Animus of the Judges.
OnSaturday, the 13th of May, an incident occurred which throws much light upon the judicial temper of the Court at the very beginning of the trial. On that day Reverdy Johnson appeared as counsel for Mrs. Surratt. Admitted to the bar in 1815, Senator of the United States as far back as 1845, Attorney-General of the United States as long ago as 1849, and holding the position of Senator of the United States again at that very moment; having taken the constitutional oath in all the Courts including the Supreme Court of the United States at whose bar he was one of the most eminent advocates; three years after this time to be Minister Plenipotentiary to England; as he stood there, venerable both in years and in honors, appearing at great personal and professional sacrifice, gratuitously, for a woman in peril of her life, one would have thought him secure at least from insult. Yet no sooner did he announce his intention, if the Court would permit him at any time to attend to his imperative duties elsewhere, to act as counsel, than the President of the Commission read aloud a notehe had received from one of his colleagues objecting “to the admission of Reverdy Johnson as a counsel before this Court on the ground that he does not recognize the moral obligation of an oath that is designed as a test of loyalty;” and, in support of the objection, referring to Mr. Johnson’s letter to the people of Maryland pending the adoption of the new constitution of 1864.
The following colloquy then took place:
“Mr. Johnson.—May I ask who the member of the Court is that makes that objection?“The President.—Yes, sir, it is General Harris, and, if he had not made it, I should have made it myself.“Mr. Johnson.—I do not object to it at all. The Court will decide if I am to be tried.“The President.—The Court will be cleared.“Mr. Johnson.—I hope I shall be heard.“General Ekin.—I think it can be decided without clearing the Court.“General Wallace.—I move that Mr. Johnson be heard.“The President and others.—Certainly.“Mr. Johnson.—Is the opinion here to which the objection refers?“The President.—I think it is not.”
“Mr. Johnson.—May I ask who the member of the Court is that makes that objection?
“The President.—Yes, sir, it is General Harris, and, if he had not made it, I should have made it myself.
“Mr. Johnson.—I do not object to it at all. The Court will decide if I am to be tried.
“The President.—The Court will be cleared.
“Mr. Johnson.—I hope I shall be heard.
“General Ekin.—I think it can be decided without clearing the Court.
“General Wallace.—I move that Mr. Johnson be heard.
“The President and others.—Certainly.
“Mr. Johnson.—Is the opinion here to which the objection refers?
“The President.—I think it is not.”
It was discovered, farther on, that General Harris by his own admissions had not even seen the opinion since he had read it a year ago, and that his objection, involving so grave an attack upon the moral character of so distinguished a man, was based upon a mere recollection of its contents after that lapse of time.
Naturally, the gray-haired statesman and lawyer was indignant at this premeditated insult. In his address to the Court he repudiated with scorn the interpretation put upon his letter by his accuser. He explained the circumstances under which the opinion was delivered; that the Maryland Convention had prescribed an oath to the voter which they had no right to exact; “and all that the opinion said, or was intended to say, was, that to take the oath voluntarily was not a craven submission to usurped authority, but was necessary in order to enable the citizen to protect his rights under the then constitution; and that there was no moral harm in taking an oath which the Convention had no authority to impose.”
Among other things he said:
“There is no member of this Court, including the President, and the member that objects, who recognizes the obligation of an oath more absolutely than I do; and there is nothing in my life, from its commencement to the present time, which would induce me for a moment to avoid a comparison in all moral respects between myself and any member of this Court.“If such an objection was made in the Senate of the United States, where I am known, I forbear to say how it would be treated.“I have lived too long, gone through too many trials, rendered the country such services as my abilities enabled me, and the confidence of the people in whose midst I am has given me the opportunity, to tolerate for a moment—come from whom it may—such an aspersion upon my moral character. I am glad it is made now, when I have arrived at that period of life when it would be unfit to notice it in any other way.“I am here at the instance of that lady (pointing to Mrs. Surratt) whom I never saw until yesterday, and never heard of, she being a Maryland lady; and thinking that I could be of service to her, and protesting as she has done her innocence to me—of the facts I know nothing—because I deemed it right, I deemed it due to the character of the profession to which I belong, and which is not inferior to the noble profession of which you are members, that she should not go undefended. I knew I was to do it voluntarily, without compensation; the law prohibits me from receiving compensation; but if it did not, understanding her condition, I should never have dreamed of refusing upon the ground of her inability to make compensation.”
“There is no member of this Court, including the President, and the member that objects, who recognizes the obligation of an oath more absolutely than I do; and there is nothing in my life, from its commencement to the present time, which would induce me for a moment to avoid a comparison in all moral respects between myself and any member of this Court.
“If such an objection was made in the Senate of the United States, where I am known, I forbear to say how it would be treated.
“I have lived too long, gone through too many trials, rendered the country such services as my abilities enabled me, and the confidence of the people in whose midst I am has given me the opportunity, to tolerate for a moment—come from whom it may—such an aspersion upon my moral character. I am glad it is made now, when I have arrived at that period of life when it would be unfit to notice it in any other way.
“I am here at the instance of that lady (pointing to Mrs. Surratt) whom I never saw until yesterday, and never heard of, she being a Maryland lady; and thinking that I could be of service to her, and protesting as she has done her innocence to me—of the facts I know nothing—because I deemed it right, I deemed it due to the character of the profession to which I belong, and which is not inferior to the noble profession of which you are members, that she should not go undefended. I knew I was to do it voluntarily, without compensation; the law prohibits me from receiving compensation; but if it did not, understanding her condition, I should never have dreamed of refusing upon the ground of her inability to make compensation.”
General Harris, in reply, insisted that the remarks of Mr. Johnson, explanatory of the letter, corroborated his construction. “I understand him to say that the doctrine which he taught the people of his state was, that because the Convention had framed an oath, which was unconstitutional and illegal in his opinion, therefore it had no moral binding force, and that people might take it and then go and vote without any regard to the subject matter, of the oath.”
Mr. Johnson, interrupting, denied having said any such thing. General Hunter, thereupon, to help his colleague out, had the remarks read from the record. Mr. Johnson assenting to the correctness of the report, General Harris continued: “If that language does not justify my conclusion, I confess I am unable to understand the English language;” and then repeated his construction of the letter.
After he had concluded, Mr. Johnson endeavored to show the author of “Calvinism Vindicated” that he did not understand the English language, by pointing out the distinction between stating “there was no harm in taking an oath, and telling the people of Maryland that there would be no harm in breaking it after it was taken.” Again repelling the misconstruction attempted to be put upon his words, he proceeded to open a new line as follows:
“But, as a legal question, it is something new to me that the objection, if it was well founded in fact is well founded in law. Who gives to the Court the jurisdiction to decide upon the moral character of the counsel who may appear before them? Who makes them the arbiters of the public morality and professional morality? What authority have they, under their commission, to rule me out, or to rule any other counsel out, upon the ground, above all, that he does not recognize the validity of an oath, even if they believed it?”
General Harris, in rejoinder, stated that under the rules adopted by the Commission gentlemen appearing as counsel for the accused must either produce a certificate of having taken the oath of loyalty or take it before the Court, and that therefore the Court had a right to inquire whether counsel held such opinions as to be incompetent to take the oath. He then expressed his gladness “to give the gentleman the benefit of his disclaimer. It is satisfactory to me, but it is, I must insist, a tacit admission thatthere was some ground for the view upon which my objection was founded.”
Mr. Johnson closed this irritating discussion by saying:
“The order under which you are assembled gives you no authority to refuse me admission because you have no authority to administer the oath to me. I have taken the oath in the Senate of the United States—the very oath that you are administering; I have taken it in the Circuit Court of the United States; I have taken it in the Supreme Court of the United States; and I am a practitioner in all the Courts of the United States in nearly all the States; and it would be a little singular if one who has a right to appear before the supreme judicial tribunal of the land, and who has a right to appear before one of the Legislative departments of the Government whose law creates armies, and creates judges and courts-martial, should not have a right to appear before a court-martial. I have said all that I proposed to say.”
The President of the Court, who had already made himself a party to this gross insult to a distinguished counsel—as if disappointed that the affair was about to end so smoothly—here burst out:
“Mr. Johnson has made an intimation in regard to holding members of this Court personally responsible for their action.“Mr. Johnson.—I made no such intimation; did not intend it.“The President.—Then I shall say nothing more, sir.“Mr. Johnson.—I had no idea of it. I said I was too old to feel such things, if I even would.“The President.—I was going to say that I hoped the day had passed when freemen from the North were to be bullied and insulted by the humbug chivalry; and that, for my own part, I hold myself personally responsible for everything I do here. The Court will be cleared.”
“Mr. Johnson has made an intimation in regard to holding members of this Court personally responsible for their action.
“Mr. Johnson.—I made no such intimation; did not intend it.
“The President.—Then I shall say nothing more, sir.
“Mr. Johnson.—I had no idea of it. I said I was too old to feel such things, if I even would.
“The President.—I was going to say that I hoped the day had passed when freemen from the North were to be bullied and insulted by the humbug chivalry; and that, for my own part, I hold myself personally responsible for everything I do here. The Court will be cleared.”
On reopening, the Judge-Advocate read a paper from General Harris withdrawing his objection because of Mr. Johnson’s disclaimer. General Wallace remarked that it must be known to every member of the Commission that Mr. Senator Johnson had taken the oath in the Senate of the United States. He therefore suggested that the requirement of his taking the oath be dispensed with.
“The suggestion was acquiesced in,nem. con.“Mr. Johnson.—I appear, then, as counsel for Mrs. Surratt.”
“The suggestion was acquiesced in,nem. con.
“Mr. Johnson.—I appear, then, as counsel for Mrs. Surratt.”
In reviewing, at this distance of time, the foregoing scene, it is scarcely possible to realize the state of mind of a member of a tribunal claiming at least to be a court of justice, that could prompt such an onslaught—so shocking to the universal expectation of dignity and decorum, not to say absolute impartiality, in a judge.
The interpretation put upon the letter of Reverdy Johnson to his constituents by Generals Harris and Hunter was the ordinary, ill-considered, second-hand version circulated by blind party hostility. This is clearly shown by the fact that the objection of General Harris was not founded upon a recent perusal of the letter, but upon his own recollection of the impression it made in his own party circles the year before.
When, on the next Wednesday, General Harris, having in the meantime looked it up, presented a copy of the incriminated opinion, prefacing a requestthat it be made a part of the record by the sneering remark that “the Honorable gentleman ought to be very thankful to me for having made an occasion for him to disclaim before the country any obliquity of intention in writing that letter;” and, on the suggestion of General Hunter, the letter was read; every fair minded man ought to have been convinced that it was open to such a malign misconstruction only by an unscrupulous political enemy.
But suppose for a moment that their own hasty and uncharitable construction was correct, what right—what color of justification—did that give these two military Judges to make that letter of the year before the pretext for a sudden attack in open court upon such a man as Reverdy Johnson, and on the consecrated occasion of his appearing as counsel for a lady on trial for her life?
As to General Harris’ argument that the requirement of an oath gave the Commission a right to inquire whether the written opinions of a counsel chosen for a defendant, previously delivered as a party leader, were of such a character as to render him incompetent to take an oath which the Supreme Court of the United States and the Senate of the United States had recognized his competency to take; why, it is charitable to suppose—and his subsequentclaim would have been scouted as preposterous in any law-court in the world.
With regard to General Hunter, his ferocious personal defiance, hurled from the very Bench, demonstrated in a flash his preëminent unfitness for any function that is judicial even in a military sense. It is manifest that this whole attack, whether concerted or not, was not made from any conscientious regard for the sanctity of an oath, nor from any sensitive fear that Reverdy Johnson, as an oath-breaker, might contaminate the tribunal; but it was either a mere empty ebullition of party spleen, or of party hatred towards a distinguished democrat, or it was made with a deliberate design to rob a poor woman of any probable advantage such eminent counsel might procure for her.
And whether the latter terrible suspicion be well founded or not, true it is that this cruel result, notwithstanding the withdrawal of the objection, did not fail of full accomplishment.
Reverdy Johnson, though suffered to appear as counsel, was virtually out of the case. He was present only at rare intervals during the trial, and sent in his final argument to be read by one of his juniors. The Court had put its brand upon him, and to any subsequent effort of his it turned an indifferent countenance and a deaf ear. He, forsooth, had “sympathized” with the Rebellion and that was enough! His appearance worked only harm to his client, if harm could be done to onewhom the Court believed to have been also a sympathizer with rebellion, and who was already doomed to suffer in the place of her uncaptured son.
Another incident, occurring after the testimony on behalf of the prisoners had begun, will illustrate still more clearly, if possible, the mental attitude of the Court.
Among the witnesses sworn on the first day of the trial in secret session was one Von Steinacker, who, according to his own statement, had been in the Confederate Army, on the staff of Major-General Edward Johnson. He told the usual cock-and-bull story about seeing Booth in Virginia, in 1863, consorting with the rebel officers and concocting the assassination of Lincoln. At the time of his examination he was a prisoner of war, but after he had given his testimony he was discharged. The counsel for the defense knowing nothing of the witness did not cross-examine him at all. But, subsequently, they discovered that, after having once been convicted of an attempt to desert, he had at last succeeded in deserting the Union Army, and had entered the service of the Confederates; that he had been convicted of theft by a court-martial; and that his whole story was a fiction. Thereupon, as soon as possible, the counsel for Mrs. Surratt applied for the recall of the witness for cross-examination, so as to lay the basis for his contradiction and impeachment; and they embodied the facts they were ready to prove in a paper which was signed by ReverdyJohnson and the other counsel for Mrs. Surratt. This application seems to have strangely disturbed the Judge-Advocates and aroused the ire of the Court. The prosecuting officers professed to have no knowledge of the whereabouts of the witness; and General Wallace, moved from his wonted propriety, delivered himself as follows:
“I, for my part, object to the appearance of any such paper on the record, and wish to say now that I understand distinctly and hold in supreme contempt, such practices as this. It is very discreditable to the parties concerned, to the attorneys, and, if permitted, in my judgment will be discreditable to the Court.”
Mr. Clampitt, with the most obsequious deference to the Court, deprecated any such reflection upon the conduct of counsel and alluded to their duty to their unfortunate clients. But this humble apology was declared not satisfactory to the General or to the Court; and the application was not only refused but the paper was not allowed to go upon the record. However, this summary method of keeping facts out of sight availed nothing. Mrs. Surratt’s counsel had caused to be summoned as a witness, to contradict and impeach Von Steinacker, Edward Johnson, the very Major-General on whose staff the witness had sworn he had been.
General Johnson, a distinguished officer in the Confederate Army, was taken prisoner in 1864 and had been in confinement since, as such, at Fort Warren. From thence he had been brought toattend before the Commission in obedience to a subpœna issued by the Court.
On the 30th of May, he was called as a witness and appeared upon the stand to be sworn. As he stood there, in his faded uniform, bearing, doubtless, traces of the six months’ imprisonment from which he had come at the command of the Court, facing the officers of the Army he had so often encountered, and with his back turned upon the woman on whose behalf he had been summoned; General Albion P. Howe deemed it his duty as an impartial judge to make the following attack upon him.
After stating that it was well known that “the person” before the Court had been educated at the National Military Academy, and had since for many years held a commission in the U. S. Army, and had therefore taken the oath of allegiance, this gallant officer and upright judge proceeded:
“In 1861, it became my duty as an officer to fire upon a rebel party, of which this man was a member, and that party fired upon, struck down, and killed loyal men that were in the service of the Government. I understand that he is brought here now as a witness to testify before this Court, and he comes here as a witness with his hands red with the blood of his loyal countrymen, shed by him or by his assistants, in violation of his solemn oath as a man and his faith as an officer. I submit to this Court that he stands in the eye of the law as an incompetent witness, because he is notoriously infamous. To offer as a witness a man who stands with this character, who has openly violated the obligations of his oath, and his faith as an officer, and to administer the oath to him and present his testimony, is but an insult to the Court and an outrage upon the administration ofjustice. I move that this man, Edward Johnson, be ejected from the Court as an incompetent witness on account of his notorious infamy on the grounds I have stated.”
General Ekin welcomed the opportunity to distinguish himself by seconding the motion and characterizing the appearance of the witness before the Commission, “with such a character” as “the height of impertinence!” In his haste to insult a fallen foe, he seems to have forgotten that the witness had no alternative but to come.
The counsel for the prisoner humbly reminded the Court that the prosecution itself had sworn as its own witnesses men who had borne arms against the Government. The Judge-Advocate saw that the members of the Court had gone too far, and, after calling their attention to the familiar rule that the record of conviction in a judicial proceeding was the only basis of a total rejection of a witness, proceeded to provide a channel for the relief of the Court by suggesting that they could discredit the witness upon the ground stated, although they could not declare him incompetent to testify.
The assertion is confidently made that in the whole annals of English criminal jurisprudence, full as they are of instances of the grossest unfairness to persons on trial, no such outrage upon the administration of justice as the foregoing can be found. To find its parallel you must go to the records of the French Revolutionary Tribunal. What are we tothink of the complaint of a Union General, that “a rebel party” fired (first? No! but that when “it became his duty as an officer to fire upon a rebel party” the rebel party fired) back? What in Mars’ name did this warrior expect? Would he have had kinder feelings towards his brave adversary if, in response to his own volley, the Confederate General had tamely laid down his arms, or played the coward and run?
Nowadays, when the blue and the gray meet, charges of infamy are no longer heard, but the more deadly the past warfare, the greater the reciprocal respect.
However, this unprovoked assault upon an unoffending officer, powerless to repel it, although it did not result in his ejection from the Court, effectually disposed of General Johnson as a witness.
In answer to the questions of counsel he calmly gave his testimony, which exploded both Von-Steinacker and his story. Judge Bingham confined his cross-examination to eliciting the facts, that the witness had graduated from West Point, served in the U. S. Army until 1861, resigned, and joined the Confederate Army. The Court paid no attention to his direct testimony because he had fired upon Union men when they had fired upon him.
The foregoing incidents conclusively show (were any such demonstration necessary) that a Board of nine military officers, fresh from service in the field in a bloody civil war, with all the fierce prejudicesnaturally bred by such a conflict hot within their bosoms, was the most unfit tribunal possible to administer impartial justice to eight persons charged with the murder of the Commander-in-Chief of the Army to which every member of the Court belonged, committed in aid of that Rebellion which during four years of hard fighting they had helped to suppress.
The Conduct of the Trial.
Thewhole conduct of the trial emphasizes this conclusion. The Court, in weighing the evidence, adopted and acted upon the following proposition; that any witness, sworn for any of the prisoners, who had enlisted in the Confederate service, or had at any time expressed secession sentiments, or sympathized in any way with the South, was totally unworthy of credit. The Court went a step farther, and adopted the monstrous rule that participation in the Rebellion was evidence of participation in the assassination! This assertion now seems incredible, but it is fully attested by the record. At one stage of the trial, the Judge-Advocate asked a witness whether or not the prisoner Arnold had been in the military service of the rebels. General Ewing, his counsel, strenuously objected to this question on the ground, that it tended to prove the prisoner guilty of another crime than the one for which he was on trial, and thus to prejudice him in the eyes of the Court.
Judge Holt remarked: “How kindred to each other are the crimes of treason against a nation and assassination of its chief magistrate.
“The murder of the President * * * was preëminently a political assassination.
“When, therefore, we shall show, on the part of the accused, acts of intense disloyalty, bearing arms in the field against the Government, we show with him the presence of an animus towards the Government which relieves this accusation of much, if not all, of its improbability.”
He asserted that such a course of proof was constantly resorted to in criminal courts; and when General Ewing challenged him (as well he might) to produce any authorities for such a position, he called upon the indomitable Bingham to state them.
The Special Judge-Advocate responded, but he courteously, but unmistakably, shied away from his colleague’s position and put the competency of the testimony upon another ground, viz.: that where the intent with which a thing was done is in issue, other acts of the prisoner which tend to prove the intent may be given in evidence. Here he was dealing with a familiar principle, and could cite any number of cases. He then proceeded to apply his good law. How? By claiming that conspiracy to murder having been laid in the charge, “with the intent to aid the Rebellion,” that was the intent in issue here, and therefore to prove that a man was in the Rebellion went to prove that intent.
At the request of General Ewing he read the allegation which ran “in aid of the Rebellion,” and not “with intentto aid,” and the counsel pointed out that that was “an allegation of fact, and not of intent;” but the Judge insisted that it was in effect an allegation of intent—implied if not expressed.
General Ewing then replied to his adversary’s argument by showing that such an allegation was an unnecessary allegation. Conspiracy to murder and attempted murder were crimes done withintent to kill; and it was a matter of no moment in pleading to allege a general intent to aid the Rebellion. Courts had no right to violate the laws of evidence because the prosecution has seen fit to violate the laws of pleading.
Judge Bingham contended (and cited authorities) for his familiar law, and then again in applying it triumphantly asked:
“When he [Arnold] entered it (i. e., the Rebellion) he entered into it to aid it, did he not?”
“Mr. Ewing. He did not enter into that to assassinate the President.”
At this, the Assistant Judge-Advocate rising to the decisive and culminating point of his argument gave utterance to the following proposition:
“Yes: he entered into it to assassinate the President; and everybody else that entered into the Rebellion entered into it to assassinate everybody that represented the Government, that either followed the standard in the field, or represented its standard in the counsels. That is exactly why it is germane.”
And, thereupon, the Commission immediately overruled the objection. General Ewing told the exact truth, without a particle of rhetorical exaggeration, when, in the closing sentence of his argument against the jurisdiction of the Commission, he exclaimed:
“Indeed, the position taken by the learned Assistant Judge-Advocate * * * goes to this—and even beyond it—namely, that participation in the Rebellion was participation in the assassination, and that the Rebellion itself formed part of the conspiracy for which these men are on trial here.”
Throughout the whole trial, the Commission took the law from the Judge-Advocates with the unquestioning docility usually manifested by a jury on such matters in civil courts. In truth, the main function of a Judge-Advocate appears to be to furnish law to the Court, as in civil courts the main function of the Judge is to furnish law to the jury. Consequently, his exposition of the law on any disputed point—whether relative to modes of procedure, or to the competency of testimony, or even to questions of jurisdiction—instead of standing on the same level with the antagonistic exposition of counsel for the accused as an argument to be weighed by the Court against its opposite in the equal scales of decision, was at all times authoritative, like the opinion of a judge overruling the contention of a lawyer. This, surely, was bad enough for a defendant; but, what was still more fatal to his chancesof fair dealing, this habit of domination, acquiesced in by the Court on questions of law, had the effect (as is also seen in civil courts) of giving the same superior force to the expositions of questions of fact by the Judge-Advocate. And as this office combined the functions of a prosecuting officer with the functions of a judge, there could be no restraints of law, custom or personal delicacy, against the enforcement, with all the powers of reasoning and appeal at command, the conclusion of the Judge-Advocate upon the matters of fact.
In a word, the judgment of the prosecuting officer—the retained counsel for the Government, the plaintiff in the action—ruled with absolute sway, both on the law and on the facts, the judgment of the Commission; the members of which, for that matter, were also in the pay of the Government.
It may, therefore, be readily anticipated with how little impartiality the trial was conducted.
Mrs. Surratt (as did the rest of the accused) plead to the jurisdiction of the Commission on the grounds (1) that she was not and had not been in the military service of the United States, and (2) that when the crimes charged were committed the civil courts were open in Washington; both of which allegations were admitted and were notoriously true. Whatever might be the indifference with which the rights of the men to a constitutional trial may have been viewed, it was so utterly incongruous with the spirit of military jurisprudence and so unprecedented inpractice to try a woman by court-martial, that had Mrs. Surratt been alone before that Commission we venture to say those nine soldiers could not have brought themselves, or allowed the Judge-Advocate to bring them, to the overruling of her plea. As it was, however, the court-room was cleared of all save the members of the Commission and the three Judge-Advocates; and after a season of what is called “deliberation” (which meant the further enforcement of the opinion of the prosecuting officers upon the point under discussion, where necessary), the court reopened and “the Judge-Advocate announced that the pleas * * * had been overruled by the Commission.”
Mrs. Surratt (as did the other prisoners) then asked for a separate trial; a right guaranteed to her in all the civil courts of the vicinage. It was denied to her, without discussion, as a matter of course.
And yet no one now can fail to recognize the grievous disadvantage under which this one woman labored, coupled in a single trial with such culprits as Payne who confessed his guilt, and Herold who was captured with Booth.
In fact, the scheme of trial contrived by the Judge-Advocates on a scale comprehensive enough to embrace the prisoners, the Canadian exiles and the Confederate Cabinet, would not work on a trial of Mrs. Surratt alone. Of this pet plan they were highly proud and greatly enamoured. To it, everything—the rights of woman as well as man;considerations of equity and of common fairness—must be made to give way.
To the maintenance of this scheme in its integrity, they had marshalled the witnesses, and they guided the Commission with a firm hand so that not a jot or tittle of its symmetry should be marred.
This determined purpose is indicated by the starting-point they chose for the testimony.
On Friday, the twelfth, the first witness was sworn, and his name was Richard Montgomery. His testimony, as well as that of the other witnesses sworn that day, was taken in secret session, and no portion of it was allowed to reach the public until long after the trial. It was all directed to establish the complicity of the rebel agents in Canada and through them the complicity of Jefferson Davis and other officers of the “Confederacy” in the assassination. In other words, this testimony was given to prove the guilt, not of the men much less of the woman on trial, but of the men included in the charge but not on trial; and whom, as it now appears, the United States never intended to try.
To connect the defunct Confederacy in the person of its captive Chief with the murder of the President would throw a halo of romantic wickedness about the crime, and chime in with the prevalent hatred towards every human being in any way connected with the Rebellion.
This class of testimony continued to be introduced every now and then during the trial—whenevermost convenient to the prosecution—and as often as it was given the court-room was cleared of spectators and the session secret; the isolated counsel for Mrs. Surratt, utterly at a loss to imagine the connection of such testimony, given under such solemn precautions, with their own client, and knowing nothing whatever of the witnesses themselves, must have looked on in bewildered amazement, and had no motive for cross-examination.
The chief witnesses who gave this carefully suppressed evidence were spies upon the rebel agents in Canada paid by the United States, and, at the same time, spies upon the United States paid by the rebel agents.
They were, of course, ready to swear to as many conversations with these agents, both before and after the assassination, in which those agents implicated themselves and the heads of government at Richmond in the most reckless manner, as the Judge-Advocates thought necessary or advisable.
The head, parent and tutor of this band of witnesses was a man called Sanford Conover. After giving his testimony before the Commission, he went to Canada and again resumed his simulated intimacy with the Confederates there, passing under the name of James W. Wallace. An unauthorized version of his testimony having leaked out and appearing in the newspapers, he was called to account for it by his Canadian friends. He then made and published an affidavit that the person who had giventestimony before the Commission was not himself but an imposter, and at the same time also published an offer of $500 reward for the arrest of “the infamous and perjured scoundrel who secretly personated me under name of Sanford Conover, and deposed to a tissue of falsehood before the military Commission at Washington.”
Being reclaimed by the government from his Canadian perils, he appeared again before the Court after the testimony had been closed and the summing up of all the prisoners’ counsel had been completed (June 27th); when he testified that his affidavit had been extorted from him by the Confederates in Canada by threats of death at the point of a pistol. This man Conover was subsequently (in 1867) tried and convicted of perjury and sent to the penitentiary; and with him the whole structure of perjured testimony, fabricated for reward by him and Montgomery and their co-spies, fell to the ground. Secretary Seward testified before the Judiciary Committee of the House of Representatives, in 1867, that, “the testimony of these witnesses was discredited and destroyed by transactions in which Sanford Conover appeared and the evidence of the alleged complicity of Jefferson Davis thereupon failed.”
But, at the period of the trial, when the passionate desire for vengeance was at its height, any plausible scoundrel, whose livelihood depended on the rewards for wholesale perjury, and who was sure to be attracted to Washington by the scent of his favoritegame, was thrice welcome to the Bureau of Military Justice. Any story, no matter how absurd or incredible, provided it brought Jefferson Davis within conjectural fore-knowledge of the assassination, was greedily swallowed, and, moreover, was rewarded with money and employment. These harpies flocked, like buzzards, around the doors of the old Penitentiary, and all—black and white, from Richmond, from Washington and from Montreal—were eager, for a consideration, to swear that Davis and Benjamin were the instigators of Booth and Surratt. And such testimony as it was! For the most part the sheerest hearsay! The private impressions of the witness! In one instance, his recollection of the contents of a letter the witness had heard read or talked about, the signature of which, although he did not see it himself, he heard was the signature of Jefferson Davis!! Testimony wholly inadmissible under the most elementary rules of evidence, but swept before the Commission in the absence of counsel for the parties implicated and under the immunity of a secret session.
For example: a blind man, who had been, at an undated period during the war, a hanger-on around the camp at Richmond, being asked whether he had heard any conversations among the rebel officers in regard to the contemplated assassination, answered:
“In a general way, I have heard sums offered, to be paid with a Confederate sum, for any person or persons to go North and assassinate the President.”
Being pressed to name the amount and by what officers, he answered:
“At this moment, I cannot tell you the particular names of shoulder-straps, &c.“Q.—Do you remember any occasion—some dinner occasion?“A.—I can tell you this: I heard a citizen make the remark once, that he would give from his private purse $10,000, in addition to the Confederate amount, to have the President assassinated; to bring him to Richmond dead or alive, for proof.“Q.—I understood you to say that it was a subject of general conversation among the rebel officers?“A.—It was. The rebel officers, as they would be sitting around their tent doors, would be conversing on such a subject a great deal. They would be saying they would like to see his head brought there, dead or alive, and they should think it could be done; and I have heard such things stated as that they had certain persons undertaking it.”
“At this moment, I cannot tell you the particular names of shoulder-straps, &c.
“Q.—Do you remember any occasion—some dinner occasion?
“A.—I can tell you this: I heard a citizen make the remark once, that he would give from his private purse $10,000, in addition to the Confederate amount, to have the President assassinated; to bring him to Richmond dead or alive, for proof.
“Q.—I understood you to say that it was a subject of general conversation among the rebel officers?
“A.—It was. The rebel officers, as they would be sitting around their tent doors, would be conversing on such a subject a great deal. They would be saying they would like to see his head brought there, dead or alive, and they should think it could be done; and I have heard such things stated as that they had certain persons undertaking it.”
In the introduction of evidence against Mrs. Surratt, as well as the others on trial, the Judge-Advocates allowed themselves the most unlimited range.
Narrations of all sorts of events connected with the progress of the War—historical, problematical or fabulous—having no relevancy to the particular charge against her, or them, but deadly in their tendency to steel the minds of the Court against her, were admitted without scruple or hesitation.
Seven soldiers who had been prisoners of war at Libby Prison, Belle Island or Andersonville were called and testified, in all its ghastly details, to the terrible treatment they and their fellow-prisonershad undergone. Three witnesses were sworn to prove that the rebel government buried a torpedo under the centre of Libby Prison, to be fired if the U. S. troops entered Richmond. Letters found in the Richmond Archives were read, offering to rid the world of the Confederacy’s deadliest enemies, and projecting wholesale destruction to property in the North. Testimony was allowed to be given of the burning of U. S. transports and bridges by men in the Confederate service; of the raids from Canada into the United States; of the alleged plot in all its horrible features to introduce the yellow-fever into Northern cities by infected clothing, testified to by the villain who swore he did it for money. It is scarcely to be credited, yet it is a fact, that the confession of Robert Kennedy, hung in March previous for attempting to burn the City of New York, was read in evidence; as was also a letter from a Confederate soldier, detailing the blowing up of vessels by a torpedo and the killing of Union men at City Point, indorsed by a recommendation of the operator to favor.
On June 27th, after the testimony had been closed and the summing up of counsel for the defense ended, the case was reopened and there was introduced an advertisement clipped from the “Selma Dispatch” of December 1st, 1864, wherein some anonymous lunatic offered, if furnished $1,000,000, to cause the lives of Lincoln, Seward and Johnson to be taken before the first of March.
The prosecution closed its direct testimony on May 25th, reserving the right (of which we have seen they availed themselves from time to time) thereafter to call further witnesses on the character of the Rebellion and the complicity of its leaders in the assassination.
Out of about one hundred and fifty witnesses sixty-six gave testimony of that kind. Of the remaining eighty-four about fifty testified to the circumstances attending the assassination, the pursuit and capture of Booth and Herold, and the terrific assault of Payne on William H. Seward and his household. Of the remaining thirty-four there were nine whose testimony was directed to the incrimination of Mrs. Surratt.
The important witnesses against her were three soldiers testifying under the eye of their superior officers as to her non-recognition of Payne, and two informers who had turned state’s evidence to save their own necks, who connected her with Booth.
The witnesses for the defense, for the most part, were treated by the Special Judge-Advocate as virtual accomplices of the accused; and, as soon as, by a searching cross-examination, he had extorted from them a reluctant admission of the slightest sympathy with the South (as in almost every case he was able to do), he swept them aside as impeached, and their testimony as unworthy of a moment’s consideration. A former slave, who announced himself or herself as ready to give evidence against his orher former master, was a delicious morsel for the Bureau of Military Justice; and several such were sworn for the prosecution. While, on the other hand, nothing so exasperated the loyal Bingham or so astonished the Court as the apparition of an old slave-woman, summoned by the defense, eagerly endeavoring to exculpate her former master.
Several priests testified as to the good character of Mrs. Surratt as a lady and a christian, but the effect of their testimony was immediately demolished in the eyes of the Court, when, on cross-examination, although they refused to substantiate what the Judge-Advocate called “her notorious intense disloyalty,” they could not remember that they had ever heard her “utter one loyal sentiment.”
Arguments For The Defense.
Thetestimony for the several defenses of the eight accused closed on the 7th of June, and the testimony in rebuttal ended on the 14th, with the evidence of the physicians on the sanity of Payne.
Thereupon, General Ewing endeavored to extract from the Judge-Advocate an answer to the two following questions: First.—Whether his clients were on trial for but one crime, viz.: Conspiracy, or four crimes, viz.: Conspiracy, Murder, Attempt at murder, Lying in wait? and
Second.—By what statute or code of laws the crimes of “traitorously” murdering, or “traitorously” assaulting with intent to kill, or “traitorously” lying in wait, were defined, and what was the punishment affixed?
The Judge-Advocate’s reply to the first question was, in substance, that all the accused were charged with conspiring to assassinate the President and the other members of the Government named, and further, with having executed that conspiracy so far as the assassination of the President and the assault on the Secretary of State were concerned, and “to haveattempted its execution so far as concerns the lying in wait and other matters.”
Assistant Judge-Advocate Bingham added:
“The act of any one of the parties to a conspiracy in its execution is the act of every party to that conspiracy; and therefore the charge and specification that the President was murdered in pursuance of it by the hand of Booth, is a direct and unequivocal charge that he was murdered by every one of the parties to this conspiracy, naming the defendants by name.“Mr. Ewing.—I understand * * * but I renew my inquiry, whether these persons are charged with the crime of conspiracy alone, and that these acts of murdering, assaulting, and lying in wait, were merely acts done in execution of that conspiracy.“Mr. Bingham (interrupting).—And not crimes?“Mr. Ewing.—Or whether they are charged with four distinct crimes in this one charge?“Mr. Bingham.—‘Where parties are indicted for a conspiracy, and the execution thereof, it is but one crime at the common law. And that as many * * * overt acts in the execution of the conspiracy as they are guilty of, may be laid in the same count.’“Mr. Ewing.—It is then, I understand, one crime with which they are charged.“Mr. Bingham.—One crime all round, with various parts performed.“Mr. Ewing.—The crime of conspiracy.“Mr. Bingham.—It is the crime of murder as well. It is not simply conspiring but executing the conspiracy treasonably and in aid of the Rebellion.“Mr. Ewing.—I should like an answer to my question, if it is to be given: How many crimes are my clients charged with and being tried for? I cannot tell.“Mr. Bingham.—We have told you, it is all one transaction.”
“The act of any one of the parties to a conspiracy in its execution is the act of every party to that conspiracy; and therefore the charge and specification that the President was murdered in pursuance of it by the hand of Booth, is a direct and unequivocal charge that he was murdered by every one of the parties to this conspiracy, naming the defendants by name.
“Mr. Ewing.—I understand * * * but I renew my inquiry, whether these persons are charged with the crime of conspiracy alone, and that these acts of murdering, assaulting, and lying in wait, were merely acts done in execution of that conspiracy.
“Mr. Bingham (interrupting).—And not crimes?
“Mr. Ewing.—Or whether they are charged with four distinct crimes in this one charge?
“Mr. Bingham.—‘Where parties are indicted for a conspiracy, and the execution thereof, it is but one crime at the common law. And that as many * * * overt acts in the execution of the conspiracy as they are guilty of, may be laid in the same count.’
“Mr. Ewing.—It is then, I understand, one crime with which they are charged.
“Mr. Bingham.—One crime all round, with various parts performed.
“Mr. Ewing.—The crime of conspiracy.
“Mr. Bingham.—It is the crime of murder as well. It is not simply conspiring but executing the conspiracy treasonably and in aid of the Rebellion.
“Mr. Ewing.—I should like an answer to my question, if it is to be given: How many crimes are my clients charged with and being tried for? I cannot tell.
“Mr. Bingham.—We have told you, it is all one transaction.”
General Ewing, not being able to get an answer intelligible to himself to the first question, thenrespectfully asked an answer to the second: By what code or statute the crime was defined and the punishment provided?