Charles Selby letter was proven to be in the handwriting of John Wilkes Booth by experts, on comparison, on the trial of John H. Surratt.

[6] It is highly improbable that the witness would have given false testimony as to this conversation between Davis and General Breckinridge because of the certainty of its contradiction by the latter.

[7] Trial John H. Surratt, p. 468, testimony of Dr. McMillen.

[8] Official Report of the Conspiracy Trial, p. 114, testimony of L. J. Wiechmann.

[9] See Report Conspiracy Trial, pp. 114, 115 and pp. 85-87. Testimony of L. J. Wiechmann and John M. Lloyd.

[10] Official Report Conspiracy Trial, p. 115.

[11] Official Report Conspiracy Trial, p. 114.

[12] Official Report Conspiracy Trial, p. 115, and Trial of John H. Surratt, pp. 377, 378.

[13] Conspiracy Trial, p. 113. Trial of Surratt, pp. 377, 378.

[14] Trial of Surratt, pp. 385, 386.

[15] Trial Conspirators, pp. 113, 114, and Trial Surratt, 383, 384.

[16] Trial Conspirators, p. 113.

[17] Trial Conspirators, pp. 118-119. Trial Conspirators, p. 85. Testimony of John M. Lloyd.

[18] Trial Conspirators, p. 113, and Trial Surratt, pp. 391, 392.

[19] Conspiracy Trial, pp. 85, etc.

[20] See supplemental affidavit of L. J. Wiechmann, and Trial of Surratt, p. 394.

[21] Trial Conspirators, pp. 121, 122.

[22] Conspiracy Trial. Testimony for the defense and testimony in rebuttal, pp. 132, 139 inclusive.

[23] Trial of Surratt, pp. 136, 137, and pp. 186, 187, 188.

[24] Trial of Surratt, pp. 163, 164, 165.

[25] Trial of Conspirators, p. 86. Trial of Surratt, pp. 282, 283.

[26] See testimony of L. J. Wiechmann and John M. Lloyd on the trial of the conspirators and on the trial of J. H. Surratt. Also testimony of Trial Conspirators, p. 126.

[27] See testimony of John M. Lloyd, Trial Conspirators, pp. 85, 86, and testimony of Mrs. Emma Offutt, pp. 121-125, and Trial of Surratt, p. 281.

[28] See supplemental affidavit of L. Wiechmann and Trial of J. H. Surratt, p. 295.

[29] As Judge Pierrepont is now dead, I deem it best to cut out a certain statement, which I had from him, with his consent to publish it.--AUTHOR.

[30] See testimony of Father Boucher, Trial of Surratt, p. 895, and onward. Also testimony of Rev. Stephen F. Cameron, p. 793 and onward. Trial of Surratt.

[31] See p. 394, Trial of Surratt; also supplemental affidavit of L. J. Wiechmann.

[32] Testimony of L. J. Wiechmann, p. 454, Report of the trial of John H. Surratt.

[33] In a communication to a Philadelphia paper.

* * * * *

Transcriber's note:

Punctuation and spelling were made consistent when a predominant preference was found in this book; otherwise they were not changed.

Unless the correction was unambiguous, inconsistent and unbalanced (missing) quotation marks have not been changed.

Simple typographical errors were corrected.

Ambiguous hyphens at the ends of lines were retained.

Text uses "henious" almost as often as "heinous"; not changed.

Page 69; "12 M." could stand for "Midnight" or be a misprint for "A.M."

Page 91: No obvious opening quotation mark to match the closing one at the end of: and to have the assistance of counsel for his defense".

Page 198: The anchor numbers for footnotes 20 and 21 (originally 2 and 3) were printed in reverse sequence, and have been swapped here.

Page 156: Closing quotation mark added after 'put him down as a damned fool.'

Page 243: No closing quotation for: "I do not rise for the purpose ...

Page 249: Missing opening quotation mark before 'And when the facts'.

Page 292: No closing single quotation mark for "'What! would you have this great...." and the opening mark was poorly printed, so it could be something else.

Page 367: No obvious closing quotation mark for ' "if I (the witness) did not hear....'